ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF, EVI-DENTIARY HEARING AND DISCOVERY
CHAPEL, Presiding Judge:
Jack Dale Walker was tried by a jury and convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.Supp. 1982, § 701.7(A) (Counts I and II), Assault and Battery with a Dangerous Weapon in violation of 21 O.S.Supp.1982, § 645 (Count III), and Assault with a Dangerous Weapon in violation of 21 O.S.Supp.1982, § 645 (Counts IV and V), in Tulsa County District
Court Case No. CRF-89-18. In accordance with the jury’s recommendation, the Honorable Clifford E. Hopper sentenced Walker to death on each of Counts I and II, twenty years imprisonment on Count III, and ten years imprisonment on each of Counts IV and V. Walker appealed these convictions and sentences to this Court and we affirmed.1 The United States Supreme Court then denied his petition for writ of certiora-ri.2
In accordance with the recent amendments to the Uniform Post-Conviction Procedure Act,3 Walker filed his Original Application for Post-Conviction Relief in this Court on August 16, 1996.4 In his first proposition, Walker attacks the constitutionality of Oklahoma’s amended capital post-conviction review statute. He argues that the new scheme, both on its face and as applied, denies him due process, equal and adequate access to the courts, and violates the Ex Post-Faeto Clause. We recently considered and rejected this constitutional attack upon Oklahoma’s current capital post-conviction procedure.5 Accordingly, Walker’s first proposition is denied.
Before turning to Walker’s remaining arguments, it is important — in light of the amended and more restrictive capital post-conviction statute — to reemphasize the narrow scope of review available on collateral appeal. First and foremost, the Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal.6 Rather, the post-conviction statutes have always provided applicants with only very limited grounds upon which to attack their “final” judgments.7 Accordingly, [331] post-convietion claims which could have been raised in previous appeals but were not are generally considered waived;8 and, post-conviction claims which were raised and addressed in previous appeals are barred as res judicata.9
These procedural bars still apply to claims raised by capital post-conviction applicants appealing under the amended section 1089. However, the recent amendments to that statute have made it even more difficult for capital post-convietion applicants to avoid procedural limitations on collaterally asserted claims. Under section 1089, only those capital post-convietion claims that “[w]ere not and could not have been raised”10 on direct appeal will escape the effects of waiver and res judicata.11 Examples of capital post-conviction claims which “could not have been raised”12 on direct appeal are (1) ineffective assistance of trial or appellate counsel claims that meet the statute’s definition of ineffective assistance of trial or appellate counsel,13 or (2) claims
(a) [that were] not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state ... or (b) [that are based upon] a new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state....14
Once a capital post-conviction applicant has demonstrated that a claim was not and could not have been previously raised on direct appeal and thus should not be held procedurally barred, there remains another prerequisite to full review. Claims which successfully avoid procedural bar will ultimately be afforded collateral review only if, in addition, they “[sjupport a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent.”15
The amendments to the capital post-conviction review statute reflect the legislature’s intent to honor and preserve the legal principle of finality of judgment,16 and we will narrowly construe these amendments to effectuate that intent. Given the newly refined and limited review afforded capital post-conviction applicants, we must also emphasize the importance of the direct appeal as the mechanism for raising all potentially meritorious claims. Because the direct appeal provides appellants their only opportunity to have this Court fully review all claims of error which might arguably warrant relief, we urge them to raise all such claims at that juncture.
We now turn to Walker’s remaining post-convietion claims. Walker argues in his second proposition that he was denied his right to the effective assistance of trial counsel. Walker claims that his trial attorney was ineffective in the following ways: he failed to adequately prepare for trial; he failed to [332] comply with the trial court’s discovery order; he failed to request a proper competency evaluation, present available evidence or ask for a continuance to prepare for the competency hearing; he failed to seek suppression of Walker’s pretrial statements; he failed to seat a fair and impartial jury; he failed to investigate or present evidence to negate the element of specific intent and he failed to request an intoxication defense instruction; he failed to present available evidence to support the requested first degree manslaughter instruction; he failed to present evidence that Walker was heavily medicated during trial; he failed to object to the late filing of the Bill of Particulars; he failed to object or request a continuance when the State filed an amended notice of evidence to be used in aggravation; and, he failed to investigate and present all of the evidence available in second stage.
