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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
HOUSE BILL 3383 By: Moore
AS INTRODUCED
An Act relating to criminal procedure; amending 22
O.S. 2021, Section 1080 , which relates to the Post-
Conviction Procedure Act; requiring persons filing
writs of habeas corpus to utilize procedures provided
in the Post-Conviction Procedure Act; establishing
time limitation for filing original or subs equent
application for post-conviction relief; providing
guidelines when determining the beginning of
limitation period; making application and time
limitation provisions applicable to pending post-
conviction applications and post-conviction
applications filed on or after certain effective
date; amending 22 O.S. 2021, Section s 1086 and 1089,
which relate to the Post-Conviction Procedure Act;
requiring claims challenging a trial court's
jurisdiction to be raised in the original,
supplemental or amended application for post-
conviction relief; clarifying manner in which the
Court of Criminal Appeals may consider the merits of
or grant relief based on an application; providing
for codification; and providing an effective date .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 22 O.S. 2021, Section 1080, is
amended to read as follows:
Section 1080. Any person who has been convicted of, or
sentenced for, a crime and who claims:
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(a) that 1. That the conviction or the sentence was in
violation of the Constitution of the Unite d States or the
Constitution or laws of this state;
(b) that 2. That the court was without jurisdiction to impose
sentence;
(c) that 3. That the sentence exceeds the maximum a uthorized by
law;
(d) that 4. That there exists evidence of material facts, not
previously presented and heard, that requires vacation of the
conviction or sentence in the interest o f justice;
(e) that his 5. That the sentence has expired, his the
suspended sentence, probation, p arole, or conditional release
unlawfully revoked, or he or she is otherwise unlawfully held in
custody or other restraint; or
(f) that 6. That the conviction or sentence is otherwise
subject to collateral attack upon any ground of alleged error
heretofore available under any common law, statutory or other writ,
motion, petition, proceeding or remedy;,
may institute a proceeding under this act the Post-Conviction
Procedure Act in the court in which the judgment and sentence on
conviction was imposed to secure the appropriate relief. Excluding
a timely appeal, this act the Post-Conviction Procedure Act
encompasses and replaces all common law and statutory methods of
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challenging a conviction or sentence including, but not limited to,
writs of habeas corpus .
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1080.1 of Title 22, unless there
is created a duplication in numbering, reads as follows:
A. A one-year period of limitation shall apply to the filing of
any application for post -conviction relief, whether an original
application or a subsequent application . The limitation period
shall run from the latest of:
1. The date on which the judgment of conviction or revocation
of suspended sentence became final by the conc lusion of direct
review by the Oklahoma Court of Criminal Appeals or the expiration
of the time for seeking such review by the Oklahoma Court of
Criminal Appeals;
2. The date on which the Governor revoked parole or conditional
release, if the petitioner is challenging the lawfulness of said
revocation;
3. The date on which any impediment to filing an application
created by a state actor in violation of th e Constitution of the
United States or the Const itution of the State of Oklahoma, or laws
of the State of Oklahoma, is removed, if the petitioner w as
prevented from filing by such action;
4. The date on which the constitutional r ight asserted was
initially recognized by the United States Supreme Court, if the
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right has been newly reco gnized by the United States Supreme Court
and made retroactively applicable to cases on collateral review; or
5. The date on which the factual predi cate of the claim or
claims presented could have b een discovered through the exercise of
due diligence.
B. Subject to the exceptio ns provided for in this section, this
limitation period shall apply irrespective of the nature of the
claims raised in the application and shall include juris dictional
claims that the trial court lacked subject -matter jurisdiction.
C. The provisions of this section shall apply both to any post-
conviction application filed on or after the effe ctive date of this
act and to any post-conviction application pending on the effective
date of this act.
SECTION 3. AMENDATORY 22 O.S. 2021, Section 1086, is
amended to read as follow s:
Section 1086. All grounds for relief availa ble to an applicant
under this act the Post-Conviction Procedure Act, including claims
challenging the jurisdiction of the trial court, must be raised in
his or her original, supplemental or amended applicatio n. Any
ground finally adjudicated or not so raise d, or knowingly,
voluntarily and intellig ently waived in the proceeding that resulted
in the conviction or sentence or in any other proceeding the
applicant has taken to secure reli ef may not be the basis f or a
subsequent application, unless the court find s a ground for relief
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asserted which for sufficient reason was not asserted or was
inadequately raised in the prior applicati on.
