Opposition Brief — Tremane Wood, Petitioner v. Oklahoma

Supreme Court briefFeb 16, 2023

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No. 22-6538

In the

SUPREME COURT OF THE UNITED STATES

____________________________________

TREMANE WOOD,

Petitioner,

-vsTHE STATE OF OKLAHOMA,

Respondent.

____________________________________

On Petition for Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

____________________________________

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

____________________________________

EXECUTION DATE PENDING

____________________________________

Gentner F. Drummond

Attorney General of Oklahoma

Joshua L. Lockett

Asst. Attorney General

Counsel of Record

Joshua R. Fanelli

Asst. Attorney General

Oklahoma Office of the Attorney General

313 NE Twenty-First St.

Oklahoma City, OK 73105

joshua.lockett@oag.ok.gov

(405) 522-4404

February 16, 2023

CAPITAL CASE

QUESTION PRESENTED

In June of 2022, Petitioner Tremane Wood sought successive post-conviction

relief in the Oklahoma Court of Criminal Appeals (“OCCA”) under OKLA. STAT. tit.

22, § 1089, arguing that he was entitled to relief due to the alleged ineffective

assistance of his trial counsel. Wood’s claim was materially identical to one he had

previously raised in that same court in 2005. The OCCA denied relief on state law

procedural grounds, noting Wood’s claim was barred by doctrines of res judicata and

waiver.

The questions presented are:

1. Does this Court have jurisdiction to review claims procedurally

defaulted on independent and adequate state law grounds?

2. Should this Court review a claim which was not pressed or passed

upon in the state court below?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................................................................ i

INTRODUCTION ........................................................................................................ 1

STATEMENT OF THE CASE .................................................................................... 2

Factual Background ............................................................................. 2

Proceedings Below ............................................................................... 3

REASONS FOR DENYING THE PETITION.......................................................... 6

WOOD’S CLAIM WAS BARRED IN THE STATE COURT ON

INDEPENDENT AND ADEQUATE STATE LAW GROUNDS ....... 7

II.

WOOD’S FUNDAMENTAL FAIRNESS/EQUAL PROTECTION

CLAIM IS FORFEITED AND HIS CASE IS A POOR VEHICLE

FOR THE ISSUE, WHICH LACKS ANY MERIT............................ 14

Wood failed to raise the federal question in the state

court below ................................................................................. 14

Wood’s petition is a poor vehicle for the issue, and

ultimately the new federal claim is meritless .................... 15

Wood’s petition takes aim at state law not applied

to him to bar his claim ............................................................ 24

CONCLUSION ........................................................................................................... 25

TABLE OF AUTHORITIES

FEDERAL CASES

Page

Arizona v. Evans,

514 U.S. 1 (1995) ..................................................................................................... 18

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ................................................................................................. 21

Banks v. Workman,

692 F.3d 1133 (10th Cir. 2012) ............................................................................. 14

Baze v. Rees,

553 U.S. 35 (2008) ................................................................................................... 22

Bd. of Trustees of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) ........................................................................................... 21, 22

Calderon v. Thompson,

523 U.S. 538 (1998) ................................................................................................. 22

California v. Carney,

471 U.S. 386 (1985) ................................................................................................. 18

Cardinale v. Louisiana,

394 U.S. 437 (1969) ................................................................................................. 15

Coleman v. Thompson,

501 U.S. 722 (1991) ......................................................................................... 7, 9, 22

Cromwell v. Randall,

10 Pet. 368 (1836) ................................................................................................... 15

Cuesta-Rodriguez v. Carpenter,

916 F.3d 885 (10th Cir. 2019) ................................................................................. 9

Cutter v. Wilkinson,

544 U.S. 709 (2005) ................................................................................................. 14

Dep’t of Revenue v. Kurth Ranch,

511 U.S. 767 (1994) ................................................................................................. 14

iii

DeRosa v. Workman,

679 F.3d 1196 (10th Cir. 2012) ............................................................................... 9

Douglas v. Workman,

560 F.3d 1156 (10th Cir. 2009) ............................................................................... 9

Ford v. Georgia,

498 U.S. 411 (1991) ................................................................................................... 7

Foster v. Chatman,

578 US 488 (2016) ..................................................................................................... 7

Garza v. Idaho,

139 S. Ct. 738 (2019) ............................................................................................. 24

Golden v. Zwickler,

394 U.S. 103 (1969) ................................................................................................. 25

Harris v. Reed,

489 U.S. 255 (1989) ............................................................................................... 7, 9

Heath v. Alabama,

474 U.S. 82 (1985) ................................................................................................... 14

Hill v. California,

401 U.S. 797 (1971) ................................................................................................. 15

Illinois v. Gates,

462 U.S. 213 (1983) ................................................................................................. 14

Johnson v. Fankell,

520 U.S. 911 (1997) ................................................................................................. 10

Johnson v. United States,

520 U.S. 461 (1997) ................................................................................................. 14

Klehr v. A.O. Smith Corp.,

521 U.S. 179 (1997) ................................................................................................. 21

McCray v. New York,

461 U.S. 961 (1983) ................................................................................................. 18

McGowan v. Maryland,

366 U.S. 420 (1961) ................................................................................................. 22

Michigan v. Long,

463 U.S. 1032 (1983) ............................................................................................... 13

Pavatt v. Carpenter,

928 F.3d 906 (10th Cir. 2019) ..................................................................... 9, 11, 12

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................................................................. 21

Pennsylvania v. Finley,

481 U.S. 551 (1987) ................................................................................................. 24

Robinson v. California,

370 U.S. 660 (1962) ................................................................................................. 10

Singleton v. Wulff,

428 U.S. 106 (1976) ................................................................................................. 14

Stewart v. Smith,

536 U.S. 856 (2002) ................................................................................................... 7

Strickland v. Washington,

466 U.S. 668 (1984) ................................................................................................... 4

Tacon v. Arizona,

410 U.S. 351 (1973) ................................................................................................. 15

Thacker v. Workman,

678 F.3d 820 (10th Cir. 2012) ............................................................................... 13

United Public Works of American (C.I.O.) v. Mitchell,

330 U.S. 75 (1947) ................................................................................................... 25

United States v. Olano,

507 U.S. 725 (1993) ................................................................................................. 14

Williams v. Trammell,

782 F.3d 1184 (10th Cir. 2015) ........................................................... 11, 12, 13, 14

Wood v. Carpenter,

899 F.3d 867 (10th Cir. 2018) ................................................................................. 5

Wood v. Oklahoma,

552 U.S. 999 (2007) ................................................................................................... 4

