Charm v. State

Charm v. State
1998 OK CR 2
953 P.2d 47
69 OBJ 150
Case Number: PC-97-838
Decided: 01/06/1998
KENNETH CHAD CHARM, Petitioner -vs- STATE OF OKLAHOMA, Respondent
Oklahoma Court of Criminal Appeals

[953 P.2d 53]
ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF
AND APPLICATION FOR EVIDENTIARY HEARING

CHAPEL, P.J.:

¶1 Hung Thanh Le was tried by jury before the Honorable Nancy Coats in the District Court of Oklahoma County. In Case No. CF-92-6838 he was convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1991, § 701.7; Robbery with a Dangerous Weapon in violation of 21 O.S.1991, § 801; Assault and Battery with Intent to Kill in violation of 21 O.S.1991, § 652, Larceny of a Motor Vehicle in violation of 21 O.S.1991, § 1720; and Grand Larceny in violation of 21 O.S.1991, § 1704. At the conclusion of the first stage of trial, the jury returned a verdict of guilty. During sentencing, the jury found 1) Le knowingly created a great risk of death to more than [953 P.2d 54] one person; and 2) the murder was especially heinous, atrocious, or cruel. Le was sentenced to death for the murder conviction and to a total of 124 years incarceration for the non-capital crimes. Le appealed his judgments and sentences to this Court and we affirmed.1 The United States Supreme Court has not yet ruled on Le's petition for certiorari.2

¶2 On August 19, 1997, Le filed an Application for Post-Conviction Relief directly with this Court. Under Oklahoma's post-conviction statutes, the only issues that can be raised in post-conviction are those which: "(1) [w]ere not or could not have been raised in a direct appeal; and (2) [s]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."

¶3 In Proposition I Le challenges the constitutionality of the legislative amendments to the capital post-conviction statute.

¶4 Le correctly describes the post-conviction statute as a law limiting and defining the type of claim which may be presented and considered on post-conviction. However, that limitation neither usurps nor diminishes this Court's authority and responsibility to exercise independent judgment on the merits of constitutional claims in post-conviction proceedings. As Le admits, Oklahoma is not obliged to provide capital post-conviction procedures.

¶5 Le also claims in Proposition I that the Legislature's "abridgment" of this Court's jurisdiction violates various constitutional limitations. As this Court fully retains the ability to judge the merits of propositions appropriately raised, these claims must fail. Le first argues the statute does not afford him the reasonably adequate opportunity to present his claims. The use of the [953 P.2d 55] three-tiered procedural scheme does not in itself deny Le a reasonably adequate opportunity to present claims; it merely limits the scope of the claims he may present. Le again claims the statute has usurped this Court's obligation and authority to address capital post-conviction claims; as we discuss above, the statute does not limit this Court's ability to consider appropriately raised claims. Le argues the statute violates the Supremacy Clause,

¶6 In summary, the Legislature has neither usurped this Court's ability and authority to address post-conviction claims, nor prevented the Court from following the United States Constitution as the supreme law of the land. The post-conviction statutes do not deny Le the right of access to the courts. Finally, the three-tiered procedural scheme for analyzing ineffective assistance of appellate counsel is not unconstitutionally vague. Proposition I is denied.

¶7 In Propositions II, III, IV and V Le attempts to avoid application of the procedural bars contained in Oklahoma's capital post-conviction statute by raising "free-standing federal constitutionally-based" claims of error, asserting specific complaints of ineffective assistance of trial counsel under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Le appears to recognize that these claims would be barred under the post-conviction statute, because he admits the claims "cannot be addressed in a post-conviction proceeding pursuant to the current interpretation of § 1089." [Application at 35] He does not raise these claims as propositions of error under the statute at all, and we do not analyze them under the statute.

¶8 As we have recently stated, this Court has jurisdiction to consider and, indeed, must consider all constitutionally-based claims of error.

¶9 Le raises claims of ineffective assistance of appellate counsel in Propositions VI, VII and VIII. A claim of ineffective assistance of appellate counsel is properly before us if the Court finds that if the allegations of ineffectiveness were true, the performance of appellate counsel would constitute the denial of reasonably competent assistance of appellate counsel under prevailing professional norms.

¶10 In Proposition VI Le claims direct appeal counsel was ineffective for failing to obtain a psychological evaluation by a mental health professional appropriately experienced in dealing with Asian refugees. Le has provided this Court with an affidavit from Dr. Reynolds, who admits that when he evaluated Le he had no experience in evaluating Asian refugees. The record supports Le's contention that counsel failed to have Le evaluated by an expert familiar with Asian refugees, and the first prong of Walker is met. However, Le fails to plead facts or law showing why counsel's omission amounts to deficient performance, arguing merely that a different mental health examination would have resulted in a different evaluation, and implying that counsel might have been able to raise different issues on appeal. Le does not show why counsel's decision was ineffective; nor does he establish that counsel breached any duties owed him, or that counsel's judgment was unreasonable under the circumstances or did not fall within the wide range of professional assistance.