SECTION 4. AMENDATORY 22 O.S. 2021, Section 1089, i s
amended to read as follows:
Section 1089. A. The application for post-conviction relief of
a defendant who is under the sent ence of death in one or more counts
and whose death sentence has been affirmed or is being reviewe d by
the Court of Criminal App eals in accordance with the provisions of
Section 701.13 of Title 21 of the Oklahoma Statutes sh all be
expedited as provided in this section. The provisions of this
section also apply to noncapital sentences in a case in whic h the
defendant has received o ne or more sentences of death.
B. The Oklahoma Indigent Defense System shall represent all
indigent defendants in capital cases seeking post-conviction relief
upon appointment by the appropriate district court after a hearing
determining the indigency of any such defendant. When the Oklahoma
Indigent Defense System or another attorney has been appo inted to
represent an indigent d efendant in an application for post -
conviction relief, the Clerk of the Court of Criminal Appeals shall
include in its notice to the district court clerk, as required by
Section 1054 of this title, that an additional certifi ed copy of the
appeal record is to be transmitted to the Oklahoma Indigent Defense
System or the other attorney.
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C. The only issues that may be raised in an ap plication for
post-conviction relief are those tha t:
1. Were not and could not have been raised in a direct appeal;
and
2. Support a conclusion either that the outcome of the trial
would have been different but for the error s or that the defendant
is factually innocent.
The applicant shall state in the application specific facts
explaining as to each claim why it was not or could not have been
raised in a direct appeal and how it supports a conclusion that the
outcome of the trial would have been differen t but for the errors or
that the defendant is fact ually innocent.
D. 1. The application for po st-conviction relief shall be
filed in the Court of Criminal Appeals within ninety (90) days from
the date the appellee 's brief on direct appeal is filed or, if a
reply brief is filed, ninety (90) days from the filing of that reply
brief with the Court of Criminal Appeals on the direct a ppeal.
Where the appellant's original brief on direct appeal has been filed
prior to November 1, 1995, and no application for p ost-conviction
relief has been filed, any applicat ion for post-conviction relief
must be filed in the Court of Criminal Appeals within one hundred
eighty (180) days of November 1, 1995. The Court of Criminal
Appeals may issue orders establishing briefing schedules or enter
any other orders necessary to e xtend the time limits under this
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section in cases where the original brief on direct appeal has been
filed prior to November 1, 1995.
2. All grounds for relief that were avail able to the applicant
before the last date on which an application could be time ly filed
not included in a timely application shall be deemed waived.
No application may be amended or supplemented after the time
specified under this section. Any amended or supplemental
application filed after the time specified under this section shal l
be treated by the Court of Criminal Appeals as a subsequent
application.
3. Subject to the specific limitations of this section, the
Court of Criminal Appeals may issue any orders as to discovery or
any other orders necessary to facilitate post-conviction review.
4. a. The Court of Criminal Appeals shall review the
application to determine:
(1) whether controverted, previously unresolved
factual issues material to the legalit y of the
applicant's confinement exist,
(2) whether the applicant's grounds were or could
have been previously raised, and
(3) whether relief may be granted u nder this act the
Post-Conviction Procedure Act.
b. For purposes of this subsection, a ground could not
have been previously rai sed if:
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(1) it is a claim of ineffective assistanc e of trial
counsel involving a factual basis that was no t
ascertainable through the exercise of reasonable
diligence on or before the time of the direct
appeal, or
(2) it is a claim contained in an original timely
application for post-conviction relief rel ating
to ineffective assistance of appellate counsel.
All claims of ineffective assistance of counsel shall be g overned by
clearly established law as determined by the United States Supreme
Court.
If the Court of Criminal Appeals determines that controvert ed,
previously unresolved factual issues material to the legality of the
applicant's confinement do not exist, o r that the claims were or
could have been previously raised, or that relief may not be granted
under this act the Post-Conviction Procedure Act and enters an order
to that effect, the Court shall make findings of fact and
conclusions of law or may order the parties to file proposed
findings of fact and conclusions of law for the Court to consider o n
or before a date set by the Court that is not later than thirty (30)
days after the date the order is issued. The Court of Criminal
Appeals shall make appropriate written findings of fact and
conclusions of law not later than fifteen (15) days after the date
the parties filed proposed findings.
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5. If the Court of Criminal Appeals determines that
controverted, previo usly unresolved factual issues material to the
legality of the applicant 's confinement do exist, and that the
application meets the other re quirements of paragraph 4 of this
subsection, the Court shall enter an order to the district court
that imposed the sentence designating the issues of fact to be
resolved and the method by which t he issues shall be resolved.
The district court shall not pe rmit any amendments or
supplements to the issues remanded by the Court of Criminal Appeals
except upon motion to and order of the Court of Criminal Appeals
subject to the limitations of this secti on.
The Court of Criminal Appeals shall retain jurisdiction of all
cases remanded pursuant to this act the Post-Conviction Procedure
Act.