Under the strict terms of the new statute, an ineffective assistance of trial counsel claim could not have been raised on direct appeal if it requires “factfinding outside the direct appeal record_”17 In other words, ineffective assistance of trial counsel claims are properly raised and may be considered on post-conviction only if they are based upon facts which were not available to the applicant’s direct appeal attorney and thus could not have been made part of the direct appeal record. Stated in prohibitive terms, this Court may not review Walker’s post-conviction claims of ineffective assistance of trial counsel if the facts generating those claims were available to Walker’s direct appeal attorney and thus either were or could have been used in his direct appeal.18 Walker’s ineffective assistance of trial counsel claims do not turn on facts unavailable at the time of his direct appeal.
Walker does support some of his ineffective assistance of trial counsel allegations with affidavits from Walker himself, from trial counsel and other attorneys employed by the Tulsa County Public Defender’s office, from a doctor who recently examined Walker and from a juror who determined Walker’s guilt and sentence. As additional support for his trial counsel ineffectiveness claims, Walker also provides medical records both from the hospital which treated him immediately after the murders and from the Tulsa County jail where he was subsequently incarcerated.19 Despite the fact that these documents were not physically part of Walker’s direct appeal record, it appears that the facts contained in them were available to his direct appeal attorney and thus could have been argued on direct appeal. For instance, Walker provides this Court with no evidence to suggest that Walker, his trial counsel, the other Tulsa County Public Defenders and the juror who have given affidavits for this post-conviction appeal were unavailable or unwilling at the time of Walker’s direct appeal to provide sworn statements. Walker has also failed to provide this Court with any evidence to suggest that his hospital and county jail medical records which are included in this post-conviction appeal were either not in existence at the time his direct appeal was filed or were kept from his direct appeal attorney. Because the determination of Walker’s ineffective assistance of trial counsel claims does not require factfinding outside the scope of information available to his attorney at the time of his direct appeal, those claims are not properly raised in this post-conviction appeal and will not be considered. Accordingly, Walker’s second proposition is denied.
Walker argues in his third proposition that he was denied his right to the effective assistance of appellate counsel. He first argues that his direct appeal attorney, Johnie [333] O’Neal, had a conflict of interest that caused him to omit all the instances of trial counsel’s ineffectiveness previously alleged in proposition two. Walker next argues that O’Neal was ineffective in failing to raise the following three substantive issues which he claims would have warranted relief on direct appeal: (1) trial court improperly instructed the jury on the presumption of “not guilty” rather than on the presumption of innocence; (2) police improperly obtained Walker’s statement and there was no Jackson v. Denno20 hearing conducted to determine its voluntariness; and (3) Walker’s competency was not properly determined.
In the context of an ineffective assistance of appellate counsel allegation, the supposedly mishandled claim “could not have been previously raised” and thus will not be procedurally barred if
it is a claim contained in an original timely application for post-conviction relief relating to ineffective assistance of appellate counsel and the Court of Criminal Appeals first finds that if the allegations [of ineffectiveness] in the application were true, the performance of appellate counsel constitutes the denial of reasonably competent assistance of appellate counsel under prevailing professional norms.21
If this Court initially determines that appellate counsel was ineffective, we “may [then] consider the claim [appellate counsel allegedly mishandled] during the post-conviction proceeding or, if appropriate, during the direct appeal.”22
According to these guidelines,23 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,24 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.25
This three-tiered procedural scheme26 recognizes that the heart of an ineffective assis-[334] tanee of appellate counsel allegation is the predicate substantive claim which counsel purportedly mishandled, and which, but for the ineffective assistance allegation, would automatically be proeedurally barred.27 Capital post-conviction petitioners desire full review of technically waived substantive claims, and they have discovered that an ineffective assistance of appellate counsel allegation may achieve this goal.28 Under the terms of the new statute, capital post-conviction petitioners must prove deficient attorney performance as a precondition to having their underlying claim reviewed. Accordingly, they must devote much greater time and attention to what counsel did or did not do and why counsel’s acts or omissions constituted deficient performance.
Before the enactment of the new statute, post-conviction petitioners would simply argue their barred claims and summarily conclude that their appellate counsel’s decision not to raise them or manner of raising them constituted ineffective assistance under the two-pronged Strickland test. In applying the prejudice prong of the Strickland test to these allegations, this Court was essentially forced to examine the merits of the allegedly mishandled but technically waived claim in order to determine whether it was so serious as to deprive the defendant of a fair trial and thus would have forced a reversal or sentence modification on direct appeal. By eliminating a capital post-conviction petitioner’s burden to prove prejudice for ineffective assistance of appellate counsel allegations, the pivotal and narrow threshold issue is now simply whether appellate counsel’s perfor-manee was deficient under prevailing professional norms. This issue may be fully analyzed without examining the merits of the technically waived, substantive claim which was allegedly mishandled.