Wood v. Trammell,

Case No. CIV-10-0829-HE, 2015 WL 6621397 (W.D. Okla. Oct. 30, 2015) ....... 5

Wood v. Carpenter,

907 F.3d 1279 (10th Cir. 2018) ..................................................................... 4, 5, 12

STATE CASES

Coddington v. State,

259 P.3d 833 (Okla. Crim. App. 2011) ................................................................ 20

Fisher v. State,

206 P.3d 607 (Okla. Crim. App. 2009) ................................................................ 18

Johnson v. State,

823 P.2d 370 (Okla. Crim. App. 1991) ................................................................ 17

Littlejohn v. State,

181 P.3d 736 (Okla. Crim. App. 2008) ................................................................ 18

Slaughter v. State,

108 P.3d 1052 (Okla. Crim. App. 2005) .............................................................. 11

Smallwood v. State,

937 P.2d 111 (Okla. Crim. App. 1997) ................................................................ 20

Smith v. State,

826 P.2d 615 (Okla. Crim. App. 1992) ................................................................ 16

State ex rel. Oklahoma Bar Ass’n v. Albert,

163 P.3d 527 (Okla. Sup. Ct. May 15, 2007) ................................................... 4, 18

Turrentine v. State,

965 P.2d 985 (Okla. Crim. App. 1998) ................................................................ 20

Valdez v. State,

46 P.3d 703 (Okla. Crim. App. 2002) ...................................................... 11, 12, 13

Williamson v. State,

852 P.2d 167 (Okla. Crim. App. 1993) ................................................................ 21

Wood v. State,

158 P.3d 467 (Okla. Crim. App. 2007) ...................................................... 1, 2, 3, 4

Woodruff v. State,

910 P.2d 348 (Okla. Crim. App. 1996) ............................................................... 20

FEDERAL STATUTES

28 U.S.C. § 2244 .......................................................................................................... 11

STATE STATUTES

OKLA. STAT. tit. 21, § 421 ............................................................................................. 1

OKLA. STAT. tit. 21, § 701.12 ........................................................................................ 3

OKLA. STAT. tit. 21, § 801 ............................................................................................. 1

OKLA. STAT. tit. 22, § 1080.1 .......................................................................... 16, 17, 19

OKLA. STAT. tit. 22, § 1086 ....................................................................... 15, 16, 17, 19

OKLA. STAT. tit. 22, § 1089 ...... 5, 7, 8, 9, 10, 11, 13, 15,16, 17, 19, 20, 21, 23, 24, 25

OKLA. STAT. tit. 22, § 1355.13A ................................................................................. 24

RULES

Rule 9.7, Rules of the Oklahoma Court of Criminal Appeals,

OKLA. STAT. tit. 22, Ch. 18, App ................................ 5, 8, 9, 10, 15, 19, 20, 21, 23

vii

INTRODUCTION

Wood was convicted of first-degree felony murder and sentenced to death for

stabbing and killing Ronnie Wipf in an attempted robbery at an Oklahoma City motel

in the early morning hours of New Year's Day 2001. 1 2 Mr. Johnny Albert represented

Wood at his Spring 2004 jury trial. Following Wood’s conviction, other capital

defendants claimed Mr. Albert had rendered ineffective assistance in their respective

cases. An evidentiary hearing in those cases revealed that Mr. Albert’s substance

abuse disorder began in March 2005. Wood similarly filed for state post-conviction

relief, arguing that Mr. Albert’s substance abuse problems began much earlier and

endured throughout his own trial. The OCCA denied Wood’s claim, noting the

evidence failed to show what Wood was arguing. Over fifteen years later, Wood again

sought post-conviction relief in the same court alleging the same claim. The OCCA

found the claim barred by state procedural law and rules including waiver and res

judicata. Wood has presented no valid explanation as to why this Court has

jurisdiction to review this decision, given that it is based upon an independent and

adequate state law ground.

Citations to Wood’s Petition for Writ of Certiorari will be referenced as “Pet. at ___.”

Citations to the Petition’s Appendix will be referred to as “Pet. Appx. at ___.” Citations to any

pleadings filed in the proceedings below in the state court will utilize original pagination and

will be referred to concisely and logically. See Sup. Ct. R. 12.7. When necessary, the State

will cite Wood’s previous filings and the OCCA’s decisions in prior direct and post-conviction

proceedings as well as federal cases; those state court pleadings, state opinions, and federal

cases will be referenced by the case name and number and include the heading of the

document as well as the date of filing.

2 Wood was also convicted of Robbery with a Firearm (Count 2) and Conspiracy (Count 3),

both after former conviction of a felony; he was sentenced to life on each count. Wood v. State,

158 P.3d 467, 470 (Okla. Crim. App. 2007) (citing OKLA. STAT. tit. 21, §§ 801, 421).

Recognizing this it seems, Wood attempts to carve out a pathway to this Court’s

substantive review of his claim by presenting a new issue, one never raised in the

state court below: that Oklahoma’s successive post-conviction rules run afoul of

fundamental fairness and equal protection principles. Wood has forfeited this

meritless issue, however, and it should not serve as a pathway to review of his

defaulted claim.

This Court should, therefore, deny the petition for writ of certiorari to review

the decision of the OCCA.

STATEMENT OF THE CASE

Factual Background

After celebrating the new year, Ronnie Wipf and his friend, Arnold

Kleinsasser, accompanied two women to an Oklahoma City motel in the early

morning hours of January 1, 2001. After some discussion, the women agreed to have

sex with the men in exchange for money. Unbeknownst to the two men, this was a

setup. The women—Lanita Bateman and Brandy Warden—had arranged with Wood

and his older brother 3 to pretend to be prostitutes; Wood and his brother were to then

arrive and rob the two men. Wood v. State, 158 P.3d 467, 471-72 (Okla. Crim. App.

2007).

Inside the room, Ms. Bateman and Ms. Warden excused themselves to the

bathroom. Wood and his brother then pounded on the motel room door. When the

door opened, Wood and his brother rushed in and attacked Mr. Wipf and Mr.

3 Zjaiton Wood is the older brother of Petitioner, Tremane Wood.

Kleinsasser. In the ensuing struggle, Mr. Wipf was stabbed in the chest, but Mr.

Kleinsasser escaped. 4 Mr. Wipf died from his wound. Id.

Proceedings Below

At his trial, in which Mr. Albert represented him, the jury found Wood guilty

and sentenced him to death upon the finding of three aggravating circumstances: (1)

that Wood knowingly created a great risk of death to more than one person; (2) that

the murder was especially heinous, atrocious, or cruel; and (3) that there existed a

probability that Wood would commit criminal acts of violence that would pose a

continuing threat to society. Wood, 158 P.3d at 470, 482; see OKLA. STAT. tit. 21,

§ 701.12.

4 Wood claims his brother stabbed Mr. Wipf, Pet. at 8-9, but evidence at trial showed that

Wood brandished the knife while his brother wielded a firearm. Wood, 158 P.3d at 472 & n.6.

The only evidence at Wood’s trial indicating that Zjaiton had the knife and stabbed Mr. Wipf

came from his own mouth. Id. at 472. Zjaiton’s testimony also claimed someone named “Alex”

committed the crimes with him, as opposed to Wood. Id. But Zjaiton’s testimony was not

credible. Wood’s own petition refutes Zjaiton’s testimony; Wood admits that he was Zjaiton’s

accomplice in the crime and more specifically acknowledges that he had the knife at one

point. Pet. at 8-9.

