Summary:

On October 21, 1985 two hunters discovered the body of Rick Patterson in a wooded area near Interstate 40 and Rockwell.

The 33 year old Patterson, a math teacher at a local middle school, had been killed by a shotgun blast. His car was found burned in a field near Tulsa three days later.

In August 1986, Berget was arrested by Del City and Midwest City police on robbery and burglary charges. Berget confessed to police that he and a friend had abducted and killed Patterson.

Berget related that he and Mikell Smith decided to steal a car so that they could go riding around on October 19, 1985.

They went to an Oklahoma City supermarket where they saw Rick Patterson walking toward a car. When Patterson opened the car, Berget forced him at gunpoint to slide over to the passenger's side. Smith got into the back seat.

Berget drove the car to a deserted area of town, where the two men tied or taped Patterson's hands and mouth and then put him into the trunk of the car.

Berget drove east on I-40 to an isolated place. When Berget and Smith opened the trunk, the men found that Patterson had freed his hands.

They tied his hands behind his back, forced him to stand up next to a tree and then shot him. Fearing that Patterson was still alive and could crawl away, another shot was fired.

Berget pled guilty to first-degree murder, although he recanted his confession to the extent of blaming his accomplice for actually killing Patterson. Berget also confessed to killing James Meadows in Hughes County.

Both Berget and Smith received a death sentence, but Smith was successful on appeal in 1992 and his sentence was reduced to life in prison without parole when he agreed to plead guilty before retrial.

Roger James Berget

ProDeathPenalty.com

On October 20, 1985, Rick Lee Patterson was abducted in a grocery store parking lot.

Patterson, a 33-year-old mathematics teacher, was found dead on October 21 by two hunters in a wooded area near Interstate 40 and Rockwell. Patterson's car was found burned in a field in north Tulsa on October 24.

Nearly one year later, in August 1986, Scott M. Thornton, 22, and Roger James Berget, 25, were arrested by Del City and Midwest City police on complaints of robbery and burglary.

Berget was charged with the shotgun murder of Patterson. Mikel Patrick Smith, 21, was also charged with the murder. Smith was serving a prison sentence for a forgery conviction.

According to police, on August 13, 1986, Berget admitted that he helped Smith abduct Patterson and took part in his murder.

Oklahoma City police detective Bill Citty testified that Berget and Smith drove Patterson to a wooded area, where Smith shot Patterson twice with a shotgun.

According to prosecutors, Patterson was abducted by Berget and Smith because they wanted to steal his car. Thornton also testified against Berget. He agreed to be a witness for the prosecution in exchange for the promise of a 25-year prison sentence outside of Oklahoma.

Another witness, Donald Gene Wheeler, said Smith claimed to have shot Patterson first and that Berget then fired the second shot. This was so that Smith and Berget would not be able to snitch against each other.

Death Penalty Institute of Oklahoma

Roger Berget - Executed June 8, 2000

(Information Compiled and Edited by Robert Peebles)

Oklahoma executed Roger James Berget, 39, on June 8, 2000. Berget was pronounced dead at 12:12am. He was executed for the 1985 murder of Rick Lee Patterson, 33.

Berget was the eighth man executed by Oklahoma in 2000 and the 27th man executed by the state since it resumed executions in 1990. He was also the 110th man executed in state history.

Background

On October 20, 1985, Rick Lee Patterson was abducted in a grocery store parking lot. Patterson, a 33-year-old Moore mathematics teacher, was found dead on October 21 by two hunters in a wooded area near Interstate 40 and Rockwell.

Patterson's car was found burned in a field in north Tulsa on October 24. Nearly one year later, in August 1986, Scott M. Thornton, 22, and Roger James Berget, 25, were arrested by Del City and Midwest City police on complaints of robbery and burglary.

While in custody, Berget was charged with the shotgun murder of Patterson. Mikel Patrick Smith, 21, was also charged with the murder. Smith was serving a prison sentence for a forgery conviction.

According to police, on August 13, 1986, Berget admitted that he helped Smith abduct Patterson and took part in his murder.

Oklahoma City police detective Bill Citty testified that Berget and Smith drove Patterson to a wooded area, where Smith shot Patterson twice with a shotgun. According to prosecutors, Patterson was abducted by Berget and Smith because they wanted to steal his car. Thornton also testified against Berget.

He agreed to be a witness for the prosecution in exchange for the promise of a 25-year prison sentence outside of Oklahoma.

Another witness, Donald Gene Wheeler, said Smith claimed to have shot Patterson first and that Berget then fired the second shot. This was so that Smith and Berget would not be able to snitch against each other.

According to defense attorney Jim Rowan, then prosecutor Ray Elliot had offered six consecutive life sentences to Berget in exchange for a guilty plea.

After Berget encountered Smith in the jail, he changed his mind and decided to testify on behalf of Smith. Rowan believed that Berget's decision was probably based on a fear of Smith.

On January 23, 1987, Berget pleaded guilty to first-degree murder. Oklahoma County Judge John Amick sentenced Berget to death on March 12. After being sentenced to death, Berget sought to withdraw his guilty plea. Amick turned down the request.

Between the date of Berget's guilty plea and his sentence, Berget testified in the murder trial of Smith. Contrary to his earlier statements to police, Berget testified that Smith was not even present when the murder occurred. Apparently the jurors did not believe Berget, as they found Smith guilty of first-degree murder and sentenced him to death.

In 1992, the Oklahoma Court of Criminal Appeals granted a new trial to Smith due to several errors in his original trial. In 1995, District Judge Nancy Coats sentenced Smith to life without parole for the murder of Patterson in a closed hearing. Coats barred all spectators from the courtroom, apparently at the request of the Department of Corrections. Smith pleaded guilty to first-degree murder.

Clemency Denied

At 2:00pm on Tuesday, May 30, the Oklahoma Pardon and Parole Board held a clemency hearing for Roger Berget. Attorney Steve Presson represented Berget in the hearing. Presson stated in the hearing that clemency in Oklahoma seems impossible to obtain.

He cited previous clemency hearings in which evidence of innocence, mental retardation, remorse, true rehabilitation, federal court recommendations — and even the pleadings of prison guards — had failed to persuade the Board to vote for clemency.

Presson mentioned an article that appeared in the May 29 edition of the Daily Oklahoman about Oklahoma's clemency process. The article states, in part, "the outcome holds as much suspense as a Harlem Globetrotters game or an episode of 'The Lone Ranger.'"

Prior to Berget's clemency hearing, 19 other inmates had gone through the clemency process in Oklahoma's current experiment with the death penalty. The Board has never voted in favor of clemency.

Board member Flint Breckinridge stated that all of the Board members approached each clemency hearing with an open mind. Presson stated that the only time Berget claimed responsibility for the murder of Patterson was after he was confronted in jail by Smith.

Presson also pointed out that while in prison Smith has killed another inmate, stabbed a guard and stabbed an inmate. While Berget has been on death row he has not received a single write-up.

Presson said that it was obviously unfair that Berget was facing death while Smith was given a life sentence. Presson gave details of Berget's childhood. At the age of nine or ten, Berget's father kicked him of their house.

He then lived in an abandoned house, where his mother would take him meals. When his father discovered what was occurring, he beat both the child and his mother, and then burned down the abandoned house.

Jim Rowan, who had been Berget's defense attorney in 1987, stated that Berget had thrown himself on the mercy of the court, yet the judge had sentenced him to death.

Rowan asked the Board to vote in favor of clemency for Berget, stating "We all want justice for somebody else, and mercy for ourselves." A pen pal of Berget's from the Netherlands also testified at the hearing. She asked the Board to break through the circle of hatred and vote in favor of clemency.

Several members of Rick Patterson's family, including his father, brother and sister, also spoke at the clemency hearing. They discussed the pain of loss they have suffered due to his murder.

Towards the end of the hearing, Berget was led into the room in chains. He sat down beside Presson and they whispered to each other briefly.

Then Presson announced to the Board that Berget had changed his mind and no longer wished to make a presentation to the Board. Berget was then led out of the room.

Board members Flint Breckinridge, Currie Ballard and Stephanie Chappelle — all appointees of Governor Frank Keating — voted against recommending clemency. Chairperson Susan Bussey, after a pause, voted in favor of clemency. Thus, clemency was denied 3-1. At this point only Governor Keating can grant a stay of execution. This is unprecedented and extremely unlikely.

Vigils held across the State - Prayer vigils were held in 12 locations around the state.

Florida, Oklahoma Execute Killers

Accused of carjacking

APBNews Online

June 8, 2000

In McAlester, Okla., early Thursday, Roger James Berget, 39, was executed by injection for killing Rick Patterson, a 33-year-old math teacher at Moore Central Mid-High. Berget and Mikell Smith were accused of carjacking Patterson from an Oklahoma City supermarket parking lot.

The men forced Patterson into the trunk of his car and drove to a deserted area near Interstate 40 where they ordered him out of the car and shot him. Berget, who pleaded guilty to first-degree murder, also confessed to killing another man.

The death sentence given to Smith was reduced on appeal in 1992 to life in prison without parole. "How he got off, I'll never know," said Patterson's sister, Diane Newlin. "I guess one is better than none."

School Teacher's Killer Scheduled for Execution

Shawnee News-Star

June 8, 2000

McALESTER, Okla. (AP) -- The family of murdered Moore Central Mid-High math teacher Rick Patterson made sure his grave in Ponca City had fresh flowers on it on Wednesday before his killer was scheduled to be executed early the next morning for his 1985 murder. "It's the best decorated grave there," said Patterson's sister, Diane Newlin.

Newlin, along with Patterson's father, brother, sister-in-law, and two nephews traveled from Ponca City to the Oklahoma State Penitentiary to be there for the execution of one of his killers, Roger James Berget, 39. The family toured the prison during the afternoon. They found it clean and far nicer than they wished. "They're living in better conditions than some people outside the fence," said his brother, Lloyd Patterson. "To me, there's no suffering."

They said they would be getting some closure with Berget's execution, but not all because Berget's co-defendant, Mikell Smith's death sentence was appealed in 1992 and reduced to life in prison without parole. "This is only half," said Newlin. "There's still the other half ... I hope he gets his in prison."

Newlin, Lloyd Patterson and father, Raymond Patterson planned to witness the execution. "We need to be here," said Lloyd Patterson. "And I'd like to thank the 10th Circuit Court of Appeals for not allowing us to get justice on Smith. This is half of what we've been through."

The loss of life was needless, said Oklahoma Attorney General Drew Edmondson on Wednesday afternoon about the 1985 execution-style murder. No appeals stood in the way of the execution, Edmondson said. "As always, our thoughts are with the victim's family," he said. "There were four aggravated circumstances, and the death penalty was assessed. I agree with the jury that it's appropriate in this case."

Earlier in the week, Patterson's colleagues and family had smiles in their voices this as they reminisced about the slain teacher, who died during a carjacking on Oct. 19, 1985. Patterson, 33, had a reputation as a gifted math teacher and practical joker beloved by fellow teachers and his students. "It had so much impact and caused so much pain to so many people, especially his kids," said Lois Evans, the assistant principal at the mid-high when the Bill Shoaf taught math in the classroom next to Patterson at Moore Mid-High.

He remembered Patterson's frequent gifts of homemade cookies and his shenanigans. "Rule of thumb, if you saw him coming out of your classroom ... you'd better check it over. Those were the good old days," said Shoaf, who is now retired. "The kids thought it was great. But when the bell rang, it was all business with him."

Moore High School Principal Gene Burr was Patterson's principal at that time. He remembered him as a creative teacher who was always looking for new ways to do things. "It was a very traumatic thing for the school when it occurred," Burr said.

Newlin said when her brother died, it changed everything with the family. Joke gifts such as a bottle cutter that her brother used to pass around the family came to a stop, and family gatherings became somber. "Rick brought the laughter into our lives," Newlin said. "We're real lost without him."

Berget and Smith were accused of carjacking Patterson from an Oklahoma City supermarket parking lot. The two men forced Patterson into the trunk of his car and drove to a deserted area near Interstate 40 where they ordered him out of the car and shot him.

Berget pleaded guilty to first-degree murder, first-degree burglary and being a convicted felon in possession of a firearm. He also confessed to killing James Meadows in Hughes County near Holdenville. For his last meal, Berget has requested two bacon cheeseburgers, a large order of onion rings, extra large root beer and a pint of plain chocolate ice cream.

No family will witness Berget's execution. Two attorneys for Berget, a legal adviser, investigator and spiritual adviser will be in attendance. Newlin said Berget's execution brings part of the justice she believes is due her brother.

She said it's been a long 15 years and she's ready. "He's getting it a lot easier than my brother did, there's no comparison with how my brother died," she said. But she said her family will only get partial closure because of Smith not getting the death penalty. "How he got off, I'll never know," Newlin said. "I guess one is better than none."

Teacher's Murderer Executed

Shawnee News-Star

June 9, 2000

McALESTER, Okla. (AP) -- A man convicted of killing a Moore Central Mid-High school teacher had nothing to say before he was executed early Thursday. Roger James Berget, 39, was pronounced dead at 12:12 a.m. after receiving a lethal dose of drugs at the Oklahoma State Penitentiary.

The curtain went up on the execution chamber at 12:08 a.m. Berget lay quietly on the gurney with his short, scruffy beard and long dark hair. He answered with a quiet, "no, sir," when he was asked if he had a final statement.

The execution was over quickly after he exhaled several raspy breathes. Berget pleaded guilty to murdering Rick Patterson along with co-defendant Mikell Smith after a carjacking from an Oklahoma City supermarket parking lot on Oct. 19, 1985. "It was easy -- way too easy," said Diane Newlin, Patterson's sister, after the execution was over. "They talk about a humane way to die. There was nothing humane with the way they killed my brother," said Rick Patterson's brother, Lloyd. "He had a smile on his face when he shut his eyes and he had a smile when they pronounced him dead."

Berget and Smith forced Patterson into the trunk of his car and drove to a deserted area near Interstate 40 where they ordered him out of the car and shot him in the head with a 12-gauge shotgun.

Berget pleaded guilty to first-degree murder, first-degree burglary and being a felon in possession of a firearm. He also confessed to killing James Meadows in Hughes County near Holdenville. It was the eighth execution this year and the 27th since the death penalty was reinstated in 1990.

Earlier in the week, Patterson's colleagues and family remembered the slain teacher who died during a carjacking on Oct. 19, 1985.

Patterson was popular with his students, other teachers and administration. He was described as an "excellent teacher" by his principals and aspired to be a principal himself someday. "It (his death) had so much impact and caused so much pain to so many people, especially his kids," said Lois Evans, the assistant principal at the mid-high when the murder occurred.

Newlin, along with Patterson's father, brother, sister-in-law, and two nephews traveled from Ponca City to the penitentiary for the execution. Earlier in the afternoon, they said they would be getting some closure with Berget's execution, but not all because Berget's co-defendant, Smith's death sentence was appealed in 1992 and reduced to life in prison without parole.

Oklahoma Attorney General Drew Edmondson said earlier he agreed with the jury's recommendation of a death sentence. "There were four aggravated circumstances, and the death penalty was assessed. I agree with the jury that it's appropriate in this case." Executions have been scheduled for William Clifford Bryson on June 15, and Gregg Francis Braun on July 20.

