Davis v. State10/27/2005
OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF, MOTION FOR DISCOVERY AND REQUEST FOR EVIDENTIARY HEARING
Brian Darrell Davis, Petitioner, was convicted by jury of First Degree Murder and First Degree Rape in the District Court of Kay County, Case No. CF-2001-733. The district court followed the jury's verdict and sentenced Davis to death for murder and one hundred years imprisonment for rape. Davis appealed and this Court affirmed his Judgment and Sentence in Davis v. State, 2004 OK CR 36, 103 P.3d 70.
Davis now seeks post-conviction relief in this Court, raising five propositions of error. Under the Capital Post-Conviction Procedure Act, only those claims that " ere not and could not have been raised in a direct appeal" and that also " upport a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent" can be raised. 22 O.S.Supp.2004, § 1089(C)(1) & (2). "This Court will not consider issues which were raised on direct appeal and are barred by res judicata, or issues which have been waived because they could have been, but were not, raised on direct appeal." Cummings v. State, 1998 OK CR 60, 2, 970 P.2d 188, 190. The burden is on the applicant to show that his claim is not procedurally barred. See 22 O.S.Supp.2004, § 1089(C). For purposes of post-conviction, a claim could not have been previously raised if:
1) it is a claim of ineffective assistance of trial counsel involving a factual basis that was not ascertainable through the exercise of reasonable diligence on or before the time of the direct appeal, or
2) it is a claim contained in an original timely application for post-conviction relief relating to ineffective assistance of appellate counsel.
22 O.S.Supp.2004, § 1089(D)(4)(b)(1) & (2).
In Proposition I, Davis claims trial and appellate counsel were ineffective for failing to challenge at trial and on direct appeal the prosecutor's use of eight peremptory challenges to remove women from the jury, claiming the State engaged in a pattern of gender discrimination that violated his rights to due process and equal protection. Davis contends this claim could not have been raised on direct appeal because appellate counsel also served as trial counsel and the Oklahoma Indigent Defense System has a policy prohibiting a member of the trial team, serving as appellate counsel, from raising a claim of ineffective assistance of trial counsel on direct appeal.
In Neill v. State, 1997 OK CR 41 , 7, 943 P.2d 145 , 148, we held that under 22 O.S.Supp.1995, § 1089(D)(4)(b)(1), the fact that trial and appellate counsel may be the same did not excuse appellate counsel from raising a claim of ineffective assistance of trial counsel on direct appeal. The Neill court found that the language in the amended Capital Post-Conviction Procedure Act overruled our previous decisions in Roberts v. State, 1996 OK CR 7, 12, 910 P.2d 1071 , 1078-79; Fowler v. State, 1995 OK CR 29 , 3, 896 P.2d 566, 569; and Webb v. State, 1992 OK CR 38 , 11, 835 P.2d 115 , 117, holding appellate counsel was trial counsel in the same case was not required to raise a claim of ineffective assistance regarding his own performance below and that claims of ineffective assistance of trial counsel would be considered on collateral review. Neill, 1997 OK CR 41, 6, 943 P.2d at 148 n. 2. See also McCracken v. State, 1997 OK CR 50 , 6, 946 P.2d 672 , 676. This Court followed a minority position requiring a criminal defendant to raise ineffective assistance of trial counsel claims on direct appeal or forfeit them. See Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir.
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