Before turning to Walker’s specific claims of appellate counsel ineffectiveness, we must revisit the duties appellate attorneys owe their clients and the guidelines which this Court will follow in assessing whether such duties were adequately executed in a given case. According to Strickland,29 an attorney owes the client 1) a duty “of loyalty, ... to avoid conflicts of interest.”30 An attorney also owes the client 2) an overarching duty to advocate the client’s cause.31 More specific duties include 3) consulting with the client on important decisions, 4) keeping the client informed of important developments in the case, 5) exercising the degree of skill and knowledge that will render the appellate process reliable32 6) making reasonable investigations or making reasonable decisions that render particular investigations unnecessary.33 In addressing ineffective assistance of appellate counsel claims, this Court has concluded that appellate counsel owes the client and 7) a duty to raise relevant issues for this Court to consider.34 This obligation does not, however, require appellate counsel to raise all non-frivolous issues available.35
In assessing whether appellate counsel sufficiently performed these duties, our overriding concern is “whether counsel’s assistance was reasonable considering all the circumstances.”36 To preserve both appel[335] late attorneys’ constitutionally protected independence and their wide latitude in making tactical decisions, however, this Court must be “highly deferential”37 in scrutinizing their performance. Accordingly, we must evaluate appellate counsel’s challenged conduct from counsel’s perspective at the time; indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; and, recognize that there are countless ways to provide effective assistance in a given ease.38 Finally, when a client has “given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.”39
We now turn to Walker’s specific allegations of appellate counsel ineffectiveness. Walker first alleges that O’Neal was ineffective because a conflict of interest caused him to omit from his direct appeal brief meritorious claims of trial counsel ineffectiveness. Because the record reveals that O’Neal in fact omitted these claims on direct appeal, Walker has met his threshold burden to prove that the “conduct” he attacks as deficient actually occurred. We thus reach the next level of inquiry, which is whether O’Neal’s omission of these claims constituted deficient performance.
Both O’Neal and trial counsel were employed by the Tulsa County Public Defender’s office. O’Neal, who was then the Chief Tulsa County Public Defender and thus trial counsel’s supervisor, appeared with his assistant public defender at counsel’s table but was minimally involved in defending Walker at trial. Walker argues that O’Neal, having participated in Walker’s trial and having also been largely responsible for lead trial counsel’s performance, failed to raise ineffective assistance claims on direct appeal for fear of exposing his own or his assistant’s poor legal performance and judgment.
While O’Neal was the Chief Tulsa County Public Defender and thus trial counsel’s supervisor at the time of Walker’s trial, there is nothing inherent in this relationship to suggest that it dictated O’Neal’s subsequent decision not to raise ineffective assistance of trial counsel on direct appeal — especially in light of the fact, conceded by Walker, that O’Neal’s involvement at trial was minimal. Additionally, Walker raised no objection to being represented on appeal by the Tulsa County Public Defender’s office or more specifically by Mr. O’Neal. Walker has thus failed to establish that O’Neal’s decision not to argue trial counsel’s ineffectiveness was in any way driven by O’Neal’s minimal involvement in the trial or his employment relationship with trial counsel.
Walker has failed to establish that O’Neal’s omission on direct appeal of ineffective assistance of trial counsel claims was driven by an actual conflict of interest. Thus, Walker’s trial counsel ineffectiveness claims remain procedurally barred and will not be considered on the merits.
Walker next alleges that O’Neal was ineffective because he failed to raise three meritorious substantive issues on direct ap-. peal. First, Walker alleges O’Neal was ineffective because his fear of Judge Hopper caused him to omit an appellate proposition attacking the Judge’s improper presumption of “not guilty” instruction. Because the record reveals that O’Neal in fact omitted this argument on direct appeal, Walker has met his threshold burden to prove that the “conduct” he attacks as deficient actually occurred. We thus reach the next level of inquiry, which is whether O’Neal’s omission of this claim constituted ineffective assistance.