Roger Berget

Amnesty International

Roger Berget was executed in Oklahoma on 8 June 2000. He was sentenced to death for the 1985 abduction and murder of Rick Patterson.

Roger Berget told police that he and Mikell Smith had abducted Patterson, but that it was Smith who had shot the victim.

The prosecutor agreed not to seek the death penalty against Berget if he would plead guilty to first-degree murder and testify against Smith, in return for a life prison sentence.

Berget agreed, but changed his mind after meeting Smith when they were held in the same jail. He said that he would refuse to testify against Smith and would instead accept sole responsibility for the murder. He pleaded guilty, and was sentenced to death by a judge. Mikell Smith was sentenced to death at a jury trial, but he was granted a new sentencing.

In 1995, in exchange for a guilty plea, prosecutors agreed to a sentence of life imprisonment without parole. Smith has since been convicted of two killings of fellow inmates and the attempted murder of a guard, and is serving further life sentences without parole for these crimes.

Other than at his own and Smith's trials, Roger Berget consistently maintained that it was Smith who shot Rick Patterson.

1991 OK CR 121
824P.2d 364

ROGER JAMES BERGET, PETITIONER,
v.
STATE OF OKLAHOMA, APPELLEE.

Case No. C-87-190.

November 13, 1991
Rehearing Denied February 25, 1992.

An appeal from the District Court of Oklahoma County; John M. Amick, District Judge.

Roger James Berget, Appellant, plead guilty to the crime of Murder in the First Degree in Case No. CRF-86-4533 in the District Court of Oklahoma County before the Honorable John M. Amick, District Judge. Appellant was sentenced to death by lethal injection. His request to withdraw his plea of guilty in the district court was denied and he has perfected this appeal and requested that this Court grant Certiorari and vacate the death sentence. Certiorari is denied and Judgment and Sentence is AFFIRMED.

Pete Gelvin, Asst. Public Defender, Oklahoma City, for petitioner.

Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

LANE, Presiding Judge:

�1 Petitioner pled guilty to First Degree Murder (21 O.S. 1981 � 701.7 [21-701.7](B)) in Oklahoma County District Court, Case No. CRF-86-4533. As a part of the plea process, he also entered guilty pleas to four counts of Burglary in the First Degree, charged in Case Numbers CRF-86-4264, CRF-86-4475, CRF-86-4476 and CRF-86-4478 and to Possession of a Firearm After Former Conviction of a Felony, in Case No. CRF-86-1536. After a sentencing hearing in which evidence was presented as to aggravating and mitigating circumstances, Petitioner was sentenced to death for the murder, to life imprisonment for each count of burglary and to ten (10) years for possessing a firearm. Judgments and sentences were entered accordingly. Petitioner moved to withdraw his plea within ten days of the pronouncement of sentence. The request was denied. Petitioner has timely filed a petition for Writ of Certiorari regarding the validity of his plea and accompanying sentence. We have assumed jurisdiction and received a response from the State. Based on the record before us, we find that the Writ should be denied and the convictions affirmed.

�2 During the late night hours of October 19, 1985, Petitioner and a companion, Mikell Smith, decided to steal a car so that they could go riding around. They went to an Oklahoma City supermarket where they saw Rick Patterson walking toward a car. When Patterson opened the car, Petitioner forced him, at gunpoint, to slide over to the passenger's side. Smith got into the back seat behind Patterson.

�3 Petitioner drove the car to a deserted area of town, where the two men tied or taped Patterson's hands and mouth and then put him into the trunk of the car. Petitioner drove east on I-40 to another isolated place. When Petitioner and Smith opened the trunk, the men found that Patterson had freed his hands. They tied his hands behind his back, forced him to stand up next to a tree and then shot him. Fearing that Patterson was still alive and could crawl away, another shot was fired.

�4 At the sentencing hearing, the State introduced the pretrial statement made by Petitioner to Oklahoma City police officers. In that statement, Petitioner confessed to having been involved with the murders but claimed that Mikell Smith was the one who had done the shooting. Subsequent to his guilty plea, Petitioner testified at Mikell Smith's trial and in direct contrast to his previous statement, denied that Smith had been present at the killing. Petitioner claimed that his first statement to police was coerced ¹ and that he had lied to clear his girlfriend, notwithstanding the fact that his girlfriend was not implicated in either statement.

�5 In addition to the statements made by Petitioner, the State presented testimony that Petitioner had bragged of the murder on several occasions. Evidence concerning the burglaries to which Petitioner had pled guilty, the firearms charge and several prior convictions were presented as evidence supporting the aggravating circumstances. In an attempt to mitigate against the death penalty, Petitioner presented evidence concerning his unhappy childhood, the love he felt for his son and his ability to cope in prison.

�6 After hearing the evidence, the trial court found the existence of four aggravating circumstances: (1) that the crime was committed for the purpose of avoiding lawful arrest and prosecution; (2) that the defendant had previously been convicted of felonies involving the use or threat of violence to the person; (3) that there exists a probability the defendant would commit criminal acts of violence which would constitute a continuing threat to society; and (4) that the murder was especially heinous, atrocious or cruel. After specifically finding that the mitigating evidence did not outweigh the aggravating factors, the court sentenced Petitioner to death for the murder of Patterson.

Acceptance of Plea

�7 In his first assignment of error, Petitioner contends that the transcript of his testimony in the trial of his accomplice, Mikell Smith, was improperly offered as evidence in the second stage of the proceedings by judicial notice without his stipulation. He concludes that this collateral testimony was the only evidence which could be offered to support the existence of a factual basis for his guilty plea. On appeal, he asks this Court to accept his claim that the evidence was improperly admitted at trial and hold that without this evidence the guilty plea was unsupported by a factual basis and thus, unconstitutional. We cannot agree with Petitioner's logic.

�8 Petitioner's argument is based wholly on his claim that the transcript from the Smith trial was entered into evidence through the process of judicial notice, recognized at 12 O.S. 1981 � 2201 [12-2201] et seq. He relies on Linscome v. State, 584 P.2d 1349 (Okl.Cr. 1978), in support of his allegation that the trial court improperly took judicial notice of the testimony without his express consent

�9 In Linscome, we considered the situation where the trial court took judicial notice of evidence heard in an earlier proceeding to justify the revocation of a suspended sentence notwithstanding the fact that the subsequent conviction was not yet final. We held that principles of judicial notice will only apply to cases where three prerequisites are met:

First, the matter must be one of common knowledge (although it does not have to be universally known); second, the matter must be settled beyond a doubt � if there is any uncertainty about the matter then evidence must be taken; and third, the knowledge must exist within the jurisdiction of the court.

Id. at 1350.

�10 Applying these three precepts to the evidence in question in this case, it becomes clear that Petitioner's testimony in another proceeding concerning the events constituting the crimes for which he is on trial does not fit the above quoted criteria. The transcript of the sentencing bears out the fact that the court did not admit the previous testimony on the strength of judicial notice.

�11 The testimony, which was prepared at the direction of the trial judge in the Smith case, was admitted into evidence during the testimony of one of the investigating officers, William Citty. When the State sought to have the officer testify as to the substance of Petitioner's testimony at the Smith trial, which the officer attended, the defense objected and the following discussion took place:

THE COURT : Well, Judge Said requested his court reporter to prepare a transcript of the statement of the (sic) Defendant Roger James Berget made in the case of State of Oklahoma versus Michael Patrick Smith. I have that statement here before me.

MR. ROWAN : Your Honor, I have no objection to the statement being admitted that you have before you, but I think it's improper for this witness to testify what someone else testified to last week.

THE COURT : Well, I'm inclined to agree with you there, what do you have to say about that Mr. Elliot?

* * * * * *

MR. ELLIOT : Your Honor, with defense counsels' no objection to entering the transcript, then at this point I would like to mark it State's Exhibit 2 and ask that it be introduced into evidence.

THE COURT : All right, it's a Court's exhibit. . . .

MR. ELLIOT : If I understand the Court, it will be introduced as Court's Exhibit 1 then?

THE COURT : Yes.

MR. ELLIOT : With no objection from defense counsel?

MR. ROWAN : No objection.

Transcript of Sentencing, pp. 12-13 ³ .

�12 We find that the testimony given by Petitioner in the trial of his partner in this crime was properly admitted as evidence in the present case. There was no objection to the admission into evidence of the transcripts at the time of trial. In fact, just the opposite is true. Accordingly, Petitioner has waived his right to complain about the consequences of this evidence on appeal. Green v. State, 713 P.2d 1032, 1039 (Okl.Cr. 1985). We have reviewed the record for fundamental error and find none. There is no error identified here.

�13 The basic tenet of Petitioner's next proposition of error assumes that we have agreed with his assertion that the Smith trial testimony was erroneously admitted. He asserts that without this testimony, there is no factual basis for his plea, thus his conviction runs afoul of the dictates of King v. State, 553 P.2d 529 (Okl.Cr. 1976), and Coyle v. State, 706 P.2d 547 (Okl.Cr. 1985). Petitioner contends that because the trial court did not request an additional statement from Petitioner at the plea hearing as to the circumstances behind the murder, the plea is invalid. We must disagree.

�14 Unlike the average plea proceeding where a defendant enters a plea after negotiations with the State usually in return for a particular sentence, the plea in the present case was only to the first stage of a required two stage proceeding. While Petitioner admitted his guilt to the crime, he reserved the opportunity to present evidence in mitigation to the potential death penalty while forcing the State to present evidence showing the appropriateness of the sentence. In such a case, the trial court is not bound in its determination by only the events of the hearing at which the plea is entered. Although Petitioner entered a plea admitting his guilt of the crime in question, the court withheld judgment until the second stage of the trial was complete.

�15 We have long held that the protections of King do not require mechanical compliance. State v. Durant, 609 P.2d 792, 793 (Okl.Cr. 1980). Neither do we require that the trial court undertake some sort of formal ritual in order to satisfy the minimum standards of due process when accepting a guilty plea. Ocampo v. State, 778 P.2d 920 (Okl.Cr. 1989). Instead, we will examine the entire record before us to determine whether the guilty plea was entered in a knowing and voluntary manner. Boykin v. Alabama,

�16 In Durant, we held "that the record from which the validity of a guilty plea must be assessed is not limited to that developed at the plea proceedings." Durant, 609 P.2d at 793. We have held in accord with this proposition many times. See Brennan v. State, 766 P.2d 1385 (Okl.Cr. 1988) (sentencing phase of a capital trial considered); Reed v. State, 589 P.2d 1086 (Okl.Cr. 1979) (acceleration proceedings considered); Feaster v. State,

�17 It is important to recognize that the court's ability to consider that entire record when determining whether to accept a guilty plea is a double edged sword. Just as the record may be used to establish the factual basis, it may also indicate to the trial court that some element of the crime is lacking. In such a situation, the trial court has an obligation not to accept the plea, notwithstanding the claims of the defendant during the actual plea proceedings, and refuse to sentence the defendant on the plea.

�18 Our examination of the evidence presented in the sentencing phase of this case, along with the events involving the plea, lead us to the conclusion that Petitioner was fully aware of the consequences of his plea at the time it was entered. The factual basis for the plea is clearly established through the introduction of Petitioner's pretrial confession to police both at the sentencing proceeding and at preliminary hearing, and in his testimony given at the Smith trial and introduced as evidence in the sentencing trial. Petitioner testified:

I took him out of the front seat of the car and went ahead and wrapped a chain around his wrist, tape around his wrist, and threw him in the trunk.

* * * * * *

[I] drove the car around and turned around and I pushed Patterson out of the car. We had some words and some different things were exchanged, different motions, so I ended up shooting him in the neck twice.

Smith Testimony Transcript, pp. 3-4. ⁴

�19 When Petitioner gave a statement to Officer Citty, he explained the reason for the murder:

CITTY : What did you and MIKE SMITH talk about while he was in the trunk of the car?

BERGET : About him seeing our faces and identifying us and MIKE was saying how he wanted to prove himself to me cause he knew I was out from the joint and I'm all different now, uh, so he's . . . so he decided to just go ahead and kill him.

CITTY : Both of you decided to?

BERGET : Yea.

State's Exhibit One, p. 4.

�20 This evidence is enough to satisfy the requirement that a factual basis for the crime was established. Certainly, the element of intent is proven through Petitioner's own statements. VanWoundenberg v. State, 720 P.2d 328, 333 (Okl.Cr.), cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986). We find no merit to Petitioner's argument that the record does not establish a factual basis for his plea.

�21 Petitioner's next proposition of error concerns the adequacy of the court's inquiry into his competency during the plea proceeding. The court's questioning went this way:

THE COURT : Are you taking any medication of any kind?

THE DEFENDANT : No. Sir.

THE COURT : Have you ever been treated by a doctor or confined in a hospital for a mental illness?

THE DEFENDANT : No.

THE COURT : Mr. Rowan and Mr. Wilson, do either of you have any reason to believe that Roger James Berget . . . is not fully mentally competent and able to understand the nature, purpose and consequences of this proceeding and to assist you in presenting any defense he may have to the charge?

MR. ROWAN : No, Your Honor.

MR. WILSON : No, Your Honor.

THE COURT : Do either of you, Mr. Rowan or Mr. Wilson, have any reason to believe that Roger James Berget was not fully mentally competent and able to appreciate and understand the nature, purpose and consequences of his acts on the date these crimes are alleged to have been committed?

MR. ROWAN : No, Your Honor.

MR. WILSON : No, Your Honor.

Sen. Tr. pp. 2-3.

�22 We considered this same argument under similar circumstances in Bromley v. State, 757 P.2d 382, 383-84 (Okl.Cr. 1988). In that case, we held:

King requires the trial court to make a determination of a defendant's competency based on an "appropriate interrogation of the defendant, and his defense counsel . . . regarding the defendant's past and present state as well as by the defendant's demeanor before the court . . ."

In this case, the trial court properly questioned both Petitioner and his counsel about his current and past levels of competency. All parties answered negatively as to whether there was any question about Petitioner's mental status. There is absolutely nothing in the record before us that would indicate that any of the answers given were not truthful.

�23 Again the case of Ocampo v. State, 778 P.2d at 920 provides insight into our resolution of this issue. In Ocampo, this Court considered the ramifications of a defendant's failure to raise any specific question as to his competency to plead until after sentence had been pronounced. In the present case, Petitioner has not made any allegations which would indicate that there was any doubt as to his competency. Instead, he alleges only that not enough questions were asked on the subject by the trial court. We held in Ocampo that the ritual was not the important part of the process, rather the important thing was whether or not competency was demonstrated. We find that based on the record before us, along with the lack of allegations on appeal, there is no indication that Petitioner was not competent to enter a plea. The trial court's inquiry was sufficient, thus we must reject Petitioner's argument to the contrary. Beihl v. State, 762 P.2d 976, 977 (Okl.Cr. 1988).

