ORDER DENYING PETITIONER’S MOTION TO PROCEED PRO SE IN A CAPITAL POST CONVICTION APPEAL;
ORDER DENYING COUNSEL’S MOTION TO WITHDRAW; AND ORDER LIFTING STAY AND SETTING BRIEFING SCHEDULE.

¶1  Petitioner, Bigler Jobe Stouffer, II, was convicted, after a second jury trial, of Shooting with Intent to Kill and First Degree Murder in Oklahoma County District Court Case No. CRF-85-509.  Stouffer received life imprisonment and the death penalty for those convictions, respectively.  This Court affirmed Stouffer’s Judgment and Sentence in an Opinion handed down by this Court on November 14, 2006.  Stouffer v. State, 2006 OK CR 46 , 147 P.3d 245.  Stouffer sought to represent himself in his post-conviction appeal.  The deadline for the filing of Stouffer’s post-conviction application was stayed by this Court pending a hearing in the district court on his application to proceed pro se.

¶2  The District Court of Pittsburg County held a hearing on Stouffer’s motion on September 13, 2006, in Pittsburg County District Court Case No. C-2005-547, before the Honorable Thomas M. Bartheld, District Judge.  The trial court filed findings of fact and conclusions of law with this Court, concluding that Stouffer made a knowing and voluntary waiver of counsel and could represent himself. ¹  Counsel provided notice to this Court regarding the outcome of the hearing, sought to withdraw as counsel of record, and later gave notice of rules regarding Petitioner’s request to have the legal materials transferred to him at the Oklahoma State Penitentiary.  This Court received the record from the Pittsburg County District Court Clerk, including the transcript of the hearing on January 26, 2007.  

¶3  We have reviewed the record in this case and have researched the law relevant to self-representation on direct appeal and in collateral attacks in post-conviction proceedings, and, using our plenary powers over such proceedings in this Court, conclude that Petitioner’s request to represent himself in this proceeding should be denied.  In our effort to determine the best course of action in this case, we rely heavily on cases involving the rights of defendants on appeal.  One of those cases, Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000), which was not called to the attention of this Court or the trial court, makes it clear that there is no federal constitutional right for a defendant to represent himself on direct appeal.  Id. 528 U.S. at 163-64, 120 S.Ct. at 692.  In fact, the Martinez Court makes clear that a State may require an appellant to accept, against his will, appointed counsel without depriving the appellant of a federal constitutional right.  Id.  

¶4  Martinez does not preclude a State appellate court from allowing defendants to represent themselves in the appeal of a criminal conviction either under State law grounds or State court procedural rules.  While this Court provides the procedure for a defendant to seek self-representation on direct appeal, there is no corresponding provision for capital post-conviction applicants.  See Rule 1.16, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007).

¶5  We further find that there is no provision in the Oklahoma Constitution requiring this Court to allow a defendant to represent himself in a capital post-conviction proceeding.  In conclusion, we find no State law grounds requiring this Court to allow Petitioner to represent himself in this post-conviction appeal.  As a matter of public policy we find that any interest Petitioner has in representing himself is far outweighed by the interest the State has in requiring him to accept representation by an attorney schooled in the complexities of collateral capital post-conviction appeals. ²

¶6  By their nature, post-conviction appeals, as collateral proceedings, require extra-record investigation and review.  The limited grounds for review under the Post-Conviction Procedure Act require a person schooled in the law to determine and fashion arguments which fit within the statutory limits.  See 22 O.S.2001, §§ 1080 and 1089 .  A person schooled in the law is better able to fashion arguments which overcome procedural bars present in collateral appeals.  

¶7  Furthermore, the logistics of Petitioner’s incarceration make it almost impossible for him to present a collateral attack on his Judgment and Sentence, because he is unable to investigate “newly discovered evidence” or claims of ineffective trial or direct appeal counsel – all of which must be and can be investigated by the lawyers and investigators of the Oklahoma Indigent Defense System; the agency charged with representing all indigent capital post-conviction applicants.  See 22 O.S.2001, § 1089(B).  Our decision is driven by a desire to best meet the interests of Petitioner as well as the State.  No one can deny that Petitioner is represented by extremely competent and experienced counsel, backed by a whole agency, which in the experiences of this Court, without doubt, has Petitioner’s best interests in mind.  Representation by trained appellate post-conviction counsel is of distinct benefit to Petitioner as well as this Court.  See Fudge v. State, 19 S.W.3d 22, 22 (Ark. 2000).

¶8  In holding that Petitioner may not represent himself in this capital post-conviction proceeding, we also hold that appointed counsel’s September 15, 2006, motion to withdraw, which was based on the trial court’s findings after the hearing on Petitioner’s motion to proceed pro se, is denied.  We further order that the previous stay of the post-conviction application filing deadline shall be lifted, and counsel shall have ninety (90) days from the date of this Order within which to file Appellant’s application for post-conviction relief.    

¶9  THEREFORE, Petitioner’s application to proceed pro se is DENIED; and Petitioner’s post-conviction counsel’s motion to withdraw is DENIED.  The stay previously entered is lifted, and the application for post-conviction relief shall be filed within ninety (90) days of the date of this Order.  The Clerk of this Court is directed to forward a copy of this Order to the District Courts of Pittsburg and Oklahoma Counties and the respective parties.

¶10  IT IS SO ORDERED.

¶11  WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 21st day of February, 2007.

          /s/ Gary L. Lumpkin
          GARY L. LUMPKIN, Presiding Judge

          /s/ Charles A. Johnson
          CHARLES A. JOHNSON, Vice Presiding Judge

          /s/ Charles S. Chapel
          CHARLES S. CHAPEL, Judge

          /s/ Arlene Johnson
          ARLENE JOHNSON, Judge

          /s/ David B. Lewis
          DAVID B. LEWIS, Judge

 

ATTEST:

/s/Michael Richie
Clerk

FOOTNOTES

¹  We recognize the Honorable Thomas M. Bartheld, District Judge of Pittsburg County, for the tremendous work he has done in this matter with little guidance.

² Our ruling today does not preclude Petitioner from filing pro se supplemental propositions of error as this Court’s rules provide a vehicle by which pro se legal arguments may be submitted to this Court.  See Rule 3.4(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007).