Moreover, the State did not argue, as Wood suggests, Pet. at 9 n.3, at Zjaiton’s subsequent

jury trial that Zjaiton stabbed Mr. Wipf; the OCCA’s decision in that case on the issue of

Zjaiton’s claim of judicial estoppel and the alleged competing theories makes that abundantly

clear. See Wood v. State, F-2005-246 (Okla. Crim. App. 2006) (unpublished) (“The trial court

heard [pretrial] argument and held that the State could introduce Zjaiton’s prior voluntary

testimony [from his brother’s trial], but could not argue that he was the actual killer since

the State had taken the position that Tremane was the actual killer during his trial.”; “[The

prosecutor] emphasized that the State did not have to prove which one of the men actually

stabbed Wipf in order for the jury to convict Zjaiton.”; “While the prosecutor argued the jury

should consider Zjaiton’s prior testimony […] she followed the court’s ruling and did not argue

Zjaiton was the actual killer.”).

The OCCA affirmed Wood’s convictions and sentences in a published opinion

on April 30, 2007. Wood, 158 P.3d 467. Thereafter, this Court declined to review the

case. Wood v. Oklahoma, 552 U.S. 999 (2007).

While his direct appeal was pending, Wood filed in the OCCA his first

application for post-conviction relief in April 2007. 5 Pet. Appx. at 031a-099a. In that

filing, Wood argued that Mr. Albert rendered ineffective assistance at his trial due to

Mr. Albert’s alleged substance abuse. Id. The OCCA remanded the matter for an

evidentiary hearing. 6 On remand, the state district court concluded Wood was not

denied the effective assistance of counsel; the OCCA subsequently agreed and denied

Wood’s claim in June 2010. 7 Pet. Appx. at 008a-027a.

5 This filing was an Amended Application for Post-Conviction relief, see Pet. Appx. 031a;

Wood had filed his original in the OCCA in December 2006.

6 In his petition, Wood suggests that Mr. “Albert actively concealed his substance abuse issues

during the period he represented Mr. Wood.” Pet. at 14 (citing Tr. 2/27/06 at 240-92. The

record does not indicate that Mr. Albert actively concealed his drug use during the

evidentiary hearing in any way. See Tr. 2/27/06 at 240-92. This is likely because, as found by

Oklahoma’s two highest courts, Mr. Albert did not have a substance abuse issue during

Wood’s trial. See Pet. Appx. at 008a-027a; Wood, 158 P.3d 467; State ex rel. Oklahoma Bar

Ass’n v. Albert, 163 P.3d 527 (Okla. Sup. Ct. May 15, 2007)

7 In doing so, the OCCA found that the evidence showed that Mr. Albert’s substance abuse

began in March 2005, a year after Wood’s jury trial, and peaked in March 2006. Pet. Appx.

at 012a-013a n.5. The Oklahoma Supreme Court found similarly in their review of the

matter. Albert, 163 P.3d at 531 (noting Mr. Albert’s substance abuse began in March and

April of 2005 and that the Bar Association only began receiving complaints about Mr. Albert’s

conduct from aggrieved clients in April 2005, with additional complaints coming in through

March 2006). The Tenth Circuit noted Mr. Albert’s substance abuse issue in Wood’s claim of

ineffective assistance of appellate counsel for failing to update the appellate record to include

disciplinary proceedings against Mr. Albert, but did not make any finding regarding the

actual starting date; the circuit court only determined the OCCA reasonably applied

Strickland v. Washington, 466 U.S. 668 (1984), when it concluded Wood suffered no prejudice

from the alleged failure of his appellate counsel. Wood, 907 F.3d at 1298-1301. The circuit

court did note though that “none of [the evidence presented by Wood] is connected in any way

to Wood’s trial. Indeed, no one claims Mr. Albert drank alcohol before meeting with Wood,

Some twelve years—and two post-conviction applications—later, 8 Wood

returned to the OCCA, raising again the claim that Mr. Albert’s alleged substance

abuse during his trial meant that he was subjected to ineffective assistance of

counsel. Pet. Appx. at 100a-477a. Given that the court had already adjudicated

Wood’s claim, the OCCA found the issue “barred by the doctrines of res judicata and

waiver” under state law. Pet. Appx. at 004a. Speaking further, the court noted that

Wood’s alleged new evidence did “not avoid a finding of procedural bar, namely res

judicata.” Pet. Appx. at 005a. As for the issue of waiver, the OCCA explained that

Wood’s claim was waived under both statute, OKLA. STAT. tit. 22, § 1089(8)(b)(1), and

the court’s rules, Rule 9.7(G)(3), OKLA. STAT. tit. 22, Ch. 18, App., noting that Wood

had failed to show that his claim could not have been previously presented in a prior

application. Pet. Appx. at 006a. As a result, the OCCA stated it “must, therefore, find

that the claim is waived and that we are barred from considering the merits of the

claim in this application.” Id.

was intoxicated during Wood’s trial, or that alcohol interfered in any way with Mr. Albert’s

representation of Wood.” Id. at 1300.

8 Wood filed two additional applications for post-conviction relief in the OCCA, Wood v. State,

PCD-2011-590 (Okla. Crim. App. 2011) (unpublished); Wood v. State, PCD-2017-653 (Okla.

Crim. App. 2017) (unpublished), and pursued habeas relief through the federal court system

in this intervening period, Wood v. Trammell, Case No. CIV-10-0829-HE, 2015 WL 6621397

(W.D. Okla. Oct. 30, 2015) (unpublished); Wood v. Carpenter, 899 F.3d 867 (10th Cir. 2018),

opinion modified and superseded on denial of rehearing, 907 F.3d 1279 (10th Cir. 2018), cert.

denied, 139 S. Ct. 2748 (2019). Wood was denied relief at every level. See id.

On January 17, 2023, Wood’s petition for writ of certiorari was placed on this

Court’s docket. 9

REASONS FOR DENYING THE PETITION

This Court grants certiorari “only for compelling reasons,” Sup. Ct. R. 10, and

Wood presents no such reason. Indeed, the reasons he offers should not even be

considered. That is because this Court does not have jurisdiction over a state court

decision based on an independent and adequate state law ground. Coleman v.

9 Respondent has an obligation to “address any perceived misstatement of fact or law in the

petition that bears on what issues properly would be before the Court if certiorari were

granted.” S. CT. R. 15.2. There are many misstatements of fact in the Petition. However,

the facts of this case are not particularly relevant given the independent and adequate state

law grounds applied by the OCCA. Thus, at this point, Petitioner’s misstatements do not

bear on whether his claim of ineffective assistance would properly be before this Court.

Nevertheless, Respondent offers the following as examples of misstatements warranting

correction.

