COLE v. STATE

COLE v. STATE Skip to Main Content Accessibility Statement Help Contact Us e-payments Careers Home Courts Decisions Programs News Legal Research Court Records Quick Links OSCN Found Document:COLE v. STATE Previous Case Top Of Index This Point in Index Citationize Next Case Print Only COLE v. STATE 2021 OK CR 28 Case Number: PCD-2020-529 Decided: 10/07/2021 BENJAMIN ROBERT COLE, SR., Petitioner v. THE STATE OF OKLAHOMA, Respondent Cite as: 2021 OK CR 28, __ __ OPINION DENYING POST-CONVICTION RELIEF AND DENYING MOTION TO STAY PROCEEDINGS ¶1 Benjamin Robert Cole, Sr. was tried by jury and convicted of First Degree Murder in the District Court of Rogers County, Case No. CF-2002-597. In accordance with the jury's recommendation the Honorable J. Dwayne Steidley sentenced Petitioner to death. Petitioner appealed his conviction and sentence in Case No. D-2004-1260, and this Court denied relief. Cole v. State , 2007 OK CR 27, 164 P.3d 1089. Petitioner previously sought post-conviction relief and was denied the same by this Court. See Cole v. State , Case No. PCD-2005-23 (Okl.Cr. Jan. 24, 2008)(unpublished) and Cole v. State , Case No. PCD-2020-332 (Okl.Cr. May 29, 2020)(unpublished). For the third time, Petitioner seeks post-conviction relief from this conviction and sentence. ¶2 The Capital Post-Conviction Procedure Act, 22 O.S.2011, § 1089(D)(8) provides for the filing of successive post-conviction applications. The statutes governing our review of second or successive capital post-conviction applications provide even fewer grounds to collaterally attack a judgment and sentence than the narrow grounds permitted in an original post-conviction proceeding. Sanchez v. State , 2017 OK CR 22, ¶ 6, 406 P.3d 27, 29. ¶3 In his sole proposition, Petitioner claims the District Court of Rogers County lacked jurisdiction to try him. Petitioner argues that his daughter, B.C., had some quantum of Cherokee blood and her murder occurred within the boundaries of the Cherokee Nation. He relies upon McGirt v. Oklahoma , 591 U.S. __, 140 S. Ct. 2452 (2020), in support of his claim. ¶4 Although this Court initially granted Petitioner relief based upon this proposition after an evidentiary hearing in district court, 1 we subsequently decided State ex rel. Mark Matloff, District Attorney v. The Honorable Jana Wallace , Associate District Judge , 2021 OK CR 21, __ P.3d __, and denied retroactive application of McGirt to cases on collateral review. Thereafter, prior to issuance of the mandate, the order granting post-conviction relief was withdrawn in this case. 2 ¶5 In Matloff , we began our consideration of the retroactivity issue by finding, " McGirt announced a rule of criminal procedure . . . to recognize a long dormant (or many thought, non-existent) federal jurisdiction over major crimes committed by or against Indians in the Muscogee (Creek) Reservation." Id. , at ¶ 26. This rule affected only the method of deciding a criminal defendant's culpability, therefore, it was a procedural ruling. Id ., at ¶ 27. We further found that the McGirt rule was new because it broke new ground, imposed new obligations on both the state and the federal governments and the result was not required by precedent existing when the conviction at issue in Matloff was final. Id. , at ¶ 28. ¶6 In reaching our decision on the non-retroactivity of McGirt , this Court held that our authority under state law to constrain the collateral impact of McGirt and its progeny "is consistent with both the text of the opinion and the Supreme Court's apparent intent . . . The Supreme Court itself has not declared that McGirt is retroactive to convictions already final when the ruling was announced." Id ., at ¶ 33. Ultimately, we held in Matloff that " McGirt and our post- McGirt reservation rulings shall not apply retroactively to void a final state conviction . . ." Id. , at ¶ 40. ¶7 Applying Matloff to the instant case, we find Petitioner's claim in this successive post-conviction proceeding warrants no relief. DECISION ¶8 Petitioner's Application for Post-Conviction Relief and Motion for Stay of Proceedings are DENIED . Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2021), the MANDATE is ORDERED issued upon the delivery and filing of this decision. APPEARANCES AT EVIDENTIARY HEARING MICHAEL W. LIEBERMAN THOMAS D. HIRD ASST. FEDERAL PUBLIC DEFENDERS 215 DEAN A. MCGEE AVE., #707 OKLAHOMA CITY, OK 73102 COUNSEL FOR PETITIONER MATTHEW J. BALLARD DISTRICT ATTORNEY 210 W. DELAWARE, STE. 202 VINITA, OK 74301 COUNSEL FOR RESPONDENT MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA RANDALL YOUNG JULIE PITTMAN ASST. ATTORNEYS GENERAL 313 N.E. 21ST ST. OKLAHOMA CITY, OK 73015 COUNSEL FOR RESPONDENT SARA HILL CHRISSI NIMMO CHEROKEE NATION, OFFICE OF THE ATTORNEY GENERAL P.O. BOX 1533 TAHLEQUAH, OK 74465 COUNSEL FOR THE CHEROKEE NATION APPEARANCES ON APPEAL MICHAEL W. LIEBERMAN THOMAS D. HIRD ASST. FEDERAL PUBLIC DEFENDERS 215 DEAN A. MCGEE AVE., #707 OKLAHOMA CITY, OK 73102 COUNSEL FOR PETITIONER MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA RANDALL YOUNG ASST. ATTORNEY GENERAL 313 N.E. 21ST ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR RESPONDENT OPINION BY LUMPKIN, J. ROWLAND, P.J.: Concur HUDSON, V.P.J.: Concur LEWIS, J.: Concur FOOTNOTES 1 Cole v. State , 2021 OK CR 10, 492 P.3d 11. 2 Cole v. State , 2021 OK CR 26, __ P.3d __. Citationizer © Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Court of Criminal Appeals Cases Cite Name Level 2007 OK CR 27, 164 P.3d 1089, COLE v. STATE Discussed 2017 OK CR 22, 406 P.3d 27, SANCHEZ v. STATE Discussed 2021 OK CR 10, WITHDRAWN Cited 2021 OK CR 21, STATE ex rel. MATLOFF v. WALLACE Cited 2021 OK CR 26, COLE v. STATE Cited Title 22. 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