�24 Petitioner's fourth allegation also concerns the adequacy of the plea portion of the proceedings. He claims that the record does not reveal that he was ever apprised of the elements of the crime of murder. He claims that this potential lack of knowledge may have lead him to plead without understanding the intent requirement involved with the charge. At the outset, we note that while we agree with the principal cited by Petitioner, that a guilty plea "cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts", McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969), we cannot agree that the rule of law has been breached in this case. The Tenth Circuit Court of Appeals has addressed an identical argument stemming from the denial of relief to an Oklahoma petitioner. In denying the claim, the Court held:

The Supreme Court has clearly indicated, however, that a defendant of sufficient "intelligence and experience in the criminal justice system" may, in some circumstances, be presumed to have understood the nature of the charge even though a specific explanation is not shown on the plea record. See Marshall [v. Lonberger], 459 U.S. [422] at 436-37, 103 S.Ct. [843] at 851-52 [74 L.Ed.2d 646 (1983)]; Henderson [v. Morgan], 426 U.S. [637] at 647, 96 S.Ct. [2253] at 2258 [49 L.Ed.2d 108 (1976)].

Worthen v. Meachum, 842 F.2d 1179, 1183 (10th Cir. 1988).

�25 In further support of its decision, the court cited United States v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979), cert. denied 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), in which the Fifth Circuit Court rejected this same argument finding that the reading of the Information was sufficient to satisfy the requirement of understanding. The Court also relied on Berry v. Mintzes, 726 F.2d 1142, 1147 (6th Cir. 1984), cert. denied 467 U.S. 1245, 104 S.Ct. 3520, 82 L.Ed.2d 828 (1984); and Gregory v. Solem, 774 F.2d 309, 316 (8th Cir. 1985), cert. denied

�26 We addressed a similar situation in Bromley v. State, and our holding reflects comparable conclusions. In that case, we held:

Throughout the proceedings, appellant was represented by counsel. The record is replete with occasions during which appellant was advised by his counsel. Appellant testified that he had fully discussed the nature and consequences of entering a guilty plea with his attorney, and was satisfied with the representation of counsel. . . . Accordingly, we see no violation of the guidelines set forth by King. This assignment of error is without merit.

Bromley, 757 P.2d at 384. We find this holding determinative in the present case and find that no error has been identified.

�27 In his next assignment of error, Petitioner contends that the Magistrate committed error by refusing to allow a witness to testify at preliminary examination after she had violated the rule of sequestration. Insofar as a guilty plea waives all previous non-jurisdictional defects, we find no need to address this concern. Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Stokes v. State,

�28 Petitioner's tenth allegation of error concerns the trial court's refusal to grant his request allowing him to withdraw his guilty plea. He claims that because of the violations of King, his plea was not voluntary. At the outset, we note that Petitioner has not alleged that his plea was involuntary. Estelle v. State, 766 P.2d 1380 (Okl.Cr. 1988). In fact, the documents before us indicate just the opposite. The decision to allow the withdrawal of a plea is within the sound discretion of the trial court and we will not interfere unless we find an abuse of discretion. Hopkins v. State, 764 P.2d 215 (Okl.Cr. 1988); Vuletich v. State,

Sentencing Stage

�29 Petitioner alleges that the trial court's finding that the murder of Patterson was particularly heinous, atrocious or cruel ⁵ must be invalidated in light of the Supreme Court's decision in Maynard v. Cartwright,

�30 We explained the use of the HAC aggravating circumstance in great detail in Nuckols v. State, 805 P.2d 672 (Okl.Cr. 1991). In that case, we held:

Clearly, this [circumstance] contemplates a two-step analysis. The jury is told by the second paragraph [of the instruction] that they must first find that the "death of the victim was preceded by torture of the victim or serious physical abuse." This threshold determination, established by us in Stouffer v. State, 742 P.2d 562 (Okl.Cr. 1987), is a constitutionally approved manner of limiting the application of the HAC circumstance to only a specific class of crimes. See Foster, 779 P.2d at 593; Fox v. State, 779 P.2d 562, 576 (Okl.Cr. 1989). We have consistently applied this test to properly narrow the class of defendants to which this aggravating circumstance can be applied. . . .

Once this foundational assessment is made, then the jury may apply the definitions given to them in the first paragraph of the instruction to measure whether or not the crime can be considered to have been heinous, atrocious or cruel. The individual criteria set out in the first paragraph, once their application is limited to a narrow class of crimes, are constitutionally valid. Profitt [Proffitt] v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). (Some citations omitted.)

This interpretation satisfies the dictates of the Supreme Court. See Walton v. Arizona, 497 U.S. ___, 110 S.Ct. 3047, 111 L.Ed.2d 511, 528 (1990).

�31 Applying this test to the present case, we find the circumstance to be supported by the evidence. While we have refused to find serious physical abuse in cases where the victim was killed by a single gunshot wound, Stouffer v. State, 738 P.2d 1349 (Okl.Cr. 1987), on rehearing 742 P.2d 562 (Okl.Cr. 1987) cert. denied

When used to define a class of defendants against whom the death penalty is sought, torture creating extreme mental distress must be the result of intentional acts by the defendant. The torture must produce mental anguish in addition to that which of necessity accompanies the underlying killing. Analysis must focus on the acts of the defendant toward the victim and the level of tension created. The length of time which the victim suffers mental anguish is irrelevant.

�32 In the present case, we find that the facts and circumstances of the murder charged against Petitioner clearly support a finding of torture. Petitioner forced Patterson into a car at gunpoint and then drove around for some time. There was conversation in the car between Petitioner and Smith as to where to go. They drove to a deserted area and bound and gagged Patterson. After putting him in the trunk, they continued to drive. At a second isolated location, Patterson was removed from the trunk and his wrists were tied a second time. He was made to stand in front of a tree with his back to his kidnappers before he was killed. We find that the acts of Petitioner, all clearly intentional, resulted in extreme mental torture to the victim of his crime. See also Mann v. State, 749 P.2d 1151 (Okl.Cr. 1988).

�33 With the determination that the murder involved torture satisfied, we move to the second step of our analysis, whether the murder was especially heinous, atrocious or cruel. We held in Nuckols, 805 P.2d at 676:

Our inquiry now turns to whether or not the murder was heinous, atrocious or cruel. In our original opinion, we held that the facts indicated that the commission of this crime was "shockingly pitiless." Nuckols [v. State,] 690 P.2d [463] at 473 [(Okl.Cr. 1984)]. Our opinion of the extraordinary senselessness of this crime has not changed. Appellant went hunting for a person to kill, found such a victim and then killed him. It is difficult to conceive of a more "pitiless" crime. There was no provocation by the victim who was killed purely for the enjoyment of the murderers. This is sufficient to meet the criteria discussed above. Fisher v. State, 736 P.2d 1003, 1010 (Okl.Cr. 1987) (savage attack with no provocation by the victim); Smith v. State, 727 P.2d 1366 (Okl.Cr. 1986) (killer laughed while kicking her victim).

�34 We find the same rational to be applicable in this case. Patterson was killed merely because Petitioner wanted to drive his car. After killing Patterson, Petitioner drove to a convenience store, robbed it, then set Patterson's car on fire in an attempt to cover up his crimes. This murder was heinous, atrocious and cruel.

�35 Petitioner urges us to find that the aggravating circumstance "that the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution" is not supported by the evidence. Based on the testimony quoted previously in this opinion concerning Petitioner's intent to get rid of his victim because he could identify his kidnappers, we are satisfied that the circumstance is supported by adequate evidence of intent. Petitioner, whether he did the killing or not, knew that the murder of Patterson was imminent. At a minimum, there is sufficient circumstantial evidence of Petitioner's intent to avoid lawful arrest and prosecution by the killing of Patterson and the burning of the car, to allow us to affirm the finding of this circumstance. Munson v. State, 758 P.2d 324, 335 (Okl.Cr. 1988).

�36 As his eighth assignment of error, Petitioner claims that the evidence offered in support of the aggravating circumstance "the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" was insufficient. He alleges that because he would be confined for life in prison, the term "society" must relate only to prison society and not to the community at large. He cites Rougeau v. State, 738 S.W.2d 651 (Tex. Crim. App. 1987) as support for his position. We decline to adopt such a narrow view of the term.

�37 When evaluating the language of a statute, we are guided by the provisions of 25 O.S. 1981 � 1 [25-1]. That section provides:

Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears. . . .

�38 We find that the language of 21 O.S. 1981 � 701.12 [21-701.12](7) does not contain any terms which would indicate its application to only a small segment of the population. While the term could certainly encompass the prison population, it does not do so to the exclusion of all other persons. We will not read statutory language in such a narrow manner when there is no indication in the body of the statute that the term means anything less than what it seems.

�39 As Petitioner acknowledges, the aggravating circumstance concerning the continuing threat presented by the defendant has been consistently affirmed by this Court as "clear enough that it does not need to be further defined." VanWoundenberg v. State, 720 P.2d 328, 337 (Okl.Cr. 1986). The evidence offered in support of this circumstance indicated that Petitioner has been criminally active since he was eleven years old. Although he was only twenty-six years old at the time he killed Patterson, he served time for numerous juvenile convictions and had been incarcerated as an adult in both South Dakota and Oklahoma. Evidence showed that he had been twice convicted for escape.

�40 The killing of Patterson in itself could be enough to justify the aggravating circumstance. Robison v. State, 677 P.2d 1080, 1088 (Okl.Cr. 1984). The evidence indicates that Patterson was kidnapped, tortured and killed solely to facilitate Petitioner's robbery of a convenience store. Although the State introduced evidence that Petitioner had been involved in the commission of many, many crimes, including a number of burglaries subsequent to his most recent release from incarceration, our review for purposes of sustaining this aggravating circumstance, must focus on only those crimes which indicate the likelihood of future violence. We find that evidence that Petitioner had been previously convicted of Robbery with Firearms in Oklahoma and of First Degree Robbery in South Dakota amply satisfies the State's evidentiary requirements. Likewise, evidence that Appellant had implicated himself as the perpetrator of another homicide supports the trial court's finding that Petitioner would continue to present the threat of future violence.

�41 In his next proposition of error, Petitioner quotes a comment made by the trial court and argues that the comment indicates that the court was unaware of its sentencing options. The court, in pronouncing sentence, stated:

I find I can reach no other conclusion but that the aggravating circumstance outweigh the mitigating circumstances in this case.

Petitioner urges us to find that this expression was not a statement of the court's finding, but an indication that the court did not understand that it had the option of finding otherwise. We cannot adopt such a strained interpretation of this comment.

�42 Unlike the situation in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), we are not faced with a case where the trial court refused to consider mitigating evidence as a matter of law. In this case, the comment, when taken in context, reveals that the statement was made in connection with the court's finding of law and not as an expression of ignorance:

I have considered all of the evidence presented by the Defendant in this case by way of mitigation and as Mr. Rowan pointed out, this is not merely an accounting, it is a weighing proposition here. I find that I can reach no other conclusion but that the aggravating circumstances outweigh the mitigating circumstances in this case.

�43 Unless proven otherwise, we will assume that the trial court understood the penalty procedures involved with capital sentencing. The trial judge was an experienced jurist with previous experience in capital cases. The United States Supreme Court recently held in Walton, 497 U.S. at ___, 110 S.Ct. at 3057, 111 L.Ed.2d at 528, that when a judge is responsible for sentencing, it may be presumed that he or she follows the law, including any limiting constructs which the state appellate courts have placed on a particular statute. We have no reason to believe that the court was unaware of the law which controlled his sentencing options. See Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (Court held there must be a reasonable likelihood that the sentencer could misinterpret its instructions). Clearly the court was aware of its duty to weigh the aggravating factors against the mitigating evidence. The process was undertaken properly and the trial court found the death sentence to be appropriate. We have not been presented with a reason to find otherwise.

�44 As part of the sentencing process, the trial court had before it a presentence report which was ordered at the specific request of Petitioner. In the process of compiling the report, the Corrections officer in charge of the case spoke to Petitioner. Petitioner told the officer his version of the facts, which was consistent with his testimony at the Smith trial. He also admitted to the commission of many other crimes. He now complains that the statements contained in the presentence report were in contravention of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that consideration of the report by the trial court was in direct conflict with the Supreme Court decision of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). We do not find this to be the case.

�45 In Estelle, the Court was concerned with the ramifications of statements made by a criminal defendant during a court ordered psychiatric examination. It held:

A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.

Id. at 468, 101 S.Ct. at 1876. The Court specifically noted that this holding would not apply to a case where the defendant initiated the examination or sought to introduce the evidence himself.

�46 We find that to be that case here. The presentence report was requested by Petitioner. He signed the Summary of Facts indicating that he wanted the trial court to review that report prior to sentencing. He did not object to the report at any time prior to this appeal. Any error which may have occurred was waived through Petitioner's request for the report and subsequent failure to object prior to the trial court's review of the document. Thompson v. State, 724 P.2d 780, 785 (Okl.Cr. 1986).

�47 The next proposition of error alleges that constitutional error must be presumed because the aggravating circumstances found against Petitioner are "duplicitous." Petitioner contends that the aggravating circumstances concerning the continuing threat presented to society and that involving the previous conviction of a felony involving force or violence are essentially the same and rely on the same evidence.

�48 In Green v. State, 713 P.2d 1032 (Okl.Cr. 1985), this Court examined the identical question of "whether it was error to permit the jury to consider, as aggravating circumstances, that [t]he murder was committed by a person while serving a sentence of imprisonment on conviction of a felony and that `the defendant was previously convicted of a felony involving the use or threat of violence to the person.'" We held that these were two separate circumstances and merely because the same evidence supports both does not mean they overlap. We rejected the "overlap" argument and adopted the view stated by the Florida Supreme Court in Delap v. State, 440 So.2d 1242 (Fla. 1983):

[T]he aggravating factors of being under sentence of imprisonment and being previously convicted of a felony involving violence do not cover the same aspect of the defendant's criminal history. The defendant could be under sentence of imprisonment without having been convicted of a felony involving violence. Also, a defendant could be convicted of a felony involving violence without being under a sentence of imprisonment. These aggravating circumstances are separate, and including the two factors in the weighing process does not constitute a doubling of the aggravating circumstances.

�49 In Green, we did not consider what evidence could be used to prove an aggravating circumstance, but merely whether the two circumstances were, for weighing purposes, the same concept. In this case, Petitioner also alleges that the same evidence was used to prove the two aggravating circumstances. Merely because the same evidence is used, albeit in different manners, (the facts of the crime in one instance and the judgment and sentence in the other) involving the same prior crimes in support of both aggravating circumstances, does not make the two into one aggravating circumstance.

�50 The United States Supreme Court held in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) that "prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system." The Court held that it was essential that "the jury have before it all possible relevant information about the individual defendant whose fate it must consider."

�51 In VanWoundenberg, 720 P.2d at 328, this Court cited the language from Jurek in response to a challenge to the aggravating circumstance involving the presence of a continuing threat to society. In rejecting the argument of the appellant, the Court held that:

In considering this aggravating circumstance [that the Defendant presents a continuing threat to society], the State may present any relevant evidence, in conformance with the rules of evidence, which would show the "existence of a probability that defendant would commit criminal acts of violence that would constitute a continuing threat to society. . . ."

Id. at 337.

�52 In the present case, the two aggravating circumstances are clearly individual, calling for unique determinations on the part of the jury. In one instance, the sentencer is called upon to evaluate evidence, the judgments and sentences, which indicate the defendant's prior history of criminal activity. In the second instance, the court must look at evidence, including the circumstances of the defendant's prior crimes, in order to determine the likelihood of a defendant's future violent criminal activity. Based on this distinction, we find that no error was committed when the trial judge considered Petitioner's prior criminal history in relation to two aggravating circumstances.