Walker’s evidence of O’Neal’s allegedly unprofessional judgment includes the following: O’Neal’s affidavit in which he states that he did not attack the instruction on appeal because he was afraid that Judge Hopper — who had administered it — would retaliate by firing him; a memo to some public defenders, dated four years after the filing of Walker’s direct appeal brief, in which O’Neal stresses the importance generally of preserving instructional error in trials conducted by Judge [336] Hopper; and affidavits from two assistant Tulsa public defenders who worked for O’Neal at the time of Walker’s direct appeal, stating that they thought O’Neal intended to supplement Walker’s appeal record with a proposition raising the “presumed not guilty” instructional error.
When a criminal defense attorney attests to his or her own ineffectiveness in an effort to obtain relief for a capital post-conviction applicant, that affidavit will be thoroughly scrutinized and will rarely, if ever, be solely relied upon to support an allegation of deficient performance. Here, O’Neal’s affidavit supplies the only evidence that his judgment in Walker’s direct appeal was compromised because of his fear of Judge Hopper.40 Perhaps more significantly, however, a review of O’Neal’s direct appeal brief in Walker’s ease reveals a number of attacks upon Judge Hopper’s decision-making and courtroom conduct. Even assuming Walker had presented compelling evidence in addition to O’Neal’s affidavit, we would — in light of his direct appellate arguments — be hard-pressed to find that O’Neal’s professed fear of Judge Hopper’s wrath affected his direct appeal strategy in Walker’s case only insofar as the “presumed not guilty” proposition was concerned.
Walker’s proffered evidence does not demonstrate that O’Neal purposefully omitted meritorious appeal issues because he wished to avoid angering Judge Hopper. Walker has thus failed to establish that O’Neal’s performance was deficient. Accordingly, Walker’s substantive claim regarding the “presumed not guilty” instructional error remains proeedurally barred and will not be considered on the merits.
The second set of substantive claims which Walker alleges O’Neal ineffectively omitted are (1) that police improperly obtained Walker’s statement and (2) that there was no Jackson v. Denno hearing to determine its voluntariness. Because the record reveals that O’Neal in fact omitted these arguments on direct appeal, Walker has met his threshold burden to prove that the “conduct” he attacks as deficient actually occurred. We thus reach the next level of inquiry, which is whether O’Neal’s omission of these claims constituted ineffective assistance.
In alleging ineffective assistance in these instances, Walker makes no attempt to establish that O’Neal breached any duties owed to him, or that O’Neal’s judgment was unreasonable under the circumstances or did not fall within the wide range of professional assistance. To prove that O’Neal’s performance was deficient, Walker instead reasons that an attorney who omits arguably meritorious appellate claims is always ineffective. This is simply not the case, and such a conclusory allegation, standing alone, will never support a finding that an attorney’s performance was deficient. ’
Walker has failed to establish that O’Neal was ineffective in failing to attack on direct appeal the reliability and admissibility of Walker’s statements to police. Thus, Walker’s substantive claims concerning his statements to police remain proeedurally barred and will not be considered on the merits.
Thirdly, Walker alleges that O’Neal was ineffective because he did not raise any issues on direct appeal concerning Walker’s competency and how it was determined. Because O’Neal did not raise these issues on direct appeal, Walker has established that the “conduct” which he claims was deficient actually occurred. We thus reach the next level of inquiry, which is whether O’Neal’s omission of these competency issues constituted ineffective assistance.
Walker initially alleges O’Neal was ineffective because he failed to attack the procedure the trial court followed in determining his competency. However, Walker does not present facts to show that O’Neal’s [337] omission of this argument on direct appeal was unreasonable under the circumstances or did not fall within the wide range of professional assistance. Instead, Walker describes why he believes the trial court’s procedure was flawed, implies that O’Neal should have also found fault with the trial court’s procedure, and concludes that O’Neal’s failure to attack the allegedly faulty procedure automatically constitutes ineffective assistance of counsel. Again, we cannot and will not find that an attorney was ineffective simply because he or she failed to press an arguably meritorious claim.
Walker next claims that he was tried while incompetent, and that O’Neal should have recognized this fact and argued it on direct appeal. While Walker offers a number of affidavits from various professional and lay people who now maintain that Walker was incompetent to stand trial, he does not offer any facts to support his present conclusion that O’Neal’s decision not to attack competency on direct appeal constituted deficient performance. Walker does not present facts to show that O’Neal’s omission of this argument on direct appeal was unreasonable under the circumstances or did not fall within the wide range of professional assistance. Again, an attorney’s failure to raise an arguably meritorious claim on appeal — absent some additional proof that such failure was professionally unreasonable under the circumstances — will never support a finding of deficient performance.
