Valdez v. State

LUMPKIN, Presiding Judge:

concur in part/dissent in part.

T1 I concur that the legal basis for Petitioner's claim was available at the time of his first application for post-conviction relief, Not only that, but it was available at trial, on direct appeal, and his petition for habeas corpus relief in the federal courts. See Valdez v. State, 900 P.2d 363 (Okl.Cr.1995); Valdez v. State, 933 P.2d 931 (Okl.Cr.1997); Valdez v. Ward, 219 F.3d 1222 (10th Cir.2000). His failure to raise the claim at those times bars future consideration of the issue. Therefore, we do not reach the merits of the claim in this subsequent Application for Post-Conviction Relief.

T2 Because of that fact, I dissent to the review of trial counsel's performance. The issue of ineffective assistance of trial counsel has been previously raised, and rejected. In his direct appeal, Petitioner argued trial counsel was ineffective for: 1) failing to challenge the State's expert's finding of competency; 2) failing to file a motion to suppress Appellant's confessions; 3) failing to request a Jackson v. Denno 1 hearing on the volun-tariness of the confessions; 4) failing to request jury instructions explaining admissions standards for extra-judicial confessions; 5) failing to request jury instructions on second degree murder and voluntary intoxication; 6) failing to investigate and present testimony to rebut the State's evidence supporting the alleged aggravators; and 7) failing to object to numerous instances of prosecutorial misconduct. Valdez v. State, 900 P.2d 363, 387-388 (Okl.Or.1995).

T3 In his first Application for Post-Conviction Relief, Petitioner alleged trial counsel was ineffective for failing to raise a Cooper 2 claim. Valdez v. State, 933 P.2d 931, 933-934 (Okl.Cr.1997). In his request to the 10th Circuit Court of Appeals for habeas relief, Appellant argued trial counsel was ineffective for: 1) failing to sufficiently challenge his competency; 2) failing to move to suppress his confessions or to request a hearing on their voluntariness; and 3) failing to request jury instructions on second degree murder and voluntary intoxication. Valdez v. Ward, 219 F.3d 1222, 1243-1245 (10th Cir.2000).

T4 During the course of the protracted litigation in this case from 1989 to the present, Petitioner has been represented by not less than four different lawyers. At each stage of the appeals process he has been represented by independent counsel, who have been experienced specialists in criminal law and procedure. Not once during this extended period of time have any of these lawyers raised the issue now presented to this Court, regardless of the fact the evidence has always been known and available to procure upon reasonable diligence.

T5 This Court has "repeatedly stated that Oklahoma's Post-Convietion Procedure Act *712 is not an opportunity to raise new issues, resubmit claims already adjudicated, or assert claims that could have been raised on direct appeal." Rojem v. State, 925 P.2d 70, 72-73 (Okl.Cr.1996) (emphasis added). Complaints concerning the performance of trial counsel are barred on post-conviction when the claim was raised on direct appeal. Patton v. State, 989 P.2d 983, 988 (Okl.Cr.1999); Darks v. State, 954 P.2d 169, 172 (Okl.Cr.1998); Hale v. State, 934 P.2d 1100, 1102 (Okl.Or.1997); Smith v. State, 878 P.2d 375, 378 (Okl.Cr.1994). Accordingly, the doctrine of res judicata bars re-litigation of the issue of ineffective assistance of counsel in this case. As that issue is barred from consideration in this subsequent Post-Conviction Application, there is no legal basis to remand this case for resentencing.

T6 The legal doctrines of waiver and res judicata have been developed through the ages to ensure finality of judgments. By disregarding binding authority, in order to assist a defendant in litigating issues already decided or waived, this Court disregards the concept of the Rule of Law. The information presented in this subsequent application for post-conviction relief has already been presented to the Governor of the State of Oklahoma to consider in the exercise of the clemency power granted to that office. That presentation was a proper part of the due process granted to the Petitioner as a part of our state law. The fact the Governor did not find that evidence sufficient to warrant clemency does not give this Court the right to use the judicial fiat, especially when that fiat disregards both statutory and case law, to override that executive decision. Even in cases where a defendant has raised the issue of notification of counselor rights in the first instance, we have not found prejudice, which would require a new trial or resentencing. See Martinez v. State 992 P.2d 426, 429 (Okl.Cr.1999); Al-Mosawi v. State, 956 P.2d 906, 909 (Okl.Cr.1998).

17 In this case, more than ten years elapsed from the time of arrest until any interested party in this case thought it significant to seek assistance from the Mexican consulate. While it is commendable the Mexican government has provided the assistance it has at this time, the only available venue for presenting that information remains the clemency process. It must be remembered, at trial Petitioner was afforded the benefit of experts in the persons of two psychiatrists and one psychologist to assist in his insanity defense. There has been no deprivation of rights, experts, or legal counsel upon which this Court is empowered to disregard the law that binds it. Justice for everyone requires following the law for all. 3 Once a court begins disregarding the law to achieve a desired result in a case, it starts down a slippery slope, which ultimately fractures and decimates the freedom guaranteed through the Rule of Law. This is not a case of actual innocence. The law provides the venue for raising that issue at anytime. It is merely a case where a defendant wants to put on more mitigation evidence to seek a better result on sentencing after exhausting all appeals. This Court should not make political decisions; it should bind itself to applying the law.

T8 For the reasons stated, I must dissent to the Court's decision to remand this case for resentencing.

. Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964).

. Cooper v. Oklahoma, 517 U.S. 348 , 116 S.Ct. 1373 , 134 L.Ed.2d 498 (1996).

. As I stated previously in Hain v. State, 852 P.2d 744, 753-754 (Okl.Cr.1993)(Lumpkin, P.J. concurring in part/dissenting in part):

This Court in its holding cites "principals [sic] of fundamental fairness" in reversing for a new second-stage trial. Ante at 753. This puts me in a quandary, for how does one dissent to principles of fundamental fairness? This quandary, however, shows precisely why use of this equitable principle cannot serve as the basis for a ruling of law. As was said over a century ago:

Equity is a Roguish thing: for Law we have a measure, know what to trust to, Equily is according to the Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the Standard for the measure, we call, a Chancellor's Foot, what an uncertain measure would this be? One Chancellor has a long Foot, another a short Foot, a third an indifferent Foot. 'Tis the same thing in the Chancellor's Conscience.

Seldon, John, Equity Table Talk (Arber, Edward, ed. in English Reprints, nos. 1-7, London: 1869) at 46. What is "fundamental fair ness" to one judge may not be "fundamental fairness" to another.

The same is true here. Either the doctrines of waiver and res judicata apply to all or the doctrines are eviscerated.