Petition for Writ of Certiorari — Graves v. Boone

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FIDED

991435 FeR28

No.

UFriC: OF THE ciepx

In The

Supreme Court of the United States

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EDWIN THOMAS GRAVES, #16552,

Petitioner,

BOBBY BOONE, Warden,

Mack Alford Correctional Center,

and

DREW EDMONDSON, Attorney General

of the State of Oklahoma,

Respondents.

¢

On Petition For Writ Of Certiorari

To The Tenth Circuit Court Of Appeals

¢

PETITION FOR WRIT OF CERTIORARI

®

JoHN Davip ECHOLS

Counsel of Record

P.O. Box 701196

Tulsa, OK 74170-1196

918/299-3802 [voice]

defender@pianosa.com

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

oma

QUESTIONS PRESENTED

Whether the habeas corpus limitations period of the

Anti-Terrorism and Effective Death Penalty Act [the

“AEDPA”] can expire while a state court judgment is

still subject to certiorari review by the Supreme Court

of the United States? Stated differently, whether a

state court proceeding is pending until it is final?

This question is relevant to this case because:

A. The District Court and the Court of Appeals

deemed Mr. Graves’ habeas petition untimely

even though the AEDPA limitations period calcu-

lated by the United States District Court had

expired after the opinion of the Oklahoma Court

of Criminal Appeals was issued on post-convic-

tion, and before the time within which Mr. Graves

could have sought certiorari review in this Court.

When does the limitations period of the AEDPA begin

to run for federal constitutional errors arising during

state court post-conviction proceedings?

This question is relevant to this case because:

A. On habeas, Mr. Graves asserted that the post-

conviction procedures of the Oklahoma trial and

appellate courts violated his federal constitu-

tional due process rights in at least two respects:

i. Oklahoma’s procedural bar against raising

Strickland claims concerning trial counsel on

post-conviction is a violation of fundamental

14th Amendment due process, and is neither

independent, nor adequate.

ii. Oklahoma’s de jure and de facto denial of

evidentiary hearings on Strickland issues

concerning both trial and appellate counsel

ii

QUESTIONS PRESENTED - Continued

is a violation of fundamental 14th Amend-

ment due process, and is neither indepen-

dent, nor adequate.

Mr. Graves presented these fundamental due

process claims to the United States District Court

within 30 days from the date the Court of Crimi-

nal Appeals issued its opinion denying these fun-

damental due process rights, only to have his

entire habeas petition dismissed as untimely

under the AEDPA.

Whether federal habeas jurisdiction for petitioners in

state custody can ever extend to due process viola-

tions arising from state court’s application of a pro-

cedural bar to Strickland claims concerning trial

counsel's ineffectiveness, and/or the summary denial

of evidentiary hearings concerning Strickland claims?

This question is relevant to this case because:

A.

The District Court based its ruling entirely on the

AEDPA limitations provisions. Mr. Graves’

appeal to the Tenth Circuit specifically asserted

the grounds set out in Question 2, supra. How-

ever, the Court of Appeals made no ruling con-

cerning the beginning of the limitations period,

but instead ruled that due process violations in

state court post-conviction proceedings are not

cognizable in a federal habeas corpus action.

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iii

TABLE OF CONTENTS

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Constitutional and Statutory Provisions ............

Reasons Why The Writ Should Be Granted.........

eR Ns a ee ee kate

iv

TABLE OF AUTHORITIES

Page

Cases

Barnett v. Lemaster, 167 F.3d 1321 (CA10 1999)....... 8

Beaulieu v. United States, 930 F.2d 805 (CA10

a | ape aR are am Mame Paper cy ory sr py Sn Wer pti eas ger Ne 11

Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir. 1994) .... 11

Brewer v. Reynolds, 51 F.3d 1519 (10th Cir. 1995).... 11

Hicks v. Oklahoma, 447 U.S. 323 (1980) ............. 13

Miller v. Champion, 161 F.3d 1249 (CA10 1998) ..10, 11

Steele v. Young, 11 F.3d 1518 (10th Cir. 1993) ....... 12

Strickland v. Washington, 466 U.S. 668 (1984) ....... 10

Texaco, Inc. v. Short, 454 U.S. 516 (1982)............. 6

Vasquez v. Hillary, 474 U.S. 254 (1986)............... 6

CONSTITUTIONAL PROVISIONS

US. Cone Ame: 5 Set Fa 2 aes basic as tivinr 6

Cah COR, NN Fn vn 8 6 cca ode cee snes daaceenens y

CLS. Cee Mame Gg. ook kv cake bk enka eee 2

U.S. Conssr., Anmmepnemner 14. .....0 cc cn ccscveccs 2, 13, 14

STATUTES AND RULES

AEDPA, Pub.L. No. 104-32, 110 Stat. 1214............ 2

Re ON a ini ee ee 2

Ue 6 ea 2, 12

BEC BT asec 13

TABLE OF AUTHORITIES - Continued

Page

ae APE Ses iba AS 66 ea ae 7

y EN aa | inmate a 2 33; 32, 2

Rs GR I Bi ads ec nb Seu N a pac eka ve deusnes 9

ed Sa Dee Or Wii hak EAN ea eae chen icas 13

OPINIONS BELOW

1. The unpublished opinion of the Court of Appeals for

the Tenth Circuit is set out verbatim at Appendix

pages 1-5. The Circuit Court’s opinion is also avail-

able online at:

http://www.kscourts.org/cal0/cases/1999/11/99-7013.htm

2. The unpublished opinion of the United States District

Court for the Eastern District of Oklahoma is set out

verbatim at Appendix pages 9-12. The District Court's

minute order denying Mr. Graves’ motion for a new

trial is set out verbatim at Appendix page 8. The

District Court’s minute order denying Mr. Graves’

request for a certificate of appealability is set out

verbatim at Appendix pages 6-7.

3. The unpuolished opinion of the Oklahoma Court of

Criminal Appeals affirming the Okiahoma County

District Court’s denial of post-conviction relief is set

out verbatim at Appendix pages 13-18.

4. The unpublished opinion of- the Oklahoma County

District Court’s denying Mr. Graves’ application for

post-conviction relief is set out verbatim at Appendix

pages 19-23.

5. The unpublished opinion of the Oklahoma Court of

Criminal Appeals affirming Mr. Graves’ conviction on

direct appeal is set out verbatim at Appendix pages

24-31.

6. The unpublished judgment and sentence of the trial

court is set out verbatim at Appendix pages 32-34.

*

JURISDICTIONAL STATEMENT

The opinion of the United States Court of Appeals for

the Tenth Circuit denying the writ of habeas corpus was

issued on November 30, 1999. [No petition for rehearing

was filed.] This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1), petitioner having asserted below and

herein a deprivation of his rights under the United States

Constitution.

CONSTITUTIONAL AND STATUTORY PROVISIONS

1. This case involves the Fifth Amendment to the United

States Constitution, which provides in relevant part:

No person shall be ... deprived of life, liberty,

or property, without due process of law[.]

2. This case also involves the Sixth Amendment to the

United States Constitution, which provides in rele-

vant part:

In all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of

Counsel for his defense.

3. This case also involves the Fourteenth Amendment to

the United States Constitution which applies the Sixth

Amendment to the states and which provides, in per-

tinent part:

No . . . State [may] deprive any person of life,

[or] liberty . . . without due process of law.

4. This case also involves the limitations provisions of

the Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub.L. No. 104-32, 110 Stat. 1214. In

pertinent part, the AEDPA, 28 U.S.C. § 2244(d)(1)

provides that:

§ 2244(d)

(1) A 1-year period of limitation shall apply to

an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a

State court. The limitation period shall run from

the latest of -

(A) the date on which the judgment

became final by the conclusion of direct

review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to

filing an application created by State action

in violation of the Constitution or laws of

the United States is removed, if the appli-

cant was prevented from filing by such State

action;

(C) the date on which the constitutional

right asserted was initially recognized by

the Supreme Court, if the right has been

newly recognized by the Supreme Court

and made retroactively applicable to cases

on collateral review; or

(D) the date on which the factual predicate

of the claim or claims presented could have

been discovered through the exercise of due

diligence.