Walker has failed to establish that O’Neal was ineffective in omitting competency issues on direct appeal. Accordingly, Walker’s substantive claims regarding the trial court’s determination of his competency remain procedurally barred and will not be reviewed on the merits. These allegations and proposition three are denied.
For his fourth proposition, Walker claims that his conviction must be reversed because the trial court improperly instructed the jury that he was “presumed not guilty.” In Flores v. State,41 handed down five years after Walker filed his direct appeal brief-in-chief, this Court reversed a conviction on the basis of this flawed instruction, holding that it unconstitutionally diluted the presumption that guilt is to be proven beyond a reasonable doubt. Walker now argues that he may raise this instructional issue for the first time on post-conviction since the Flores opinion settling that issue constitutes an intervening change in the law.42
Walker did not challenge the “presumed not guilty” instruction on direct appeal. He has thus waived this issue for purposes of capital post-conviction review, unless he can now demonstrate that it “could not have been raised in [his] direct appeal.”43 Under section 1089, Walker’s challenge to this instruction “could not have been raised” or was “unavailable” to his direct appellate counsel if it
(a) was not recognized by or could not have been reasonably formulated from, a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before [the] date [338] [Walker’s direct appeal brief was due], or (b) is a new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state... .44
We find that as of the date of his direct appeal,45 the legal basis of Walker’s current attack on the “presumed not guilty” instruction was either recognized by or could have been reasonably formulated from a final decision of this Court. In Flores, we noted that this Court has for years stressed the fundamental importance of the “presumption of innocence ” instruction. That instruction “fixes the burden of proof and designates that the duty rests upon the State to produce evidence and to effect persuasion beyond a reasonable doubt before the jury is authorized to convict.”46 Further, that instruction is mandated by a state statute which provides that “[a] defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.”47 Given the decades-old Oklahoma case and statutory law upholding the presumption of innocence instruction, we find that the “legal basis” of Walker’s current challenge to the “presumed not guilty” instruction administered at his trial was recognized by and could have reasonably been formulated from a final decision of this Court at the time he filed his direct appeal brief in this case.
We further find that Flores is not a “new” rule of constitutional law.48 According to the United States Supreme Court, a case announces a “new” rule when it “breaks new ground or imposes a new obligation” ... or if its result “was not dictated by precedent existing at the time the defendant’s conviction became final.”49 Far from breaking new ground or imposing a new obligation upon the State, this Court’s decision in Flores simply reiterated and enforced long standing case law and statutory rules. Because the legal basis of Walker’s current constitutional attack on the “presumed not guilty” instruction administered at his trial was “available” at the time of his direct appeal, his failure to raise it at that juncture has rendered it waived for purposes of this collateral attack. Proposition four does not meet the first prerequisite to post-conviction review and is denied.
Walker also claims in proposition eight50 that Cooper v. Oklahoma51 constitutes an intervening change in case law which entitles him to relief.52 At the time of Walker’s post-examination competency hearing, Oklahoma’s statutes placed upon him the burden of proving his incompetence by clear and convincing evidence.53 The Supreme Court in Cooper subsequently concluded that this heavy' burden violates due process, reasoning that “requiring the defendant to prove incompetence by clear and convincing evidence imposes a significant risk of an errone[339] ous determination that the defendant is competent.” 54
Walker did not challenge the clear and convincing standard on direct appeal. He has thus waived this issue for purposes of capital post-conviction review, unless he can now demonstrate that it “could not have been raised in [his] direct appeal.”55 Under section 1089, Walker’s challenge to this burden of proof “could not have been raised” or was “unavailable” to his direct appellate attorney if the legal ground supporting it either was not recognized by a court as precedent at the time of his direct appeal or is a new rule of constitutional law which has been given retroactive effect.56