It must be noted that the State has never conceded the merit of any aspect of Wood’s

ineffective assistance claim. See Pet. at 3, 19, 36 (suggesting the State did not dispute

multiple issues: (1) Wood’s new evidence was newly discovered and reliable; (2) Mr. Albert’s

substance abuse contributed to his representation of Wood, and (3) Wood’s case was now no

less serious or different than those which the OCCA had reversed based upon a finding of

Mr. Albert’s substance abuse). As to these points, the State never addressed the reliability of

the information contained in Wood’s affidavits; instead, the State argued that Wood had

failed to provide any specific fact establishing the basis for his assertion that his claim could

not have been ascertained sooner. Pet. Appx. at 497a, 501a-505a. And given the focus of the

State’s response was on the procedural shortcomings of Wood’s claim, Pet. Appx. at 498a505a, the State made no specific comment on whether Mr. Albert’s substance abuse impacted

Mr. Wood’s trial. However, the State expressed incredulity at the claim that Wood’s alleged

new evidence indicated the OCCA had missed the starting point of Mr. Albert’s substance

abuse issues by seven years. Pet. Appx. at 496a-497a, 500a-505a. And finally, the State only

noted the “seriousness” of the issue in relation to the two cases where relief was warranted—

both of which were tried the year after Wood’s trial (Wood suggests to this Court that these

three cases were concurrent to one another, Pet. at 2, 16)—to demonstrate the dubious nature

of Wood’s claim and the inexcusable nature of the delay, Pet. Appx. at 501a; that Wood would

wait seventeen years to perform the simple task of interviewing other criminal clients of Mr.

Albert to uncover factual support for his claim defies logic, indicates Wood’s own beliefs about

the “seriousness” of his claim, and refutes any inference of diligence on his part.

Thompson, 501 U.S. 722, 729 (1991). Because the OCCA expressly denied Wood’s

claim on such grounds, the Petition should be denied. Despite this, Wood attempts an

end-run around this procedural shortcoming by raising an issue never pressed or

passed upon in the OCCA. Wood’s blatant attempt to bypass standard appellate

procedures should also serve as a rationale for denying the Petition.

WOOD’S CLAIM WAS BARRED IN THE STATE

COURT ON INDEPENDENT AND ADEQUATE

STATE LAW GROUNDS.

“This Court lacks jurisdiction to entertain a federal claim on review of a state

court judgment ‘if that judgment rests on a state law ground that is both independent

of the merits of the federal claim and an adequate basis for the court’s decision.’”

Foster v. Chatman, 578 US 488, 497 (2016) (quoting Harris v. Reed, 489 U.S. 255, 260

(1989)). It matters not “whether the state law ground is substantive or procedural.”

Coleman v. Thompson, 501 U.S. 722, 729 (1991). A state law ground is independent

of the merits of the federal claim when resolution of the state procedural law question

does not “depend[] on a federal constitutional ruling.” Stewart v. Smith, 536 U.S. 856,

860 (2002). And a state procedural rule constitutes an adequate bar to federal review

if it was “firmly established and regularly followed” when applied by the state court.

Ford v. Georgia, 498 U.S. 411, 424 (1991).

Under Oklahoma law, the OCCA does not consider claims raised in a

successive post-conviction application that could have been raised in earlier

proceedings. OKLA. STAT. tit. 22, § 1089(D)(8) (the OCCA “may not” grant relief for

claims raised in successive post-conviction applications unless: (1) the legal or factual

basis was previously unavailable, and (2) “the facts underlying the claim, if proven

and viewed in light of the evidence as a whole, would be sufficient to establish by

clear and convincing evidence that, but for the alleged error, no reasonable fact finder

would have found the applicant guilty of the underlying offense or would have

rendered the penalty of death”). In addition, the OCCA’s rules require applicants to

raise claims based on any previously unavailable legal or factual bases no more than

sixty days after the discovery of the new bases. Rule 9.7(G)(3), Rules of the Oklahoma

Court of Criminal Appeals, OKLA. STAT. tit. 22, Ch. 18, App.

Here, the OCCA—in no uncertain terms—procedurally barred Wood’s claim on

independent and adequate state law grounds, clearly and expressly applying both

§ 1089(D)(8)(b)(1) and Rule 9.7(G)(3) to Wood’s claim. Pet. Appx. at 006a. In doing so,

the OCCA considered and rejected the notion that Wood could not have discovered

the factual basis allegedly supporting his claim any sooner. 10 Pet. Appx. at 006a. The

OCCA did not make any alternative assessment of the merits of Wood’s claim. 11 Pet.

Appx. at 001a-006a.

10 Wood’s argument that the OCCA incorrectly interpreted state law by requiring him to file

within sixty days of when the evidence reasonably could have discovered, as opposed to when

the evidence was discovered, see Pet. at 30, is both a state law question not for this Court’s

review and, to the extent he asserts it affects the bar’s adequacy, it is he who is misreading

the rule. See Rule 9.7(G)(1), OKLA. STAT. tit. 22, Ch. 18, App., (“A subsequent application for

post-conviction relief shall not be considered, unless it contains claims which have not been

and could not have been previously presented in the original application because the factual

or legal basis was unavailable…”).

11 Despite its absence in the OCCA’s opinion, the state court’s foray into such an alternative

analysis still would not have warranted review by this Court because “a state court need not

fear reaching the merits of a federal claim in an alternative holding. By its very definition,

the adequate and independent state ground doctrine requires the federal court to honor a

state holding that is a sufficient basis for the state court’s judgment even when the state

The OCCA’s application of independent and adequate state law grounds to

Wood’s claim precludes this Court’s review of his questions presented:

This Court will not review a question of federal law decided

by a state court if the decision of that court rests on a state

law ground that is independent of the federal question and

adequate to support the judgment. This rule applies

whether the state law ground is substantive or procedural.

In the context of direct review of a state court judgment,

the independent and adequate state ground doctrine is

jurisdictional. Because this Court has no power to review

a state law determination that is sufficient to support the

judgment, resolution of any independent federal ground for

the decision could not affect the judgment and would

therefore be advisory.

Coleman, 501 U.S. at 729 (citations omitted). Federal courts have routinely found

§ 1089(D)(8) and its subsections to be independent and adequate state law grounds. 12

Pavatt v. Carpenter, 928 F.3d 906, 929-30 (10th Cir. 2019) (en banc).

Wood admits the OCCA refused to consider his claim on state procedural

grounds. Pet. at 20, 29. But he contends that Oklahoma’s state procedural bars

applied to him, in this case, are neither independent nor adequate because the OCCA

exercised “discretion” in reaching its conclusion. Pet. at 34-40. Specifically, he

court also relies on federal law.” Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (emphasis in

original).

The Tenth Circuit has never expressly held that Rule 9.7(G)(3) is adequate and

independent, but it has applied that rule in an anticipatory fashion, indicating it has no

concerns about the rule’s adequacy. See Cuesta-Rodriguez v. Carpenter, 916 F.3d 885, 908

n.23 (10th Cir. 2019) (noting the petitioner “also forfeited” his claim on the basis of Rule

9.7(G)(3)); DeRosa v. Workman, 679 F.3d 1196, 1235 (10th Cir. 2012) (applying an

“anticipatory procedural bar” to an unexhausted claim because the OCCA would apply Rule

9.7(G)(3) if the petitioner returned to state court to exhaust the claim); cf. Douglas v.

Workman, 560 F.3d 1156, 1172 (10th Cir. 2009) (refusing to apply Rule 9.7(G)(3) because the

State failed to defend its adequacy).

contends the OCCA denied him the ability to factually develop the merits of his claim

and thereafter held the factually undeveloped nature of his claim against him. Pet.

at 35-36.

