Logan v. State

L UMPKIN, Judge:

concur in part/dissent in part.

111 I agree that all post-conviction claims of ineffective assistance of appellate counsel are to be reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 766, 145 L.Ed.2d 756 (2000). However, I disagree with the decision to vacate the denial of post-conviction relief and remand the case for further proceedings.

£2 The procedure for appealing a final judgment under the Post-Conviction Procedure Act in non-capital cases is set forth in our court rules. See Rules 5.1 -5.6, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012). If post-convietion relief is denied in the District Court, and a claim of ineffective assistance of appellate counsel is raised on appeal to this Court, it is Petitioner's burden on appeal to present evidence and argument showing that appellate *980counsel was objectively unreasonable in failing to find and raise non-frivolous issues on appeal. It is not the duty of an appellate court to search the record for possible errors; it is a petitioner's duty to provide references to the record and the law, together with the evidence, that substantiates an allegation of a non-frivolous claim. See Coddington v. State, 2011 OK CR 17, ¶ 89, 254 P.3d 684, 716 (citing to Rule 8.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010)); Berget v. State, 1995 OK CR 66, ¶ 30, 907 P.2d 1078, 1086; Perez v. State, 1980 OK CR 59, ¶ 11, 614 P.2d 1112, 1115. If Petitioner does not meet this burden, the presumption of counsel's competence is not rebutted and review of the underlying substantive claim is procedurally barred.

T3 That is exactly the situation in the case before us. Petitioner, appealing pro se, offers argument and legal citations to support his claim. However, many of his legal citations are not relevant cases, he provides no legal analysis or factual support for his claims, and offers only self-serving statements for relief He does not give us any reason to believe that the allegations of error warrant reversal, modification, or resentenc-ing, or that their omission from his direct appeal was anything other than a strategic decision by appellate counsel made after thorough investigation of the law and facts relevant to the case. His allegations of ineffectiveness do not come close to meeting the rigorous standard for constitutionally deficient performance set forth in Strickland.

1 4 Based upon the record before us, I find Petitioner has not rebutted the presumption that appellate counsel acted as competent counsel, fully investigated the issues, and purposefully omitted the claims from the direct appeal. Therefore, as Petitioner has not established that appellate counsel's performance was deficient, his claim of ineffective assistance of appellate counsel is denied, his substantive claims remain procedurally barred and the order of the District Court denying the Application for Post-Convietion Relief should be affirmed.

T5 Further, I also disagree with the majority's method of conducting the Strickland analysis. The majority has set forth and defined three categories of issues relevant to a discussion of ineffective assistance of appellate counsel. As laudable as this feat is, the meaning of the terms used by this Court is far from clear. This is evident from Footnote 6 which shows that not even the Tenth Circuit has clearly defined the type of issue which, if omitted from a direct appeal, warrants a finding of ineffective assistance of appellate counsel, As the majority notes, the Tenth Cireuit used the phrase "dead-bang winner" as early as 1995 in United States v. Cook, 45 F.3d 388, 395 (10th Cir.1995) to describe an issue obvious from the record which would have resulted in a reversal on appeal. Subsequently in Neill v. Gibson, 278 F.3d 1044, 1057, fn. 5 (10th Cir.2001) the Tenth Circuit "disavowed" the use of the term stating, "[the en bane court, therefore, expressly disavows the use of the 'dead-bang winner' language to imply requiring a showing more onerous than a reasonable probability that the omitted claim would have resulted in a reversal on appeal." However, later in United States v. Challoner, 583 F.3d 745, 749 (10th Cir.2009), the Tenth Circuit returned to Cook and the use of the "dead-bang winner" term but without any reference to Neill. This seemingly inconsistent case law offers little guidance in our application of Strickland.

¶ 6 For that reason, I prefer to rely on the language of the United States Supreme Court. Of all of the many terms and definitions used by various courts to describe these types of issues which, if omitted from a direct appeal, factor in a discussion of the effectiveness of appellate counsel, only the term "frivolous" has been specifically and consistently defined. In Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), citing to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) the U.S. Supreme Court said:

There, we stated that an appeal on a matter of law is frivolous where "[none] of the legal points [are] arguable on their merits." By logical extension, a complaint, containing as it does both factual allegations and legal conclusions, is frivolous *981where it lacks an arguable basis either in law or in fact.

