Wilson v. Warden, Ga. Diagnostic Prison
Opinion
This appeal is on remand from the Supreme Court of the United States for us to reconsider the denial of Marion Wilson Jr.'s petition for a writ of habeas corpus. Wilson, a Georgia prisoner sentenced to death for the murder of Donovan Corey Parks, argues that he was deprived of a fair trial because his counsel provided ineffective assistance during the penalty phase of his trial. In state postconviction proceedings, Wilson argued that his trial counsel were constitutionally ineffective because they failed to discover and introduce mitigating evidence. The state superior court ruled that Wilson's claim of ineffective assistance of counsel failed, and the Supreme Court of Georgia declined to review that decision. After we ruled that the one-line decision of the Supreme Court of Georgia was the relevant decision for our review and affirmed the denial of Wilson's petition, the Supreme Court granted Wilson's petition for writ of certiorari and reversed.
Wilson v. Sellers
, --- U.S. ----,
I. BACKGROUND
We divide our discussion of the background in three parts. First, we discuss the facts of Parks's murder and the evidence presented at Wilson's trial and sentencing. Second, we discuss Wilson's state petition for a writ of habeas corpus. Third, we discuss Wilson's federal petition.
A. Wilson's Trial and Sentencing
In 1996, Marion Wilson Jr. and Robert Earl Butts killed Donovan Parks in Milledgeville, Georgia.
Wilson v. State
,
After officers arrested Wilson, he told the officers that after Parks got in the automobile, Butts pulled out a sawed-off shotgun and ordered Parks to drive around.
At trial, Wilson was represented by two appointed attorneys, Thomas O'Donnell Jr., who served as lead counsel, and Jon Phillip Carr.
Wilson v. Humphrey
, No. 5:10-CV-489 (MTT),
During the penalty phase, defense counsel argued that the jury should not sentence Wilson to death because there was residual doubt about his guilt. Id. at *16. They presented evidence that Butts gave inconsistent statements to the police and that Butts confessed to three other inmates that he was the triggerman. Trial counsel again tried to convince the jury that Wilson was "mere[ly] presen[t]" during the crimes.
Trial counsel introduced testimony from Wilson's mother, Charlene Cox. She testified that Wilson had a difficult childhood and did not deserve to die even though he had a history of criminality. She explained that Wilson's father played no role in Wilson's upbringing, that she supported Wilson by working low-wage jobs, and that Wilson had an 18-month-old daughter. Id. at *25.
Trial counsel also introduced testimony from Dr. Renee Kohanski, a forensic psychiatrist. Id. at *20. Dr. Kohanski relied on the records defense counsel requested from agencies, schools, and medical facilities, and interviewed Wilson to create a "cursory" social history, but she did not conduct an independent investigation of Wilson's background. Id. at *20-21. Dr. Kohanski testified that Wilson had a difficult, sickly, and violent childhood. She explained that Wilson was so aggressive as a child that his elementary school performed a psychological assessment of him. Id. at *25. The assessment found that Wilson had difficulty staying on task, a poor self-image, and an "excessive maternal dependence." Id. Dr. Kohanski told the jury that school officials also requested a medical evaluation because they suspected that Wilson suffered from an attention deficit disorder, but testing was never performed. Id. She testified that Wilson had no parental support or male role model, and that, by age 9 or 10, he fended for himself on the streets and joined a gang as a substitute for a family. Id. Dr. Kohanski told the jury that Cox's boyfriends "came and went" and frequently used drugs. Id. Dr. Kohanski testified about one "not ... uncommon event," id. at *25, in which six- or seven-year-old Wilson witnessed Cox's "common law" husband hold a gun to Cox's head, id. at *17.
On cross-examination, both Cox and Dr. Kohanski testified about unfavorable background *1318 evidence. Cox admitted that Wilson was incarcerated for every day of his daughter's life and that Cox had difficulty raising Wilson and sometimes needed police assistance to control Wilson. Id. at *26. Dr. Kohanski told the jury that Wilson was of average intelligence and suffered from no known brain damage, but that he was in two car accidents as a child and she "would have been interested to see [brain imaging scans from] that time" to look for brain damage. She also testified that, regardless of any possible brain damage, Wilson knew right from wrong at the time of the murder.
The prosecution then presented evidence of Wilson's extensive criminal history. The jury heard that, from the age of 12 years, Wilson was "either out committing crimes or incarcerated somewhere." Id. at *22 (alteration adopted). The jury heard that Wilson had been charged with first-degree arson, criminal trespass, and possession of crack cocaine with intent to distribute, and that in a period of 11 weeks Wilson was charged with 10 misdemeanor offenses. Id. at *22-24. The jury heard that, as a 15-year-old, Wilson shot a stranger, Jose Valle, in the buttocks because he "wanted to see what it felt like to shoot somebody," id. at *22, and that Wilson sold crack cocaine to Robert Underwood and then shot him five times and "casually walked off," id. at *23. The jury also heard testimony that Wilson was charged with cruelty to animals after he "shot and killed a small dog for no apparent reason." Id.
