Fighting Criminal Convictions after Losing an Oklahoma Direct Appeal

When the direct appeal of an Oklahoma state conviction has been denied, the defendant must act quickly to preserve their federal appellate rights. Under Oklahoma law there is no time limitations for filing post-conviction relief, but in the federal habeas system there are strict time limitations.

If your Oklahoma state direct appeal is denied you always have the option of filing a Petition for Writ of Certiorari with the United States Supreme Court. While this is an option, most people choose to forgo this option because very few cases are ever reviewed by the Supreme Court. (Less than 1% of cases are accepted for review.) Choosing to forgo this step does not preclude a state prisoner from challenging his or her conviction through the state Oklahoma Post Conviction and Federal Habeas Corpus processes.

Before you can file a Habeas Corpus action in Federal Court you need to “exhaust” your state court remedies. In Oklahoma “exhaustion” of the state court remedies can involve filing an Application for Post Conviction Relief under Title 22 O.S. Section 1080 at the District Court level. (If the issues you plan on raising in federal court were not already raised in the direct appeal.) The District Court is the court that the conviction was suffered in to begin with. If the Application for Post Conviction is denied at the District Court or “trial court” level, than the next step is to appeal the denial of the Application for Post Conviction relief at the Oklahoma Court of Criminal Appeals.

If the appeal of the denial of your Application for Post Conviction Relief is denied at the Oklahoma Court of Criminal Appeals than you have “exhausted” your state remedies and you are now in a position to begin the Federal Habeas Corpus process. (If the issues you wish to raise on federal habeas were raised on the direct appeal than you can skip the Oklahoma Post Conviction Relief Process.) State prisoners challenging their convictions in federal court using the Federal Habeas Corpus file their petitions under 28 U.S.C. Section 2254. The process in Federal Court is similar to the process in state court. First the Petition for Habeas Corpus is filed at the federal district court level and if the petition is denied an appeal of the denial is filed with the appropriate Federal Court of Appeal. If the appeal of the denial of the Petition for Habeas Corpus is denied at the Federal Court of Appeals than the petitioner has an opportunity to appeal to the United States Supreme Court.

This is a slow process that takes years to complete and there are many procedural pitfalls along the way. However, if a state prisoner has legitimate legal issues in his or her case, the federal courts often provide the prisoner with their last best chance to gain relief.

If you are Indian and a member of a federally recognized tribe, or you qualify to be recognized and your conviction arises from anywhere within the Muscogee (Creek) Reservation you need to read Indian Land and Oklahoma Criminal Jurisdiction.

Oklahoma State Post Conviction Relief Process

Title 22 O.S. §1080 list the statutory basis for pursuing an application for post conviction relief in Oklahoma: Section 1080 reads:

Any person who has been convicted of, or sentenced for, a crime and who claims:
(a) that the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this state;
(b) that the court was without jurisdiction to impose sentence;
(c) that the sentence exceeds the maximum authorized by law;
(d) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(e) that his sentence has expired, his suspended sentence, probation, parole, or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint; or
(f)that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy;

Post conviction is not the place to re-raise issues already denied

Issues that were raised on the direct appeal that were denied by the appellate court generally will be denied on state post conviction. * These issues are barred by the doctrine of Res Judicata. See Castro v State, 880 P.2d 387 (Okl.Cr.1994) Post Conviction appeals are not mechanisms to reassert issues previously denied. *You may want to re-raise issues arguing Federal law and the US Constitution so you can argue the issue in your Federal Habeas action.

Issues That Could Have Been Raised On Direct Appeal But Were Not Are Waived

Issues that were not raised on direct appeal, that could have been raised are deemed to have been waived on post conviction. See Fowler v. State, 873 P.2d 1053 (Okl.Cr. 1994)

These first two points creates a “catch 22” for many legal issues. If the issue was previously raised and denied it can not be re-raised and if it was not raised it is deemed waived. However, there are issues that do not fall into this category. Such issues are ineffective assistance of counsel (Generally should be raised on trial and appellant counsel to avoid pitfalls. Trial counsel was ineffective at trial and appellate counsel was ineffective for not raising issue concerning trial counsels ineffectiveness), newly discovered evidence, jurisdictional issues such as statute of limitations, violations of Due Process caused by the withholding of evidence by police or prosecution, and reconsideration of claims affected by subsequent changes in the law.

All Issue You Are Aware of Should Be Raised in the Application for Post-Conviction Relief

Make sure to raise all issues that you are aware of in the first Application for Post Conviction Relief. If issues are not raised they are waived.

In Oklahoma a Defendant Is Not Entitled to Court Appointed Lawyer for Post-Conviction Relief

Unless a prisoner is facing a death sentence they are not entitled to counsel at state expense for post conviction relief. This places many prisoners in a very bad position. They spend all of their resources, and their families resources, on trial and direct appeal and by the time post conviction comes around they have no money to hire a lawyer.