490 U.S. at 325, 109 S.Ct. at 1831-832 (internal citations omitted).

T7 In applying Strickland to a claim of ineffective assistance of appellate counsel, Petitioner "must first show that his counsel was objectively unreasonable ... in failing to find arguable issues to appeal-that is, that counsel unreasonably failed to discover non-frivolous issues" and to raise them on appeal. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 764, 145 L.Ed.2d 756 (2000) (internal citation omitted). See also Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983), (appellate counsel need not and should not raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal). It will be difficult for an appellant to demonstrate that counsel was incompetent. Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765-66. Petitioner must show that a particular non-frivolous issue was clearly stronger than issues that counsel did present. Id. "Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Id. quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986). If Petitioner succeeds in such a showing, he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel's unreasonable failure to raise the omitted issues, he would have prevailed on his appeal. Id., 528 U.S. at 285-86, 120 S.Ct. at 764. This is the standard of review we have used in the past and should continue to use in the future.

T8 To a large extent, the majority cites to applicable law. However, they fail to actually apply that law and instead engage in an epistle to the trial court, which is a subjective analysis of what might have been if appellate counsel had taken a different course. This Court is bound by the law and evidence as developed in a particular case and is required to use objective criteria in the analysis and deciding of the case. Finality of judgment is an integral part of our judicial system. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1693, 155 L.Ed.2d 714 (2003); Sporn v. State, 2006 OK CR 30, ¶ 6, 139 P.3d 953, 954. However, the majority's analysis creates a "trump card" or a "get out of jail free" card forcing review of procedurally barred claims through allegations of ineffective assistance of appellate counsel and defying all attempts at finality. See Berget, 1995 OK CR 66, ¶ 10, 907 P.2d at 1082-1083. This process does not comply with the procedures set out by the U.S. Supreme Court, which recognize appellate counsel must sort through various non-frivolous propositions of error in a given case and select only those that in counsel's professional and strategic analysis maximizes the likelihood of success on appeal. Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765. For "strategic choices made after thorough investigation of law and facts are virtually unchallengeable". Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. This Court should recognize and apply that reasoning which reflects an understanding of the challenges of appellate counsel.

T9 Additionally, despite the Court's claim that the case is being remanded only because it is unclear whether the District Court undertook the appropriate legal analysis, the Court improperly attempts to direct that analysis. In footnote 18, while claiming that the record suggests that there may be a genuine issue of material fact regarding Petitioner's arrest and search of his apartment, but not concluding the actual existence of a genuine issue of material fact, the Court sets out argument and facts which it claims warrants the District Court to "carefully consider" the issue. Instructing the District Court on which issues to "carefully consider" is not within our appellate jurisdiction and renders the Court's directive in footnote 18 nothing more than advisory dicta. This Court does not issue advisory opinions. See Canady v. Reynolds, 1994 OK CR 54, ¶ 9, 880 P.2d 391, 394 ("this Court could not issue an opinion in any matter not at issue before it"). See also Murphy v. State, 2006 OK CR 3, ¶ 1, 127 P.3d 1158 ("this Court does not issue advisory opinions"); Matter of L.N., 1980 OK CR 72, ¶ 4, 617 P.2d 239, 240 ("[aln advisory opinion does not fall within the Court's original or statutory jurisdiction; neither does it come within its appellate review. To offer *982advice in the form of an opinion would be to interfere with the responsibility of the trial court to exercise the powers confided to it"). As I have written before, this type of overreaching corresponds to the analysis of Chief Justice Maura Corrigan which equates appellate judges to the philosopher kings of Plato's Republic, his treatise on the ideal state. Textualism in Action: Judicial Restraint on the Michigan Supreme Court, Texas Review of Law & Politics, Vol. 8, No. 2 (Spring 2004). As I stated in my dissent to Seabolt v. State, 2006 OK CR 50, 152 P.3d 235:

I believe the problem has evolved due to appellate courts not being willing to exercise self-discipline and merely adjudicate the issues before them. Using this guise is a method of reaching out and touching issues either not presented or already decided in order to render a decision the court feels is needed. I realize this issue boils down to judicial philosophy and the limitations on judicial power. However, if we are to have a judicial system where judges and juries are tasked with the responsibility to make decisions on the facts of a case then appellate courts should hon- or those decisions. To do otherwise leaves the law unsettled and encourages repeated appeals hoping the biorhythmic chart for the court will allow success on a particular day.

2006 OK CR 50, ¶ 17, 152 P.3d at 244 (V.P.J. Lumpkin dissent).

{10 The Court's opinion ventures far afield from a proper Strickland analysis of Petitioner's post-conviction claims, introduces new layers of complexity and unpredictability into an already daunting area of our jurisprudence, and disregards the legal rules of waiver and procedural bar.

T11 I am authorized to state that Vice-Presiding Judge Lewis joins in this Concur in Part/Dissent in Part.