(2) The time during which a properly filed

application for State post-conviction or other

collateral review with respect to the pertinent

judgment or claim is pending shall not be coun-

ted toward any period of limitation under this

subsection.

5. This case also involves 28 U.S.C. § 2254 which pro-

vides in relevant part:

§ 2254

(a) The Supreme Court, a Justice thereof, a cir-

cuit judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment

of a State court only on the ground that he is in

custody in violation of the Constitution or laws

or treaties of the United States.

(b)

(1) An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not be granted unless it appears that —

(A) the applicant has exhausted the

remedies available in the courts of the

State; or

(B)

(i) there is an absence of available

State corrective process; or

(ii) circumstances exist that ren-

der such process ineffective to pro-

tect the rights of the applicant.

(2) An application for a writ of habeas

corpus may be denied on the merits, not-

withstanding the failure of the applicant to

exhaust the remedies available in the courts

of the State.

(3) A State shall not be deemed to have

waived the exhaustion requirement or be

estopped from reliance upon the require-

ment unless the State, through counsel,

expressly waives the requirement.

(c) An applicant shall not be deemed to have exhausted

the remedies available in the courts of the State, within

the meaning of this section, if he has the right under the

law of the State to raise, by any available procedure, the

question presented.

(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any claim

that was adjudicated on the merits in State court proceed-

ings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceeding.

(e)

(1) Ina proceeding instituted by an application

for a writ of habeas corpus by a person in cus-

tody pursuant to the judgment of a State court, a

determination of a factual issue made by a State

court shall be presumed to be correct. The appli-

cant shall have the burden of rebutting the pre-

sumption of correctness by clear and convincing

evidence.

(2) If the applicant has failed to develop the

factual basis of a claim in State court proceed-

ings, the court shall not hold an evidentiary

hearing on the claim unless the applicant shows

that -

(A) the claim relies on -

(i) a new rule of constitutional law, made

retroactive to cases on collateral review by

the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have

been previously discovered through the

exercise of due diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and convinc-

ing evidence that but for constitutional

error, no reasonable fact finder would have

found the applicant guilty of the underlying

offense.

+

REASONS WHY THE WRIT SHOULD BE GRANTED

I. The Court of Appeals’ interpretation of the AEDPA

undermines the jurisdiction of this Court, conflicts

with the AEDPA’s plain language, and abridges the

fundamental right to petition for a writ of habeas

corpus.

The Writ of Habeas Corpus represents the essence of

America’s commitment to government under law, and the

Constitution forbids its peacetime suspension. U.S. Const.

Art. I, Section 9, ci. 2. This constitutionally protected

right to petition for judicial inquiry into unconstitutional

and illegal confinement is the last, best, and sometimes

only hope of prisoners for whom the regular appellate

process has proven fruitless. At the time of his conviction

in 1987, Mr. Graves had a vested right to ultimately bring

his constitutional claims to the federal courts. U.S. Const.

Art. I, § 9, ci. 2. Vasquez v. Hillary, 474 U.S. 254, 264-65,

106 S.Ct. 617, 88 L.Ed.2d 598 (1986) [Conviction set aside

23 years later]. The AEDPA cannot be construed or

applied in a fashion that subverts this vested, fundamen-

tal, and historical right. Texaco, Inc. v. Short, 454 U.S. 516,

527 n.21, 102 S.Ct. 781, 791 n.21, 70 L.Ed.2d 738 (1982).

The tolling provisions of the AEDPA provide that the

time during which a state court post-conviction proceed-

ing is “pending” is excluded from the calculation of the

limitations deadline. 28 U.S.C. § 2244(d)(2). This case, and

no doubt many others, turns on the interpretation of this

single word: Is a post-conviction action “pending” in a

state court until the date the state court’s decision is filed

of record, or is it “pending” until the time within which it

is subject to certiorari review in this Court has expired,

e.g., until it is a final judgment?

In its decision below, the Court of Appeals ruled that

the post-conviction “tolling period” ends at the moment

the state’s highest court files its decision. Although this

Court has not yet addressed this specific issue, logic, the

fundamental nature of the right of habeas corpus, and

basic statutory interpretation dictate that the Court of

Appeals’ judgment is mistaken, and that a state court

post-conviction proceeding must be deemed to remain

pending until it is no longer subject to certiorari review by

this Court.!

The Court of Appeals recognizes that the term

“pending” means “until it becomes final” when the inter-

pretation is made within the context of discretionary

review by the state courts.

. . The crux of this appeal is whether the

limitations period was tolled until the state

court denied the second habeas application, as

the district court found, or whether it remained

' Upon information and belief, a petition for certiorari

including a question substantially similar to this is pending in

Rhine v. Boone, No. 99-6598, petition filed October 4, 1999.

tolled until the state supreme court denied cer-

tiorari, as Barnett asserts.

Barnett v. Lemaster, 167 F.3d 1321 (CA10 1999)

While there is a distinction between certiorari review by

state courts, and certiorari review by the Supreme Court

of the United States, the Barnett Court determined that

the term “pending” necessarily includes the time when a

suit is subject to appeal.

. . . We conclude the term [pending] must be

construed more broadly to encompass all of the

time during which a state prisoner is attempt-

ing, through proper use of state court pro-

cedures, to exhaust state court remedies with

regard to a particular post-conviction applica-

tion. Such a construction comports with the

generally-accepted definition of the term. See,

e.g., Beverly Community Hosp. Assoc. v. Belshe,

132 F.3d 1259, 1264-65 (9th Cir. 1997) (statutory

reference to “pending” lawsuits encompasses

not only undecided cases at district court level

but also cases pending on appeal), cert. denied,

119 S.Ct. 334 (1998); de Rodulfa v. United States,

461 F.2d 1240, 1253 (D.C. Cir. 1972) (“suit is

pending until the appeal is disposed of, and

until disposition any judgment appealed from

it is still sub judice”).

{Barnett, id.]

[bracketed material and emphasis added]

There is no logical or rational basis for defining the

term in one way when referring to certiorari review by a

state court and certiorari review by this Court. It is also

clear that the view adopted by the Court of Appeals in

Mr. Graves’ case would result in an illogical construction

that would have the AEDPA limitations period continue

to run even while this Court was considering a prisoner’s

certiorari petition. For example, if a state court prisoner

submitted a petition for certiorari to this Court [whether

following direct appeal or a post-conviction action], that

petition might be pending in this Court for more than the

year contemplated by the AEDPA. If such time was not

tolled, one can imagine a situation in which a petitioner

was granted certiorari by the Supreme Court, and his case

remanded to the Court of Criminal Appeals for further

proceedings, only to later find that his right to habeas

corpus review had expired while the Supreme Court had

been considering his case. In another case, this Court

might simply deny certiorari, but if that order declining

discretionary review was issued after the first anniver--

sary of the state court decision for which review was

sought, the fundamental right to seek a writ of habeas

corpus would have simply vanished from the legal land-

scape without the prisoner ever having had a chance to

exercise it.

This Court must resolve this issue in a way that is

consistent with the fundamental nature of the right of

habeas corpus. Mr. Graves’ collateral attack through post-

conviction must be deemed “pending” until the judgment

of the state court is no longer subject to reversal or

review, and the 90 day window of opportunity for cer-

tiorart review allowed by Supreme Court Rule 13 has

expired. 7

10

2. The Court of Appeals’ refusal to address fundamen-

tal due process claims which arose for the first time

during post-conviction proceedings, conflicts with

the AEPDA’s plain language, abridges the funda-

mental right to petition for a writ of habeas corpus,

and frees the Oklahoma Court of Criminal Appeals

from the superintending jurisdiction of this Court.