Contrary to his claim, Wood’s framing of his seventeen-year history of all his

post-conviction cases before the OCCA as a “‘surprising’ and ‘unfair’ exercise of

discretion” is anything but. 13 Pet. at 36. Petitioner can only make this argument by

ignoring that he received an evidentiary hearing on this very claim during direct

appeal. Further, any review by this Court would be limited to what occurred in this

subsequent post-conviction case. And in this case, the OCCA assessed only whether

Wood’s claim was identical to his prior claims (it was) and whether the “new” factual

basis supporting his claim was previously unavailable (it wasn’t). These two flaws

were the only aspects of Wood’s case that the OCCA considered under

§ 1089(D)(8)(b)(1) and Rule 9.7(G); this Court may not now venture beyond that

limited rationale and interpretation by the state court to grant certiorari review. See

Johnson v. Fankell, 520 U.S. 911, 916 (1997) (“Neither this Court nor any other

federal tribunal has any authority to place a construction on a state statute different

from one rendered by the highest court of the State.); Robinson v. California, 370 U.S.

660, 666 (1962) (holding that a state court’s construction of a statute is “a ruling on a

question of state law that is binding on [federal courts] as though the precise words

13 In making his argument, Wood appears to suggest that the OCCA’s rulings in his prior

post-conviction applications prohibited him from developing facts to support his claim. Pet.

at 36 (noting that the OCCA denied his request for discovery which limited his ability to

“factually develop his Sixth Amendment claim”). This is inaccurate. Wood was not precluded

from factually developing his claim simply because the OCCA rejected the claim when it was

previously considered.

had been written into the statute” (quotation marks omitted)). Thus, this Court is

unable to somehow expand, or redefine the contours of Oklahoma’s standard for

bringing a claim based on newly discovered facts under § 1089(D)(8)(b)(1), no matter

how much Wood might wish it were so. There is nothing “unfair” or “surprising” about

the application of these long-established rules. See Pavatt, 928 F.3d at 929-30; cf. 28

U.S.C. § 2244(b) (strictly limiting successive federal habeas corpus petitions with

requirements that are very similar to § 1089(D)(8)).

Wood further claims, like many other Oklahoma capital defendants in the past,

that the OCCA’s decision in Valdez v. State, 46 P.3d 703 (Okla. Crim. App. 2002),

served as a basis for the state court to look past his procedural deficiencies. Pet. at

19-20, 36-39. 14

Wood fails to acknowledge that the Tenth Circuit has explained that “the

Valdez exception only applies in cases involving an exceptional circumstance, and it

is insufficient to overcome Oklahoma’s regular and consistent application of its

procedural-bar rule in the vast majority of cases.” Williams v. Trammell, 782 F.3d

14 In Valdez, the OCCA held that it had “power to grant relief when an error complained of

has resulted in a miscarriage of justice, or constitutes a substantial violation of a

constitutional or statutory right. Valdez, 46 P.3d at 710-11. This so-called “Valdez exception”

to procedural default is limited to extraordinary classes of cases such as violations of the

Vienna Convention’s right to consular access or claims of factual innocence. See Williams v.

Trammell, 782 F.3d 1184, 1213 (10th Cir. 2015) (noting the OCCA has applied Valdez in

“compelling circumstances” such as a violation of the Vienna Convention or a challenge to

Oklahoma’s lethal injection protocol, but not to “run-of-the-mill Strickland claim[s].”); see

also Slaughter v. State, 108 P.3d 1052, 1054 (Okla. Crim. App. 2005) (“this Court’s rules and

cases do not impede the raising of factual innocence claims at any stage of an appeal”)

(emphasis in original). The fact that Williams was decided in 2015 renders Petitioner’s

argument that Valdez was freakishly applied to his Strickland claim, Pet. at 38, wholly

without merit.

1184, 1213 (10th Cir. 2015). In this case, Wood’s ineffective assistance challenge is

far from exceptional: it is a claim that was readily apparent to him several years ago

as shown by his prior filings. 15 And while he claims he was unaware of the

information from these two affiants until recently, that is not the relevant question.

The question under Valdez is whether some extraordinary circumstance prevented

him from obtaining the evidence in a timely manner. Wood makes no such showing. 16

Furthermore, the OCCA was not somehow unaware of the Valdez exception;

Wood cited the case extensively in his reply to the State’s response below as a

rationale for avoiding the waiver that would ultimately be applied to his claim. Pet.

Appx. at 550a. The OCCA still found his claim barred by an independent and

adequate state law ground which federal courts have consistently recognized even in

light of Valdez. See Pavatt, 928 F.3d at 929-30; Williams, 782 F.3d at 1212 (“[T]he

OCCA’s ban on successive post-conviction applications is … a firmly established and

15 Wood’s “new” evidence attempts to provide an explanation for what he has always claimed

was deficient performance on the part of Mr. Albert. As noted earlier, the Tenth Circuit

examined—through the lens of an ineffective assistance of appellate counsel claim—Wood’s

claim that Mr. Albert’s representation at trial deprived him of his constitutional right to

counsel. Wood, 907 F.3d at 1298-1301. But the Tenth Circuit denied the claim on prejudice

grounds. Id. at 1301 (“The OCCA disagreed [with Wood], and concluded Mr. Albert did not

perform deficiently. And even if he had, it held Wood suffered no prejudice because the extra

evidence Wood could have offered would not have affected the proceeding’s outcome. We do

not see why allegations of alcohol abuse would have affected this conclusion.” (emphasis

added)). Wood’s “new” evidence fails to explain how additional proof of Mr. Albert’s deficient

performance alters any prejudice analysis of his claim.

16 Wood does complain that he was not given an evidentiary hearing in connection with his

first post-conviction application. However, Wood already had one evidentiary hearing on this

claim while his direct appeal was pending. Further, he has apparently discovered his two

affiants now without any formal court process. Thus, while Wood perhaps implies that he

could not have discovered this evidence earlier, he fails to actually prove that point.

consistently followed rule.”); Thacker v. Workman, 678 F.3d 820, 835-36 (10th Cir.

2012) (same).

Wood also attacks the independence of Oklahoma’s § 1089(D)(8)(b). Pet. at 3840. First, citing this Court’s decision in Michigan v. Long, 463 U.S. 1032 (1983), Wood

claims that the OCCA’s decision below penalized him on account of his status and

thus was “interwoven” with the federal issue. Pet. at 39. This is a complete

misunderstanding of Long. The question to be assessed under the rule coming out of

Long was not whether the state court decision violated federal law, but whether it

rested upon or involved an interpretation of federal law. Long, 463 at 1040-41 (“If the

state court decision indicates clearly and expressly that it is alternatively based on

bona fide separate, adequate, and independent grounds, we, of course, will not

undertake review of the decision.”). As noted above, the OCCA decision here could

not have been any clearer in its language that Wood’s claim was procedurally

defaulted on state law grounds. Pet. Appx. at 006a.

Second, Wood contends that the OCCA’s refusal to review the merits of his

claim under Valdez by its very nature involved an assessment of its merit. Pet. at 39.

