Strickland test in Oklahoma

1999Therefore, we must ask whether appellate counsel’s performance was deficient under the first prong of the Strickland test, i.e. whether “counsel’s performance was deficient under prevailing professional norms.” Walker, 933 P.2d at 333 . ¶ 16 We cannot say the performance by Petitioner’s appellate counsel was deficient under prevailing professional norms for failing to assert on appeal that trial counsel was ineffective for failing to further investigate the keys or the missing window.

1999Therefore, we must ask whether appellate counsel’s performance was deficient under the first prong of the Strickland test, i.e. whether “counsel’s performance was deficient under prevailing professional norms.” Walker, 933 P.2d at 333 . ¶ 16 We cannot say the performance by Petitioner’s appellate counsel was deficient under prevailing professional norms for failing to assert on appeal that trial counsel was ineffective for failing to further investigate the keys or the missing window.

2026"This Court reviews ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984)." Malone v. State , 2013 OK CR 1 293 P.3d 198 Strickland test requires an appellant to show: (1) that counsel's performance was constitutionally deficient; and (2) that counsel's deficient performance prejudiced the defense." Id. ¶10 The Court begins its analysis with the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.

2019When a Strickland claim can be disposed of on the ground of lack of prejudice, that course should be followed. 466 U.S. at 697, 104 S.Ct. at 2069. ¶74 Appellant makes seven separate complaints about his trial counsel.

2020Simpson v. State , 2010 OK CR 6, ¶ 53, 230 P.3d 888, 906 (holding that denial of a request for an evidentiary hearing under Rule 3.11(B) necessarily involves an adverse adjudication of the corresponding ineffective counsel claim under the more rigorous Strickland standard); State v. Blevins , 1992 OK CR 4, ¶ 2, 825 P.2d 270, 271. ¶9 I am authorized to state that Vice Presiding Judge Kuehn joins in this separate opinion specially concurring.

2020Simpson v. State , 2010 OK CR 6, ¶ 53, 230 P.3d 888, 906 (holding that denial of a request for an evidentiary hearing under Rule 3.11(B) necessarily involves an adverse adjudication of the corresponding ineffective counsel claim under the more rigorous Strickland standard); State v. Blevins , 1992 OK CR 4, ¶ 2, 825 P.2d 270, 271. ¶9 I am authorized to state that Vice Presiding Judge Kuehn joins in this separate opinion specially concurring.

2023"The Strickland test requires an appellant to show: (1) that counsel's performance was constitutionally deficient; and (2) that counsel's deficient performance prejudiced the defense." Malone, 2013 OK CR 1, ¶ 14 , 293 P.3d at 206 (citing Bland v. State , 2000 OK CR 11, ¶ 112 , 4 P.3d 702, 730 ). ¶28 Strickland 's demanding standard for deficient performance is satisfied only by proof of unprofessional errors so serious that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment.

2023"The Strickland test requires an appellant to show: (1) that counsel's performance was constitutionally deficient; and (2) that counsel's deficient performance prejudiced the defense." Malone, 2013 OK CR 1, ¶ 14 , 293 P.3d at 206 (citing Bland v. State , 2000 OK CR 11, ¶ 112 , 4 P.3d 702, 730 ). ¶28 Strickland 's demanding standard for deficient performance is satisfied only by proof of unprofessional errors so serious that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment.

1993See also Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr.1985) {Strickland standard applied to appellate counsel); Banks v. State, 810 P.2d at 1290 (Strickland standard expressly adopted under state constitution).

1991We recognized in Cartwright v. State, 708 P.2d 592 (Okl.Cr. 1985) that the Strickland standard of reasonable effectiveness applies to both trial and appellate counsel.

2013Young v. State, 1994 OK CR 84 , ¶ 9, 902 P.2d 1089, 1090 .

2013Young v State, 1994 OK CR 84, ¶9, 902 P.2d 1089, 1090.