¶11 In Proposition VII Le claims counsel was ineffective for failing to challenge the sentencing instructions. Le admits that counsel challenged some instructions, and to that extent this proposition is barred by res judicata. Le claims counsel was ineffective because he did not raise all available challenges to the instructions. However, Le does not establish that counsel's actions were ineffective. Rather than plead facts or law to show why counsel's omission was deficient Le discusses the substantive merits of the claims and contends that counsel was ineffective because he omitted arguably meritorious claims of error. As this Court has often said, such conclusory allegations standing alone will not support a claim of deficient performance.

¶12 In Proposition VIII Le claims counsel was ineffective for failing to challenge the court's instruction on life without parole. Appellate counsel failed to raise this issue, and the first prong of Walker is [953 P.2d 57] met. However, Le fails to present any facts showing why this omission constituted deficient performance beyond arguing the substantive merits of the claim. Mere failure to raise a claim will not constitute deficient performance. Le has not shown counsel's performance was ineffective and the substantive claim remains barred. Le argues in the alternative that Simmons v. South Carolina

¶13 In Propositions IX and X Le seems to confuse his proceedings on direct appeal with his application for post-conviction. We recognize the difficulty in separating these proceedings when the application for post-conviction relief must be filed before the direct appeal is decided. However, this system does not provide an opportunity for Le to reassert or amend, in his application for post-conviction, propositions of error raised in his direct appeal brief. In Proposition IX Le argues this Court should grant his claim of error in Proposition XVII of his direct appeal due to an intervening change in the law. Considering solely that portion of the claim which goes to post-conviction, we find there has been no intervening change in law under the narrow terms of the statute.

¶14 In Proposition XI Le urges this Court to adopt the American Bar Association recommendation of a moratorium on executions. This proposition is not properly raised under the post-conviction statute and we do not consider it.

¶15 In Proposition XII Le claims accumulated error on direct appeal and in post-conviction entitles him to relief. Le's claim of accumulated error on direct appeal is not properly raised on post-conviction and we do not consider it. Proposition I is denied; Propositions II, III, IV and V do not raise claims of error under the post-conviction statute and their federal constitutional claims are denied; Propositions VI, VII and VIII are denied; Propositions XI and X, as far as they are not barred, are denied; and Proposition XI is not considered. Finding no error, this proposition is denied.

 [953 P.2d 58] ¶16 In Proposition XIII Le requests an evidentiary hearing regarding issues of effective assistance of appellate counsel raised by Walker. He argues that, to the extent any of his post-conviction claims may be procedurally barred due to appellate counsel's failure to raise the claim, the Court should grant him an evidentiary hearing on the issues of (1) the adequacy of appellate counsel's investigation; (2) the adequacy of direct appeal counsel's resources for appellate investigation at the time of his direct appeal; and (3) the extent to which this Court's rules and procedures at the time of his direct appeal (a) apprised appellate counsel that he had to investigate those claims in order to avoid a procedural bar, and (b) allowed counsel to present the results of such investigation during direct appeal proceedings. Essentially, Le wants an evidentiary hearing to determine the effects on his case of a procedural change in the law. This is not an appropriate issue for an evidentiary hearing.

¶17 We have carefully reviewed Le's applications for post-conviction relief and an evidentiary hearing, and find that Le is not entitled to relief. The Application for Post-Conviction Relief and Application for an Evidentiary Hearing are DENIED.

ATTORNEY ON APPEAL

MICHELLE BAUER
BRYAN LESTER DUPLER
OKLAHOMA INDIGENT DEFENSE SYSTEM
1660 CROSS CENTER DRIVE
NORMAN, OKLAHOMA 73019
ATTORNEYS FOR PETITIONER

OPINION BY: CHAPEL, P.J.

FOOTNOTES

1 Le v. State, ___ P.2d ___, 68 OBJ 3218 (Okl.Cr.1997).

2 Le v. Oklahoma, No.

3 22 O.S.Supp.1995, § 1089(C).

4 22 O.S.Supp.1995, § 1089 (D)(4)(a).

