OCCAOnline Rules of the Court of Criminal Appeals

(Updated 5/21/2003 in accordance with 2003 OK CR 9)
(Updated 1/31/2008 in accordance with 2008 OK CR 5)


Rule 9.7 Post-Conviction Procedures in Capital Cases.

A. Application.

(1) Post-conviction applications shall be in accordance with Form 13.11a, Section V of these Rules, and the provisions of the Post-Conviction Procedure Act, Sections 1080-1089 of Title 22. See Section 1089(E) of Title 22. See also Duvall v. State, 869 P.2d 332, 333-34 (Okl.Cr.1994), 871 P.2d 1386, 1387 (Okl.Cr.1994); Van Woundenburg v. State, 818 P.2d 913, 915 (Okl.Cr.1991); Hale v. State, 807 P.2d 264, 266 (Okl.Cr.1991).

(2) In all cases, the application for post-conviction relief shall be filed with this Court within ninety (90) days from the date the appellee's direct appeal brief is filed with this Court in accordance with Section 701.13 of Title 21; or within ninety (90) days from the date a reply brief is filed with this Court in accordance with Rule 9.3(C).

(3) The verified application shall be in substantial compliance with Form 13.11a and contain:

(a) Whether the application is an original or a subsequent application for post-conviction relief;

(b) The District Court case from which review is being sought, including the case number at trial;

(c) A procedural history of the case, including proceedings in the District Court;

(d) A copy of the Judgment and Sentence of the District Court and the death warrant, if an original application, or copies of earlier post-conviction applications, if a subsequent application;

(e) The case number of the petitioner's direct appeal, together with the dates the direct appeal brief-in-chief and/or reply brief were filed if an original application;

(f) Any supplementary materials and discovery requests submitted in accordance with subsection 9.7(D) of this Rule;

(g) Argument and authority in the same manner as direct appeal briefs, attached as an addendum. See Rule 3.5; and

(h) A certified copy of the District Court's determination of indigency, if applicable, together with a statement of any changes in financial condition since the date of determination.

(4) The arguments-and-authorities section of the application shall not exceed fifty (50) pages in length. All stylistic and spacing requirements set forth in Rule 3.5(D) through (F) apply. Any requests for additional pages must be approved by this Court before the petitioner's application is filed.

(5) This Court may direct the respondent to file an answer brief if it deems one necessary to the resolution of the issues raised in the petitioner's application and brief. See Section 1089(D)(3) of Title 22. It shall have the same size limitations as the petitioner's brief.

B. Issues Raised.

(1) Issues raised on an application for post-conviction relief shall belimited to those set forth in Section 1080 of Title 22, which shall be applied inaccordance with the scope of appellate review set forth in Section 1089(C). All grounds for relief which were available to the petitioner before the last date on which an application could be timely filed shall be set out in the application or be deemed waived.

(2) The application shall state specific facts explaining why each claim was not or could not be presented on direct appeal; and how each claim supports a conclusion that the outcome of the trial would have been different but for the errors, or that the petitioner is factually innocent. These specific facts shall be supported by materials found in the record made at trial or filed in accordance with subsection 9.7(D) of this Rule or by caselaw.

(3) No application may be amended or supplemented after the time specified in Section 1089(D) of Title 22. This Court shall not consider in the original application any amendments to the application or supplementations not filed in accordance with Rule 9.7(D). Any amended or supplemental applications accepted for filing after the time specified in Subsection 9.7(A)(2) shall be treated as a subsequent application. See Rule 9.7(G).

C. Good Faith Filing. By filing any document with this Court, the attorney of record or, if not represented, the party, is certifying that to the best of that person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) It is not being presented for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation;

(2) The claims and other legal contentions in the application and other documents are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; and

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

If this Court, after providing notice and a reasonable opportunity to respond, finds the materials were filed in violation of this Rule and Section 1088.1 of Title 22, it may impose an appropriate sanction, including but not limited to assessment of costs and expenses, contempt of court proceedings or dismissal of the application. Such dismissal shall constitute forfeiture of a petitioner's right to pursue post-conviction proceedings in this Court. See Sections 1088.1 and 1277(E) of Title 22.

D. Supplementation of Record/Discovery.

(1)

(a) The record on capital post-conviction shall consist of the original application for post-conviction relief, the record on appeal as defined by Rule1.13(F), and any affidavits and evidentiary material filed along with the original application. Affidavits and evidentiary material which are timely filed in support of a proposition of error will be reviewed to determine if a threshold showing is met to require a review on the merits. If this Court determines that the requirements of Section 1089(D) of Title 22 have been met and issues of fact must be resolved by the District Court, it shall issue an order remanding to the District Court for a hearing on the merits of the claim raised in the application.

(b) Supplementation of the Record on capital post-conviction proceedings is limited to materials supporting matters which were not and could not have been raised in a direct appeal; and support the conclusion the outcome of the trial would have been different, or that the defendant is factually innocent. See Section 1089(C) of Title 22. Supplementation by the appellee is also permitted in accordance with this Rule.

(2) A petitioner's request for discovery shall be filed with this Court before or at the time the application for post-conviction relief is filed. Any request for discovery by the State shall be filed at the time any court ordered response is filed. Discovery requests not filed in conjunction with the application or court ordered response shall not be considered.