1999I also note Strickland's test for .evaluating effectiveness of counsel has been further explained in Lockhart v. Fretwell, 506 U.S. 364 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993).

1999I also note Strickland's test for .evaluating effectiveness of counsel has been further explained in Lockhart v. Fretwell, 506 U.S. 364 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993).

2026See Knapper , 2020 OK CR 16 Strickland test); Fulgham v. State , 2016 OK CR 30 400 P.3d 775 Stemple v. State , 2000 OK CR 4 994 P.2d 61 , the appellant failed to show "what the expert testimony would have been"). ¶44 We dispose of his second claim on the ground of lack of prejudice as well.

2026See Knapper , 2020 OK CR 16 Strickland test); Fulgham v. State , 2016 OK CR 30 400 P.3d 775 Stemple v. State , 2000 OK CR 4 994 P.2d 61 , the appellant failed to show "what the expert testimony would have been"). ¶44 We dispose of his second claim on the ground of lack of prejudice as well.

2026See Knapper , 2020 OK CR 16 Strickland test); Fulgham v. State , 2016 OK CR 30 400 P.3d 775 Stemple v. State , 2000 OK CR 4 994 P.2d 61 , the appellant failed to show "what the expert testimony would have been"). ¶44 We dispose of his second claim on the ground of lack of prejudice as well.

2020We have recognized that such deference makes the burden to prove professional deficiency in jury selection very "heavy indeed." Young v. State , 1998 OK CR 62, ¶ 72, 992 P.2d 332, 347. ¶36 We conclude that trial counsel's failure to challenge these prospective jurors for cause is not the kind of serious professional error that amounts to deficient performance under Strickland .

2020We have recognized that such deference makes the burden to prove professional deficiency in jury selection very "heavy indeed." Young v. State , 1998 OK CR 62, ¶ 72, 992 P.2d 332, 347. ¶36 We conclude that trial counsel's failure to challenge these prospective jurors for cause is not the kind of serious professional error that amounts to deficient performance under Strickland .

2020Simpson v. State , 2010 OK CR 6, ¶ 53, 230 P.3d 888, 906 (holding that denial of a request for an evidentiary hearing under Rule 3.11(B) necessarily involves an adverse adjudication of the corresponding ineffective counsel claim under the more rigorous Strickland standard); State v. Blevins , 1992 OK CR 4, ¶ 2, 825 P.2d 270, 271. ¶9 I am authorized to state that Vice Presiding Judge Kuehn joins in this separate opinion specially concurring.

2020Simpson v. State , 2010 OK CR 6, ¶ 53 , 230 P.3d 888, 906 (holding that denial of a request for an evidentiary hearing under Rule 3.11(B) necessarily involves an adverse adjudication of the corresponding ineffective counsel claim under the more rigorous Strickland standard); State v. Blevins , 1992 OK CR 4 , ¶ 2, 825 P.2d 270, 271 . ¶9 I am authorized to state that Vice Presiding Judge Kuehn joins in this separate opinion specially concurring.

2020"Appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy." Id. 2017 OK CR 12, ¶ 159, 400 P.3d at 825-26. ¶106 Appellant's claim depends almost entirely on material attached to his motion to supplement/motion for evidentiary hearing.

2020"Appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy." Id. 2017 OK CR 12, ¶ 159, 400 P.3d at 825-26. ¶106 Appellant's claim depends almost entirely on material attached to his motion to supplement/motion for evidentiary hearing.

2019To establish prejudice under Strickland , a defendant "must show there is a reasonable probability that the outcome of the trial would have been different but for counsel's unprofessional errors." Barnes v. State , 2017 OK CR 26, ¶ 17, 408 P.3d 209, 216.

2019To establish prejudice under Strickland , a defendant "must show there is a reasonable probability that the outcome of the trial would have been different but for counsel's unprofessional errors." Barnes v. State , 2017 OK CR 26, ¶ 17, 408 P.3d 209, 216.

