Scott v. State , 68 O.B.A.J. 2567 ( 1997 )

LUMPKIN, Judge,

specially concurring:

I agree that Petitioner’s Application should be denied. However, as this Application presents what I consider to be a recurring problem in post-conviction applications, I write separately to explain how an application is reviewed in this Court. Specifically, I refer to the attempts here (as well as in other applications) to circumvent the Rules of this Court by “hiding” arguments or authorities in places other than the Arguments and Authorities Section of the Application.

Our Rules specifically state that the application

shall be in substantial compliance with Form 13.11 and contain:

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

(b) The district court ease from which review is being sought, including the ease 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.

Rule 9.7(A)(3), 22 O.S.Supp.1996, Ch.18, App., Rules of the Court of Criminal Appeals (emphasis added). Also important here, our Rules specifically limit the argument and authorities section of an application to fifty (50) pages. Rule 9.7(A)(4), 22 O.S.Supp.1996, Ch.18, App., Rules of the Court of Criminal Appeals.

Form 13.11 is, of course, not specifically designed for capital post-conviction applications, and this Court realizes that. However, the purpose of requiring a capital post-conviction application to be “in substantial compliance” is to allow this Court to quickly review and “get a feel” for what is contained in the arguments and authorities section. Regrettably, Petitioner’s Application does the reverse. The Application itself is 63 pages long, 14 pages longer than the Arguments and Authorities Section of the Application.

The application itself contains Part A of Form 13.11; a statement of the case; and Part B of Form 13.11. Those are all in compliance with this Court’s Rules, and are well presented.

However, the Application also contains a “summary of post-conviction claims,” which in reality is nothing more than argument. The Application itself is not supposed to contain argument; that is reserved for the Argument and Authorities Section of the Application. It also contains 19½ pages of what are termed “facts as presented on direct appeal.” No such provision is made for a restatement of facts in the Application. Also contained in the heart of the Application itself is a request for extension of time to amend. This is not the proper place for such a request.

The most blatant violation of the Rules, however, is found in what is termed “statement of specific facts in support of post-conviction claims,” which constitutes 17 pages of the Application. These numbered paragraphs are in reality nothing more than authority for Petitioner’s fact-based claims contained in the Argument and Authorities Section. As such, they have no proper place in the Application itself.

I point this out (1) because it appears to be a recurring practice in post-conviction applications presented to this Court; (2) there is no authority for this practice in the Rules of this Court; and (3) as these sections lack any authority for their existence, they are not properly reviewed by this Court. Also, since it appears this type of practice is an attempt to subvert the page limitation provision established by the Rules of this Court, the Court should disregard all argument which exceeds the page limitations or return the application to Petitioner with directions to resubmit in a form which complies with the Court’s Rules.