The District Court committed plain error when it

refused to address the merits of Mr. Graves’ claims that

he was denied due process of law on post-conviction by:

1) the refusal of the state courts to permit Strickland

claims concerning trial counsel to be raised on post-

conviction; and, 2) the refusal of the state courts to permit

the presentation of evidence in support of his constitu-

tional claims. The Court of Appeals has consistently iden-

tified these constitutional deficiencies as matters within

federal habeas jurisdiction. In Miller v. Champion, the

Court of Appeals addressed both issues within the con-

text of Strickland claims:

. . . However, notwithstanding Oklahoma state

law to the contrary, we have held that a state

prisoner may raise an ineffective assistance of

counsel claim for the first time in a § 2254 pro-

ceeding unless (1) he had an opportunity to

consult with separate counsel on direct appeal

in order to obtain an effective assessment of trial

counsel’s performance and (2) the State pro-

vided a procedural mechanism that afforded

him an opportunity to develop adequately the

factual basis of his ineffective assistance claim

11

on direct appeal. See English v. Cody, 146 F.3d

1257, 1263 (10th Cir. 1998).

Miller v. Champion, 161 F.3d 1249 (CA10 1998)

The same constitutional criticism of Oklahoma’s pro-

cedural rule limiting claims of trial counsel’s ineffective-

ness to direct appeal and barring consideration on post-

conviction was addressed in Brecheen v. Reynolds:

The practical effect of this ruling [by the Okla-

homa court] is to force [the petitioner] either to

raise this claim on direct appeal, with new coun-

sel but without the benefit of additional fact-

finding, or have the claim forfeited under state

law. This Hobson’s choice cannot constitute an

adequate state ground under the controlling

case law because it deprives [the petitioner] of

any meaningful review of his ineffective assis-

tance claim.

Brecheen v. Reynolds, 41 F.3d 1343, 1363-64

(CA10 1994), cert. denied, 115 S.Ct. 2564 (1995)

See also, Brewer v. Reynolds, 51 F.3d 1519 (10th Cir. 1995)

and Beaulieu v. United States, 930 F.2d 805, 807 (CA10

1991).

These specific federal constitutional claims were nec-

essarily presented to the state courts for the first time on

post-conviction, and the federal constitutional injuries

suffered by Mr. Graves did not come into being until the

Oklahoma Court of Criminal Appeals rejected them in its

August 7, 1997, OrpeR AFFIRMING THE DeNniAL OF Post

ConvicTION Retier. See Appendix page 14.

Mr. Graves then presented these claims in his § 2254

writ, which was filed in the United States District Court

just one month later. It is axiomatic that one month is less

12

than one year, and it was therefore the plainest of plain

error for the District Court to rule these claims time

barred under the AEDPA. It is as if the District Court

ruled that the “date of injury” of all constitutional errors

within post-conviction proceedings “relate back” to the

date of the final judgment on direct appeal. If this inter-

pretation is permitted to stand, the Oklahoma Courts will

have effectively escaped all future habeas corpus review of

any action taken on post-conviction by any Oklahoma

Court with respect to any prisoner who has been “out of

court” for more than the AEDPA’s one year limitations

period.

This plain error was then compounded when the

Court of Appeals omitted any reference to the District

Court’s error while nevertheless affirming the dismissal

of Mr. Graves’ writ on the grounds that, “Mr. Graves

challenges to Oklahoma’s post-conviction procedures do

not amount to federal constitutional claims in a federal

habeas action. See Steele v. Young, 11 F.3d 1518, 1524 (10th

Cir. 1993).” See Appendix page 5. Not only was this

broad ruling de hores the District Court’s opinion, it

unreasonably denies habeas jurisdiction to legitimate fed-

eral constitutional claims.

The requirement of exhaustion of state remedies

offers state courts the opportunity to conform their deci-

sions to the supreme law of the land, and 28 U.S.C. § 2254

expressly confers jurisdiction on this Court to reexamine

and, if necessary, set aside state court orders and judg-

ments whenever they are shown to have:

1. resulted in a decision that was contrary to,

or involved an unreasonable application of,

13

clearly established Federal law, as deter-

mined by the Supreme Court of the United

States; or

2. resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d)

In addition to the fundamental rights identified in

Miller v. Champion and Bresheen v. Reynolds, 14th Amend-

ment due process and equal protection of the law impose

on the States a federal constitutional duty to provide due

process of law with respect to rights existing or created

under state law. While there may be no independent

federal constitutional requirement that a particular state

conduct its post-conviction affairs in a particular way,

Oklahoma’s post-conviction proceedings are created by

such statutes, 22 O.S. §§ 1080, et seq., and these statutory

rights create due process liberty interests within the

scope of 14th Amendment due process of law. Hicks v.

Oklahoma, 447 U.S. 323 (1980).

It is essential that this Court assume certiorari juris-

diction and reverse the judgment of the Court of Appeals.

If this Court allows the District Court’s judgment that

constitutional errors occurring for the first time during

post-conviction proceedings are time barred whenever

the direct appeal judgment is time barred under the

AEDPA, then the Oklahoma Courts will have effectively

escaped habeas corpus review of any action taken on post-

conviction by any Oklahoma Court with respect to any

prisoner who has been “out of court” for more than the

14

AEDPA’s one year limitations period. Even more troub-

ling, if the decision of the Court of Appeals is allowed to

stand, the Oklahoma Courts will have effectively escaped

habeas corpus review of any action taken on post-convic-

tion by any Oklahoma Court with respect to any prisoner,

whether or not the prisoner has been “out of court” for

more than the AEDPA’s one year limitations period.

Freed of oversight, the Court of Criminal Appeals could

openly and directly contrad:ct this Court’s interpretation

of federal constitutional law in a post-conviction proceed-

ing, and the victimized prisoner could never reach the

merits on habeas. The 14th Amendment demands more of

federal oversight.

CONCLUSION

For the foregoing reasons, the Court should grant

certiorari review in this case and upon full consideration,

remand this case to the Court of Appeals for the Tenth

Circuit with instructions to reinstate Mr. Graves’ petition

for the Great Writ.

Respectfully submitted,

JoHN Davip EcHOoLs

P.O. Box 701196

Tulsa, OK 74170-1196

918/299-3802 [voice]

918/299-9765 [fax]

defender@pianosa.com

Attorney for Edwin Thomas Graves

App. 1

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EDWIN THOMAS

GRAVES,

No. 99-7013

(D.C. No. CV-97-512-S)

(E.D. Okla.)

Petitioner-Appellant,

V.

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BOBBY BOONE, Warden, |

Mack Alford Correctional |

Center; THE ATTORNEY !

GENERAL OF THE |

STATE OF OKLAHOMA, |

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Respondents-Appellees.

ORDER AND JUDGMENT*

(Filed Nov. 30, 1999)

Before ANDERSON, BARRETT, and BRISCOE, Circuit

Judges.

After examining the briefs and appellate record, this

panel has determined unanimously that oral argument

would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

* This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation of

orders and judgments, nevertheless, an order and judgment

may be cited under the terms and conditions of 10th Cir. R. 36.3.

App. 2

The case is therefore ordered submitted without oral

argument.

Petitioner-appellant Edwin Thomas Graves appeals

the district court’s denial of his 28 U.S.C. § 2254 petition

for writ of habeas corpus. He also appeals the district

court’s denial of a certificate of appealability. The district

court determined that Mr. Graves’ petition was not

timely. We affirm the district court and deny a certificate

of appealability.

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), establishes a one-year limitations period

in which prisoners must file their habeas petitions. see 28

U.S.C. § 2244(d)(1). The limitations period triggers when

the prisoner’s direct appeal becomes final. See Hoggro v.

