Browning v. State

2006 OK CR 37, 144 P.3d 155, 2006 Okla. Crim. App. LEXIS 38, 2006 WL 2621095
Court of Criminal Appeals of Oklahoma·Decided September 14, 2006·No. PCD-2003-669·Published·Cited by 8 cases

Opinions

OPINION DENYING POST-CONVICTION RELIEF AND DENYING REQUEST FOR EVIDENTIARY HEARING

OPINION BY:

CHAPEL, P.J.

¶ 1 Michael Allen Browning was tried by jury and convicted of two counts of Murder in the First Degree, shooting with intent to kill, robbery with firearms, and arson in the District Court of Tulsa County, Case No. CF-01-1098. In accordance with the jury’s recommendation the Honorable Rebecca Brett Nightingale sentenced Browning to two sentences of death and terms of imprisonment, with a $25,000 fine. In the capital counts, the jury found the murders posed a great risk of death to another person and were especially, heinous, atrocious and cruel. This Court affirmed Browning’s convictions and sentences.1 The United States Supreme Court has not yet ruled on Browning’s petition for certiorari.

¶ 2 On April 29, 2005, Browning filed an application for capital post-conviction relief.2 The only issues appropriately raised under Oklahoma’s post-conviction statutes are those which: “(1) [wjere 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 On review, this Court must determine: “(1) whether controverted, previously unresolved factual issues material to the legality of the applicant’s confinement exist, (2) whether the applicant’s grounds were or could have been previously raised, and (3) whether relief may be granted....”4 We will not treat the post-conviction process as a second appeal, and will apply the doctrines of res judicata and waiver where a claim either was, or could have been, raised in the petitioner’s direct appeal.5 Browning raises four propositions of error in support of his application.

¶ 3 Browning’s first proposition does not present a claim of error under the post-conviction statutes. Browning claims he has a due process right to interview his co-defendant, Pethel, and asks this Court to determine whether state ethical rules governing attorney behavior conflict with his claim, to enter an order “clarifying the relationship” between Pethel and his attorney, and to either (a) allow Browning’s post-conviction counsel to contact Pethel without complying with professional rules of conduct, or (b) remand the case to the District Court for an evidentiary hearing on the issue of the status of Pethel’s representation by counsel. [Application at 17] This is a request for discov[157]*157ery. Post-conviction applicants may request discovery where trial discovery orders were not complied with, and the material sought would have resulted in a different outcome at trial.6 Browning claims he must explore the unlikely possibility that, despite Pethel’s consistent statements that Browning instigated the crimes, shot the victims, and set the fire, Pethel might give counsel information helpful to Browning’s appeal. This request amounts to speculation as to what Pethel would say, if he were interviewed. Separately, Browning asks for an evidentiary hearing on this issue, as well as other evidentiary issues. Browning fails to show “by clear and convincing evidence the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief.”7 Browning’s application supports neither an order for discovery nor an order for an evidentiary hearing, and his requests are denied.8

¶ 4 Neither Proposition 11(A) nor Proposition III are properly raised under the post-conviction statute.

The applicant shall state in the application specific facts explaining as to each claim why it was not or could not have been raised in a direct appeal and how it supports a conclusion that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent.9

Browning completely fails to state why each claim could not have been raised in a direct appeal. Proposition 11(A), that Browning’s level of participation in the crimes does not rise to the level of culpability sufficient to support the death penalty, could have been raised on direct appeal and has been waived. Browning admits in Proposition III, claiming errors in jury selection, that some voir dire issues were raised on direct appeal, but argues that other voir dire issues should have been raised as well. We will not allow a defendant to subdivide claims in order to relitigate an issue in an application for post-conviction.10 By Browning’s own admission, these issues which were not raised have been waived. Propositions 11(A) and III are denied.

¶ 5 In Proposition II(B) Browning claims that this Court’s mandatory sentence review was flawed because, essentially, Peth-el’s culpability in the murders and his subsequent conduct while incarcerated renders Browning’s sentence “arbitrary and freakish.” [Application at 30] This claim is not proper under the post-conviction statutes. The Court’s mandatory sentence review is required by law, as a safeguard, to determine whether the sentences of death were imposed under the influence of passion, prejudice or any other arbitrary factor, and whether the evidence supports the jury’s finding of a statutory aggravating circumstance.11 While the Court may, in conducting its mandatory sentence review, reach conclusions about the appropriateness of the jury’s decision to impose the death sentence, that review is strictly an appellate function. Our review, in itself, will not support a claim of factual innocence or that the outcome of the trial would have been different but for errors claimed in a post-conviction application.12 We will not consider this claim.

¶ 6 Within the first three propositions, Browning notes in a paragraph concluding each proposition that, as far as this Court may consider those claims waived or barred, trial and appellate counsel were ineffective [158]*158for failing to raise them. We need not reach this claim as to Proposition I, which is a request for discovery rather than a claim of error. We review claims of ineffective assistance of counsel de novo, to see whether counsel’s constitutionally deficient performance, if any, prejudiced the defense so as to deprive Browning of a fair trial with reliable results.13 Browning fails to show in any of these propositions that he was prejudiced by trial and appellate counsels’ failures.

¶ 7 In Proposition II, Browning claims he was not eligible for the death penalty given his low level of participation in the crimes. Browning planned the crimes, recruited Pethel, bound the victims, robbed the house, carried the victims to a closet, set the closet on fire, and told Pethel to shoot the victims.14 This substantial level of participation rises to the moral culpability necessary to be eligible for a death sentence.15 Browning cannot show he was prejudiced by previous counsels’ failure to raise this claim.

¶ 8 In Proposition III Browning claims errors in jury selection deprived him of an impartial jury. This Court rejected this claim in Browning’s direct appeal.16 Browning argues previous counsel should have objected to other jurors.

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Browning v. State, 2006 OK CR 37, 144 P.3d 155, 2006 Okla. Crim. App. LEXIS 38, 2006 WL 2621095 (Okla. Ct. App. 2006).

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