�53 In addition to evidence of crimes for which Petitioner had been previously convicted, evidence of several unadjudicated crimes was offered in support of the continuing threat aggravating circumstance. Petitioner concedes that we have previously approved the same use of such evidence in Johnson v. State, 665 P.2d 815, 821 (Okl.Cr. 1983). We have reaffirmed this ruling in Johnson v. State, 731 P.2d 993, 1003 (Okl.Cr. 1987); Walker v. State,

�54 As his final allegation, Petitioner urges that the failure of this Court to conduct proportionality reviews is in contravention of the United States Constitution. No authority or facts are offered to support this contention other than the bare assertion that there are many death row inmates from Oklahoma County. That alone is not surprising in that Oklahoma County is the largest county in our state. There is no constitutional or statutory right to a proportionality review, thus there is no error in our current appellate procedures. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Foster v. State, 714 P.2d 1031 (Okl.Cr. 1986). Without a substantive factual basis for the complaint, we will not find constitutional error has occurred.

Mandatory Sentence Review

�55 Pursuant to 21 O.S.Supp. 1987 � 701.13 [21-701.13](C) we must review all sentences of death to determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and (2) whether the evidence supports the finding of the statutory aggravating circumstances enumerated in 21 O.S. 1981 � 701.12 [21-701.12].

�56 As we have discussed in the course of addressing the propositions raised by Petitioner, the evidence supports the trial court's finding of four (4) statutory aggravating circumstances: (1) that the crime was committed for the purpose of avoiding lawful arrest and prosecution; (2) that the defendant had previously been convicted of felonies involving the use or threat of violence to the person; (3) that there exists a probability the defendant would commit criminal acts of violence which would constitute a continuing threat to society; and (4) that the murder was especially heinous, atrocious and cruel.

�57 After thoroughly reviewing the entire record we conclude the sentence of death was supported by the evidence and it was not imposed under the influence of passion, prejudice or any other arbitrary factor. Accordingly, we must conclude that the trial court did not commit error when it refused to allow Petitioner to withdraw his plea of guilty. Judgment and Sentence is AFFIRMED.

BRETT and JOHNSON, JJ., concur.

PARKS, J., specially concurs.

LUMPKIN, V.P.J., concurs in result.

*****

Footnotes:

¹ This argument was not urged at Petitioner's own trial or on appeal.

² At oral argument on this case, Petitioner urged the position that the transcript from the Smith trial was produced as the result of independent investigation by the sentencing judge. We find that the record does not support this conclusion. In that Appellant did not brief this issue, we will not consider it further.

³ Hereinafter referred to as Sen. Tr. followed by the appropriate page number.

⁴ Hereinafter cited as Smith Tr., followed by the appropriate page number.

⁵ Hereinafter referred to as HAC.

*****

PARKS, Judge, specially concurring:

�1 This Court established guidelines for the taking of guilty pleas in King v. State, 553 P.2d 529 (Okl.Cr. 1976). It continues to be the opinion of this writer that these directives should be followed step by step whenever a plea of guilty or nolo contendere is entered. If they were, most of the questions concerning reliability of these pleas would be eliminated. As I noted in my separate opinion in Ocampo v. State, 778 P.2d 920, 925 (Okl.Cr. 1989), compliance with King "best expedites the interests of justice and promotes finality by foreclosing state and federal collateral attacks." As a matter of stare decisis, I am bound to apply the "substantial compliance" standard set forth in Ocampo. Notwithstanding, I find that the trial court in the present case properly followed the dictates of King by interrogating petitioner and defense counsel regarding petitioner's past and present mental state, as well as by observing petitioner's demeanor before the court. King, 553 P.2d at 534.

�2 With respect to the "continuing threat" aggravating circumstance, I agree with appellant that more definitive guidance is needed. See Boltz v. State, 806 P.2d 1117, 1126-27 (Okl.Cr. 1991) (Parks, P.J., specially concurring). I also agree that "[t]he term `society' must . . . be interpreted to encompass prison society if [21 O.S. 1981,] � 701.12(7) is to be evaluated in a non-arbitrary manner." Id. at 1127. See also Rougeau v. State, 738 S.W.2d 651, 660 (Tex.Cr.App. 1987) ("the `society' that would exist for the defendant . . . would be the `society' that is within the Department of Corrections"). As a matter of stare decisis, however, I must yield my view to that of the majority of this Court, which has held that this aggravating circumstance is specific, not vague, and readily understandable. See Boltz, 806 P.2d at 1117.

�3 Finally, I reiterate my opinion that the "especially heinous, atrocious or cruel" aggravating circumstance is unconstitutionally vague both on its face and as applied. See Foster v. State, 779 P.2d 591, 594 (Okl.Cr. 1989) (Parks, P.J., specially concurring). However, I yield to the "torture or serious abuse" standard adopted in Stouffer as a matter of stare decisis. Applying this standard to the present case, I agree that the evidence presented concerning the instant murder satisfied this circumstance.

*****

LUMPKIN, Vice Presiding Judge, concurring in results.

�1 I concur in the results reached by the Court in this case, however, I continue to disagree with the Court's analysis of OUJI-CR-436. See Nuckols v. State, 805 P.2d 672 (Okl.Cr. 1991) (Lumpkin, J., Concur in Results). In addition, I continue in the belief that it is inappropriate to utilize an acronym to deal with the serious nature of an aggravating circumstance.

�2 Upon an independent review of the record, I also find that, even if the aggravating circumstance of heinous, atrocious or cruel was not supported by the evidence, a reweighing of the remaining aggravating circumstances would affirm the death penalty in this case.

BERGET v. STATE
1995 OK CR 66
907 P.2d 1078

ROGER JAMES BERGET, PETITIONER,
v.
STATE OF OKLAHOMA, RESPONDENT

Oklahoma Court of Criminal Appeals

Case Number: PC-94-1125
Decided: 11/06/1995

[907 P.2d 1080]

An appeal from the District Court of Oklahoma County; Richard W. Freeman, District Judge.

Roger James Berget, Petitioner, entered a plea of guilty to the crimes of First Degree Murder, four counts of First Degree Burglary and one count of Felon in Possession of a Firearm in the District Court of Oklahoma County, Case Nos. CRF-86-4533, -4264, -4278, -4475, -4476, and -4478, respectively, before the Honorable John M. Amick, District Judge. The conviction was affirmed on direct appeal in Berget v. State, 824 P.2d 364 (Okl.Cr. 1991). Certiorari was denied by the Supreme Court in Berget v. Oklahoma, ___ U.S. ___, 113 S.Ct. 124, 121 L.Ed.2d 79 (1992). Petitioner filed his first application for post-conviction relief in the District Court of Oklahoma County. The application was denied by the Honorable Richard W. Freeman. Petitioner perfected this appeal from that denial. Judgment and Sentence is AFFIRMED.

James T. Rowan and Tim Wilson, Okla. County Public Defender, Oklahoma City, for Petitioner at trial.

Robert H. Macy, District Attorney and Ray Elliott, Assistant District Attorney, Oklahoma City, for the State at trial.

Randy A. Bauman, Deputy Div. Chief and Steven M. Presson, Capital Post-Conviction Division, Oklahoma Indigent Defense System, Norman, for Petitioner on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma and Sandra D. Howard, Assistant Attorney General, Oklahoma City, for Respondent on appeal.

OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF

LANE, Judge:

¶1 Petitioner, Roger James Berget, pled guilty to one count of First Degree Murder, four counts of First Degree Burglary and one count of Felon in Possession of a Firearm in the District Court of Oklahoma County, Case Nos. CRF-86-4533, -4264, -4278, -4475, -4476, and -4478, respectively, before the Honorable John M. Amick. Petitioner was sentenced to death for the murder, four consecutive life sentences for the burglaries and ten (10) years imprisonment for the firearms charge. Petitioner's motion to withdraw his guilty plea was denied, and his convictions affirmed by this Court following Petitioner's request for certiorari to have the death sentence vacated. Berget v. State, 824 P.2d 364 (Okl.Cr. 1991), cert. denied, ___ U.S. ___, 113 S.Ct. 124, 121 L.Ed.2d 79 (1992). Petitioner filed his application for post-conviction relief on January 10, 1994, in the District Court of Oklahoma County, which was denied on October 12, 1994 by the Honorable Richard W. Freeman.

¶2 In this first application for post-conviction relief, Petitioner has raised fourteen propositions of error, the majority containing multiple sub-propositions of error. Our consideration of these claims will be strictly limited by the statutory rules which establish our authority in post-conviction matters, 22 O.S. 1991 § 1086 [22-1086]. We held in Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr. 1985), that the provisions of 22 O.S. 1981 § 1080 [22-1080] et seq. are to be applied only to those claims which, for whatever reason, could not have been raised on direct appeal. See also Castro v. State, 880 P.2d 387, 388 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1375, 131 L.Ed.2d 229 (1995); Fowler v. State, 873 P.2d 1053, 1056-57 (Okl.Cr.), cert. denied, ___ U.S. ___, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994); Mann v. State, 856 P.2d 992, 993 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994); Brecheen v. State, 835 P.2d 117, 119 (Okl.Cr. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1063, 122 L.Ed.2d 368 (1993). In keeping with this authority, we will address only those propositions which could not have been brought at the time of the direct appeal. All other allegations are not properly before the Court.

¶3 Issues which were raised on direct appeal are barred from further consideration [907 P.2d 1081] by res judicata, and issues which were not raised on direct appeal, but could have been, are waived. Castro, 880 P.2d at 388; Fowler, 873 P.2d at 1056; Mann, 856 P.2d at 993; Rojem v. State, 829 P.2d 683, 684 (Okl.Cr.), cert. denied, ___ U.S. ___, 113 S.Ct. 420, 121 L.Ed.2d 343 (1992); Brecheen, 835 P.2d at 119. Propositions I, II and IV are the only propositions containing issues which were not raised, and could not have been raised, on direct appeal. Propositions III and V through XIV were either considered on direct appeal, and are therefore res judicata, or were not raised and are therefore waived. In either case, we will not address these issues again.¹

¶4 Petitioner alleges at Proposition I that the trial court denied him due process when it determined that the majority of issues presented on post-conviction were res judicata and/or barred by Petitioner's failure to raise them on direct appeal. Petitioner then alleges consideration of an ineffective assistance of counsel claim is always appropriate on post-conviction, citing Brecheen v. Reynolds, 41 F.3d 1343, 1364 (10th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 2564, 132 L.Ed.2d 817 (1995).

¶5 In Brecheen, the Tenth Circuit criticized this Court's procedure requiring appellants to raise ineffective assistance of counsel claims on direct appeal or risk waiving the claim at any future state appellate proceeding.2 The Tenth Circuit's concern seems to center around claims of ineffective assistance involving factual allegations which are outside of the scope of the trial court record.

¶6 Title 22 O.S. 1991 § 1086 [22-1086] dictates, in no uncertain terms, that all grounds for relief available to an appellant under the Post-Conviction Procedure Act, 22 O.S. 1991 § 1080 [22-1080], et seq., must be raised in his original, supplemental or amended application. Section 1086 clearly outlines waiver:

Any ground finally adjudicated or not so raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for subsequent application. . . .

This Court has consistently determined that failure to raise an alleged error, absent a showing of sufficient reason for failure to raise the issue, or a showing that the issue was inadequately raised in a prior direct appeal or application, waives the error, and bars it from future consideration. See Castro, 880 P.2d at 388; Fowler, 873 P.2d at 1056; Mann, 856 P.2d at 993; Brecheen, 835 P.2d at 119. Claims raised and previously decided are barred by res judicata. See Sellers v. State, 889 P.2d 895, 897 (Okl.Cr. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 214, 133 L.Ed.2d 146 (1995); Coleman v. State, 693 P.2d 4, 5 (Okl.Cr. 1984); Grimes v. State, 512 P.2d 231, 233 (Okl.Cr. 1973); Harrell v. State, 493 P.2d 461, 462 (Okl.Cr. 1972). We have also determined that the plain language of § 1086 makes it applicable to [907 P.2d 1082] subsequent post-convictions applications. Rojem v. State, 888 P.2d 528, 529-530 (Okl.Cr. 1995).

¶7 This Court recognizes that there are exceptions to the waiver and res judicata rules, and has ruled accordingly, where appropriate. See Allen v. State, 874 P.2d 60, 64 (Okl.Cr. 1994); Jones, 704 P.2d at 1140; Castleberry v. State, 590 P.2d 697, 701 (Okl.Cr. 1979); Stewart v. State, 495 P.2d 834, 836 (Okl.Cr. 1972). However, we have also made it clear that the post-conviction process is not a second appeal. See Moore v. State, 889 P.2d 1253, 1255 (Okl.Cr.), cert. denied, ___ U.S. ___, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995); Thomas v. State, 888 P.2d 522, 525 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Williamson v. State, 852 P.2d 167, 169 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2122, 128 L.Ed.2d 677 (1994); James v. State, 818 P.2d 918, 920 (Okl.Cr. 1991), cert. denied, 502 U.S. 1111, 112 S.Ct. 1214, 117 L.Ed.2d 452 (1992); Ellington v. Crisp, 547 P.2d 391, 392 (Okl.Cr. 1976)

¶8 On May 25, 1995, the Tenth Circuit issued an opinion, on rehearing en banc, setting forth its new procedure for addressing ineffective assistance of counsel claims in federal cases. U.S. v. Galloway, 56 F.3d 1239 (10th Cir. 1995). The Circuit Court reaffirmed and reemphasized the central principle laid down in Beaulieu v. United States, 930 F.2d 805, 806-807 (10th Cir. 1991)³, and ruled that ineffective assistance claims are now to be brought only in collateral proceedings, not on direct appeal. The Tenth Circuit held such claims brought on direct appeal are presumptively dismissible and virtually all will be dismissed.⁴ Galloway, 56 F.3d at 1240. Moreover, the fact that an ineffectiveness claim is raised and adjudicated on direct appeal will not procedurally bar an ineffectiveness claim in a proceeding under 28 U.S.C. § 2255 where new reasons are advanced in support of that claim. Id. at 1242-43.

¶9 In response to the numerous claims of ineffective assistance of trial and appellate counsel, the Tenth Circuit's answer was to entirely remove that issue from consideration on direct appeal, and to reserve it for another proceeding. The court stated:

The problem with . . . procedural bar, is that they are absurdly easy to circumvent on the one hand, and painfully labor intensive to sort through and apply on the other. The usual tactic to force a second review is to claim in a post-conviction proceeding that appellate counsel was ineffective for failing to advance all possible reasons showing why trial counsel was ineffective, and that appellate counsel was ineffective for not raising other issues relating to trial and sentencing. Technically, this is a first-time claim of ineffectiveness which cannot be procedurally barred and which is not unitary with the claim of ineffectiveness of trial counsel advanced on direct appeal. In this circumstance we are then forced to examine and determine two levels of ineffectiveness relating to two different sets of counsel en route to a distant destination of, perhaps, a favorable decision on the merits.

Id. at 1241-1242.

¶10 We agree with the analysis presented in Galloway which opines that the ineffective assistance doctrine created by the Supreme Court operates as "open sesame", forcing review of closed cases and defying all attempts at finality. Id. at 1242. We are also cognizant of the fact that unless and until the doctrine is tailored in this area, the seemingly endless litigation of alleged ineffective assistance claims will continue. However, allowing appellants carte blanche in deciding when such a claim can be raised only prolongs the appellate process, encouraging appellants to "lay behind the log" instead of presenting their claims as soon as they become known. The result is endless delay and lack of finality in addressing an appellant's [907 P.2d 1083] claim, and endless rehashing of the same issues under the guise of ineffective assistance.