Boone, 150 F.3d 1223, 1225 (10th Cir. 1998). For prisoners

whose convictions became final before April 24, 1996 -

AEDPA’s effective date — the limitations period com-

mences on April 24, 1996 and expires one year later, on

April 24, 1997. See id. at 1225-26. Time spent pursuing

state post-conviction relief tolls the one-year grace

period. See 28 U.S.C. § 2244(d)(2); Hoggro, 150 F.3d at

1226.

Mr. Graves was convicted of first-degree murder in

Oklahoma state court on September 30, 1987, and sen-

tenced to life imprisonment. The Oklahoma Court of

Criminal Appeals denied his direct appeal on September

3, 1992. On August 7, 1997, the Oklahoma Court of Crimi-

nal Appeals affirmed the District Court of Oklahoma

County which denied Mr. Graves’ April 21, 1997 request

for post-conviction relief. Mr. Graves filed this petition

for habeas relief in the Eastern District of Oklahoma on

App. 3

September 8, 1997 — 502 days after April 24, 1996. Out of

those 502 days, Mr. Graves spent 108 days pursuing state

post-conviction relief. Subtracting 108 days from the total

elapsed time of 502 days leaves 394 days, an amount in

excess of the one-year grace period.

Mr. Graves argues on appeal that: (1) the record

establishes a denial of his constitutional rights requiring a

certificate of appealability; (2) the doctrine of reasonable

opportunity applies; (3) the limitations period runs while

a petitioner can seek certiorari review in the United

States Supreme court; (4) the limitations period is an

affirmative defense limiting the district court to respon-

dents’ arguments; (5) the district court erred by not equi-

tably tolling the limitations period; (6) the limitations

period does not run while Oklahoma’s appellate and

post-conviction procedures fail to provide a constitu-

tional means of exhausting state remedies for federal

constitutional violations; and (7) the limitations period

does not run as to unconstitutional procedures in state

court post-conviction proceedings, and the district court

must address federal constitutional claims which do not

arise in the first instance until state court post-conviction

proceedings are concluded.

Mr. Graves’ arguments on appeal do not save his

petition. The time during which a petition for writ of

certiorari is pending in the United States Supreme Court

as well as the time during which such a petition can be

filed is not within the ambit of § 2244(d)(2) and is not

excluded from the one-year limitations period. See Rhine

v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999), petition for

cert. filed, (U.S. Oct. 4, 1999) (No. 99-6598). In addition,

Mr. Graves has not presented any compelling reason why

App. 4

the grace period should be equitably tolled. See Irwin v.

Department of Veterans Affairs, 498 U.S. 89, 96 (1990)

(describing rare situations in which federal courts have

permitted equitable tolling). Nor are we swayed by his

related argument that we should apply a reasonable

opportunity analysis rather than that set forth in Hoggro

and other of our decisions.

Mr. Graves also argues that the district court erred by

not strictly adhering to respondents’ arguments pertain-

ing to the limitations period. We see no significance in the

district court’s purported deviation. First, respondents

did raise the defense of limitations. Second, federal dis-

trict courts are empowered in habeas cases to consider

petitions and dismiss them if “the petitioner is not enti-

tled to relief in the district court.” Rules Governing Sec-

tion 2254 Cases in the United States District Courts, 28

U.S.C. foll. § 2254 Rule 4; see also Kiser v. Johnson, 163 F.3d

326, 328 (5th Cir. 1999) (holding that rule 4 “differentiates

habeas cases from other civil cases with respect to sua

sponte consideration of affirmative defenses”)

Mr. Graves’ remaining contentions essentially chal-

lenge Oklahoma’s post-conviction procedures. Mr. Graves

contends that AEDPA’s one-year limitations period never

started to run because he was not afforded a fuli oppor-

tunity to exhaust his federal constitutional claims. Mr

Graves claims that the Oklahoma state courts impeded

him, within the meaning of § 2244(d)(1)(B), by denying

him the opportunity to present evidence in support of his

ineffective assistance of counsel claim. In addition, Mr.

Graves contends that he was not allowed to develop the

necessary factual record under § 2244(d)(1)(D). We do not

App. 5

find, on the record before us, that the § 2244(d)(1) limita-

tions period “raises serious constitutional questions and

possibly renders the habeas remedy inadequate and inef-

fective.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert.

denied, 119 S. Ct. 210 (1998). Mr. Graves’ challenges to

Oklahoma’s post-conviction procedures do not amount to

federal constitutional claims in a federal habeas action.

See Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993).

Accordingly, we DENY Mr. Graves’ request for a

certificate of appealability and DISMISS the appeal.

Entered for the Court

Stephen H. Anderson

Circuit Judge

App. 6

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

EDWIN THOMAS

GRAVES,

Fettoner, No. CIV 97-512-S

V.

BOBBY BOONE, et al.,

Respondents.

Ne ee eee eee ee

ORDER DENYING CERTIFICATE OF APPEALABILITY

(Filed Febr. 11, 1999)

Petitioner has filed a notice of intent to appeal the

court’s orders entered July 23, 1998, dismissing his peti-

tion for a writ of habeas corpus and December 31, 1998,

overruling his motion for new trial. After a careful review

of the record the court concludes petitioner has failed to

make a “substantial showing of the denial of a constitu-

tional right,” as required by 28 U.S.C. § 2253(c)(2), as

amended by the Antiterrorism and Effective Death Pen-

alty Act of 1996, Publ L. No. 104-132, 110 Stat. 1214

(1996). See also Lennox v. Evans, 87 F.3d 431, 434 (10th Cir.

1996), cert. denied, __ U.S. __, 117 S.Ct. 746 (1997), over-

ruled in part by United States v. Kunzman, 123 F.3d 1363,

1364 n.2 (10th Cir. 1997).

Accordingly, petitioner is denied a certificate of

appealability.

App. 7

IT IS SO ORDERED this 11th day of February 1999.

/s/ Frank H. Seay

FRANK H. SEAY

UNITED STATES

DISTRICT JUDGE

App. 8

United States District Court

for the Eastern District of Oklahoma

December 31, 1998

John David Echols, Esq.

P.O. Box 701196

Tulsa, OK 74170

CIVIL MINUTES

6:97-cv-00512

Graves v. Boone

DOCKET ENTRY

MINUTE ORDER: ENTERING ORDER overruling Peti-

tioner’s motion for new trial [10-1]. (FHS) (cc: all counsel)

WILLIAM B. GUTHRIE, Clerk

By: Sheila May

Deputy Clerk

THIS NOTICE SENT to THE FOLLOWING

COUNSEL:

John David Echols, Esq.

Katharine J. Hodgins, Esq.

App. 9

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

EDWIN THOMAS

)

GRAVES, )

fe )

wetitioner, | No. CIV 97-812-8

v. )

BOBBY BOONE, Warden, ?

et al., ‘

Respondents. _)

ORDER

(Filed July 23, 1998)

This action is before the court on respondent’s

motion to dismiss petition for failure to file within the

limitations period. Petitioner, an inmate in the custody of

the Oklahoma Department of Corrections who is incarcer-

ated at Mack Alford Correctional Center in Stringtown,

Oklahoma, attacks his conviction in Oklahoma County

District Court Case Number CFR-87-1715 for Murder in

the First Degree.

Respondent has filed a motion to dismiss, alleging

the petition was filed beyond the one-year statute of

limitations imposed by the Antiterrorism and Effective

Death Penalty Act of 1996, codified at 28 U.S.C. § 2244(d)

(“AEDPA”). The following dates are pertinent to the dis-

position of the motion:

09/03/92 Petitioner’s conviction affirmed by the

Oklahoma Court of Criminal Appeals in

Graves v. State, No. F-89-0303 (Okla. Crim.

App. Sept. 3, 1992).