A defendant with limited resources who is convicted at trial may want to consider using court appointed counsel for direct appeal and saving his or her family's resources for either retrial or post conviction relief.

Include Your Federal Claims in State Post Conviction Appeal

This is a big point. If you do not include your federal claims in your state post conviction appeal you will not be able to argue them in federal court. Make sure you “federalize” your claims. You can argue an issue based on the state constitution but make sure you also argue a separate proposition based on the US Constitution and Federal law. You may wan to re-assert issues raised on direct appeal or include issues not listed in direct appeal, using federal law so you can raise it in a Federal Habeas action.

Federal Habeas Corpus

Habeas corpus is petition that is filed in federal court to claim that a prisoner’s imprisonment violates federal law. A federal habeas petition claims that the prisoner’s imprisonment is illegal because his or her arrest, trial, or sentence violates federal law. Both state and federal prisoners can file a habeas petition regardless of whether your trial was in state court or federal court, and regardless of whether they are in state or federal prison.

The law governing Habeas Corpus Petitions is extremely complex and the assistance of a lawyer is certainly recommended. However, if you are unable to afford the assistance of counsel you should still pursue a Habeas Petition if you believe that your imprisonment violates federal law.

If you can not afford the assistance of counsel there are resources available that will assist you in understanding this area of law. One of those resources available for free on the Internet is “A Jailhouse Lawyer’s Manuel Chapter 13: Federal Habeas Corpus” written by the Columbia Human Rights Law Review.

There are three basic rules that you should be aware of regarding federal habeas corpus appeals. You need to keep these rules in mind before beginning your state post conviction process.

To be successful with a federal habeas petition it is important to coordinate that appeal with the state post conviction relief appeal.

File Your Federal Habeas Petition Within One Year

The Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) requires that habeas petitions be filed in federal court within one year of the end of the direct appeal process. Anytime that is used pursuing state post conviction relief will be subtracted from this year. You need to exhaust the state post conviction procedure before you file your federal habeas petition.

You Must Present Any And All Claims in State Court First

Before you present a claim in a federal habeas petition you must first present that claim in the state post conviction relief petition. The reasoning for this is to allow the state courts an opportunity to correct flawed convictions before the federal courts are asked to intervene.

This not only means that you must go through the state post conviction process, but that you must present the same issues in the state post conviction appeal that you present to the federal court in habeas action.

This also means that you must “federalize” your issues. For example you may have an issue that violates both state and federal law, you must argue the federal law violation at the state post conviction level before you raise the issue in a federal habeas action. This requires you to consider issues to be raised in your federal habeas petition before filing your state post conviction appeal.

You Typically Only Get One Habeas Appeal

It is very difficult to get more than one habeas petition. This means that you must do it right the first time. You must meet all the deadlines and follow the court rules and ensure you include all the required information in your first petition. This may seem harsh, but it was designed to be harsh. A second or “Successive Petition” is very difficult to win.

Recent Post-Conviction and Appeal Results Obtained by Kevin Adams

August 2014-State v. P.L. CF-2000-450 (Creek County)

In this case the defendant had entered a plea back in April of 2001, while being represented by a different lawyer. When the defendant entered a plea he was not informed of the eighty-five (85%) nature of the offense he pled to. Mr Adams was able to get the twenty-seven (27) year sentence set aside.

July 20014-State v. J.A. CF-2013-3322 (Tulsa County)

In this case the defendant entered a plea and was not informed of the immigration consequences of his plea. (Padilla vs. Kentucky, 559 U.S. 356 (2010)) The defendant was in custody of I.C.E. and could not apply for a waiver because of the conviction and sentence in this case. Mr. Adams got the conviction set aside because the plea was not knowingly and voluntarily entered.

May 20014-State v. Eugene Rogers CF-2004-4843 (Tulsa County)

In this case the defendant was convicted after a jury trial and sentenced to twenty (20) years in prison. Mr. Adams uncovered mitigating evidence that was not disclosed to the defense and win a reversal of his conviction more than eight (8) years after the original trial.

September 2011-State v. Duffy Kane CF-2004-2421 (Tulsa County)

In this case Mr. Kane received a forty (40) year sentence after a jury trial. Mr. Adams uncovered mitigating evidence that was not disclosed to the defense and win a reversal of his conviction more than five (5) years after the original trial.

November 2010-State v. Donald Krushawn Jordan CF-2007-3829 (Tulsa County)

In this case Mr. Jordan received a twenty-five (25) year sentence after a jury trial. Mr. Adams used mitigating evidence that was not disclosed to the defense at the time of trial to win a reversal of his conviction more than two (2) years after the original trial.

Send your questions to I try to respond to all inquires as quickly as possible. If you need immediate assistance you can call my office (918) 582-1313 or my cell phone (918) 230-9513. If you are in need of emergency assistance feel free to call my cell phone anytime either day or night.