¶11 It is no secret that the post-conviction procedure is routinely used as a vehicle for a myriad of claims that could, and should, have been raised on direct appeal.⁵ Disguising the claims as "ineffective assistance of counsel", be it trial or appellate counsel, fools no one. However, allowing the appellant to stockpile these claims until some undetermined later date, especially those claims which could have been made based on the record on appeal, only encourages, and somehow seems to sanction, delay.

¶12 Like the Tenth Circuit, this Court is also frustrated by the seemingly insurmountable burden of dealing with patently frivolous claims, grouped in the catch-all "ineffective assistance" category. However, we do not agree that the procedure set out in Galloway or espoused in Brecheen will resolve the problem.⁶ It only postpones the inevitable. While the Tenth Circuit's procedure will "group" the ineffective assistance claims brought on appeal, it does nothing to eliminate the subsequent appeal, which will surely be brought, alleging ineffective assistance of appellate counsel in bringing the collateral attack pursuant to 28 U.S.C. § 2255. Moreover, we fail to see how the Court will save additional time having to review the record on appeal, for a second time, at some distant point in the future, in cases where the basis for the ineffective assistance claim was contained in the appellate record.

¶13 Those reasons aside, there are significant differences between our Post-Conviction Procedure Act,.and the federal post-conviction claim available pursuant to 28 U.S.C. § 2255. Under Oklahoma's system, unlike the federal system,⁷ there is no constitutionally required or statutorily guaranteed right to appointed counsel in post-conviction proceedings, except in capital cases, and then only if the petitioner can show he/she is indigent. 22 O.S. 1991 § 1089 [22-1089](B); 22 O.S. 1991 § 1360 [22-1360](C). See Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Sellers, 889 P.2d at 898-899; Thomas, 888 P.2d at 527. Were this Court to adopt the Galloway procedure, we could potentially be denying petitioners in non-capital cases the right to counsel on the issue of ineffective assistance of trial counsel. To refuse to hear such a claim except in a post-conviction proceeding when appellants are not entitled to appointed counsel, potentially denies them the right to ever have the claim heard, in the event such a claim exists.

¶14 Additionally, as the Tenth Circuit pointed out in Galloway, when a federal prisoner files a petition for post-conviction relief pursuant to 28 U.S.C. § 2255, the district court is required to hold an evidentiary hearing on the appellant's claim "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Galloway, 56 F.3d at 1240, n. 1. Therefore, prior to any review by the federal appellate court, a factual record concerning the claim is developed in and addressed by the trial court, providing for more comprehensive appellate review.

¶15 This is not so under the Oklahoma Post-Conviction Act. There is no constitutional or statutory right to an evidentiary hearing by the trial court reviewing the post-conviction application. 22 O.S. 1991 § 1089 [22-1089](3). While a post-conviction claim must first be filed at the district court level, the findings of fact and conclusions of law prepared by the trial court are usually provided without benefit of an evidentiary hearing and therefore without the development of a factual basis provided through benefit of witness testimony and supplemental evidence.

¶16 The conclusion to be reached from Galloway is that the required method for [907 P.2d 1084] challenging effectiveness of defense counsel in federal criminal cases is through collateral attack under 28 U.S.C.A. § 2255. Galloway, 56 F.3d at 1242. This Court's preferred method still requires such a challenge to be raised on direct appeal, not through a collateral attack, or it is waived. See Strong v. State, 902 P.2d 1101, 1103 (Okl.Cr. 1995).

¶17 The Tenth Circuit alleges, however, that our procedure is inadequate because the appellant is deprived of a "meaningful review" of the ineffective assistance claim. The court expressed concern that Brecheen did not have an opportunity to develop any additional facts relating to trial counsel's performance in the direct review process "since evidentiary hearings are unavailable at the appellate level." However, while evidentiary hearings are not conducted at the appellate level, it is within this Court's power and authority to remand cases for evidentiary hearings at the district court level when appropriate. We have done so in the past. Even the Tenth Circuit acknowledges that the post-conviction procedure utilized in Brecheen provided an independent state law ground by which Brecheen's claim was rejected.⁸ Brecheen, 41 F.3d at 1364.

¶18 We can only assume the Tenth Circuit is concerned that legitimate claims of ineffective assistance will not be addressed absent a change in our position. We disagree.

¶19 What is missing in the Brecheen analysis is the recognition that there are actually two types of ineffective assistance of trial counsel claims: 1) claims which can be substantiated by a review of the appellate record, and 2) those supported by evidence outside of, and therefore not contained within, the record. In the first instance, if an appellant's proposition of error relies upon facts which are discerned by a review of the trial court record submitted for review on appeal, these claims must be raised on direct appeal or they are waived. There can be no claim of inability to discover facts necessary to present the claim alleged as error, since the record provides the basis for the appeal.

¶20 In the event the claim raised involves facts which are not part of the designated appellate record, an appellant's proposition of error advancing this theory is a collateral attack on the judgment and sentence and is to be raised on using the appropriate vehicle, whether it be a motion for new trial, an application for post-conviction relief or some other authorized method. Regardless, the mechanism currently exists upon which such claims can be, and are, subject to review. See Wilhoit v. State, 816 P.2d 545, 546 (Okl.Cr. 1991).

¶21 We find that the Tenth Circuit's focus upon our Post-Conviction Procedure Act misses the mark. The question is not whether the issue of ineffective assistance of counsel can or should be addressed on post-conviction. The real question is whether there exists, under our current statutes and procedures, an effective vehicle for redressing error claims which are outside of the trial court record, whether they be ineffective assistance of counsel claims or something else.

¶22 While Wilhoit was remanded for an evidentiary hearing on the appellant's motion for new trial, the case establishes that the mechanism for review of such claims does work. The advantage of such a system of review is the ability to address the issue promptly, when presented, and while the appellant is still represented by counsel. Review via an evidentiary hearing is not unavailable, it is simply conducted at the trial court level.

¶23 We are somewhat confused, therefore, by the Tenth Circuit's assertion that the status quo forces an appellant either to raise his/her ineffective assistance claim on direct appeal with new counsel, but without the benefit of additional fact-finding, or to have the claim forfeited under state law.⁹

¶24 [907 P.2d 1085] Appellants claiming ineffective assistance of counsel are still to be required to raise the ineffective assistance claim on direct appeal. However, if the proposition of error is dependent upon matters not presented to the trial court, and which are not included in the record on appeal, appellants should take advantage of the very vehicle meant to deal with these issues by raising the proposition of error and simultaneously requesting an evidentiary hearing on the matter. Although evidentiary hearings are unavailable at the appellate level, there is nothing to preclude this Court from remanding matters to the trial court for additional fact-finding on specific issues when necessary. 22 O.S.Supp. 1991, Ch. 18, App., Rules of the Court of Criminal Appeals, Rule 3.11 . The alternative exists to develop additional facts relating to alleged errors, and, as such, appellants are not deprived "meaningful review" of their claims. The process of remanding issues for evidentiary hearings has been used to thoroughly address ineffective assistance of trial counsel claims on direct appeal when a compelling allegation and a proper request for evidentiary hearings have been made. See Wilhoit, 816 P.2d at 546. See also Mayes v. State, 887 P.2d 1288, 1314-16 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995).

¶25 Using this analysis, a review of Berget's claim reveals that all but one of his alleged claims of ineffective assistance of trial counsel could and should have been raised on direct appeal, as all information pertaining to these claims was contained in the appellate record.¹⁰ Petitioner's claim of a conflict of interest between trial and appellate counsel is meritless. A review of Petitioner's affidavits from trial counsel alleging a conflict of interest shows the claim was properly rejected by the trial court as being insufficient to warrant an evidentiary hearing. We find no error here.

¶26 Petitioner next alleges that the Post-Conviction Procedure Act does not bar consideration of matters raised on post-conviction, regardless of whether they are raised on direct appeal or not. Petitioner's reading of the statute would have us consider as barred only claims presented in a second or subsequent post-conviction proceeding that were not presented in an initial post-conviction proceeding. We have addressed this issue above and reaffirm that claims not raised on direct appeal which could have been raised are waived, notwithstanding Petitioner's strained reading and interpretation of the statute. Castro, 880 P.2d at 388; Fowler, 873 P.2d at 1056-57; Mann, 856 P.2d at 993. We find no merit to this argument.

¶27 Petitioner then claims at Subproposition I(B) that the district court should have considered, in reviewing his post-conviction application, the issues proposed under the ineffectiveness of appellate counsel claim. Despite his claims to the contrary, the district court did review Petitioner's claim and determined that it had no merit. We will address this claim at Petitioner's Proposition IV.

¶28 Petitioner alleges in Proposition II that the district court erred in refusing to hold his post-conviction claims in abeyance pending resolution of Mann v. Reynolds, 828 F. Supp. 894 (W.D.Okla. 1993), a class action civil rights suit alleging the existence of unconstitutional attorney-client visiting conditions at Oklahoma's death row facility. Petitioner alleges that his access to counsel was impeded, impairing appellate counsel's ability to investigate and prepare a complete and proper post-conviction application. However, Petitioner does not identify for this Court any instances of his inability to freely consult with or assist counsel in the preparation of his post-conviction appeal, nor does he show that he was prevented from developing any appealable issue because of the existing conditions. Rather, he claims that he will not know which factual or legal issues "may have been missed or not fully developed" until the unconstitutional conditions are eliminated.

¶29 [907 P.2d 1086] We rejected this same argument in Moore, 889 P.2d at 1256. Petitioner's unsubstantiated assertions are insufficient to persuade us that this collateral issue should be decided on post-conviction. Nguyen v. State, 879 P.2d 148, 149 (Okl.Cr. 1994); Williamson, 852 P.2d at 169; Mann, 856 P.2d at 993. We find no merit in this argument.

¶30 At Proposition IV, Petitioner alleges ineffective assistance of appellate counsel, listing several sub-propositions of error as part of the general allegation. He first alleges a conflict of interest prevented presentation of the ineffective assistance of counsel claim on direct appeal because appellate and trial counsel were both employees of the Oklahoma County Public Defender's Office. In Moore, 889 P.2d at 1258, n. 3, we found no ineffective assistance based on the claim that trial and appellate counsel were from the same indigent defense entity. As in Moore, Petitioner here presents no evidence of conflict between the trial and appellate counsel. These unsubstantiated assertions, without more, are insufficient to sustain a claim of error. We find this contention to be without merit.

¶31 Petitioner next claims appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel arguments with respect to various alleged meritorious claims. The majority of these claims were addressed on direct appeal, albeit not under the auspices of ineffective assistance. Nevertheless, we found no fundamental error on direct appeal, and therefore will not now find them to be error simply by virtue of being labeled ineffective assistance of counsel.¹¹ Included in this "laundry list" of errors is the claim that appellate counsel failed to appeal Petitioner's four burglary and firearm possession convictions. Petitioner now claims that appellate counsel did not raise issues or make arguments regarding the five non-capital cases which would have warranted reversal of these convictions. However, Petitioner does not now present those alleged arguments warranting consideration or reversal. We find this argument unpersuasive, especially in light of our determination in Petitioner's direct appeal that the pleas to the non-capital offenses were knowingly and voluntarily entered. Berget, 824 P.2d at 371.

¶32 Failure to appeal a conviction is not, per se, evidence of ineffective assistance of appellate counsel. Absent non-compliance with the Strickland¹² criteria, we do not find Petitioner is entitled to relief on this claim.

¶33 Petitioner next claims error alleging appellate counsel did not appeal the State's failure to give notice of the evidence used in support of the aggravating circumstances. Even were we to consider this proposition, which Petitioner has waived by failing to raise it on direct appeal, and even if we determined that the evidence used should have been excluded with respect to the continuing threat and previous felony convictions involving use or threat of violence,¹³ there were two additional [907 P.2d 1087] aggravators found here, sufficient to support imposition of the death penalty. We find the claim is waived and there is no error here.

¶34 Petitioner's contention concerning introduction of testimony from the Bulldog Smith trial was addressed on direct appeal and will not be rehashed here. Berget, 824 P.2d at 368-369.

¶35 Petitioner's claim of failure to raise prosecutorial misconduct is inapposite here because, as noted by Petitioner, this was not a jury trial. Additionally, the argument was waived when it was not raised on direct appeal. More importantly, Petitioner shows no prejudice indicating that the result of the sentencing would have been different if the statements had not been made. We will not modify or reverse a sentence or a conviction unless we find not only error, but some prejudicial effect resulting from that error. Elmore v. State, 846 P.2d 1120, 1123 (Okl.Cr. 1993); Crawford v. State, 840 P.2d 627, 634 (Okl.Cr. 1992); Gates v. State, 754 P.2d 882 (Okl.Cr. 1988); Hall v. State, 762 P.2d 264 (Okl.Cr. 1988); Harrall v. State, 674 P.2d 581, 584 (Okl.Cr. 1984). We find this argument to be meritless.

¶36 Petitioner next claims appellate counsel erred in failing to raise an Enmund¹⁴ claim. We determined on direct appeal that Petitioner admitted killing Patterson both in his statements to police and in the Bulldog Smith trial testimony (Berget, 824 P.2d at 370-371) and that there was more than sufficient evidence of Petitioner's intent to avoid arrest and prosecution by killing Patterson. Had Petitioner not waived this claim on direct appeal (and we find that he has), we would still find no error, having previously determined there was sufficient evidence of his participation in Patterson's death.

¶37 Proposition V, wherein Petitioner alleges his burglary convictions were unconstitutionally imposed and subject to reversal, and therefore were improperly used in support of his death sentence, has been addressed on direct appeal and will not be addressed again. Berget, 824 P.2d at 369. Nevertheless, recognizing that unadjudicated offenses are admissible in support of aggravating circumstances, we find Petitioner's claim to be meritless.

¶38 Proposition VI, improper introduction of the Bulldog Smith transcript, was adjudicated on direct appeal. Berget, 824 P.2d at 368-369. Proposition VII, prosecutorial misconduct, Proposition VIII, the Enmund argument, and Proposition IX, failure to provide notice of aggravator evidence, were all addressed and rejected at Proposition Four, supra.

¶39 At Proposition X, Petitioner once again attempts to raise the competency issue which we disposed of on direct appeal, and again in this post-conviction appeal at Proposition IV, supra. Berget, 824 P.2d at 370-371. We will not address it further. Likewise, Proposition XI, introduction of the presentence investigation report, was addressed and rejected on direct appeal. Berget, 824 P.2d at 375-376. Proposition XII, use of evidence of unadjudicated offenses, was also addressed and rejected. Berget, 824 P.2d at 377.

¶40 At Proposition XIII, Petitioner alleges that the cumulative effect of the alleged errors certainly warrants relief. This claim, also waived on direct appeal, is unpersuasive. We find no individual error, therefore we can find no cumulative error.