12/02/92

04/21/97

06/03/97

08/07/97

09/08/97

App. 10

Expiration of the ninety-day period for a

certiorari appeal to the United States

Supreme Court.

Petitioner filed an application for post-con-

viction relief in the Oklahoma County Dis-

trict Court.

The district court denied petitioner’s appli-

cation for post-conviction relief in State v.

Graves, No. 87-1715 (Oklahoma County

Dist. Ct. June 4, 1997).

The denial of petitioner’s application for

post-conviction relief was affirmed in

Graves v. State, No. PC-97-954 (Okla. Crim.

App. Aug. 7, 1997).

Petitioner filed this petition for a writ of

habeas corpus.

On April 24, 1996, the President signed the AEDPA

into law, amending 28 U.S.C. § 2244 to add a one-year

statute of limitation period for filing a writ of habeas

corpus by state prisoners:

(1) A 1-year period of limitation shall apply to

an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a

State court. The limitation period shall run from

the latest of -

(A) the date on which the judgment became

final by the conclusion of direct review or the

expiration of the time for seeking such review;

(B) the date on which the impediment to filing

an application created by State action in viola-

tion of the constitution or laws of the United

States is removed, if the applicant was pre-

vented from filing by such State action;

App. 11

(C) the date on which the constitutional right

asserted was initially recognized by the

Supreme Court, if the right has been newly rec-

ognized by the Supreme Court and made retro-

actively applicable to cases on collateral review;

or

(D) the date on which the factual predicate of

the claim or claims presented could have been

discovered through the exercise of reasonable

diligence.

(2) The time during which a properly filed

application for State post-conviction or other

collateral review with respect to the pertinent

judgment or claim is pending shall not be coun-

ted toward any period of limitation under this

subsection.

28 U.S.C. § 2244(d).

The Tenth Circuit Court of Appeals has since held

that a petitioner whose conviction became final on or

before April 24, 1996, must file his petition for a writ of

habeas corpus before April 24, 1997. See Miller v. Marr,

141 F.3d 976 977 (10th Cir. 1998); see also United States v.

Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).

Acknowledging the Simmonds holding, respondent

asserts that because his conviction was final in 1992,

petitioner’s deadline for filing this petition was April 23,

1997. With respect to petitioner’s post-conviction pro-

ceedings, respondent contends the one-year grace period

was for filing a habeas petition, not for pursuing post-

conviction remedies.

A plain reading of 28 U.S.C. § 2244(d)(2) shows that

the federal courts are required to toll time spent in state

App. 12

court post-conviction litigation. Applying the statute to

petitioner’s case, the one-year limitations period began to

run on April 24, 1996, the effective date of AEDPA. Peti-

tioner filed this habeas petition on September 8, 1997, 502

days after AEDPA went into effect. However, the 108

days, from April 21, 1997, to August 7, 1997, when peti-

tioner’s post-conviction action was pending should be

subtracted from the 502 days. The resulting elapsed time

of 394 days is [sic] exceeds the one-year limit.

ACCORDINGLY, respondent’s motion to dismiss

time barred petition is GRANTED, and this action is

DISMISSED in its entirety.

IT IS SO ORDERED this 23rd day of July 1998.

/s/ Frank H. Seay

FRANK H. SEAY

UNITED STATES

DISTRICT JUDGE

on nec inaieaall

App. 13

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

EDWIN THOMAS

GRAVES

Petitioner, Case No. PC 97-954

V.

THE STATE OF

OKLAHOMA

Respondent.

Nm meee eee ee ee”

ORDER AFFIRMING DENIAL OF

POST-CONVICTION RELIEF

(Filed Aug. 7, 1997)

Petitioner, through counsel, filed an Application for

Post-Conviction Relief in the District Court of Oklahoma

County, Case No. CRF 87-1715. The Honorable Daniel

Owens, District Judge, denied the Application. From the

District Court’s Post-Conviction Findings, Petitioner

appeals.

Petitioner was convicted in Case No. CRF 87-1715 of

first degree Murder. On direct appeal, we affirmed his

conviction and sentence of life imprisonment. Graves v.

State, F 89-0303 (Okl.Cr. September 3, 1992) (not for pub-

lication). In the Application for Post-Conviction Relief

filed in the District Court, Petitioner raised five (5) propo-

sitions of error.! Judge Owens found that all claims which

' Petitioner alleged five errors of law occurred: separation

of jurors during deliberations, lack of instruction on lesser-

included offense, lack of instruction on second degree

App. 14

could have, or should have, been raised on direct appeal

were waived, and that all claims which were previously

raised were barred by res judicata. Judge Owens exam-

ined Petitioner’s allegation of ineffective assistance of

appellate counsel and determined such a claim was not

supported by the law or the record. As set forth in the

Post-Conviction Findings, Judge Owens denied post-con-

viction relief.

On appeal, Petitioner complains that the District

Court’s decision to deny relief was error. Petitioner

argues that he should have been granted an evidentiary

hearing to prove his allegations of ineffective assistance

of appellate counsel and ineffective assistance of trial

counsel. Petitioner also regurgitates the other issues he

raised in the District Court and states they each should be

considered “to the extent each relates to the Proposition

One claim of ineffectiveness of appellate counsel.” Peti-

tioner also encourages this Court to “modify its rules and

decisions to the extent that it allowed every substantial

legal issue not presented on direct appeal to be presented

and considered in post-conviction proceedings.”

We decline Petitioner’s request to modify all of our

prior decisions and our rules to allow every substantial

legal issue not presented on direct appeal to be presented

and considered in post-conviction proceedings. The Post-

Conviction Procedure Act, 22 O.S.1991, § 1080 et seq. was

not intended to provide a second appeal under the mask

of a post-conviction application. Fox v. State, 880 P.2d 383,

manslaughter, ineffective assistance of trial counsel, and

ineffective assistance of appellate counsel.

semanas

App. 15

384 (Okl.Cr.1994), cert. denied, __. U.S. __, 115 S.Ct. 1318,

131 L.Ed.2d 199 (1995). The Act very specifically limits

what types of claims may be raised. See 22 O.S. 1991,

§ 1080 et. seq.

We will not consider an issue which was raised on

direct appeal (and is therefore res judicata) or an issue

which could have been raised on direct appeal but was

not (and is therefore waived). See Mayes v. State, 921 P.2d

367, 370 (OklI.Cr.1996) and citations therein. An exception

exists when the court finds a ground for relief asserted

which for sufficient reasons was not asserted or was

inadequately asserted in a prior application to secure

relief. 22 O.S.1991, § 1086.

A sufficient reason for failing to previously raise or

for inadequately asserting an issue requires a showing

that some impediment external to the defense prevented

petitioner and counsel from constructing or raising a

claim. Johnson v. State, 823 P.2d 370, 373 (Okl.Cr.1991); see

also McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113

L.Ed.2d 517 (1991). As “sufficient reason” for not assert-

ing the claims raised in the application, Petitioner claims

his appellate counsel was ineffective for not raising three

“fundamental, reversible errors” and for not raising inef-

fective assistance of trial counsel. Petitioner does not

explain how he or his direct appeal counsel was pre-

vented from constructing or raising the claims raised

here. Rather, Petitioner argues that examination of the

underlying claims would reveal their validity and would

require and support a finding of deficient performance of

appellate counsel.

App. 16

The test for determining the effectiveness of both

trial and appellate counsel is the standard of “reasonably

effective assistance” set forth in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-693

(1984). Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr.1985).

In Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838,

842-43, 122 L.Ed.2d 180, 189 (1993), interpreting Strick-

land, the Supreme Court held:

[an appellant] alleging prejudice must show

“that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial

whose result is reliable.” Stricland [sic], 466 U.S.

at 687, 104 S.Ct. at 2064; see also Kimmelman v.

Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2582,

91 L.Ed.2d 305 (1986) (“The essence of an inef-

fective-assistance claim is that counsel’s

unprofessional errors so upset the adversarial

balance between defense and prosecution that

the trial was rendered unfair and the verdict

rendered suspect”); Nix v. Whiteside, supra, 475

U.S., at 175 106 S.Ct. at 998. Thus, an analysis

focusing solely on mere outcome determination,

without attention to whether the result of the

proceeding was fundamentally unfair or unreli-

able, is defective. To set aside a conviction or

sentence solely because the outcome would

have been different but for counsel’s error may

grant the defendant a windfall to which the law

does not entitle him. See Cronic, supra, 466 U.S.

at 658, 104 S.Ct. at 2046.

Day v. Hargett, 937 P.2d 502, 503 (Okl1.Cr.1997).

The record does not establish that Petitioner’s appel-

late counsel rendered deficient performance sufficient to

show the trial was unfair or the verdict suspect. Failure to

———aaaoEaaE————_

App. 17

raise each and every issue is not determinative of ineffec-

tive assistance of counsel and counsel is not required to

advance every cause or argument regardless of merit. See

Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr.1985); Day v.

Hargettt, 937 P.2d 502, 503 (Okl.Cr.1997)

The record before this court, consisting only of Peti-

tioners assertions that the outcome of the proceedings

would have been different, fails to establish that Peti-

tioner was denied effective assistance of appellate coun-

sel. Petitioner also complains that the District Court

should have held an evidentiary hearing on the claims of

ineffective trial and appellate counsel. However, the Dis-

trict Court was not required to hold an evidentiary hear-

ing on those allegations, because Petitioner had not

shown the existence of a genuine issue of material fact

which had to be resolved through an evidentiary hearing

and was necessary for a determination of the issues

raised. 22 O.S.1991, § 1084.

An “appeal to this Court under the Post-Conviction

Procedure Act constitutes an appeal from the issues

raised, the record, and findings of fact and conclusions of

law made in the district court.” Rule 5.2, Rules of the

court of Criminal Appeals, 22 O.S.Supp.1996, Ch.i8, App.

We cannot conclude from the record before us that the

trial court erred in denying relief or that Petitioner has

shown he is entitled to post-conviction relief.

THEREFORE IT IS THE ORDER OF THIS COURT

that the Post-Conviction Findings of the district Court,

denying post-conviction relief in Case No. CRF 87-1715,

should be AFFIRMED.

IT IS SO ORDERED.

Se Ee See Ten Oe a eT

App. 18

WITNESS OUR HANDS AND THE SEAL OF THIS

COURT this 7th day of August, 1997.

/s/ Reta M. Strubhar

RETA M. STRUBHAR,

Vice Presiding Judge

/s/ Gary L. Lumpkin

GARY L. LUMPKIN, Judge

/s/ James F. Lane

JAMES F. LANE, Judge

/s/ Charles A. Johnson

CHARLES A. JOHNSON, Judge

ATTEST:

/s/ James Patterson

Clerk

pa

App. 19

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

EDWIN THOMAS GRAVES, )

Petitioner, )

eet )

i ) Case No.

THE STATE OF OKLAHOMA, ) CRF-87-1715

Renpennent. (Filed June 04, 1997)

POST CONVICTION FINDINGS

ORIGINAL CHARGE: Murder in the First Degree.

JUDGMENT AND SENTENCE: Life imprisonment.

APPLICATION FOR POST-CONVICTION RELIEF

FILED: April 21, 1997.

RESPONSE OF THE DISTRICT ATTORNEY: May 20,

1997.

WAS FORM AUTHORIZED BY COURT OF CRIMINAL

APPEALS USED? Yes

PROCEEDING IN COURT OF CRIMINAL APPEALS, IF

ANY: Direct Appeal in case number F-89-303.

IS THERE A GENUINE ISSUE OF MATERIAL FACT?

No

IS AN EVIDENTIARY HEARING NECESSARY? No

IS THE TESTIMONY OF THE TRIAL JUDGE MATE-

RIAL TO SUCH A HEARING? No

App. 20

STATEMENT REGARDING

MATERIALS REVIEWED FOR DECISION

The Court has reviewed the following materials for

the making of its decision:

1.

1. Petitioner’s brief and attachments thereto.

2. State’s response brief and attachments

thereto.

FINDINGS OF FACT

On September 23, 1987, Petitioner was convicted by a

jury trial before the Honorable Judge Charles Owens.

On September 30, 1987, Judge Owens sentenced Peti-

tioner pursuant to the jury’s recommendation.

Petitioner filed a direct appeal with the Court of

Criminal Appeals wherein he raised two propositions

of error. They were as follows:

Proposition I: Evidence at trial was insufficient to

support a conviction for First

Degree Murder.

Proposition II: Insufficient evidence existed to find

flight.

The Court affirmed the Petitioner’s convictions with-

out modification or reversal.

Petitioner filed the instant application wherein he

raises five propositions of error. They are as follows:

Proposition I: Separation of jurors during deliber-

ation.

Proposition II: No 22 O.S. §837 jury instruction.

Proposition III: No 22 O.S. §716 jury instruction.

—

App. 21

Proposition IV: Ineffectiveness of trial counsel.

Proposition V: Ineffectiveness of appellate counsel.

Petitioner requests that his judgment and sentence be

vacated and/or have his case dismissed with preju-

dice, or be granted a new trial.

CONCLUSIONS OF LAW

The post-conviction procedure act is not intended to

be a second direct appeal. Fox v. State, 880 P.2d 383,

384 (Okl.Cr.1994), cert. denied, _ U.S. __, 115 S.Ct.

1318, 131 L.Ed.2d 199 (1995), the Court is not required

to consider issues which were raised on direct appeal

and barred by res judicata. Thomas v. State, 888 P.2d

522, 525 (Okl.Cr.1994), cert. denied, __ U.S. __, 116

S.Ct. 123, 133 L.Ed.2d 73 (1995). Issues which could

have been raised on direct appeal, but were not, are

waived. Castro v. State, 814 P.2d 158, 159

(Okl.Cr.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 947,

117 L.Ed.2d 116 (1992). The issues raised by Petitioner

were or could have been raised on direct appeal.

Petitioner’s claim of ineffective assistance of trial

counsel is without merit, and barred by controlling

case law. A claim of ineffective assistance of counsel

is to be treated the same as any other issue raised on

direct appeal, not through collateral attack, or it is

waived. Berget v. State, 907 P.2d 1078, 1084

(Okl.Cr.App.1995), cert. denied, 116 S.Ct. 2504; Strong

v. State, 902 P.2d 1101, 1103 (Okl.Cr.App.1995). Issues

which could have been raised on direct appeal, but

were not, are waived. Castro v. State, 814 P.2d 158, 159,

(Okl.Cr.App.1991) cert. denied, 502 U.S. 1063, 112

S.Ct. 947, 117 L.Ed.2d 116 (1992).

Petitioner is now precluded from raising this issue for

the first time in a Post-Conviction Proceeding. Mat-

ters which have or could have been raised on direct

App. 22

appeal, but were not, will not be considered in Post-

Conviction Proceedings. Nguyen v. State, 879 P.2d 148

(Ok.Cr.App.1994).

The record provided by Petitioner does not support

Petitioner’s claim that appellate counsel was ineffec-

tive. There is nothing in the record to show that

appellate counsel’s representation fell below an objec-

tive standard of reasonableness and that there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984).

To meet both the deficient performance and prejudice

prongs, the Petitioner must establish that his appel-

late counsel failed to raise issues warranting reversal,

modification of sentence, or remand for resentencing.

Hooks, 902 P.2d at 1107; Mann v. State, 856 P.2d 992,

994 (Okl.Cr.1993), cert. denied, __ U.S. __, 114 S.Ct.

1869, 128 L.Ed.2d 490 (1994).