The prosecution presented other evidence of Wilson's violence and gang activity. The jury heard that Wilson threatened a neighbor and his elderly mother, saying "I'll blow ... that old bitch's head off"; that Wilson committed unprovoked attacks on his schoolmates; and that Wilson attacked one of the employees during his incarceration at Claxton Regional Youth Development Center. Id. at *22-23. The jury heard details of an incident in which a "belligerent" Wilson and five others were shouting at students in a parking lot at Georgia College. Id. at *23. When police arrived, Wilson rushed one of the officers and had to be subdued with pepper spray when he attempted to grab the officer's gun. Id. The jury heard portions of Wilson's post-arrest interrogation in which he confessed that he was the "God damn chief enforcer" of the Milledgeville FOLKS gang, a rank he achieved by "fighting and stuff like that." Id. at *24.
At the close of testimony, the trial court instructed the jury to consider all of the evidence from both the guilt and penalty phases of trial. After deliberating for less than two hours, the jury sentenced Wilson to death for the crime of malice murder. Id. at *26. The Supreme Court of Georgia affirmed Wilson's conviction and sentence on direct appeal. Id. at *2.
B. Wilson's State Petition for a Writ of Habeas Corpus
Wilson filed a petition for a writ of habeas corpus in a state court, in which he argued that his trial counsel had been ineffective because they failed to investigate his background thoroughly and to present adequate mitigation evidence at his sentencing.
Id.
at *13 ;
see
Strickland v. Washington
,
*1319 At an evidentiary hearing, Wilson's trial counsel testified that they were "confus[ed]" about who was responsible for investigating Wilson's background. Id. at *12. Lead counsel O'Donnell testified that he told Carr and an investigator, William Thrasher, to "go out and investigate [Wilson's] background." Id. at *17. But Carr testified that he "was not involved in as much of the mitigation stage" because he believed O'Donnell was responsible for the investigation. Id. at *11. Thrasher testified that he was not "directed to conduct [an] investigation into ... Wilson's life history for mitigating information." Id. at *12.
Wilson introduced evidence that the social services, school, and medical records in the possession of Wilson's trial counsel contained mitigating information about Wilson's childhood homes and physical abuse by parental figures, as well as names of potential mitigation witnesses. Id. at *17-18. Trial counsel failed to explore any of the potential leads or witnesses found in the records. Id. at *17. Trial counsel testified that they were aware of the information in Wilson's records but made the strategic decision to focus on residual doubt instead of bringing in that evidence because it "would basically convince the jury that [Wilson] probably was the trigger man."
Wilson introduced 127 exhibits and nine witnesses that were either directly from or referenced in the records or that could have been discovered through investigation of references in the records. Id. at *26. Wilson introduced lay testimony from his former teachers, family members, friends, and social workers. Id. at *26-29. He also introduced expert testimony from neuropsychologist Dr. Jorge Herrera and from Dr. Kohanski. Id. at *30.
Wilson argued that the lay testimony could have been used to explain Wilson's disruptive childhood behavior and portray Wilson as someone who never stood a chance. Teachers testified that Wilson was a "tender and good" boy who "had a lot of potential" and "loved being hugged," and that if Wilson had "been afforded appropriate treatment, attention, guidance, supervision[,] and discipline in his early years, there is a good chance" he would not be on death row. Family members and friends testified that some of Wilson's childhood homes lacked running water and electricity and were littered with containers full of urine. Id. at *26. They also testified that Cox's live-in boyfriends "slapp[ed]," "punch[ed]," and "once pulled a knife on" Wilson and that, for a period of a few months, Wilson and Cox lived with Cox's father, who beat Wilson with a belt. Id. at *29. Social workers testified that Wilson's young life included every "risk factor" they could think of, id. at *28, and that Wilson responded well to structure but his childhood was entirely unstructured, id. at *27-28.
Wilson argued that the expert testimony could have been used to explain Wilson's poor judgment skills and lack of impulse control. Dr. Herrera testified that his neuropsychological testing found that Wilson had "mild to severe impairments in brain function[ ], with severe impairment localized in the frontal lobes." Id. at *30. Dr. Herrera opined that "Wilson's association with Butts on the night of the murder and his failure to intervene are consistent with the concrete thinking and judgment problems associated" with Wilson's brain injuries. Id. Dr. Kohanski confirmed Dr. Herrera's assessment, id. , and testified that Dr. Herrera's testing should have been performed before Wilson's trial. Dr. Kohanski also testified that Wilson's frontal lobe injuries "indicate[ ] that [he] ... is a highly suggestible individual, easily led by others in certain situations."
*1320 The superior court ruled that Wilson could not establish ineffective assistance of counsel because trial counsel's performance was not deficient and, alternatively, that because Wilson suffered no prejudice. Id. at *31. It explained that Wilson failed to establish prejudice because "the testimony proffered in support of this claim would have been inadmissible on evidentiary grounds, cumulative of other testimony, or otherwise would not have, in reasonable probability, changed the outcome of the [sentencing] trial." Id. Wilson filed an application for certificate of probable cause to appeal the denial of his petition, which the Supreme Court of Georgia summarily denied.