(3) In considering such discovery requests, this Court shall presume the parties complied with all discovery rules issued by the District Court at the time of trial and in accordance with Sections 2001 and 2002 of Title 22. Consequently, requests making allegations to the contrary shall be supported with affidavits, describing as particularly as possible the material sought to be discovered, and why such material was not supplied at the time of trial. Should these affidavits be sufficient to raise a substantial question of compliance with earlier discovery orders, and the material being sought would have resulted in a different outcome at trial, this Court may direct a response from the opposing party showing cause why a discovery order should not be issued.

(4) All discovery requests shall be adjudicated based on the pleadings; provided, however, that if failure to comply with a discovery order is the grounds for an issue raised in the application, this Court may remand pursuant to Section 1089(D)(5) of Title 22 for an evidentiary hearing.

(5) A request for an evidentiary hearing is commenced by filing an application for an evidentiary hearing, together with affidavits setting out those items alleged to be necessary for disposition of the issue petitioner is advancing. The application for hearing and affidavits submitted by the petitioner shall be cross-referenced to support the statement of specific facts required in the application for post-conviction relief. See Section 1089(C)(2) of Title 22. The application for an evidentiary hearing shall be filed together with the application for post-conviction relief. See Section 1089(D)(2) of Title 22. The application for hearing and affidavits must contain sufficient information to show this Court 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.

(6) If this Court determines from the application and affidavits that the requirements of Section 1089(D) of Title 22 have been met and issues of fact must be resolved by the District Court, it shall issue an order remanding to the District Court for an evidentiary hearing. The order shall set out the issues to be resolved; define the scope of the hearing; and define the scope of discovery requirements and subpoenas for essential witnesses.

(7) Upon remand, the District Court shall not permit any amendments or supplements to the issues remanded except upon proper motion of either party and order by this Court. See Section 1089(D)(5) of Title 22.

(a) This Court shall not issue such order remanding for an evidentiary hearing absent a showing by the submitting party that the materials sought to be submitted could not have been previously submitted upon exercise of due diligence.

(b) Such motion for evidentiary hearing, with affidavits attached, shall constitute a certification the materials could not have been previously discovered and the request is being filed in accordance with subsection 9.7(C) of this Rule.

E. Review of Application.

(1) This Court shall review the application for post-conviction relief in accordance with Section 1089(D)(4) of Title 22.

(2) If this Court determines controverted, previously unresolved factual issues material to the legality of the petitioner's judgment or sentence do exist and otherwise meet the requirements of Section 1089(D)(4) of Title 22, this Court shall enter an order remanding to the District Court in which the sentence was imposed, designating the issues of fact to be resolved and the method by which the issues shall be resolved. Upon remand, the parties and District Court shall adhere to the time constraints set forth in Section 1089(D)(6) of Title 22. PROVIDED, HOWEVER, this Court shall retain jurisdiction of all applications for post-conviction relief at all times.

(3) Nothing herein shall preclude the Attorney General from being present and/or participating in the proceedings in the District Court.

F. Review after remand. Either party may seek review by this Court of the District Court's determination of the issues upon remand in accordance with the following procedure:

(1) This review is initiated by filing with the District Court within ten (10) days from entry of the District Court order a Notice of Intent to Seek Review and Designation of Record.

(2) The party seeking review must also file with the Clerk of this Court within thirty (30) days from entry of the District Court order a petition in error, together with a copy of the Notice of Intent to Seek Review and Designation of Record. The petition in error shall contain the following:

(a) The District Court from which review is being sought and the District Court case number;

(b) The procedural history of the case; and

(c) A certified copy of the District Court's order from which review is sought, together with findings of fact and conclusions of law.

(3) The filing of the above documents in subsections (1) and (2) within the specified times is mandatory; failure to file in a timely manner constitutes waiver of the right to seek review by this Court, and this Court may adopt the findings of the District Court and enter an order with or without additional briefing by the parties.

(4) A copy of the Notice of Intent to Seek Review and Designation of Record shall be served on the court reporter, the opposing party, the district attorney and the Attorney General within ten (10) days from entry of the District Court order.

(5) Due to the fact this Court will only remand when an evidentiary hearing is required to be held, the court reporter shall prepare and file all transcripts of the evidentiary hearing within sixty (60) days from the date of the evidentiary hearing and shall include copies of all exhibits presented during the hearing in accordance with Rule 2.2(B). Extensions of time are not favored; any extensions of time in which to prepare the transcripts shall be requested in accordance with Rules 3.2(C)(2) and 9.2(C).

(6) At the conclusion of the evidentiary hearing, the record shall be returned to this Court in accordance with Rule 2.3, within sixty (60) days from the date of the evidentiary hearing.

(7) Petitioner's supplemental brief is limited to issues addressed at the evidentiary hearing and shall be filed within forty-five (45) days from the date the record is returned to this Court. Respondent shall file a response brief within twenty (20) days after the petitioner's supplemental brief is filed.

(8) No oral argument shall be required on an application for post-conviction relief.

G. Subsequent application.

(1) A subsequent application for post-conviction relief shall not be considered, unless it contains claims which have not been and could not have been previously presented in the original application because the factual or legal basis was unavailable, as defined in Section 1089(D)(9) of Title 22.

(2) An original application for post-conviction relief not filed in a timely manner shall not be considered, unless it contains claims which have not been and could not have been previously presented in a timely original application because the factual or legal basis was unavailable, as defined in Section 1089(D)(9) of Title 22.

(3) No subsequent application for post-conviction relief shall be considered by this Court unless it is filed within sixty (60) days from the date the previously unavailable legal or factual basis serving as the basis for a new issue is announced or discovered.


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