2013In analyzing such claims, the court must consider the merits of the omitted issue." (citing Robbins, 528 U.S. at 288 , 120 S.Ct. at 765-66 )); Cargle v. Mullin, 317 F.3d 1196, 1205 (10th Cir.2008) ('The very focus of a Strickland inquiry regarding performance of appellate counsel is upon the merits of omitted issues, and no test that ignores the merits of the omitted claim in conducting its ineffective assistance of appellate counsel analysis comports with federal law.").

2013In analyzing such claims, the court must consider the merits of the omitted issue." (citing Robbins, 528 U.S. at 288 , 120 S.Ct. at 765-66 )); Cargle v. Mullin, 317 F.3d 1196, 1205 (10th Cir.2008) ('The very focus of a Strickland inquiry regarding performance of appellate counsel is upon the merits of omitted issues, and no test that ignores the merits of the omitted claim in conducting its ineffective assistance of appellate counsel analysis comports with federal law.").

2013See Smith v. Robbins, 528 U.S. 259, 289 , 120 S.Ct. 746, 765 , 145 L.Ed.2d 756 (2000) ("[Petitioner] must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel."); Coddington, 2011 OK CR 21, ¶ 3 , 259 P.3d at 835 ; Davis v. State, 2005 OK CR 21, ¶ 7 , 123 P.8d 243, 246.

2013See Smith v. Robbins, 528 U.S. 259, 289 , 120 S.Ct. 746, 765 , 145 L.Ed.2d 756 (2000) ("[Petitioner] must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel."); Coddington, 2011 OK CR 21, ¶ 3 , 259 P.3d at 835 ; Davis v. State, 2005 OK CR 21, ¶ 7 , 123 P.8d 243, 246.

2013Hancock v. State, 2007 OK CR 9, ¶¶ 106, 110 , 155 P.3d 796, 821-22 .

2013Hancock v. State, 2007 OK CR 9, ¶¶ 106, 110 , 155 P.3d 796, 821-22 .

2007"Other act evidence is intrinsic when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged." United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir.1993), quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990). [8] Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). [9] 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964). [10] The Strickland standard continues to be the correct test for examining

2007"Other act evidence is intrinsic when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged." United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir.1993), quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990). [8] Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). [9] 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964). [10] The Strickland standard continues to be the correct test for examining

2007"Other act evidence is intrinsic when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged." United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir.1993), quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990). [8] Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). [9] 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964). [10] The Strickland standard continues to be the correct test for examining

2007"Other act evidence is intrinsic when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged." United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir.1993), quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990). [8] Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). [9] 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964). [10] The Strickland standard continues to be the correct test for examining

2006Cf. United States v. Blaylock, 20 F.3d 1458, 1465-1466 (9th Cir.1994) (citing cases); see also, Barentine v. United States, 728 F.Supp. 1241, 1251 (W.D.N.C.1990), aff 'd, 908 F.2d 968 (4th Cir.1990) (citing cases, and holding “federal courts have been unanimous in finding [defense counsel’s failure to inform the defendant of a plea offer] constitutes a violation of the defendant’s Sixth Amendment constitutional right to effective assistance of counsel”); Harris v. State, 875 S.W.2d 662, 665 (Tenn.1994)(fmd-ing counsel’s failure to communicate offer of five years imprisonment was deficient perf

2006Cf. United States v. Blaylock, 20 F.3d 1458, 1465-1466 (9th Cir.1994) (citing cases); see also, Barentine v. United States, 728 F.Supp. 1241, 1251 (W.D.N.C.1990), aff 'd, 908 F.2d 968 (4th Cir.1990) (citing cases, and holding “federal courts have been unanimous in finding [defense counsel’s failure to inform the defendant of a plea offer] constitutes a violation of the defendant’s Sixth Amendment constitutional right to effective assistance of counsel”); Harris v. State, 875 S.W.2d 662, 665 (Tenn.1994)(fmd-ing counsel’s failure to communicate offer of five years imprisonment was deficient perf