The fact that appellate counsel did not raise every

issue now raised by Petitioner is not evidence of

ineffectiveness. It is the role of appellate counsel to

carefully select and develop the legal issues to be

presented to the Court and not raise every non-frivo-

lous issue conceivable. Jones v. Barnes, 463 U.S. 745,

749, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Further, appellate counsel is not ineffective, and

counsel actions do not establish a sufficient reason for

a default, the mere fact that counsel fails to recognize

either the factual or the legal basis for a constitutional

claim, or failed to raise the claim even if recognized.

Webb v. State, 835 P.2d 115, 116, (Okl.Cr.1992), citing

Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 91

L.Ed.2d 397 (1986).

ORDER: Application denied.

App. 23

NOTICE: YOU MAY APPEAL THIS ORDER BY FILING A

PETITION IN THE COURT OF CRIMINAL APPEALS

WITHIN THIRTY DAYS FROM THIS DATE. (THIS

ORDER TO BE FILED BY THE CLERK AS PART OF THE

MINUTES IN THIS CASE.) 3

DATED this 3rd day of June, 1997.

COURT REPORTER PRESENT

/s/ Daniel L. Owens

DISTRICT JUDGE

App. 24

CLIENT COPY

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

EDWIN THOMAS

GRAVES NOT FOR

Aintiai ) PUBLICATION

oa | No. F-89-0303

THE STATE OF )

OKLAHOMA, )

Appellee. ‘

OPINION

(Filed Sep. 3, 1992)

BRETT, J.:

Appellant, Edwin Thomas Graves, was tried by jury

for the crime of Murder in the First Degree, (21

O.S.Supp.1982 § 701.7), in the District Court of Oklahoma

County, Case No. CRF-87-1715. The jury returned a ver-

dict of guilty and set punishment at life imprisonment.

Appellant was sentenced accordingly. From this judg-

ment and sentence, appellant perfects this appeal.

At trial, testimony was presented that on March 24,

1987, Joyce Graves’ body was found in a ditch, under-

neath a mattress, along the side of County Line Road in

Oklahoma City. The body appeared to be nude, hairless!

and badly beaten with a cut in the back of the head.

1 The decedent’s hairlessness is due to a thyroid condition

and is in no way relevant to her death.

WA Pio

App. 25

Testimony further established that Joyce was last

seen with her husband, appellant, at the Peppermill Club

on March 19, 1987. At this time, Joyce appeared to be

intoxicated but did not appear to have any physical inju-

ries. During the evening, appellant became angry with

Joyce’s socializing at the club and the two exchanged

words, however, no physical violence took place. The

couple was then asked to leave. Shortly thereafter, Joyce

left the club. Appellant stayed and finished his shuffle

board game then left approximately twenty (20) to thirty

(30) minutes after Joyce.

Appellant took the stand and corroborated the above

stated facts. He then testified that while driving home

from the club he saw Joyce walking past the block in

which they lived. He pulled over to the side of the road,

picked her up and put her in the backseat of his car.

appellant observed that during this time Joyce had lost

consciousness but he thought she had passed out from

having had too much to drink. When they got home,

appellant testified that he attempted to carry Joyce’s

unconscious body into the house but fell to the ground.

Appellant then dragged Joyce into the house, took her

clothes off in the living room, and dragged her into the

bedroom. He tried to lift her on the bed but could not. At

this time, appellant observed that she had a cut [sic] the

back of her head but it did not appear to be bleeding. He

then left her on the floor to “sleep it off” and went to bed.

Appellant testified that when he woke up the next

morning, he saw that the cut on Joyce’s head had bled

somewhat and there was dried blood in her mouth. He

rolled Joyce onto her stomach and attempted artificial

respiration. A large amount of blood spilled from Joyce’s

App. 26

mouth. He then felt her pulse and realized she was dead.

Appellant testified that in a state of panic, he wrapped

Joyce’s dead body in a blanket and put her in the trunk of

his taxi cab. Appellant put Joyce’s wig, clothing, purse

and several other belongings into a plastic garbage bag

and took them out to the garage. He then tried to clean

the blood off the carpet.

Appellant testified that he planned to bury Joyce’s

body so he bought a pick and shovel. He traveled around

town all day but could not find a suitable spot for burial.

That evening, he made arrangements to be late in deliver-

ing his cab. Finally, after having made arrangements to be

late in delivering his cab, appellant left Joyce’s body

underneath a mattress in a ditch along the side of a road.

He then disposed of Joyce’s clothes in a nearby dumpster.

Between the period of March 20 and 24, appellant

checked on the body daily. On March 23, he informed a

friend of Joyce’s that Joyce had left him on March 19 in

the middle of the night and had stolen three hundred and

fifty dollars ($350.00). Appellant further contacted Joyce’s

daughter in Portland, Oregon telling her that Joyce had

left him and he did not know where she was. He told her

that he would file a missing person’s report and call her

back. Appellant never called her back.

While checking the body on March 24, appellant

realized that it had been discovered. Appellant imme-

diately contacted Charles Smith and offered to sell his

car. Smith accpeted [sic] and gave appellant three hun-

dred dollars ($300.00). Appellant told Smith that his wife

had left him and gave Smith the impression that he was

going to look for her. Smith testified that appellant

!

App. 27

seemed to be in a hurry to leave town. Appellant went

straight to the airport from his meeting with Smith, flew

to Dallas, bought a bus ticket and traveled around Cali-

fornia.

An autopsy on Joyce Graves’ body was performed on

March 25. Upon an external examination, two lacerations

on the head, one which cut down to the skull; a large

number of contusions over the face and body, some

occurring after death; and an abrasion on the left knee

where the skin had been scraped off were found. Inter-

nally, bleeding into the skin and tissues of the contusions;

a subdural hematoma with actual bleeding into the skull

and bleeding into the brain itself and the brain stem were

found. The examining pathologist felt that the manner of

death was a homicide. In his opinion, Joyce’s death

resulted from a blunt trauma to the back of the head

which caused bleeding directly into the brain. These inju-

ries were consistent with that of being beaten. He testi-

fied, however, that the head injuries could have been

caused by hitting something while falling. He further

testified that several of Joyce’s contusions were defense-

type injuries but several could have been caused by being

carried or dragged.

On March 28, while appellant was away, police

obtained a search warrant of the Graves’ home. During

their search of the bedroom, they discovered a large

blood stain on the carpet at the foot of the bed. The stain

appeared to have been cleaned but blood residue

remained in the carpet fibers. Blood splatters that had not

been cleaned were also found on the box spring portion

of the bed. The blood was consistent with that of Joyce

Graves’.

;

App. 28

Appellant called Smith several days after his depar-

ture from Oklahoma City. Smith told appellant that Joyce

was dead and that appellant was wanted for questioning.

Appellant decided to return home. On March 31, he

called the police from Texas, informed them that he was

coming home and would talk to them by noon the next

day. Appellant did as he said and told police the same

story he testified to at trial.

We will first address appellant’s second assignment

of error which states that there is insufficient evidence to

show flight, therefore, the flight instruction was not justi-

fied. This assignment is addressed first because if the

evidence of flight is insufficient, flight can not be consid-

ered in determining appellant's first assignment of error.

Appellant failed to object to this particular instruction at

trial which operates as a waiver of all but fundamental

error. Long v. State, 654 P.2d 647 (Okl.Cr.1982). Determin-

ing which instructions are given to the jury is within the

discretion of the trial court and we will not interfere with

the trial court’s decision unless an abuse of discretion is

shown. Palmer v. State, 719 P.2d 1285, 1287 (Ok1.Cr.1986).

Flight exists when: 1) an accused departs from the scene

of a crime; 2) with a consciousness of guilt; 3) in order to

avoid arrest for the crime with which he is charged.

