Okla. Stat. tit. 22, § 22-1089

appeal.

A. The application for post-conviction relief of a defendant

who is under the sentence of death in one or more counts and whose

death sentence has been affirmed or is being reviewed by the Court

of Criminal Appeals in accordance with the provisions of Section

701.13 of Title 21 of the Oklahoma Statutes shall be expedited as

provided in this section. The provisions of this section also apply

to noncapital sentences in a case in which the defendant has

received one or more sentences of death.

B. The Oklahoma Indigent Defense System shall represent all

indigent defendants in capital cases seeking post-conviction relief

upon appointment by the appropriate district court after a hearing

determining the indigency of any such defendant. When the Oklahoma

Indigent Defense System or another attorney has been appointed to

represent an indigent defendant in an application for post-

conviction relief, the Clerk of the Court of Criminal Appeals shall

include in its notice to the district court clerk, as required by

Section 1054 of this title, that an additional certified copy of the

appeal record is to be transmitted to the Oklahoma Indigent Defense

System or the other attorney.

Oklahoma Statutes - Title 22. Criminal Procedure Page 375

C. The only issues that may be raised in an application for

post-conviction relief are those that:

1. Were not and could not have been raised in a direct appeal;

and

2. Support a conclusion either that the outcome of the trial

would have been different but for the errors or that the defendant

is factually innocent.

The applicant shall state in the application specific facts

explaining as to each claim why it was not or could not have been

raised in a direct appeal and how it supports a conclusion that the

outcome of the trial would have been different but for the errors or

that the defendant is factually innocent.

D. 1. The application for post-conviction relief shall be

filed in the Court of Criminal Appeals within ninety (90) days from

the date the appellee's brief on direct appeal is filed or, if a

reply brief is filed, ninety (90) days from the filing of that reply

brief with the Court of Criminal Appeals on the direct appeal.

Where the appellant's original brief on direct appeal has been filed

prior to November 1, 1995, and no application for post-conviction

relief has been filed, any application for post-conviction relief

must be filed in the Court of Criminal Appeals within one hundred

eighty (180) days of November 1, 1995. The Court of Criminal

Appeals may issue orders establishing briefing schedules or enter

any other orders necessary to extend the time limits under this

section in cases where the original brief on direct appeal has been

filed prior to November 1, 1995.

2. All grounds for relief that were available to the applicant

before the last date on which an application could be timely filed

not included in a timely application shall be deemed waived.

No application may be amended or supplemented after the time

specified under this section. Any amended or supplemental

application filed after the time specified under this section shall

be treated by the Court of Criminal Appeals as a subsequent

application.

3. Subject to the specific limitations of this section, the

Court of Criminal Appeals may issue any orders as to discovery or

any other orders necessary to facilitate post-conviction review.

4. a. The Court of Criminal Appeals shall review the

application to determine:

(1) whether controverted, previously unresolved

factual issues material to the legality of the

applicant's confinement exist,

(2) whether the applicant's grounds were or could

have been previously raised, and

(3) whether relief may be granted under the Post-

Conviction Procedure Act.

Oklahoma Statutes - Title 22. Criminal Procedure Page 376

b. For purposes of this subsection, a ground could not

have been previously raised if:
nresolved

factual issues material to the legality of the

applicant's confinement exist,

(2) whether the applicant's grounds were or could

have been previously raised, and

(3) whether relief may be granted under the Post-

Conviction Procedure Act.

Oklahoma Statutes - Title 22. Criminal Procedure Page 376

b. For purposes of this subsection, a ground could not

have been previously raised if:

(1) it is a claim of ineffective assistance of trial

counsel involving a factual basis that was not

ascertainable through the exercise of reasonable

diligence on or before the time of the direct

appeal, or

(2) it is a claim contained in an original timely

application for post-conviction relief relating

to ineffective assistance of appellate counsel.

All claims of ineffective assistance of counsel shall be governed by

clearly established law as determined by the United States Supreme

Court.

If the Court of Criminal Appeals determines that controverted,

previously unresolved factual issues material to the legality of the

applicant's confinement do not exist, or that the claims were or

could have been previously raised, or that relief may not be granted

under the Post-Conviction Procedure Act and enters an order to that

effect, the Court shall make findings of fact and conclusions of law

or may order the parties to file proposed findings of fact and

conclusions of law for the Court to consider on or before a date set

by the Court that is not later than thirty (30) days after the date

the order is issued. The Court of Criminal Appeals shall make

appropriate written findings of fact and conclusions of law not

later than fifteen (15) days after the date the parties filed

proposed findings.

5. If the Court of Criminal Appeals determines that

controverted, previously unresolved factual issues material to the

legality of the applicant's confinement do exist, and that the

application meets the other requirements of paragraph 4 of this

subsection, the Court shall enter an order to the district court

that imposed the sentence designating the issues of fact to be

resolved and the method by which the issues shall be resolved.

The district court shall not permit any amendments or

supplements to the issues remanded by the Court of Criminal Appeals

except upon motion to and order of the Court of Criminal Appeals

subject to the limitations of this section.