But that understanding is inconsistent with other federal cases that have addressed

the issue. In Williams v. Trammell, 782 F.3d 1184 (10th Cir. 2015), the petitioner

raised a similar claim, arguing that “under the Valdez exception, a state court is

required to consider the merits of a constitutional claim—thereby raising questions

of federal law and undermining the very reason we defer to state procedural

dismissals.” Id. at 1214. The Tenth Circuit rejected that reasoning and reaffirmed its

prior cases on the matter. Id. (citing Banks v. Workman, 692 F.3d 1133, 1145 (10th

Cir. 2012) (concluding that Oklahoma’s procedural bar is independent of federal law,

notwithstanding the OCCA’s power to excuse default in “extreme cases”).

As a result, this Court has no jurisdiction to review Wood’s case.

II.

WOOD’S FUNDAMENTAL FAIRNESS/EQUAL

PROTECTION CLAIM IS FORFEITED AND

HIS CASE IS A POOR VEHICLE FOR THE

ISSUE, WHICH LACKS ANY MERIT.

Wood failed to raise the federal question in the state court below.

It comes as no surprise that this Court considers itself “a court of review, not

of first review….” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). It is for that

reason that this Court generally holds that issues raised for the first time on appeal

will not be reviewed because such practice is “an unacceptable exercise of discretion.”

Singleton v. Wulff, 428 U.S. 106, 120 (1976); see Johnson v. United States, 520 U.S.

461, 465 (1997) (“This Rule is simply the embodiment of the ‘familiar’ principle that

a right ‘may be forfeited in criminal as well as civil cases by the failure to make timely

assertion of the right before a tribunal having jurisdiction to determine it.’” (quoting

United States v. Olano, 507 U.S. 725, 713 (1993))); Dep’t of Revenue v. Kurth Ranch,

511 U.S. 767, 772 n.9 (1994) (“The issue was not raised below, so we do not address

it.”).

More specific to the context here, this Court has rejected on multiple occasions

the invitation to decide issues raised for the first time in a petition for writ of

certiorari, especially when the new issue is a federal question that was not raised or

ruled upon below. E.g., Heath v. Alabama, 474 U.S. 82, 87 (1985); Illinois v. Gates,

462 U.S. 213, 218-22 (1983); Tacon v. Arizona, 410 U.S. 351, 352 (1973); Hill v.

California, 401 U.S. 797, 805-06 (1971); Cardinale v. Louisiana, 394 U.S. 437, 438

(1969); see also Cromwell v. Randall, 10 Pet. 368 (1836) (where Justice Story’s survey

of cases concluded that the Judiciary Act of 1789, 20 § 25, 1 Stat. 85, granted this

Court with no jurisdiction unless a federal question was raised and decided in the

state court below; “If both of these do not appear on the record, the appellate

jurisdiction fails.”). This Court should not consider Petitioner’s new constitutional

arguments.

Wood’s petition is a poor vehicle for the issue, and ultimately the new

federal claim is meritless.

Wood claims that Oklahoma’s entire successive post-conviction review scheme,

on its face and as applied to his case, runs afoul of the Fourteenth Amendment’s

fundamental fairness and equal protection principles. Pet. at 20-29. Wood argues that

capital defendants are placed at a disadvantage because, as a class, they are subjected

to stricter time constraints requiring them to raise their claim within sixty days of

their discovery of the factual or legal predicate for their claim; noncapital defendants,

on the other hand, according to Wood, are granted seemingly an unlimited amount of

time so long as there is “sufficient reason” for why the claim “was not asserted or was

inadequately raised in the prior application.” Pet. at 23-24 (citing OKLA. STAT. tit. 22,

§§ 1086 (noncapital successor statute), 1089(D)(8) (capital successor statute

subsection)); Rule 9.7(G)(3), 17 OKLA. STAT. tit. 22, Ch. 18, App. (requiring a capital

17 This subsection also applies to original applications for post-conviction relief in capital

cases that were untimely filed. OKLA. STAT. tit. 22, § 1089(D)(8).

defendant to raise his subsequent application for post-conviction relief within sixty

days of the discovery of the factual or legal predicate). Additionally, Wood argues that

capital defendants face a higher, “more onerous” standard of proof once they do

uncover a legal or factual basis for their claim, noting that capital defendants must

prove by “clear and convincing evidence” that the outcome of their case would have

been different. 18 Pet. at 24-26.

It must first be noted that in presenting the alleged contrast between capital

and noncapital successive applications for post-conviction relief, Wood has overlooked

the statute of limitations that applies to noncapital defendants contained in OKLA.

STAT. tit. 22, § 1080.1. Section 1080.1 provides that “[a] one-year period of limitation

shall apply to the filing of any application for post-conviction relief, whether an

original application or a subsequent application.” Id. And pertinent for accurate

comparison purposes to the issue in this case, “[t]he limitation period shall run from

the latest of[, among other factors,] [t]he date on which the factual predicate of the

claim or claims presented could have been discovered through the exercise of due

diligence.” Id. at § 1080.1(A)(5). 19

18 Wood does not provide this Court with his understanding of what the less onerous standard

is for noncapital defendants. See Pet. at 24-26. While the issue appears to be somewhat

unsettled under Oklahoma law, capital cases decided prior to the enactment of § 1089 and

therefore litigated under § 1086 indicate that “[t]he Petitioner bears the burden of proving

the existence of a probability that the new discovered evidence, if presented at trial, would

have changed the jury’s verdict.” Smith v. State, 826 P.2d 615, 617 (Okla. Crim. App. 1992).

This standard does not appear to be any different from the “outcome determinative” standard

applied to capital defendants under § 1089 against which Wood rails. Pet. at 25.

19 Section 1080.1, which prescribes the one-year statute of limitations, is a new statute that

went into effect after the denial of Wood’s fourth post-conviction application. OKLA. STAT. tit.

22, § 1080.1

Just by taking into consideration all of the applicable statutes that apply to a

noncapital

successive

post-conviction

application,

Wood’s

equal

protection/fundamental fairness claim is already on much shakier ground. It is not

only that a noncapital defendant must assert, as Wood contends, “sufficient reason”

for why the claim “was not asserted or was inadequately raised in the prior

application.” Pet. at 24 (citing OKLA. STAT. tit. 22, § 1086). The noncapital defendant

must demonstrate that he too “exercise[d] due diligence” in the discovery of the

factual predicate for his claim. 20 Compare OKLA. STAT. tit. 22, § 1080.1, with OKLA.

STAT. tit. 22, § 1089(D)(8)(b)(1) (requiring the applicant to show that “the factual

basis for the claim was unavailable as it was not ascertainable through the exercise

of reasonable diligence”); see also Johnson v. State, 823 P.2d 370, 373 (Okla. Crim.

App. 1991) (discussing § 1086 and its required showings and stating, “[a]s is the case

in the federal courts, we will not review new claims brought in successive petitions or

applications that could have or should have been brought at some previous point in

time without proof of adequate grounds to excuse the delay.”).

But this argument and its factual support is a federal question that was not

raised in the OCCA, the entity best suited to handle the initial review of such a claim,

20 Wood also grievously misrepresents the non-capital post-conviction statutes. He states that

claims raised in noncapital successive post-conviction applications are not considered waived

unless there is “evidence that they knowingly, voluntarily, and intelligently gave up their

rights.” Pet. at 25 (citing OKLA. STAT. tit. 22, § 1086). In reality, the version of § 1086 in effect

when Petitioner filed his application provided that, “All grounds for relief available to an

applicant under this act must be raised in his original, supplemental or amended application.