We find that as of the date of his direct appeal,57 the legal basis of Walker’s constitutional attack on Oklahoma’s “clear and convincing” burden of proof in competency proceedings was either recognized by or could have been reasonably formulated from a final decision of the United States Supreme Court. The Supreme Court in Cooper noted how its previous decisions had “repeatedly and consistently recognized that ‘the criminal trial of an incompetent defendant violates due process.’ ”58 In fact, the Supreme Court in Cooper explained at great length how years of case and statutory law supported and even dictated its holding. Given the unquestionably fundamental nature of a criminal defendant’s right not to be tried while incompetent and the overwhelming federal case law and state statutory protection that right has traditionally been afforded,59 we find that the “legal basis” of Walker’s constitutional attack upon Oklahoma’s “clear and convincing” burden of proof in competency proceedings was recognized by and could have reasonably been formulated from a final decision of the United States Supreme Court at the time he filed his direct appeal brief in this case.60
We further find that Cooper is not a “new” rule of constitutional law.61 According to the United States Supreme Court, a case announces a “new” rule when it “breaks new ground or imposes a new obligation on the States or the Federal Government” ... or if its result “was not dictated by precedent existing at the time the defendant’s conviction became final.”62 Far from breaking new ground or imposing new obligations upon the States or Federal Government, the decision in Cooper simply applied well established constitutional principles to facts generated by a rather new state statute. Further, the result in Cooper was effectively dictated by long standing precedents requiring that States “jealously guard” fundamental constitutional rights.63 Because the legal basis of Walker’s current constitutional attack on Oklahoma’s burden of proof in competency proceedings was “available” at the time of his direct appeal, his failure to raise it at that juncture has rendered it waived for purposes of this collateral attack. Proposition eight does not meet the first prerequisite to capital post-conviction review and is denied.
[340] Walker claims in his fifth proposition that the trial court erred in instructing the jury that the State had to prove beyond a reasonable doubt “all the material allegations contained in the Information....” Again, by failing to raise this issue on direct appeal, Walker has waived it for purposes of post-conviction review unless he can demonstrate that this issue could not have been raised at that juncture. Walker does not argue and we do not find that this issue “could not have been raised” or was “unavailable” on direct appeal. Accordingly, proposition five does not meet the first prerequisite to capital post-conviction review and is denied.64
In proposition six, Walker complains that the trial court failed to follow the statutorily mandated procedure to determine his competency. In proposition seven, Walker argues that he was sentenced to death while incompetent. In proposition nine, Walker argues that juror misconduct deprived him of a fair trial. Walker did not raise these issues on direct appeal and has not even attempted to demonstrate that he could not have done so. Accordingly, propositions six, seven and nine do not meet the first prerequisite to capital post-conviction review and are denied.
Walker also requests an evidentiary hearing and discovery. We have held that post-conviction applicants are not entitled to evidentiary hearings, and the new capital post-conviction statute does not specifically address motions for evidentiary hearings. Under the statute, it is this Court’s responsibility to assess the propositions raised and determine whether “controverted, previously unresolved factual issues material to the legality of the applicant’s confinement” exist.65 If we encounter such factual controversies, we are free to issue an order — such as an order for an evidentiary hearing — to help facilitate post conviction review.66
In analyzing Walker’s nine propositions of error, we found no material factual issues that would warrant an evidentiary hearing. Walker’s motion relies solely upon the claims set forth in these propositions, and does not present any additional factual issues that would warrant an evidentiary hearing. Walker’s motion for evidentiary hearing is therefore denied.
Walker’s request for discovery is also denied. Walker does not argue that the trial court denied him full and fair discovery, and in fact concedes that no trial discovery orders were issued. Rather, Walker claims that his ability to raise meaningful post-conviction claims is conditioned upon his ability to discover various documents now supposedly in police possession. This Court has never allowed unfettered discovery in post-conviction proceedings,67 and the new post-conviction statute in no way broadens a petitioner’s discovery rights. Walker has failed to explain why he did not obtain at trial the material he now seeks. We thus find that he has waived any right he may have had to discover the now sought after documentation.68 Accordingly, Walker’s motion for discovery is denied.
After carefully reviewing Walker’s applications for post-conviction relief, discovery and an evidentiary hearing, we conclude (1) that there exist no controverted, previously unresolved factual issues material to the legality of Walker’s confinement, (2) that Walker could have previously raised his collaterally [341] asserted grounds for review, and (3) that the current post-conviction statutes warrant no relief.69 Accordingly, Walker’s Application for Post-Conviction Relief and Application for an Evidentiary Hearing and Discovery are DENIED.
STRUBHAR, Y.P.J., and JOHNSON, J., concur.
LUMPKIN, J., concurs in results.
LANE, J., dissents.