The Court of Criminal Appeals shall retain jurisdiction of all

cases remanded pursuant to the Post-Conviction Procedure Act.

6. The district attorney's office shall have twenty (20) days

after the issues are remanded to the district court within which to

file a response. The district court may grant one extension of

twenty (20) days for good cause shown and may issue any orders

necessary to facilitate post-conviction review pursuant to the

remand order of the Court of Criminal Appeals. Any applications for

extension beyond the twenty (20) days shall be presented to the

Court of Criminal Appeals. If the district court determines that an

Oklahoma Statutes - Title 22. Criminal Procedure Page 377

evidentiary hearing should be held, that hearing shall be held

within thirty (30) days from the date that the state filed its

response. The district court shall file its decision together with

findings of fact and conclusions of law with the Court of Criminal

Appeals within forty-five (45) days from the date that the state

filed its response or within forty-five (45) days from the date of

the conclusion of the evidentiary hearing.

7. Either party may seek review by the Court of Criminal

Appeals of the district court's determination of the issues remanded

by the Court of Criminal Appeals within ten (10) days from the entry

of judgment. Such party shall file a notice of intent to seek

review and a designation of record in the district court within ten
(45) days from the date of

the conclusion of the evidentiary hearing.

7. Either party may seek review by the Court of Criminal

Appeals of the district court's determination of the issues remanded

by the Court of Criminal Appeals within ten (10) days from the entry

of judgment. Such party shall file a notice of intent to seek

review and a designation of record in the district court within ten

(10) days from the entry of judgment. A copy of the notice of

intent to seek review and the designation of the record shall be

served on the court reporter, the petitioner, the district attorney,

and the Attorney General, and shall be filed with the Court of

Criminal Appeals. A petition in error shall be filed with the Court

of Criminal Appeals by the party seeking review within thirty (30)

days from the entry of judgment. If an evidentiary hearing was

held, the court reporter shall prepare and file all transcripts

necessary for the appeal within sixty (60) days from the date the

notice and designation of record are filed. The petitioner's brief-

in-chief shall be filed within forty-five (45) days from the date

the transcript is filed in the Court of Criminal Appeals or, if no

evidentiary hearing was held, within forty-five (45) days from the

date of the filing of the notice. The respondent shall have twenty

(20) days thereafter to file a response brief. The district court

clerk shall file the records on appeal with the Court of Criminal

Appeals on or before the date the petitioner's brief-in-chief is

due. The Court of Criminal Appeals shall issue an opinion in the

case within one hundred twenty (120) days of the filing of the

response brief or at the time the direct appeal is decided. If no

review is sought within the time specified in this section, the

Court of Criminal Appeals may adopt the findings of the district

court and enter an order within fifteen (15) days of the time

specified for seeking review or may order additional briefing by the

parties. In no event shall the Court of Criminal Appeals grant

post-conviction relief before giving the state an opportunity to

respond to any and all claims raised to the Court.

8. If an original application for post-conviction relief is

untimely or if a subsequent application for post-conviction relief

is filed after filing an original application, the Court of Criminal

Appeals may not consider the merits of or grant relief based on the

untimely original application, or a subsequent application, unless:

a. the application contains claims and issues that have

not been and could not have been presented previously

in a timely original application or in a previously

Oklahoma Statutes - Title 22. Criminal Procedure Page 378

considered application filed under this section,

because the legal basis for the claim was unavailable,

or

b. (1) the application contains sufficient specific

facts establishing that the current claims and

issues have not and could not have been presented

previously in a timely original application or in

a previously considered application filed under

this section, because the factual basis for the

claim was unavailable as it was not ascertainable

through the exercise of reasonable diligence on

or before that date, and
ntains sufficient specific

facts establishing that the current claims and

issues have not and could not have been presented

previously in a timely original application or in

a previously considered application filed under

this section, because the factual basis for the

claim was unavailable as it was not ascertainable

through the exercise of reasonable diligence on

or before that date, and

(2) the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would

be sufficient to establish by clear and

convincing evidence that, but for the alleged

error, no reasonable fact finder would have found

the applicant guilty of the underlying offense or

would have rendered the penalty of death.

The provisions of this paragraph shall apply irrespective of the

nature of the claims raised in the application and shall include

jurisdictional claims. The provisions of this paragraph shall also

apply to any post-conviction application filed on or after the

effective date of this act.

9. For purposes of the Post-Conviction Procedure Act, a legal

basis of a claim is unavailable on or before a date described by

this subsection if the legal basis:

a. was not recognized by or could not have been

reasonably formulated from a final decision of the

United States Supreme Court, a court of appeals of the

United States, or a court of appellate jurisdiction of

this state on or before that date, or

b. is a new rule of constitutional law that was given

retroactive effect by the United States Supreme Court

or a court of appellate jurisdiction of this state and

had not been announced on or before that date.

E. All matters not specifically governed by the provisions of

this section shall be subject to the provisions of the Post-

Conviction Procedure Act. If the provisions of this section

conflict with the provisions of the Post-Conviction Procedure Act,

the provisions of this section shall govern.