Any ground finally adjudicated or not so raised or knowingly, voluntarily and intelligently

waived … may not be the basis for a subsequent application….” The amended statute which

went into effect on November 1, 2022, is the same in all material respects; it simply added

that “claims challenging the jurisdiction of the trial court” will be considered waived.

and whose review would be beneficial to any decision ultimately rendered by this

Court on the matter. Cf. Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (J. Ginsberg,

dissenting) (“We have in many instances recognized that when frontier legal

problems are presented, periods of ‘percolation’ in, and diverse opinions from, state

and federal appellate courts may yield a better informed and more enduring final

pronouncement by this Court.”); California v. Carney, 471 U.S. 386, 400-01 & n.11

(1985) (Stevens, J., dissenting) (discussing the value of permitting lower courts to

debate and evaluate the different approaches to difficult and unresolved questions of

constitutional law”); McCray v. New York, 461 U.S. 961, 963 (1983) (Stevens, J.,

respecting denial of petitions for writs of certiorari) (“In my judgment it is a sound

exercise of discretion for the Court to allow the various States to serve as laboratories

in which the issue receives further study before it is addressed by this Court.”).

Below, Wood—whose trial representation by Mr. Albert occurred in 2004—

presented to the OCCA two affidavits of individuals, Benito Bowie and Michael

Maytubby, who claimed to be former criminal clients and/or affiliates of Mr. Albert

some seventeen years ago. 21 Pet. Appx. at 303a-307a. Mr. Bowie attested that he first

met Mr. Albert in 1998 and in the ten years he knew Mr. Albert, Mr. Bowie claimed

that Mr. Albert did cocaine and drank alcohol almost every day. Pet. Appx. at 304a.

Mr. Maytubby similarly attested that he knew Mr. Albert regularly used cocaine and

21 Other Oklahoma state cases acknowledged that Mr. Albert’s substance abuse problem was

a factor in his representation of some clients but found that the problem began in the Spring

of 2005. See State ex rel. Oklahoma Bar Ass’n v. Albert, 163 P.3d 527, 531 (Okla. May 15,

2007); Littlejohn v. State, 181 P.3d 736, 744 n.7 (Okla. Crim. App. 2008); Fisher v. State, 206

P.3d 607, 609-13 (Okla. Crim. App. 2009).

combined pills with his alcoholism, habits that Mr. Maytubby knew were going on

since 2001. Pet. Appx. at 306-307a. 22

Wood only argued below that the affidavits of these two individuals indicated

a violation of his constitutional right to counsel and that this “new” evidence complied

with the requirements of § 1089(D)(8)(b) and the OCCA’s Rule 9.7(G)(3), which

warranted a remand to the district court for an evidentiary hearing on the matter.

Pet. Appx. at 114a-141a. Nowhere was the alleged discrepancy between the capital

and non-capital successor statutes highlighted as a basis for a constitutional equal

protection or fundamental fairness claim. See id. As it was not raised below, it should

not serve as a rationale for granting the petition now. Moreover, Petitioner cannot

even show sufficient reason for not obtaining information relevant to Mr. Albert’s

condition at the time of his trial in the years since his conviction.

In addition to the foregoing, Wood’s case is a poor vehicle for the issue. The

OCCA’s ruling did not hinge solely upon a determination that Wood’s claim failed to

comply with Rule 9.7(G)(3) and § 1089(D)(8)(b)(1); the decision also cited the doctrine

22 As a side matter, it does not appear that—at least with regard to his “as-applied” challenge

to his claim—that it would matter whether Oklahoma’s newer § 1080.1 (one-year limitation

window), which was enacted after Wood filed his claim, or Rule 9.7(G)(3) (sixty-day limitation

window) were to be applied to his claim. Contrary to what he claims in his petition where he

espouses the wrong standard, see Pet. 33 (arguing that Wood would have met the less

stringent “sufficient reason” requirement under § 1086), Wood fails under both § 1080.1 and

Rule 9.7(G)(3) standards, and would seemingly fail even if the window were substantially

longer, such as a decade. Wood took seventeen years to develop his current factual predicate,

a timeframe that far exceeds any of Oklahoma’s statutory or rule-based requirements to

hearing his claim. The alleged distinction cited by Wood between capital and non-capital

defendants simply did not matter in his case because Wood failed to demonstrate even

“sufficient reason” for the delay in bringing his claim. OKLA. STAT. tit. 22, § 1086. And, as

will be shown below, his claim was procedurally defaulted on alternative grounds and a

favorable resolution of the alleged distinction by this Court would do nothing to save him

from that result.

of res judicata as a procedural bar to review of his claim. In other words, the default

of his claim did not come down to only his failure to meet the sixty-day timing

mechanisms for the discovery of his factual predicate as required under Rule 9.7(G)(3)

or his failure to establish that this factual predicate could not have been

“ascertain[ed] through the exercise of reasonable diligence” as required under

§ 1089(D)(8)(b)(1); the default was also attributed to the fact that Wood had raised an

identical claim in his original application for post-conviction relief. Compare Pet.

Appx. at 050a-086a with 114a-141a.

The OCCA has routinely applied the procedural bar of res judicata in similar

circumstances. See Coddington v. State, 259 P.3d 833, 835 (Okla. Crim. App. 2011)

(explaining that res judicata and waiver applied in the capital post-conviction context

where claims either were, or could have been, previously presented). And the OCCA

has consistently explained that the addition of new evidence to a claim does not

transform an old issue into a new one in order to bypass res judicata. Turrentine v.

State, 965 P.2d 985, 989 (Okla. Crim. App. 1998) (“That post-conviction counsel raises

the claims in a different posture than that raised [previously to the OCCA] is not

grounds for reasserting the claims under the guise of ineffective assistance of

appellate counsel.”; Smallwood v. State, 937 P.2d 111, 115 (Okla. Crim. App. 1997)

(finding the petitioner’s ineffective assistance claim was based on facts that were not

available at the time he previously raised the issue before the court); Woodruff v.

State, 910 P.2d 348 350 & n.2 (Okla. Crim. App. 1996) (finding the petitioner’s claims

which were previously raised but relied upon new evidence were still barred by the

doctrine of res judicata); Williamson v. State, 852 P.2d 167, 169 (Okla. Crim. App.

1993) (“[D]efendants may not obtain review of an issue raised previously by

presenting it in a slightly different manner on post-conviction.”). The fact that the

OCCA did, as it has done many times before, apply res judicata to Wood’s

circumstances means even a favorable resolution of the Rule 9.7(G) and § 1089(D)(8)

matters for Wood would have no bearing on the outcome. This Court has expressed

its hesitancy to take up such cases that would have no practical effect on the outcome.

See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (“Courts should think carefully

before expending ‘scarce judicial resources’ to resolve difficult and novel questions of

constitutional or statutory interpretation that will ‘have no effect on the outcome of

the case.’”) (quoting Pearson v. Callahan, 555 U.S. 223, 236-37 (2009)); Klehr v. A.O.

