Hooker v. State

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Hooker v. State
1997 OK CR 11
934 P.2d 352
Case Number: PC-96-1178
Decided: 02/25/1997
JOHN MICHAEL HOOKER, Petitioner -vs- STATE OF OKLAHOMA, Respondent
Oklahoma Court of Criminal Appeals

ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF, MOTION FOR DISCOVERY AND REQUEST FOR EVIDENTIARY HEARING

CHAPEL, P.J.:

[934 P.2d 353]

¶1 A jury convicted John Michael Hooker of two counts of First Degree Murder,1 before the Honorable Leamon Freeman in Oklahoma County District Court, Case No. CRF-88-1939. The jury recommended Hooker be sentenced to death on both counts. The district court sentenced Hooker accordingly. Hooker appealed to this Court, and we affirmed Hooker's convictions and sentences.2 The Court denied Hooker's petition for rehearing. The United States Supreme Court denied Hooker's petition for certiorari.3

¶2 On September 25, 1996, Hooker filed an Application for Post-Conviction Relief, Motion for Discovery and Request for an Evidentiary Hearing with this Court.

¶3 In his first proposition of error, Hooker argues that trial counsel was ineffective because: (1) trial counsel did not adequately prepare for trial; (2) trial counsel did not challenge the prosecution's case adequately; (3) trial counsel failed to present alternative theories to explain the victims' deaths; (4) trial counsel's trial performance rose to a level of ineffective assistance of counsel; and (5) trial counsel failed to object to the search of Hooker's apartment. Hooker also alleges his trial attorneys, who were both employed by the Oklahoma County Public Defender's Office, were burdened by a conflict of interest because other attorneys in the public defender's office represented, at one time, the following persons: (1) Jodell Wiggins, (2) Anthony Mishion, and (3) Michael A. Thomas.

¶4 In his second proposition of error, Hooker alleges that trial counsel was ineffective in the second stage of trial because counsel stipulated to two of the four aggravating circumstances, which the State had alleged in support of its allegation that the death penalty was an appropriate punishment. Again, the facts on which this claim are based were available to appellate counsel. Indeed, in his direct appeal, Hooker's appellate counsel questioned the appropriateness of the stipulation, although appellate counsel did not allege that trial counsel was ineffective in entering this stipulation. Because this claim could have been raised on direct appeal but was not, it is now waived. In Hooker's direct appeal, we found that the stipulation was proper,

¶5 In his third proposition of error, Hooker contends he has been denied due process because he has not been allowed full discovery during the post-conviction proceedings. We find no due process violation. Hooker admits that during his trial the district attorney provided him with full discovery. He now wishes to conduct that same discovery process again. This Court has never allowed unfettered discovery in post-conviction proceedings,

¶6 In his fourth and final proposition of error, Hooker argues that the cumulative effect of the errors in his case dictates that relief be granted. We disagree and decline to grant relief on this basis.

¶7 We have carefully reviewed Hooker's application for post-conviction relief and request for an evidentiary hearing, and find that Hooker is not entitled to relief. We further deny Hooker's motion for discovery. Accordingly, Hooker's Application for Post-Conviction Relief, Motion for Discovery and Request for an Evidentiary Hearing are DENIED.

ATTORNEYS ON POST-CONVICTION APPEAL

OPINION BY: CHAPEL, P.J.

FOOTNOTES

14 Id.

15 Hooker also alleges, in a footnote, that the Oklahoma County Public Defender's Office may have previously represented DeJuan Lee Harper. Hooker has presented absolutely no evidence that the Public Defender's Office actually represented Harper, and has further presented no evidence to suggest that either of Hooker's trial attorneys represented Harper.

16 Walker, 933 P.2d at 332 (footnote omitted).

17 22 O.S.Supp.1995, sec. 1089(D)(4)(b)(1). See Walker, 933 P.2d at 332.

18 In Walker, this Court set out a three-tiered analysis for examining claims of ineffective assistance of appellate counsel under Oklahoma's amended post-conviction statutes. The amended post-convictions statutes dictated that this analysis be employed. Below is the three tier-analysis that this Court now uses in analyzing claims of ineffective assistance of appellate counsel in post-conviction proceedings:

the threshold inquiry is (1) whether appellate counsel actually committed the act which gave rise to the ineffective assistance allegation. If a petitioner establishes that his or her appellate counsel actually did the thing supporting the allegation of ineffectiveness, the next question is (2) whether such performance was deficient under the first prong of the two-pronged test in Strickland v. Washington. Of course, proving attorney ineffectiveness is no easy task, and the burden is on capital post-conviction petitioners to set forth sufficient facts and law to enable this Court to fully assess appellate counsel's allegedly deficient performance. If a petitioner meets his or her heavy burden to prove deficient attorney performance, we may then consider the mishandled substantive claim. The question then becomes (3) whether such a claim meets the second prerequisite to capital post-conviction review.

933 P.2d at 333 (footnotes omitted).

19  See Id.

20  887 P.2d at 1363-64.

21 See supra n. 18.

22 Walker, 933 P.2d at 333.

23 Rojem v. State, 925 P.2d at 74; Hooks, 902 P.2d at 1125 .

24 Pickens, 910 P.2d at 1071.

25 Rule (9) (D)(3) of this Court's Rules provides:

In considering such discovery requests, this Court shall presume the parties complied with all discovery rules issued by the district court at the time of trial and in accordance with Sections 2001 and 2002 of Title 22. Consequently, requests making allegations to the contrary shall be supported with affidavits, describing as particularly as possible the material sought to be discovered, and why such material was not supplied at the time of trial. Should these affidavits be sufficient to raise a substantial question or compliance with earlier discovery orders, and the material being sought would have resulted in a different outcome at trial, this Court may direct a response from the opposing party showing cause why a discovery order should not be issued.

LUMPKIN, JUDGE: CONCUR IN RESULT:

¶1 I concur, based on stare decisis, in the discussion dealing with ineffective counsel. See Walker v. State, 933 P.2d 327, 341 (Lumpkin, J., concur in results). I also write separately to further discuss briefly the so-called first "prong" of the test this Court uses for ineffective counsel in post-conviction proceedings.

¶2 This case, together with the other cases applying the Walker methodology, graphically illustrates the point I made in Walker. Simply requiring a petitioner show "appellate counsel actually committed the act which gave rise to the ineffective assistance allegation," Walker at 333, is in reality -- at least on the surface -- no requirement at all, and does nothing to differentiate one case from another. As I do not believe this Court actually committed time and resources toward the formulation of a test the first part of which is essentially worthless, I must conclude there is more to this first "prong" than meets the eye. There must be more of a requirement to satisfy the prong than merely allowing post-conviction counsel to raise it in the brief.1 For instance, the prong would have more meaning if a petitioner were required to show, in connection with the ineffective counsel allegation, that some objective factor external to the defense prevented counsel from raising the claim in the direct appeal or in a timely motion for new trial. See, e.g., McClesky v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991); Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986).

¶3 I need not get into an extensive discussion at this point. Suffice it to say here that, as more cases are presented to this Court, it may become necessary to elucidate with more precision exactly what requirements must be met to satisfy the first prong of this new test.

FOOTNOTES

1 We require citation of authority and specific references to the record to successfully raise an issue on appeal in all other cases or it is waived. The same should be required here.