concurring in results:
I agree Petitioner’s post-conviction relief should be denied. I write separately to address two points.
First, as to Petitioner’s claim this Court should abandon its three-pronged test for ineffective counsel set forth in Walker v. State, 933 P.2d 327, 333 (Okl.Cr.1997): I agree this Court should abandon the test, for reasons previously given. Id., 933 P.2d at 341-44 (Lumpkin, J., Concurring in Results).
Second, I agree the ineffective trial counsel claims in propositions I, II and III are barred. The underlying facts which form the basis for his claim of ineffective counsel on direct appeal (not presenting evidence of insanity in the first stage and not presenting evidence of mental illness as mitigation in the second stage, see Bryan v. State, 935 P.2d 338, 362-63 (Okl.Cr.1997)) are the same underlying facts which formed the basis for his claim of ineffective counsel in this post-conviction application. The issue of ineffective counsel based on these facts should be res judicata, as that claim (ineffective counsel) based on that underlying set of facts has been adjudicated.
However, it is equally true an appellant has the duty to raise all claims which have as a basis the same underlying set of facts. Failure to do so should operate as waiver. To do otherwise would allow a petitioner to repeatedly raise what would essentially be the same fact-based claim over and over during the appellate process. The proposition of error on direct appeal was ineffective assistance of trial counsel. That proposition was adjudicated. What Petitioner is attempting to do is parse the single proposition of error into sub-parts, part to be alleged on direct appeal and part on post-conviction. However, 22 O.S.Supp.1996, § 1089(C)(1), provides, “[t]he only issues that may be raised in an application for post-conviction relief are those that: 1. Were not and could not have been raised in a direct appeal; _” Absent qualification for an evidentiary hearing under Rule 9.7(D)(1), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (1996), the proposition of error should not be addressed on the merits.
Third, the opinion states the claim set forth in proposition III “was raised on direct appeal,” then concludes the claim is “barred.” It does not delineate between waiver and res judicata. I assume the claim is barred by res judicata.
Accordingly, I concur in result.