¶41 Proposition XIV alleges Petitioner was improperly denied an evidentiary hearing by the trial court as to his post-conviction claim. There is no constitutional right to such a hearing nor is there any indication that Petitioner's appellate record was incomplete or presented issues requiring proof not contained in the record. Where the application is capable of disposition on the pleadings and record, an evidentiary hearing is not warranted. See Moore, 889 P.2d at 1258; Johnson v. State, 823 P.2d 370, 373 [907 P.2d 1088] (Okl.Cr. 1991), cert. denied, 504 U.S. 926, 112 S.Ct. 1984, 118 L.Ed.2d 582 (1992).

¶42 After review of the errors alleged by Petitioner, we are unable to conclude that the trial court's decision denying his Application for Post-Conviction Relief was in error. Accordingly, that decision is AFFIRMED.

JOHNSON, P.J., CHAPEL, V.P.J., and LUMPKIN and STRUBHAR, JJ., concur.

*****

Footnotes:

¹ Proposition III, ineffective assistance of counsel, Proposition V, (insofar as it addresses Petitioner's competency to enter a plea) that Petitioner's death sentence was obtained using burglary convictions that were unconstitutionally imposed, Proposition VI, that the trial court committed reversible error and was guilty of misconduct by sua sponte obtaining a transcript from another proceeding, Proposition X, that the trial court's finding that Petitioner was competent to plea was flawed and therefore unconstitutional, Proposition XI, that a presentence investigation report was unlawfully and unconstitutionally injected into Petitioner's sentencing proceeding, and Proposition XII, that the use of unadjudicated offenses violated Petitioner's constitutional rights, were all considered on direct appeal, and found not to be error. We will not revisit these issues, but note for the record that if we did not find the alleged conduct to be error on direct appeal, it is no more erroneous on post conviction simply because Petitioner characterizes the "error" as ineffective assistance of trial counsel. Proposition VII, that the prosecutor's closing arguments were inappropriate and constituted prosecutorial misconduct, Proposition VIII, that an appropriate Enmund finding has not been made and that insufficient evidence exists to support such a finding, Proposition IX, the state's failure to provide notice of the evidence in support of the statutory aggravators was fundamental error, Proposition XIII, that the cumulative effect of the individual trial errors warranted relief, and Proposition XIV, that the district court erred in denying Petitioner's request for an evidentiary hearing, were not raised and are waived.

² 22 O.S.Supp. 1994, Ch. 18, App., Rules of the Court of Criminal Appeals, Rule 3.5 (A)(5).

³ The Tenth Circuit expressly overruled Beaulieu in part. The court will no longer require that ineffective assistance claims be brought on direct appeal where the record seems complete for purposes of appellate review. The court will also no longer require that the defendant have different counsel in order to question the ineffectiveness of trial counsel on appeal. Galloway, 56 F.3d at 1241.

⁴ This rule is applicable to all federal cases brought pursuant to 28 U.S.C. § 2255.

⁵ This is not to suggest that all claims raised on post-conviction are without merit. However, there are always additional claims, meritless though they may be, that some creative counsel is able to find that were not raised on direct appeal, but could have been.

⁶ We note here that Galloway only applies to 10th Circuit federal courts deciding federal cases, and does not directly affect this Court. Likewise, Brecheen applies to federal court review of state court decisions, and this Court is not required to adopt its holding.

⁷ 18 U.S.C. § 3006A.

⁸ It should be noted that Brecheen's direct appeal was filed prior to the enactment of the current post-conviction statutes, and therefore any arguments concerning the consideration of his direct appeal must be reviewed in that context.

⁹ The Tenth Circuit recognized that Brecheen, on post-conviction review, was given a full and fair post-conviction evidentiary hearing on the question of ineffective assistance of counsel in the state district court. It also determined that the district court's decision that another hearing was not required was correct. Brecheen, 41 F.3d at 1363. Evidently, the Oklahoma procedure works.

¹⁰ Proposition III, Subpropositions B.2. through B.12. could and should have been raised on direct appeal. (The error claimed here was ineffective assistance of trial counsel, specific instances being delineated at B.2 through B.12.) Since they were not, they are waived.

¹¹ Those claims include sub-propositions III (failure to request and obtain a competency evaluation), VI (failure to object to finding Appellant competent to enter a plea), VII(d) (failure to object to the court's use of a pre-sentence investigation report) and X (failure to object to the court's use of a transcript of Appellant's testimony in co-defendant Smith's trial).

¹² Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When addressing claims of ineffective assistance of both trial and appellate counsel, this Court is guided by the Supreme Court's decision in Strickland. See Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr. 1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986). The basic test for ineffectiveness of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. In determining whether counsel provided "reasonably effective assistance," this Court indulges "a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. Finally, the Petitioner bears the burden of showing both that counsel's performance was deficient and that such deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. at 2064. Nguyen v. State, 844 P.2d 176, 179 (Okl.Cr. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 3006, 125 L.Ed.2d 697 (1993).

¹³ See Hayes v. State, 845 P.2d 890, 893 (Okl.Cr. 1992) quoting, Green v. State, 713 P.2d 1032, 1038 (Okl.Cr. 1985), cert. denied, 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 165 (1986) (`failure to object to lack of notice, [of evidence to be used in support of aggravator] either at a pre-trial hearing or at the time the challenged evidence is offered, will result in waiver of this statutory right'). Fisher v. State, 845 P.2d 1272, 1274 (Okl.Cr. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 3014, 125 L.Ed.2d 704 (1993).

¹⁴ Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140 (1982). Eighth Amendment precludes imposition of the death penalty upon person who aids and abets a felony, but does not personally kill, attempt to kill, or intend that a killing result.

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

ROGER JAMES BERGET, Petitioner-Appellant,
v.
GARY E. GIBSON, Warden of the Oklahoma State Penitentiary, Respondent-Appellee.

No. 98-6381

(D.C. No. CIV-96-1041-T)
(Western District of Oklahoma)

Filed August 5, 1999

ORDER AND JUDGMENT^(*)

Before PORFILIO, ANDERSON, and TACHA, Circuit Judges.

Roger James Berget (Petitioner) appeals from the district court's denial of his federal habeas petition. Berget, a state prisoner, pleaded guilty to first-degree murder, among other crimes, and the matter of sentencing was determined at a bench trial resulting in a death penalty on the murder count. Petitioner now challenges both his guilty plea and his death sentence. He raises thirteen issues, none of which we find persuasive; therefore, we affirm the judgment of the district court.

BACKGROUND

Petitioner Roger James Berget and co-defendant Mikell Smith are accused of carjacking and then murdering Rick Patterson. The facts of the murder are recounted in the opinion of the Oklahoma Court of Criminal Appeals:

During the late night hours of October 19, 1985, Petitioner and a companion, Mikell Smith, decided to steal a car so that they could go riding around. They went to an Oklahoma City supermarket where they saw Rick Patterson walking toward a car. When Patterson opened the car, Petitioner forced him, at gunpoint, to slide over to the passenger's side. Smith got into the back seat behind Patterson.

Petitioner drove the car to a deserted area of town, where the two men tied or taped Patterson's hands and mouth and then put him into the trunk of the car. Petitioner drove east on I-40 to another isolated place. When Petitioner and Smith opened the trunk, the men found that Patterson had freed his hands. They tied his hands behind his back, forced him to stand up next to a tree and then shot him. Fearing that Patterson was still alive and could crawl away, another shot was fired.

Berget v. State, 824 P.2d 364, 367-68 (Okla. Crim. App. 1991).

Petitioner pleaded guilty to murder in the first degree, burglary in the first degree, and possession of a firearm after former conviction of a felony. The trial court held a sentencing hearing during which evidence was presented as to aggravating and mitigating circumstances. The state trial court found four aggravating circumstances: (1) the crime was committed for the purpose of avoiding lawful arrest and prosecution; (2) the defendant had previously been convicted of felonies involving the use or threat of violence to the person; (3) there existed a probability the defendant would commit criminal acts of violence which would constitute a continuing threat to society; and (4) the murder was especially heinous, atrocious, or cruel. After finding the mitigating evidence did not outweigh the aggravating evidence, the trial court sentenced the Petitioner to death on the murder count. The Oklahoma Court of Criminal Appeals affirmed on direct appeal, see Berget v. State, 897 P.2d 292 (Okla. Crim. App. 1991), and later affirmed the denial of his application for post-conviction relief, see Berget v. State, 907 P.2d 1078 (Okla. Crim. App. 1995).

On December 20, 1996, Berget filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Oklahoma. The district court denied the petition. This timely appeal ensued. On October 6, 1998, the district court granted a certificate of appealability on all claims raised in the petition.

STANDARDS OF REVIEW

The first issue presented in this case is whether the more stringent standards of review of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. Mr. Berget argues they should not, and the Respondent contends the contrary. Petitioner admits he filed his federal habeas petition after the effective date of the AEDPA but nevertheless contends application of the law to his case would be constitutionally impermissible because he had completed his direct appeal before the effective date.

The crux of his argument is that he had certain expectations when he entered the state courts on appeal. Those settled expectations "included the knowledge that Oklahoma had historically failed to honor the federal constitutional rights of persons in its courts." Indeed, Mr. Berget claims he "pursued his state remedies with the full expectation that the state court would ignore his [federal] constitutional violations and that he would then obtain de novo review of constitutional claims once he was in federal courts." Presumably, his state litigation strategy would have differed had he known about the AEDPA. This change in legal consequences is unconstitutionally retroactive under Landgraf v. USI Film Products, 511 U.S. 244, 264 (1994), he claims.

This creative spin notwithstanding, we have already held to the contrary. In Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999), we stated the AEDPA standards apply to death penalty habeas petitions filed after AEDPA's effective date, regardless of when the trial of conviction occurred. That ruling forecloses the issue here, but even if it did not, we would follow the lead of the Fourth Circuit in a similar case.

In Mueller v. Angelone, 1999 WL 436762 (4th Cir. June 29, 1999), the court dispatched the argument raised here by noting:

First, petitioner contends that section 2254(d) has an impermissible retroactive effect because, under the pre-AEDPA regime, he had the obligation only to exhaust his state court remedies in order to be guaranteed independent and de novo review of his federal constitutional claims by the federal habeas court. Consequently, Mueller argues, he lacked any incentive to pursue in state court the merits adjudication of his legal claims which he argues is a prerequisite to review under the new section 2254(d). The gravamen of Mueller's argument, as best we can discern from its rather elliptical presentation, is that he would have tried harder to secure an adjudication of all his non-defaulted claims had he known that the AEDPA would govern his federal petition.

This argument is meritless, and obviously so. In the first place, we find the notion absurd that, prior to the AEDPA, state court defendants and state habeas petitioners had "no incentive" to pursue adjudication on the merits of their federal constitutional claims. Especially since the state court legal determinations were subject, as petitioner argues, in many cases to de novo federal habeas review, there simply was no downside for defendants like Mueller to receiving an adjudication on the merits in state court. Petitioner would have us accept the curious premise that prisoners pre-AEDPA willingly forewent their first free bite at the apple, and for no apparent gain--except, we suppose, in order better to savor their final bite in federal court.

In any event, petitioner's claim of retroactivity fails because, whatever he perceives to have been the change in "incentives," there is no conceivable way that his litigation strategy in the state court could actually have been affected by his alleged reliance on these incentives. As petitioner recognizes, prior to the adoption of the AEDPA, as now, the federal courts were barred from reviewing claims before state remedies were exhausted, or if the claims were procedurally defaulted at the state level (absent cause and prejudice or a fundamental miscarriage of justice that would excuse the default). Harris v. Reed, 489 U.S. 255, 262 (1989).

Therefore, in order to preserve a claim for federal review, petitioner had to present it in state court. And once a claim is presented for consideration, it is in the hands of the court, not the prisoner, whether that claim is ultimately adjudicated on the merits. Thus, whatever the incentives before or after passage of the AEDPA, petitioner simply cannot show how he would have proceeded differently with respect to his state court litigation efforts, and as a result has failed in this regard to demonstrate any retroactive effect. See Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir. 1996) ("[Petitioner] cannot argue credibly that he would have proceeded any differently during his state post-conviction proceedings had he known at the time of those proceedings that the federal courts would not review claims adjudicated on the merits in the state court proceedings de novo.").

. . . .

Finally, petitioner argues that the state courts that considered his claims prior to passage of the AEDPA lacked incentive to review diligently his federal claims because the courts were not aware at the time of decision of the increased deference to their legal conclusions the new 2254(d) would ultimately mandate. Like the Seventh Circuit in Lindh, we are unwilling, particularly in the absence of any factual support for the proposition, to assume that state courts, comforted by the prospect of independent and de novo federal review, were less than attentive pre-AEDPA to any defendant's federal constitutional claims. Lindh, 96 F.3d at 864. See also Stone, 428 U.S. at 494 n.35 ("We are unwilling to assume that there now exists a genuine lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States.").

In fact, it seems at least as likely that state courts, discomfited by the certain prospect of plenary federal review, and no doubt possessed of the familiar judicial aversion to "reversal"--especially by a court with respect to which they are in no way inferior--would have been, if possible, more rather than less attentive to petitioner's federal constitutional claims. We thus conclude that petitioner has not identified any new legal consequences that, had he known of them in advance, might have in any way affected his conduct before filing his federal habeas petition, and that he has identified no retroactive effect, impermissible or otherwise, under Landgraf.

Accordingly, we conclude that the district court did not err in reviewing Mueller's habeas petition under the 1996 Act.

We can discern no difference between the argument addressed by the Fourth Circuit and the one raised in this case. Therefore, even were the question open to us, we would conclude, contrary to the Petitioner's assertions, AEDPA's more stringent standard of review applies here.

In reviewing a denial of a petition for a writ of habeas corpus, we are generally subject to two different modes of analysis. If the claim was not heard on the merits by the state courts, and the federal district court made its own determination in the first instance, we review the district court's conclusions of law de novo and its findings of fact, if any, for clear error. See Lafevers v. Gibson, --- F.3d ---, ---, 1999 WL 394508, at *3 (10th Cir. 1999); Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998). But when reviewing a claim already decided by the state courts on the merits, we are bound to deny relief unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

A state court decision is "contrary to, or involves an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" if: (1) the state court decision is in square conflict with Supreme Court precedent which is controlling on law and fact or (2) if its decision rests upon an objectively unreasonable application of Supreme Court precedent to new facts. See Lafevers, --- F.3d at ---, 1999 WL 394508, at *3. Quite simply, the "AEDPA increases the deference to be paid by the federal courts to the state court's factual findings and legal determinations." Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997).

DISCUSSION

I
Were Petitioner's Fourteenth Amendment Rights Violated Because the State Court Accepted his Plea of Guilty to First-Degree Murder Without a Factual Basis for the Plea?

Mr. Berget claims the state trial court violated his due process rights when it accepted his guilty plea to the first-degree murder charge without an adequate factual basis. Petitioner raised this claim on direct appeal. See Berget, 824 P.2d at 368. The federal district court addressed the claim de novo, agreed with the state court's resolution of the issue, and then further concluded in any event the claim was not cognizable on a federal habeas petition. We agree the issue is not justiciable.

