ORDER AFFIRMING DISTRICT COURT'S DENIAL OF POST CONVICTION RELIEF

¶1 In the District Court of Oklahoma County, Case No. CRF-74-410, Petitioner, Dwight Thomas Reynolds, was convicted for the offense of Burglary in the Second Degree After Former Conviction of a Felony. His punishment was fixed at twenty-three (23) years imprisonment and from said judgment and sentence he perfected a timely appeal to this Court in Reynolds v. State, OkI.Cr. , 529 P.2d 1007, wherein this Court affirmed said conviction on the 11th day of December, 1974. Thereafter on the 25th day of April, 1975, Petitioner filed in the District Court of Oklahoma County an instrument entitled petition for writ of habeas corpus. The District Court treated said instrument as an application for post conviction relief, and we feel properly so, and thereafter on the 19th day of May, 1975, said application was denied with the following specified findings of fact and conclusions of law:

"The defendant filed what he terms as a petition for Writ of Habeas Corpus. It contains the identical issue as set forth in the original appeal in case number F-74-669. he contends that his three previous felony convictions were improperly used to enhance punishment, as the defendant was sixteen (16) years of age when he sustained these convictions.

"See Fields v. State, Okl.Cr., 506 P.2d 919 and Pollard v. State, 528 P.2d 1121, 45 0.B.A.J., No. F-74-571, where it was previously ruled that the Lamb decision will not be applied retroactively. See also Freshour v. Turner, 496 P.2d 389."

From the denial of said application, the Petitioner filed an instrument in this Court seeking habeas corpus relief. We will treat said instrument as an appeal of the District Court's denial of post conviction relief.

¶2 Petitioner argues four assignments of error for the basis of the relief he now seeks.

¶3 The Petitioner's first assignment of error alleges that three juvenile convictions were used to enhance the punishment in Case No. CRF-74-410. The same assignment of error was answered by this Court in Reynolds, supra, and would thus normally be barred from being raised in a subsequent post conviction application. However, we note that certain Federal and Oklahoma decisions have been rendered regarding similar issues and thus we will. now entertain this assignment of error for clarification to the Petitioner. Because of commonality in subject, the first and second assignments of error will be discussed together as the Petitioner's second assignment of error asserts he was denied equal protection of the law when convicted of the three felony offenses which were used to enhance the punishment in the instant case.

¶4 Petitioner's first and second assignments are premised on the recent Tenth Circuit decision in Radcliff v. Anderson, 509 F.2d 1093, wherein the Court found that the decision in Lamb v. Brown, 456 F.2d 18 (1972) would be retroactive and thus the Petitioner argues that he should have been afforded a certification hearing on his juvenile status in the three felony convictions which were used to enhance his punishment in the instant case as at that time a female of the same age would have been afforded such a hearing. Therefore, he argues that said convictions are void and were improperly used to enhance punishment in the instant case.

¶5 We observe the Petitioner was sixteen (16) years of age at the time of said prior felony convictions. Thus, we find the Petitioner was dealt with as an adult, and properly so, at the time of his convictions, and it was, therefore, not necessary to afford a certification hearing on his juvenile status in light of our recent decision in Dean v. Crisp, Okl.Cr., 536 P.2d 961. We, therefore, find Petitioner's prior convictions are valid and said convictions were properly used to enhance punishment in the instant case. For the above. stated reasons, we find the Petitioner's first and second assignment of error to be without merit.

¶6 Petitioner's third assignment of error asserts that during trial the prosecutor used inadmissible evidence to obtain the Petitioner's conviction. Petitioner's fourth assignment of error alleges the prosecutor made prejudicial remarks in the presence of the jury. In Harrell v. State, Okl.Cr. , 493 P.2d 461 this Court noted:

"The court further finds that the rule of res judicata barred the claims which the defendant either had raised or could have but failed to raise during his trial or on his appeal. See: People v. Ikerd, 47 Ill.2d, 265 N.E. 2d 120 (1970); Cantrell v. State, 206 Kan. 323, 478 P.2d 192 (1970); Miller v. State, 82 N.M. 68, 475 P.2d 462 (1970). "

¶7 Therefore, we find the Petitioner's third and fourth assignments of error to be without merit in light of Harrell, supra.

¶8 IT IS, THEREFORE, THE ORDER OF THIS COURT the District. Court's order denying post conviction relief be, and hereby is, affirmed.

IT IS SO ORDERED.

WITNESS OUR HANDS, and the Seal of this Court, this 20th day of June, 1975.

/s/
C. F. BLISS, JR., JUDGE

/s/
HEZ J. BUSSEY, JUDGE

ATTEST:

/s/ Ross N. Lillard, Jr.
CLERK