6. The district attorney 's office shall have tw enty (20) days
after the issues are remanded to the district court within which to
file a response. The district court may grant one extension of
twenty (20) days for good cause s hown and may issue any orders
necessary to facilitate post -conviction review pursuant to the
remand order of the Court of Criminal Appeals. Any applications for
extension beyond the twenty (20) days shall be presented to the
Court of Criminal Appeals. If the district court determines that an
evidentiary hearing should be held, t hat hearing shall be held
within thirty (30) days from the date that the state filed its
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response. The district court shall file its decision together with
findings of fact and co nclusions of law with the Court of Criminal
Appeals within forty -five (45) days from the date that the state
filed its response or within forty -five (45) days from the date of
the conclusion of the evidenti ary hearing.
7. Either party may seek review by t he Court of Criminal
Appeals of the district court 's determination of the is sues remanded
by the Court of Criminal Appeals within ten (10) days from the entry
of judgment. Such pa rty shall file a notice of intent to seek
review and a designation of record in the district court within ten
(10) days from the entry of judgment. A c opy of the notice of
intent to seek review and the designation of the record shall be
served on the court reporter, the petitioner , the district attorney,
and the Attorney General, and shall be filed with the Court of
Criminal Appeals. A petition in error shall be filed with the Court
of Criminal Appeals by the party seeking review within thirty (30)
days from the entry of judgment. If an evidentiary hearing was
held, the court reporter shall prepare and file all transcripts
necessary for the appeal withi n sixty (60) days from the date the
notice and designation of record are filed. The petitioner 's brief-
in-chief shall be filed wi thin forty-five (45) days from the date
the transcript is filed in the Court of Criminal Appeals or, if no
evidentiary hearing was held, within forty -five (45) days from the
date of the filing of the notice. The respondent shall have twenty
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(20) days thereafter to file a response brief. The district cou rt
clerk shall file the records on appeal with the Court of Criminal
Appeals on or before the date the petitioner 's brief-in-chief is
due. The Court of Criminal Appeals shall issu e an opinion in the
case within one hundred twenty (120) days of the filing of the
response brief or at the time the direct appeal is decided. If no
review is sought within the time specified in this section, the
Court of Criminal Appeals may adopt the fi ndings of the district
court and enter an order within fifteen (15) days of the time
specified for seeking review or may order additional briefing by th e
parties. In no event shall the Court of Criminal Appeals grant
post-conviction relief before giving t he state an opportunity to
respond to any and all claims raised to the Court .
8. If an original application for post-conviction relief is
untimely or if a subsequent application for post -conviction relief
is filed after filing an original application, the Court of Criminal
Appeals may not consider the merits of or grant relief ba sed on the
subsequent or untimely original application , or a subsequent
application, unless:
a. the application contains claims and issues that have
not been and could not have bee n presented previously
in a timely original application or in a previously
considered application filed under this section,
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because the legal basis for the claim was unavailable,
or
b. (1) the application contains sufficient specific
facts establishing tha t the current claims and
issues have not and could not have been presented
previously in a timely origi nal application or in
a previously considered app lication filed under
this section, because the factual basis for the
claim was unavailable as it was not ascertainable
through the exercise of reasonable diligence on
or before that date, and
(2) the facts underlying the claim, if p roven and
viewed in light of the evidence as a whole, would
be sufficient to establish by clear and
convincing evidence that, bu t for the alleged
error, no reasonable fact finder would have found
the applicant guilty of the underly ing offense or
would have rendered the penalty of death.
The provisions of this paragraph shall apply irrespective of the
nature of the claims raised in the application and shall include
jurisdictional claims. The provisions of this paragraph shall also
apply to any post-conviction application filed on or after the
effective date of this act and to any post-conviction application
pending on the effective date of this a ct.
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9. For purposes of this act the Post-Conviction Procedure Act,
a legal basis of a claim is unavailable on or before a date
described by this subsection if the leg al basis:
a. was not recognized by or could not have been
reasonably formulated from a final de cision of the
United States Supreme Court, a court of ap peals of the
United States, or a court of appellate jurisdiction of
this state on or before that date, or
b. is a new rule of constitutional law that was given
retroactive effect by the United States Supreme Court
or a court of appellate jurisdiction of th is state and
had not been announced on or before that date.
E. All matters not specifically governed by the provisions of
this section shall be subject to the provisions of the Post -
Conviction Procedure Act. If the provisions of this act section
conflict with the provisions of the Post-Conviction Procedure Act,
the provisions of th is act section shall govern.
SECTION 5. This act shall become effective November 1, 2022.
58-2-8638 GRS 12/27/21