Controlling federal case law teaches that the requirement of a factual basis for a guilty plea is not rooted in the federal Constitution; therefore, it is not redressable under 28 U.S.C. § 2254. Although the lack of a factual basis would violate Rule 11 of the Federal Rules of Criminal Procedure, Rule 11 does not apply in state court. Indeed, the necessity for a factual basis to support a guilty plea in a state court proceeding is a matter of state, not federal, law. It is for these reasons we rejected an identical claim in another habeas case nearly thirty years ago:

Appellant further argues that the State District Court did not make any inquiry as to the underlying facts of the offenses charged. . . . In essence, he asks that we apply to the State proceedings the provision of Rule 11, F.R.Crim.P., as amended in 1966, that the Court determine that there is a factual basis for the plea before entering judgment on it. This Federal procedural provision is not binding on the State Courts, . . . and there is no constitutional mandate for it.

Freeman v. Page, 443 F.2d 493, 497 (10th Cir. 1971); see also Sena v. Romero, 617 F.2d 579, 581 (10th Cir. 1980) ("[Petitioner's] contention that the absence of a record showing a factual basis for his plea is an independent ground for invalidating the plea, is without merit.").

Only when the defendant claims his factual innocence while pleading guilty, a situation not present here, have state courts been constitutionally required to establish a factual basis for a plea. See North Carolina v. Alford, 400 U.S. 25, 37-39 (1970); Walker v. Champion, 162 F.3d 1175, 1998 WL 712588, at *2 (10th Cir. 1998) (unpublished disposition) ("Absent a protest of innocence at the time a plea is entered, the magistrate judge properly concluded the trial court has no constitutional duty to establish a factual basis for his plea.") (emphasis added).^(**)

Other circuits to have addressed the matter are in agreement. See, e.g., Meyers v. Gillis, 93 F.3d 1147, 1151 (3d Cir. 1996) ("Put simply, the Due Process Clause of the Fourteenth Amendment to the United States Constitution does not require an on-the-record development of the factual basis before entry of the plea, and the failure of a state court to elicit a factual basis before accepting a guilty plea does not in itself provide a ground for habeas corpus relief under 28 U.S.C. § 2254."); Higgason v. Clark, 984 F.2d 203, 207-08 (7th Cir. 1993) (stating Supreme Court precedent "does not imply that the factual-basis requirement of Fed. R. Crim. P. 11(f) and its state-law counterparts comes from the Constitution"); Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985) ("We conclude that the due process clause does not impose on a state court the duty to establish a factual basis for a guilty plea absent special circumstances."); Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984) ("[D]ue process does not mandate a factual basis inquiry by state courts."); United States ex rel. Crosby v. Bierley, 404 F.2d 790 (3d Cir. 1968) ("If Crosby did understand the nature and consequences of his plea of guilty, he is entitled to no relief, irrespective of the trial court's failure to conduct an inquiry into the factual basis . . . ."); United States v. McGlocklin, 8 F.3d 1037, 1047-48 (6th Cir. 1993) (en banc) ("This circuit has long recognized that, absent special circumstances, 'there is no constitutional requirement that a trial judge inquire into the factual basis of a plea.'").⁽³⁾

1.       Did the State Trial Court Improperly Consider a Presentence Report in Determining Petitioner's Death Sentence?

Mr. Berget posits the state trial court improperly considered a presentence investigation report in determining his death sentence. The report, which was prepared at the request of Petitioner, contains information about his background as well as his version of the murder of Rick Patterson. Mr. Berget contends: (1) his Fifth Amendment self-incrimination rights were violated because the person who interviewed him and prepared the report failed to advise him of his right to remain silent; (2) his Sixth Amendment right to counsel was violated because the person who interviewed him and prepared the report failed to advise him of his right to counsel; (3) his Sixth Amendment right to confrontation was violated because he did not have adequate time to prepare and confront the evidence contained in the report; (4) the report was full of inaccurate information, thus rendering his death sentence unreliable under the Eighth Amendment; and (5) the use of the report violated his Fourteenth Amendment due process rights. The first claim was raised on direct appeal and has been exhausted; the remaining claims, however, were either raised for the first time in the federal habeas petition or in the state post-conviction proceedings where they were deemed procedurally defaulted.

In rejecting his self-incrimination argument, the Oklahoma Court of Appeals stated:

As part of the sentencing process, the trial court had before it a presentence report which was ordered at the specific request of Petitioner. In the process of compiling the report, the Corrections officer in charge of the case spoke to Petitioner. Petitioner told the officer his version of the facts, which was consistent with his testimony at the Smith trial. He also admitted to the commission of many other crimes. He now complains that the statements contained in the presentence report were in contravention of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that consideration of the report by the trial court was in direct conflict with the Supreme Court decision of Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. .2d 359 (1981). We do not find this to be the case.

In Estelle, the Court was concerned with the ramifications of statements made by a criminal defendant during a court ordered psychiatric examination. It held:

A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.

Id. at 468, 101 S. Ct. at 1876. The Court specifically noted that this holding would not apply to a case where the defendant initiated the examination or sought to introduce the evidence himself.

We find that to be that case here. The presentence report was requested by Petitioner. He signed the Summary of Facts indicating that he wanted the trial court to review that report prior to sentencing. He did not object to the report at any time prior to this appeal. Any error which may have occurred was waived through Petitioner's request for the report and subsequent failure to object prior to the trial court's review of the document.

Berget, 824 P.2d at 375-76.

Contrary to Mr. Berget's assertions, we conclude the approach taken by the Oklahoma Court of Criminal Appeals is entirely consistent with federal law, as determined by the United States Supreme Court. We are therefore bound by its decision.

Mr. Berget's Sixth Amendment claim appears to have been raised for the first time in his federal habeas petition and, therefore, this claim is barred for failure to exhaust state remedies. A claim that is sought in federal court on habeas corpus must first be fairly presented to the state courts, thus giving those courts the first opportunity to consider the claim. See 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State [or] there is an absence of available State corrective process [or] circumstances exist that render such process ineffective to protect the rights of the applicant.").

Moreover, our examination of the record has found no express waiver of the exhaustion requirement from the State. See 28 U.S.C. § 2254(b)(3) ("A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.").

However, the State did not raise failure to exhaust; therefore, the issue has not been addressed by the Petitioner. Nonetheless, the argument on the merits presented by him is summary and not persuasive. He merely asserts:

An equally compelling constitutional problem with the presentence investigation is that the person who interviewed [Mr. Berget] for the report failed to advise him of his "Miranda" rights. [Mr. Berget's] statements were then incorporated into the report and construed against him. That was in violation of [Mr. Berget's] Fifth Amendment right against self-incrimination, and against his Sixth Amendment right to assistance of counsel.

(emphasis added). We have repeatedly warned litigants that unsupported issues adverted to in a perfunctory manner and without developed argumentation are deemed waived on appeal. See, e.g., Lafevers, --- F.3d at ---; United States v. Kunzman, 54 F.3d 1522, 1534 (10th Cir. 1995). This passing and unsupported reference is no different.

Mr. Berget then transmogrifies his Sixth Amendment "argument" into a confrontation clause argument. Again, however, he fails to develop or support the point, simply stating: "The Sixth Amendment violation occurred because Roger Berget did not have a sufficient and meaningful opportunity to confront the evidence contained in the presentence report." We deem the argument waived on appeal.

Mr. Berget's Eighth Amendment claim also must be deemed waived on appeal. It appears to have been raised for the first time in the federal habeas petition, and neither the State nor the federal district court addressed it. The petitioner simply arrogates: "The use of the report was contrary to state law and, because it was full of inaccurate information, it rendered the death sentence unreliable under the Eighth Amendment." No authority is cited for this proposition.

Petitioner's due process argument is procedurally defaulted. He did not raise it on his direct appeal, and it was found to be procedurally defaulted in the state post-conviction proceedings on an independent and adequate state law ground. Therefore, there is a procedural default for purposes of federal habeas. See Lafevers, --- F.3d at ---, 1999 WL 394508, at *15. To overcome the procedural default, the petitioner must either demonstrate "cause and prejudice" or a "miscarriage of justice," that is, a colorable showing of factual innocence. Mr. Berget makes no attempt at the latter, and his efforts to show cause and prejudice are inadequate. He simply states, with no analysis or citation to case law, that the due process claim "was not raised in the direct appeal due to the ineffective assistance of appellate counsel." We decline to accept the unstated invitation to research and develop the contention because doing so is beyond our function.⁽⁴⁾

III
Did the State Violate Due Process and the Eighth Amendment When it Failed to Provide the Petitioner With Notice of "Other Evidence" it Intended to Use in Support of the Death Penalty?

Mr. Berget claims the State violated his Fourteenth Amendment due process rights when it failed to provide him with notice of other evidence offered in support of the death penalty. This claim was first raised in his state habeas where it was deemed procedurally defaulted on an independent and adequate state ground. Therefore, there is a procedural default for purposes of federal habeas. To overcome the procedural default, the Petitioner must either demonstrate "cause and prejudice" or a "miscarriage of justice." Mr. Berget makes no attempt at the latter but instead tries to demonstrate cause and prejudice via an ineffective assistance of appellate counsel claim.

To be sure, one can be denied due process of law when a "death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Gardner v. Florida, 97 S. Ct. 1197, 1207 (1977) (emphasis added). But that is not the situation here. Mr. Berget does not claim the sentencing court relied upon secret information never disclosed on the record, as in Gardiner. Indeed, the state's evidence was presented at a hearing at which Mr. Berget was present and had the opportunity to be heard by the state judge. The state's use of facts, previously disclosed or not, in support of the sentence aggravation did not deny him of that opportunity. Moreover, the duty vested upon a state prosecutor to make a specific disclosure of witnesses and evidence is not a requirement of federal law, but of the law of the state of Oklahoma. See Title 21, Section 701.10, Oklahoma Statutes.

In a related claim, Mr. Berget claims the State violated his Eighth Amendment rights when it failed to provide him with a pretrial notice of the same evidence. This claim is only referred to in passing. The entire argument is:

Additionally, because the State violated its obligation to provide notice of the aggravation punishment, any confidence in the reliability of the death sentence is undermined. Accordingly, it is violative of the Eighth Amendment to the United States Constitution.

With the disclosure on the record of aggravating facts supporting the death penalty, we see no resultant infirmity in his sentence just because the state did or did not comply with the state statute mandating pretrial disclosure.

V
Did the State Trial Court Violate the Fourteenth Amendment Due Process Clause by Relying on Unadjudicated Offenses During the Penalty Phase?

Mr. Berget asks us to hold the state trial court violated his Fourteenth Amendment right to due process by relying on unadjudicated offenses during the penalty phase. We have already rejected this argument. See Lafevers, --- F.3d at ---, 1999 WL 394508, at *18; Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir. 1999); Williamson v. Ward, 110 F.3d 1508, 1523 (10th Cir. 1997); Hatch v. State of Okla., 58 F.3d 1447, 1465-66 (10th Cir. 1995). Despite Petitioner's extended argument seeking a contrary result here, we cannot reverse this precedent.

VI
Is the "Continuing Threat" Aggravator Unconstitutionally Vague or Overbroad?

In another vain effort, Petitioner claims Oklahoma's "continuing threat to society" aggravator is both unconstitutionally vague and overbroad. Our decisions in Ross v. Ward, 165 F.3d 793 (10th Cir. 1999), Castro v. Ward, 138 F.3d 810 (10th Cir. 1998), and Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir. 1997), have previously addressed this argument and therefore require that we reject it.

VII
Was Trial Counsel Ineffective?

Mr. Berget next claims his trial counsel was ineffective in several respects, which we address seriatim below. Petitioner did not raise these claims until his state post-conviction proceeding resulting in a finding by the Oklahoma Court of Criminal Appeals that they were procedurally barred. Consequently, the State argues the claims are also procedurally barred in federal court.

In English v. Cody, 146 F.3d 1257, 1263 (10th Cir. 1998), we set forth a framework for determining whether the state procedural bar to an ineffective assistance of trial counsel claim was adequate for purposes of federal habeas:

[T]he Oklahoma bar will apply in those limited cases meeting the following two conditions: trial and appellate counsel differ; and the ineffectiveness claim can be resolved upon the trial record alone. All other ineffectiveness claims are procedurally barred only if Oklahoma's special appellate remand rule for ineffectiveness claims is adequately and evenhandedly applied.

Id. at 1264.

The first element of the English paradigm is met in this case because the petitioner had different counsel for trial and his direct appeal. Whether the second element is satisfied depends on the nature of the claim asserted; therefore, we address that aspect of the test on each of Mr. Berget's ineffectiveness claims.

Petitioner first claims his trial counsel had a conflict of interest. Apparently, trial counsel had been acquainted with a man named Jim Meadows, who had allegedly been killed by Mr. Berget. The Petitioner had not been charged with crime but was a suspect. Trial counsel knew Jim Meadows because he had represented Meadows' stepson in an unrelated matter.

This first claim fails the second element of English because it cannot be resolved upon the trial record alone. Although we could remand for a determination of whether "Oklahoma's special appellate remand rule for ineffectiveness claims is adequately and evenhandedly applied," we choose to address the claim de novo on the merits.⁽⁵⁾

In United States v. Gallegos, 39 F.3d 276, 277-78 (10th Cir. 1994), we articulated the fundamental principles that govern claims of impermissible conflict of interest:

The Sixth Amendment, of course, entitles a defendant in a criminal case to the effective assistance of counsel. . . . It is further clear that the right to counsel includes the "right to representation that is free from conflicts of interest."

To succeed on a claim of conflict of interest, "a defendant must show that counsel actively represented conflicting interests and that the conflict of interest adversely affected his lawyer's performance." United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995) (citing Cuyler v. Sullivan, 446 U.S. 335, 346 (1980)).

Nothing in the record supports the assertion that trial counsel's acquaintance with Jim Meadows had any impact on his representation of Mr. Berget or that there were conflicting interests actually represented by counsel. Indeed, the only proffer to the contrary is the Petitioner's inadequately supported assertion that his trial counsel and Jim Meadows were "good friends." Because Mr. Berget has failed to demonstrate either an actual conflict or adverse effect upon the level of representation, this claim must fail.

Petitioner next alleges his trial counsel was ineffective for failing to request a competency evaluation. Specifically, Mr. Berget contends his attorney should have been alerted to potential mental instability affecting his competence by the fact he refused to sign a Summary of Facts form during the sentencing hearing, agreed to testify at Mikell Smith's trial and implicate himself to protect Smith, and attempted suicide after he pleaded guilty.

This contention satisfies both elements of the English test and is therefore procedurally barred. First, counsel at trial and on appeal differed. Second, the evidence offered in support of this claim was known to the trial court. Therefore, because the claim has been defaulted in state court on an independent and adequate state procedural ground, the Petitioner must demonstrate cause and prejudice or a fundamental miscarriage of justice to proceed with this claim. Mr. Berget attempts to do neither.⁽⁶⁾ This claim therefore fails.

Petitioner next claims his trial counsel was ineffective for failing to discover a South Dakota psychiatric report which was prepared while Mr. Berget was in a juvenile facility. Mr. Berget asserts the report "would have shed valuable light onto the issue of [his] upbringing." Because this claim relies on information outside the trial record, and thus fails the second element of English, we would normally address it on the merits. However, such an undertaking is impossible because the Petitioner failed to submit a copy of the report to the federal district court or to us. Because there is insufficient information in the record upon which to base any judgment, we reject the claim.

Mr. Berget next claims his trial counsel was ineffective during the penalty phase because he did not call enough witnesses in mitigation and did not properly prepare those witnesses who were called. He theorizes more witnesses and those who did appear, if properly coached, would have presented more evidence of his history of family abuse and abuse in juvenile homes. These claims are based on evidence from outside the trial record, requiring us to address them de novo.