Wilson v. State, 250 P.2d 72 (Okl.Cr.1952). When evidence

supproting [sic] flight is admitted, the determination of

its existence is a question of fact for the jury thus the

flight instructions are warranted. Id.; McDonald v. State,

764 P.2d 202 (Okl.Cr.1988).

Appellant specifically contends that there was insuf-

ficient evidence to establish that he left town to avoid

arrest. He bases this contention on the fact that appellant

App. 29

did not leave the country when he was able and volun-

tarily turned himself over to the police. Although this is

true, the record also reveals that on March 24, appellant

left town within hours after discovering the police had

found his wife’s body and admitted to being in a state of

panic because of the body’s discovery. Given these facts,

we find sufficient evidence was presented to support a

finding of flight, thus, the trial court did not abuse its

discretion in giving the flight instruction.

Appellant’s first proposition of error contends that

there was insufficient evidence to show the required

intent of malice aforethought. Thus, he claims the convic-

tion for First Degree Murder should be reversed. “Malice

is that deliberate intention unlawfully to take away the

life of a human being, which is manifested by external

circumstances capable of proof.” 21 O.S.Supp.1985

§ 701.7; Short v. State, 634 P.2d 755 (Okl.Cr.1981). To

determine if malice was manifested by external circum-

stances, we must look to the totality of the circumstances.

See Short v. State, 634 P.2d 755 (Okl.Cr.1981). Malice can

be proven solely by circumstantial evidence and is within

the province of the jury to decide its existence. Cavazos

v. State, 779 P.2d 987 (Okl.Cr.1989); Barr v. State, 763 P.2d

1184 (Okl.Cr.1988). Furthermore, certain actions by appel-

lant such as flight and attempts to destroy evidence are

admissible to show a consciousness of guilt. See Wills v.

State, 636 P.2d 372 (Okl.Cr.1981); Wilson v. State, 250

P.2d 72 (Okl.Cr.1952).

Evidence at trial established the following: First,

Joyce had expressed a fear of appellant on the night of

her disappearance. Second, appellant was angry with

App. 30

Joyce right before her disappearance. Third, the patholo-

gist thought the death was a homicide because Joyce’s

injuries were consistent with that of being beaten. Fourth,

appellant was with Joyce at the time of her death, he hid

the body in a ditch along a country road so that it would

not be found and checked on it daily to make sure it was

covered. He further covered his tracks by attempting to

clean Joyce’s blood off the carpet, destroying her clothes,

lying about her where abouts [sic], and leaving town

when he realized the body had been discovered. This

evidence along with the photographs of Joyce’s dead

body, when looked at in the light most favorable to the

State, is sufficient for a jury to conclude beyond a reason-

able doubt that appellant intentionally and deliberately

murdered his wife. See Spuehler v. State, 709 P.2d 202

(OkI.Cr.1985).

In light of the foregoing reasons, appellant’s Judg-

ment and Sentence is AFFIRMED.

AN APPEAL FROM THE DISTRICT COURT OF

OKLAHOMA COUNTY BEFORE THE HONOR-

ABLE CHARLES OWENS, DISTRICT JUDGE

Appellant, EDWIN THOMAS GRAVES, was convicted of

Murder in the First Degree in the District Court of Okla-

homa County, Case No. CRF-87-1715, before Judge

Charles L. Owens, District Judge. Appellant was

App. 31

sentenced to life imprisonment. From this judgment and

sentence, appellant perfected this appeal. AFFIRMED.

DAN CONNALLY

ASSISTANT APPELLATE PUBLIC

DEFENDER

1660 CROSS CENTER DRIVE

NORMAN, OKLAHOMA 73019

ATTORNEY FOR APPELLANT

SUSAN BRIMER LOVING

ATTORNEY GENERAL OF

OKLAHOMA

SID BROWN

ASSISTANT ATTORNEY GENERAL

112 STATE CAPITOL BUILDING

OKLAHOMA CITY, OKLAHOMA

73102

ATTORNEYS FOR APPELLEE

OPINION BY: BRETT, J.

LANE, P.J.: CONCUR

LUMPKIN, V.P.J.: CONCUR

PARKS, J.: CONCUR

JOHNSON, J.: CONCUR

App. 32

THE STATE OF OKLAHOMA _)

) SS.

OKLAHOMA COUNTY )

In the District Court of the Seventh Judicial District of

the State of Oklahoma, sitting in and for Oklahoma

County, Oklahoma

THE STATE OF OKLAHOMA,

Plaintiff,

)

)

) No. CRF-87-1715

-VS- )

)

)

)

EDWIN THOMAS GRAVES,

DOB: 07-31-38

Defendant.

JUDGMENT AND SENTENCE ON CONVICTION

(Filed Oct. 8, 1987)

Now, on this 30th day of SEPTEMBER, 1987, the same

being a juridical day of said court, and the time duly

appointed for judgment in the above-entitled cause, and

said cause coming on for judgment, and the defendant

EDWIN THOMAS GRAVES being personally present in

open court, and being duly represented at all appear-

ances before the court by his attorney of record/CHRIS

‘ BOX, and having been legally charged with the offense of

MURDER IN THE FIRST DEGREE and having been duly

informed of the nature of the charge and having been

duly arraigned thereon, and having duly and properly

pleaded not guilty to said offense after having been duly

advised of his rights; and having been duly and legally

tried and convicted of the crime of MURDER IN THE

App. 33

FIRST DEGREE, and the defendant having been asked by

the court whether he has any legal cause to show

why judgment and sentence should not be pronounced

against him, and __ he stating no sufficient cause why

judgment and sentence should not be pronounced against

the defendant, and none appearing to the court, it is the

judgment of the court that said defendant is guilty of the

crime of MURDER IN THE FIRST DEGREE

It is Therefore, Ordered, Adjudged and Decreed by

the Court that EDWIN THOMAS GRAVES is sentenced to

a term of LIFE IMPRISONMENT under the direction and

control of the Department of Corrections of the State of

Oklahoma; and said defendant is committed to the said

Department of Corrections at the Oklahoma State Peni-

tentiary at McAlester, Oklahoma, pursuant to the Okla-

homa Corrections Act of 1967 and pursuant to the rules of

said Department, for the crime of MURDER IN THE

FIRST DEGREE said term of sentence to begin at and

from the delivery of the defendant to the Warden of the

State Penitentiary at McAlester, Oklahoma; and that said

defendant pay the cost of this prosecution, taxed at

$84.00, for which judgment is hereby rendered against the

defendant; and thereupon the defendant is by the court

notified of his right of appeal.

It Is Further Ordered, Adjudged and Decreed by the

court that the Sheriff of Oklahoma County, Oklahoma,

transport said defendant to the said State Penitentiary at

McAlester, Oklahoma, and that the Warden of said peni-

tentiary detain the said defendant according to this judg-

ment, sentence and order, and that the clerk of this court,

do immediately certify, under the seal of the court, and

deliver to the Sheriff of Oklahoma County, Oklahoma,

App. 34

two copies of this judgment, sentence and order, one of

the copies to accompany the body of the said defendant

to said penitentiary at McAlester, Oklahoma, and to be

left therewith at the said penitentiary, said copy to be

warrant and authority for the Imprisonment of the said

defendant and the other copy to be warrant and authority

of said Sheriff of Oklahoma County, Oklahoma, for the

transportation and imprisonment of the said defendant as

hereinbefore provided. Said last named copy to be

returned to the Clerk of said Court with the proceedings

thereunder endorsed thereon.

(Seal) /s/ Charles L. Owens

(COURT COST AND CHARLES L.

VICTIM COMPENSATION OWENS,

FUND IN THE AMOUNT District Judge

OF $20.00 TO BE PAID

WITHIN 6 MONTHS AFTER

RELEASE.)

Attest:

TOM PETUSKEY, COURT CLERK

TOM PETUSKEY, COURT CLERK

By /s/ Illegible, Deputy Court Clerk

ORIGINAL