Smith Corp., 521 U.S. 179, 192 (1997) (refusing to resolve a split among the Courts

of Appeals regarding discovery accrual rules because, inter alia, it would not affect

the outcome of the case).

Moreover, returning briefly to the potential merit of any decision on Wood’s

equal protection/fundamental fairness claim, capital defendants have not been found

to be a suspect or quasi-suspect class for equal protection purposes, 23 which means

the rational basis test would be utilized to assess the alleged distinction between

capital and noncapital successive petitioners in this instance. Rational basis scrutiny

requires only that the legislative classification rationally promote a legitimate

governmental objective to warrant the disparity in treatment. See Bd. of Trustees of

23 Wood does not present this Court with any authority showing otherwise.

Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001) (setting forth the general rational

basis standard of review). And this constitutional standard is “offended only if the

classification rests on grounds wholly irrelevant to the achievement of the state’s

objective.” McGowan v. Maryland, 366 U.S. 420, 425 (1961).

This Court has recognized “the State’s interest in carrying out a death sentence

in a timely manner.” Baze v. Rees, 553 U.S. 35, 61 (2008); cf. Coleman v. Thompson,

501 U.S. 722, 747 (1991) (noting the importance of finality to states’ criminal

litigation in a review of prior cases). "Finality is essential to both the retributive and

the deterrent functions of criminal law,” and “the State’s interests in finality [of its

convictions and sentences] are all but paramount.” Calderon v. Thompson, 523 U.S.

538, 555, 557 (1998). Congress acted to protect that interest; the Antiterrorism and

Effective Death Penalty Act was enacted precisely “to curb the abuse of the statutory

writ of habeas corpus, and to address the acute problems of unnecessary delay and

abuse in capital cases ....” Joint Explanatory Statement of the Committee of

Conference, H.Conf.Rep. No. 104-518, at 111, reprinted in 1996 U.S.C.C.A.N. 944; see

also 141 Cong. Rec. S7803-01, 7877 (daily ed. June 7, 1995) (statement of Sen. Dole)

(passage of bill that would become AEDPA “will go a long, long way to streamline the

lengthy appeals process” in capital cases). Neither the OCCA nor the Oklahoma

Legislature can have violated Petitioner’s due process or equal protection rights by

enacting similar statutes and rules.

A capital prisoner, facing imminent execution of his sentence, does not share

the state’s interest in streamlined finality. Having typically already exhausted his

claims through the federal habeas system, a successive post-conviction application in

the state court is his only way to forestall the imposition of the death sentence. This

is the reality that Oklahoma’s capital post-conviction scheme has tried to remedy. See

In re: The Setting of Execution Dates in Glossip, et al., D-2005-310 (Okla. Crim. App.

Jan. 24, 2003) (Lumpkin, J., dissenting) (“[T]he major complaint in the application of

the death penalty is the amount of time it takes to complete the carrying out of the

sentence to provide finality for the crime victims and their families.”). For that

reason, the Oklahoma Legislature and the OCCA enacted rules which incentivize

capital convicts to raise all claims at the first opportunity and to raise any successive

post-conviction claim(s) as quickly as possible. See Rule 9.7(G)(3) (requiring the

subsequent application be “filed within sixty (60) days from the date the previously

unavailable legal or factual basis serving as the basis for a new issue is announced or

discovered”); OKLA. STAT. tit. 22, § 1089(D)(8)(b)(1) (prohibiting merits review of

claims unless “the application contains sufficient specific facts establishing [the claim

could not have been raised sooner] because the factual basis for the claim was

unavailable as it was not ascertainable through the exercise of reasonable

diligence….”). There is no similar incentive for one confined under a non-capital

sentence though; any delay on their part means a delay in their release. Thus, there

is no reason to usher their claims to the courthouse for their immediate review.

And yet, the timing discrepancy between the two is offset by the resources

provided to each. While the OCCA’s rules require more alacrity from capital convicts

in bringing their claims, they are provided with much more of a support system to

help them investigate, develop, and present those claims. Despite there being no right

to counsel in post-conviction proceedings under federal law, see Pennsylvania v.

Finley, 481 U.S. 551, 555 (1987), under Oklahoma law, capital defendants are

guaranteed representation as they seek post-conviction relief, regardless of whether

it is the original or successive application, to ensure that their claims receive

sufficient legal and factual consideration in the courts. 24 See OKLA. STAT. tit. 22,

§ 1089(B). Non-capital defendants are granted no such assistance, and the vast

majority are pro se. Cf. Garza v. Idaho, 139 S. Ct. 738 749 n.12 (2019) (noting that

“researchers have found that over 90% of noncapital federal habeas petitioners

procced without counsel”). The extended time period for noncapital defendants in

which to bring their claims accounts for this difference in resources. So, while Wood

may complain that his status as a capital defendant places a higher burden on him,

he has at his disposal far greater resources than those he claims bear a lighter

burden. As such, his claim lacks merit, and the petition should be denied.

Wood’s petition takes aim at state law not applied to him to bar his

claim.

Within his claim attacking the capital post-conviction schemes, Wood also

argues that OKLA. STAT. tit. 22, §1089(D)(8)(b)(2), which requires the applicant to

“establish by clear and convincing evidence” that the alleged error means “no

reasonable fact finder would have found the applicant guilty of the underlying offense

or would have rendered the penalty of death,” places a higher burden upon him than

24 This representation includes not only legal counsel in capital cases, but typically “expert

and investigation services” as well. OKLA. STAT. tit. 22, § 1355.13A.

any non-capital convict. Pet. at 24, 26. Wood takes issue with the capital successive

post-conviction scheme in Oklahoma by arguing that it is a violation of the

constitution for capital defendants to bear this additional burden that noncapital

litigants are not. Pet. at 24, 26.

But the OCCA did not find Wood’s claim procedurally defaulted for failing to

meet this subsection’s burden; the only subsection of that statute cited by OCCA was

the prior one, §1089(D)(8)(b)(1). 25 Pet. Appx. at 006a. Thus, Wood’s case once again is

shown to be a poor vehicle for the constitutional questions he raises as to Oklahoma’s

successive post-conviction scheme. See Golden v. Zwickler, 394 U.S. 103, 108 (1969)

(this Court does not issue advisory opinions, but rather decides “‘concrete legal issues,

presented in actual cases, not abstractions’”) (quoting United Public Works of

American (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947)).

CONCLUSION

The Petition for Certiorari should be denied.

25 As noted earlier, Wood recognizes this basic fact in his petition: “The OCCA found Mr.

Wood’s claim waived under OKLA. STAT. Ann. tit. 22, § 1089[(D)](8)(b)(1).” Pet. at 32.

Respectfully submitted,

Gentner F. Drummond

Attorney General of Oklahoma

Joshua L. Lockett

Asst. Attorney General

Counsel of Record

Joshua R. Fanelli

Asst. Attorney General

Oklahoma Office of the Attorney General

313 NE Twenty-First St.

Oklahoma City, OK 73105

joshua.lockett@oag.ok.gov

(405) 522-4418

Counsel for Respondent

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.