5 Cannon v. State, 933 P.2d 926, 928 (Okl.Cr.1997); Fowler v. State, 896 P.2d 566, 569 (Okl.Cr.1995).

6 21 O.S.Supp.1995, § 1089(C); Hooker v. State, 934 P.2d 352, 354 (Okl.Cr.1997); Moore v. State, 889 P.2d 1253, 1255-56 (Okl.Cr.), cert. denied, ___U.S. , 116 S. Ct. 215, 133 L. Ed. 2d 146 (1995); Fowler, 873 P.2d at 569.

7 22 O.S.Supp.1995, § 1089.

8 933 P.2d 327 (Okl.Cr.1997).

9 Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).

10 U.S. Const. art. VI.

11 Walker, 933 P.2d at 341 (Lumpkin, J., concurring in results).

12 Moreover, it is my opinion that the three-tiered statutory scheme for evaluating claims of ineffectiveness of appellate counsel which was approved in Walker is at least equivalent to that set forth in Strickland, which requires a defendant to prove both deficient performance and prejudice. Using the Walker standard, a defendant must meet the high burden of proving his attorney's performance was deficient. If he can meet this burden, this Court will then consider whether he was prejudiced by his attorney's acts or omissions, if the substantive issue is appropriate for post-conviction review. This procedure is essentially the same as Strickland. Le apparently misunderstands Judge Lumpkin's view on this issue as set forth in his Walker separate writing. Judge Lumpkin indicated that our approach in Walker is less difficult to prove than the traditional Strickland analysis, making it too easy for post-conviction petitioners to show ineffectiveness of appellate counsel.

13 Bryan v. State, ___ P.2d ___, 68 OBJ 3659, 3660 (Okl.Cr.1997).

14 Walker, 933 P.2d at 331.

15 Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 94 (1977).

16 Proposition VI also includes a "free-standing" federal claim. That claim is also denied.

17 22 O.S.Supp.1995, § 1089(D)(4)(b)(2).

18 Walker, 933 P.2d at 333-34.

19 Mitchell v. State, 934 P.2d 346, 349 (Okl.Cr.1997); Walker, 933 P.2d at 333.

20 LaFevers v. State, 934 P.2d 356, 359 (Okl.Cr.1997).

21 See, e.g., Mitchell, 934 P.2d at 350; Walker, 933 P.2d at 336.

22 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994).

23 This Court has ruled that Simmons is not a new rule of law for purposes of post-conviction. Neill v. State, 943 P.2d 145, 150 (Okl.Cr.1997); McGregor v. State, 935 P.2d 332, 334 n.10 (Okl.Cr.1997). The Supreme Court recently ruled that Simmons did constitute a new rule for purposes of federal habeas corpus. O'Dell v. Netherland, ___ U.S. ___, 117 S. Ct. 1969, 138 L. Ed. 2d 351 (1997).

24 The statute provides a claim may have been previously unavailable if the legal basis (1) was not recognized by or could not have been formulated from a decision of the United States Supreme Court, a United States court of appeals, or an Oklahoma appellate court; or (2) is a retroactive new rule of constitutional law contained in a decision of the United States Supreme Court or an Oklahoma appellate court.. 22 O.S.Supp.1995, § 1089(D)(9)(a), (b). Le cites as intervening a decision from the United States District Court for the Northern District of Oklahoma. This decision is not binding on this Court and is not an "intervening" change in law under § 1089.

25 22 O.S.Supp.1995, § 1089(C)(1), (2).

26 Rule 9.7(D)(5), 22 O.S.Supp.1996, Ch.18, App. , Rules of the Court of Criminal Appeals.

[953 P.2d 58]LUMPKIN, JUDGE: CONCURRING IN RESULTS:

¶1 I concur, based on stare decises, in the discussion dealing with ineffective assistance of counsel. See Walker v. State, 933 P.2d 327, 341-344 (Okl.Cr.1997)(Lumpkin, J.: Concur in Results).

¶2 I have reviewed Petitioner's application, together with the argument and authority provided. In accordance with the criteria set out in Braun v. State, 937 P.2d 505, 511-514 (Okl.Cr.1997), I concur with the Court's decision that counsel's performance was not deficient and the underlying substantive claims sought to be raised by petitioner are procedurally barred.

¶3 In addition, it should be noted the criteria set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for evaluating effectiveness of counsel has been further explained in Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). Applying the Lockhart standard, the record is void of any evidence the trial was rendered unfair and the verdict rendered suspect or unreliable.

[953 P.2d 58] LANE, JUDGE: CONCURRING IN RESULTS:

¶1 I concur in results by reason of stare decisis. I maintain my disagreement with the majority in its interpretation of the new post-conviction relief statute as I expressed in Conover v. State, 942 P.2d 229, 1234-35 (Okl.Cr.1997).