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Taylor v. Oklahoma12/1/1998
ORDER REMANDING FOR EVIDENTIARY HEARING
Charles F. Taylor, Appellant, by and through his attorneys, James Drummond and Alexandra B. Fensterer, filed an application and addendum respectively, for an evidentiary hearing in conjunction with his direct appeal to investigate his allegations of ineffective assistance of counsel. See Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1988). In his application, Appellant argues trial counsel failed to investigate, identify, evaluate, develop and/or otherwise present evidence to, among other things, (1) raise a Batson/J.E.B. claim; (2) move to disqualify the District Attorney's Office on the grounds of bias and partiality; (3) support Appellant's defense of voluntary intoxication; (4) provide effective cross-examination; and (5) offer available second stage mitigation evidence. Appellant also claims trial counsel failed to seek continuances in order to insure adequate time to prepare for a capital trial. In support of his claim of ineffective assistance of counsel, Appellant has submitted twenty-one affidavits and several exhibits.
Rule 3.11(B)(3)(b) provides in pertinent part:
(b) When an allegation of the ineffective assistance of trial counsel is predicated upon an allegation of failure of trial counsel to properly utilize available evidence or adequately investigate to identify evidence which could have been made available during the course of the trial, and a proposition of error alleging ineffective assistance of trial counsel is raised in the brief-in-chief of Appellant, appellate counsel may submit an application for an evidentiary hearing, together with affidavits setting out those items alleged to constitute ineffective assistance of trial counsel. This Court will utilize the following procedure in adjudicating applications regarding ineffective assistance of trial counsel based on evidence not in the record:
(i) In order to rebut the strong presumptions of regularity of trial proceedings and competency of trial counsel, the application and affidavits must contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.
(ii) If this Court determines such a strong possibility exists, it shall remand the matter to the trial court for an evidentiary hearing, utilizing the adversarial process, and direct the trial court to make findings of fact and Conclusions of law solely on the issues raised in the application.
(iii) Upon remand, the trial court shall conduct an evidentiary hearing within thirty (30) days from the date of remand. In that hearing, the trial court shall make written findings of fact and Conclusions of law to be submitted to this court within thirty (30) days of the evidentiary hearing. The findings of fact and Conclusions of law shall determine the availability of the evidence or witness, the effect of the evidence or witness on the trial court proceedings; whether the failure to use a witness or item of evidence was trial strategy, and if the evidence or witness was cumulative or would have impacted the verdict rendered.
(iv) The findings of fact and Conclusions of law of the trial court shall be given strong deference by this Court in determining the proposition raised by appellate counsel; however, this Court shall determine the ultimate issue whether trial counsel was ineffective.
(Emphasis added).
In order to meet the "clear and convincing" standard set forth above, Appellant must present this Court with evidence, not speculation, second g
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