C. Wilson's Federal Petition for a Writ of Habeas Corpus
Wilson petitioned for a writ of habeas corpus in the district court, which denied him relief. The district court ruled that the decision of the superior court as to prejudice did not involve an unreasonable application of clearly established federal law and that the material findings of fact were reasonable.
Id.
at *38 ;
see also
A panel of this Court affirmed.
Wilson v. Warden, Ga. Diagnostic Prison
,
We later vacated the panel opinion and granted Wilson's petition for rehearing en banc.
Wilson v. Warden, Ga. Diagnostic Prison
,
The Supreme Court granted Wilson's petition for writ of certiorari and reversed and remanded. It held that when "the last state court to decide a prisoner's federal claim [does not] explain[ ] its decision on the merits" a federal court "should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning."
Wilson
,
Wilson filed a motion to remand or, alternatively, to expand the certificate of appealability and to permit supplemental briefing.
II. STANDARD OF REVIEW
We review the denial of a habeas petition by a district court de novo .
*1321
Barnes v. Sec'y, Dep't of Corr.
,
We may not issue a certificate of appealability unless "the applicant has made a substantial showing of the denial of a constitutional right."
III. DISCUSSION
As an initial matter, we deny Wilson's motion to remand or, alternatively, to expand the certificate of appealability and to permit supplemental briefing. Wilson has failed to make "a substantial showing of the denial of a constitutional right,"
Because the Supreme Court of Georgia did not explain its reasons for denying Wilson's state habeas petition, we must "look through" its decision and presume that it adopted the reasoning of the superior court, "the last related state-court decision that ... provide[s] a relevant rationale."
Wilson
,
Wilson argues that his trial counsel were ineffective because they failed to investigate his background and present mitigation evidence at his sentencing. To obtain relief, Wilson must establish both that his trial counsel's "performance was deficient, and that the deficiency prejudiced [his] defense."
Wiggins v. Smith
,
To establish prejudice, Wilson had to prove "that [his] counsel's errors were so serious as to deprive [him] of a fair trial."
The superior court reasonably concluded that Wilson failed to establish prejudice. It discussed the mitigating and aggravating evidence that the sentencing jury heard as well as Wilson's new evidence and reasonably concluded that, even if the additional potential mitigating evidence had been admitted in Wilson's sentencing, "there is no reasonable probability that the outcome of the [sentencing] trial would have been different." The jury at Wilson's trial heard a large amount of graphic, aggravating evidence, and the superior court reasonably determined that a jury would have still sentenced Wilson to death even if it had heard Wilson's new evidence.
Indeed, our review of the record establishes that Wilson's new evidence would not have changed the overall mix of evidence at his trial because his new lay testimony presented a "double-edged sword."
Evans v. Sec'y, Dep't of Corr.
,
*1323 mitigating testimony would have also revealed that Wilson was "disruptive" in school, and the social service workers' mitigating testimony would have added that one of the investigations into Wilson's home life was terminated prematurely because Wilson was incarcerated.
The lay witnesses' testimony would also have been undermined by other new evidence that "almost certainly would have come in with [the new lay testimony]."
Wong v. Belmontes
,
Our review of the record also suggests that the new expert testimony would have failed to affect the overall mix of evidence at trial because Dr. Herrera's and Dr. Kohanski's expert testimony was speculative and conflicted with other evidence. Dr. Herrera assessed Wilson using his own interpretive standards for the neuropsychological tests he administered on Wilson, instead of accepted, authoritative standards. Dr. Herrera testified that Wilson's test scores for attention, ability to focus, distractability, and impulsiveness were considered "normal" under the accepted, authoritative standards. Because Dr. Herrera did not recommend neurological imaging, his conclusion that Wilson had frontal lobe damage was based on only Dr. Herrera's unique interpretation of the tests. Dr. Kohanski's new conclusions were unreliable because they were based on Dr. Herrera's unreliable results. And Dr. Herrera's and Dr. Kohanski's expert testimony conflicted with other evidence. They testified that a person with Wilson's test results would be susceptible to suggestion and more of a follower than a leader. But other evidence established that Wilson had risen to the rank of "God damn chief enforcer" of the Milledgeville FOLKS gang and was the "clear leader of the group" during the incident at Georgia College.
The superior court reasonably concluded that Wilson's new evidence was "largely cumulative" of the evidence trial counsel presented to the jury.
See
Holsey v. Warden, Ga. Diagnostic Prison
,
Indeed, the new evidence merely "tells a more detailed version of the same story told at trial."
IV. CONCLUSION
We AFFIRM the denial of Wilson's petition for a writ of habeas corpus. And we DENY Wilson's motion to remand or, alternatively, to expand the certificate of appealability and to permit supplemental briefing.
Reference
- Full Case Name
- Marion WILSON Jr., Plaintiff-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Defendant-Appellee.
- Cited By
- 4 cases
- Status
- Published