The federal district court concluded, and we agree, that Mr. Berget has failed to show how the testimony of more witnesses would have altered the outcome of the case. The defense presented testimony from the Petitioner's father, mother, sister, a childhood friend, and the mother of his child. Each testified regarding his difficult childhood and his positive qualities as a person. More testimony in this vein would not have outweighed the State's evidence in aggravation. Petitioner had been previously convicted as an adult of robbery with firearms in Oklahoma and first-degree robbery in South Dakota. Moreover, he had recently pleaded guilty to a number of home invasion robberies where residents were awakened and held at gunpoint.

Finally, he admitted he killed Rick Patterson for the sole purpose of taking his automobile and eliminating any witnesses. It is not reasonable to assume that, given the nature and circumstances of the crime, the mitigating evidence alleged to have been improperly omitted would have altered the outcome of the case. Lastly, "[w]e have on numerous occasions determined that evidence of a troubled childhood involving physical, emotional, sexual and/or substance abuse does not outweigh evidence supporting the conviction and evidence supporting multiple aggravating circumstances; nor does evidence of low I.Q. and/or organic brain damage." Foster v. Ward, --- F.3d ---, ---, 1999 WL 459259, at *8 (10th Cir. 1999) (listing cases). Mr. Berget has not shown his case is an exception. Counsel was not ineffective for choosing not to present more witnesses in mitigation.

VIII
Was Appellate Counsel Ineffective?

Mr. Berget next claims his appellate counsel was ineffective in several respects. Specifically, the Petitioner contends his appellate counsel: (1) operated under a conflict of interest because he was employed with and had friendships with trial counsel; (2) failed to appeal his guilty pleas on first-degree burglary and possession of a firearm, which were crimes used to support the death penalty; (3) failed to raise claims of ineffective assistance of trial counsel; (4) failed to appeal the State's failure to provide notice of evidence used to support the death penalty; (5) failed to "effectively" present errors regarding the admission of transcripts from Mikell Smith's trial; (6) failed to allege prosecutorial misconduct; and (7) failed to raise an Enmund claim, that is, argue the death penalty cannot apply because he only aided and abetted the crime.

Mr. Berget maintains there was an impermissible conflict of interest between his appellate counsel and trial counsel, such that counsel's performance on appeal was constitutionally infirm. Both appellate and trial counsel were employed by the Oklahoma County Public Defender's Office. Indeed, the Petitioner claims, the attorneys were "not only colleagues, but they are friends and regularly work together." The conflict is "obvious--[appellate counsel] failed to raise significant issues on direct appeal that likely would have given [Mr. Berget] relief" for fear of (presumably) upsetting his colleagues.

The Oklahoma Court of Criminal Appeals addressed this argument and rejected it:

He first alleges a conflict of interest prevented presentation of the ineffective assistance of counsel claim on direct appeal because appellate and trial counsel were both employees of the Oklahoma County Public Defender's Office. In Moore, 889 P.2d at 1258, n.3, we found no ineffective assistance based on the claim that trial and appellate counsel were from the same indigent defense entity. As in Moore, Petitioner here presents no evidence of conflict between the trial and appellate counsel. These unsubstantiated assertions, without more, are insufficient to sustain a claim of error. We find this contention to be without merit.

Berget, 907 P.2d at 1086.

When reviewing a claim already decided by the state courts on the merits, we are bound to deny relief unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) (emphasis added). Mr. Berget has shown neither. First, he does not cite a single Supreme Court case that supports his contentions. Second, Mr. Berget does not challenge the state court's factual findings. Having been given no reason to question the state court's adjudication, we must reject this first claim.⁽⁷⁾

Mr. Berget next claims his appellate counsel was ineffective for failing to appeal his guilty pleas on first-degree burglary and possession of a firearm. Those crimes were used to support aggravating circumstances in the penalty phase and, thus, the Petitioner would like to have them expunged and the matter remanded. This claim was also addressed on the merits by the Oklahoma courts:

Included in [his] "laundry list" of errors is the claim that appellate counsel failed to appeal Petitioner's four burglary and firearm possession convictions. Petitioner now claims that appellate counsel did not raise issues or make arguments regarding the five non-capital cases which would have warranted reversal of these convictions. However, Petitioner does not now present those alleged arguments warranting consideration or reversal. We find this argument unpersuasive, especially in light of our determination in Petitioner's direct appeal that the pleas to the non-capital offenses were knowingly and voluntarily entered. Berget, 824 P.2d at 371.

Berget, 907 P.2d at 1086.

Petitioner's attempts to attack the Oklahoma court's judgment fall short. He merely incorporates by reference over 44 pages of argument raised in the district court. This is something he may not do. See Listenbee v. Apfel, 173 F.3d 863, 1999 WL 149748, at *1 n.1 (10th Cir. 1999) (unpublished disposition) ("Federal Rule of Appellate Procedure 28(a)(9)(A) requires that an appellant's argument contain her 'contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.' The rule makes no provision for incorporation by reference of arguments made in the district court."); United States v. Gabriele, 106 F.3d 414, 1998 WL 31543, at *1 n.1 (10th Cir. 1997) (same); Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) ("[V]ague, arguable references to [a] point in the district court proceedings do not preserve the issue on appeal."); Graphic Controls Corp. v. Utah Med. Prods., Inc., 149 F.3d 1382, 1385 (Fed. Cir. 1998) (construing substantially similar Fed. R. App. P. 28(a)(6) to prohibit incorporation by reference). To permit otherwise would effectively eliminate our page-limit rules. In sum, this claim, which goes unsupported by adequate argument, must be rejected.

Mr. Berget posits in very general terms that his appellate counsel was ineffective for failing to raise claims of ineffective assistance of trial counsel. His arguments here simply reincorporate the claims of ineffective assistance of trial counsel, which we have already rejected.

Petitioner further claims his counsel was ineffective for not appealing the State's failure to provide notice of "other evidence" used to support the death penalty. The Oklahoma Court of Criminal Appeals rejected the claim, stating:

Petitioner next claims error alleging appellate counsel did not appeal the State's failure to give notice of the evidence used in support of the aggravating circumstances. Even were we to consider this proposition, which Petitioner has waived by failing to raise it on direct appeal, and even if we determined that the evidence used should have been excluded with respect to the continuing threat and previous felony convictions involving use or threat of violence, there were two additional aggravators found here, sufficient to support imposition of the death penalty. We find the claim is waived and there is no error here.

Berget, 907 P.2d at 1086-87. The petitioner has presented no argument to suggest the contrary.

Petitioner next claims his counsel failed on appeal to "effectively" present errors regarding the admission of transcripts from Mikell Smith's trial. Mr. Berget testified during Smith's trial, where he implicated himself in the murder of Rick Patterson. The state trial court admitted a transcript of that testimony in Mr. Berget's proceedings. The Petitioner claims the court erred by taking judicial notice of the evidence and that the court was biased because it actively sought such testimony.

Both arguments were addressed by the Oklahoma Court of Appeals:

In his first assignment, Petitioner contends that the transcript of his testimony in the trial of his accomplice, Mikell Smith, was improperly offered as evidence in the second stage of the proceedings by judicial notice without his stipulation. He concludes that this collateral testimony was the only evidence which could be offered to support the existence of a factual basis for his guilty plea. On appeal, he asks this Court to accept his claim that the evidence was improperly admitted at trial and hold that without this evidence the guilty plea was unsupported by a factual basis and thus, unconstitutional. We cannot agree with Petitioner's logic.

Petitioner's argument is based wholly on his claim that the transcript from the Smith trial was entered into evidence through the process of judicial notice, recognized at 12 O.S.1981, § 2201 et seq. He relies on Linscome v. State, 584 P.2d 1349 (Okl. Cr. 1978), in support of his allegation that the trial court improperly took judicial notice of the testimony without his express consent.⁽⁸⁾

Our review of the proceedings lead us to conclude that the doctrine of judicial notice is not implicated in the present case.

Id. at 1350.

The transcript of the sentencing bears out the fact that the court did not admit the previous testimony on the strength of judicial notice.

. . . .

We find that the testimony given by Petitioner in the trial of his partner in this crime was properly admitted as evidence in the present case. There was no objection to the admission into evidence of the transcripts at the time of trial. In fact, just the opposite is true. Accordingly, Petitioner has waived his right to complain about the consequences of this evidence on appeal. Green v. State, 713 P.2d 1032, 1039 (Okl. Cr. 1985). We have reviewed the record for fundamental error and find none. There is no error identified here.

Berget, 824 P.2d at 368-69.

Mr. Berget offers no argument to suggest the Oklahoma court's decision is contrary to Supreme Court precedent. Therefore, the claim must fail.

Next, the petitioner argues his counsel was ineffective for failing to raise on appeal prosecutorial misconduct. Specifically, he contends the prosecutors made several inappropriate comments during the sentencing proceeding, including: (1) arguing Mr. Berget was in control of Mikell Smith, "when they knew or should have known the evidence is to the contrary"; (2) improperly arguing about the victim's state of mind to prove the crime was heinous, atrocious and cruel; (3) improperly arguing about the state of mind of Mr. Berget and Mikell Smith; and (4) improperly arguing about the impact the crime had on the victim's family.

Once again, the Oklahoma courts considered and rejected the claim:

Petitioner's claim of failure to raise prosecutorial misconduct is inapposite here because, as noted by Petitioner, this was not a jury trial. Additionally, the argument was waived when it was not raised on direct appeal. More importantly, Petitioner shows no prejudice indicating that the result of the sentencing would have been different if the statements had not been made. We will not modify or reverse a sentence or a conviction unless we find not only error, but some prejudicial effect resulting from that error. Elmore v. State, 846 P.2d 1120, 1123 (Okl. Cr. 1993); Crawford v. State, 840 P.2d 627, 634 (Okl. Cr. 1992); Gates v. State, 754 P.2d 882 (Okl. Cr. 1988); Hall v. State, 762 P.2d 264 (Okl. Cr. 1988); Harrall v. State, 674 P.2d 581, 584 (Okl. Cr. 1984). We find this argument to be meritless.

Berget, 907 P.2d at 1087.

To persuade us to consider this issue, Petitioner offers no argument based on Supreme Court precedent, or any other federal case law for that matter, to show that such comments are improper and violate the United States Constitution. Therefore, we must reject this claim.

In his last claim of ineffectiveness, Mr. Berget argues his appellate counsel should have raised an Enmund v. Florida, 458 U.S. 782, 787-88 (1982), claim that the death penalty cannot apply to him because he only aided and abetted the crime. In Enmund, the Supreme Court held imposition of the death penalty was improper for a person who aids and abets a felony but does not personally kill, attempt to kill, or intend that a killing result. Petitioner argues his counsel erred by failing to assert this claim because there is "no evidence whatsoever that Roger Berget attempted to kill the victim, or that he was the triggerman [and] there is scant evidence that [Mr. Berget] intended for someone to be killed or that he acted with reckless indifference to Smith's conduct."

The Oklahoma courts rejected the claim, stating:

Petitioner next claims appellate counsel erred in failing to raise an Enmund claim. We determined on direct appeal that Petitioner admitted killing Patterson both in his statements to police and in the Bulldog Smith trial testimony (Berget, 824 P.2d at 370-371) and that there was more than sufficient evidence of Petitioner's intent to avoid arrest and prosecution by killing Patterson. Had Petitioner not waived this claim on direct appeal (and we find that he has), we would still find no error, having previously determined there was sufficient evidence of his participation in Patterson's death.

Berget, 907 P.2d at 1087.

Mr. Berget's arguments to the contrary consist of nothing more than unsupported assertions. His claims that "no evidence" and "scant evidence" existed fail to adequately address and counter the state court's factual findings. Mr. Berget must demonstrate the state court's conclusion "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). This he has not done, and we must thus reject this contention.

IX
Were There Cumulative Errors That Resulted in an Unfair Trial?

Petitioner asserts the accumulation of all the errors committed in his case entitles him to habeas relief. Because we have noticed no errors in the proceedings, there can be no cumulative error. "Cumulative error analysis applies where there are two or more actual errors; it does not apply to the cumulative effect of non-errors." Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998).

X
Was Petitioner Entitled to an Evidentiary Hearing?

Finally, Mr. Berget argues the federal district court erred in denying him an evidentiary hearing on his claims. In Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998), we held that the AEDPA's restriction on evidentiary hearings does not apply where a habeas petitioner has "diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so." Mr. Berget claims his case falls within this exception and AEDPA does not apply. Even were it true that Petitioner was prevented from developing his claims in state court, he is still not entitled to a federal evidentiary hearing under the pre-AEDPA standard. His allegations, taken as true, still would not entitle him to habeas relief. See id. at 1253.

CONCLUSION

Finding no reversible error, we AFFIRM the judgment of the district court.

ENTERED FOR THE COURT

John C. Porfilio

Circuit Judge

*****

FOOTNOTES

^*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

^**. Petitioner suggests he raised his factual innocence in a response to a "Summary of Facts" form. That form asked the Petitioner: "Do you plead guilty because you did the acts charged?" Mr. Berget answered "No." Petitioner signed the form on the day the court accepted his plea, but after the actual plea hearing. Notably, when asked a similar question during the plea proceedings, Mr. Berget responded differently. The trial court asked, following a discussion of the murder charge, "[D]o you plead guilty because you did what you're charged with doing in each of those cases?" Mr. Berget answered "[y]es, sir." We do not think his response on the "Summary of Facts" form constitutes a claim of factual innocence. First, given his statements in open court, his written response is at best equivocal, and it hardly rises to the level of a protest of factual innocence. Second, his purported claim of innocence did not occur during the plea hearing.

^3. At oral argument, counsel sought to expand this appeal by arguing Petitioner's guilty plea was invalid because the trial court did not inform the Petitioner of the elements of the crimes to which he was pleading guilty. The challenge was neither raised before the federal district court nor (more importantly) briefed on appeal; therefore, it comes too late to merit our attention. See United States v. Brown, 164 F.3d 518, 521 n.3 (10th Cir. 1998).

^4. To the extent counsel believe the word limitation visited upon them by the Rules of Appellate Procedure are responsible for such summary effort, we note those limitations do not prevent at least the citation of supporting authority. The court is never persuaded by bald assertions of counsel bereft of authentication.

^5. We treat all other claims with the same deficiency that follow in a similar manner. Instead of remanding, we elect to affirm the district court's decision following a review of the merits of the claim.

^6. To be sure, in his argument captioned "Ineffective Assistance of Appellate Counsel," Mr. Berget contends his appellate counsel was ineffective for failing to raise the ineffective assistance of trial counsel on appeal. That argument, however, is stated in very general terms, and Mr. Berget does not once address such a claim in the context of this competency evaluation claim. Therefore, we cannot find that the Petitioner has demonstrated cause and prejudice via ineffective assistance of appellate counsel. In any event, even if we were to construe his ineffectiveness claim liberally and on the merits, we would reject it for the reasons stated in Part VII of this Order and Judgment.

^7. We further note in passing that Mr. Berget calls this claim an "apparent conflict of interest," something not redressable by the case law. The Supreme Court requires an actual conflict of interest. See Cuyler v. Sullivan, 446 U.S. 335, 346 (1980).