Wilson v. Greene

• Citation: 155 F.3d 396
• Decision Date: 27 August 1998
• Docket Number: No. 98-2,98-2
• Parties: Kenneth L. WILSON, Petitioner-Appellant, v. Fred W. GREENE, Warden, Mecklenburg Correctional Center, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 396

155 F.3d 396

Kenneth L. WILSON, Petitioner-Appellant, v. Fred W. GREENE, Warden, Mecklenburg Correctional Center Respondent-Appellee.

No. 98-2.

United States Court of Appeals Fourth Circuit.

Argued June 2, 1998.

Decided Aug. 27, 1998.

ARGUED: Charles William Gittins, Law Offices of Charles W. Gittins, Alexandria, Virginia, for Appellant. Robert Quentin Harris, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Michele J. Brace, Virginia Capital Representation Resource Center, Richmond, Virginia; Mark E. Olive, Tallahassee, Florida, for Appellant. Mark L. Earley, Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellee.

Before WILKINSON, Chief Judge, and NIEMEYER and MICHAEL, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge NIEMEYER joined. Judge MICHAEL wrote an opinion concurring in part and concurring in the judgment.

OPINION

WILKINSON, Chief Judge:

Kenneth L. Wilson raises various claims regarding his mental capacity at the time of Jacqueline Stephens' murder. Wilson was sentenced to death for that offense. He appeals the district court's dismissal of his amended petition for a writ of habeas corpus. We affirm the district court's judgment.

I.

On March 27, 1993, Jacqueline Stephens was found naked, bound in a spread-eagle fashion to her bed, with multiple stab wounds in her chest, neck, cheek, eyebrow, and arm. The events that led to this tragedy began at approximately 3:00 a.m. that morning when Wilson entered Stephens' home in Newport News, Virginia. At knifepoint, he forced Stephens, her twelve year-old daughter Altomika, and fourteen year-old Takeshia Banks upstairs. Wilson ordered Altomika and Takeshia into a bedroom and took Jacqueline into her own bedroom. While Wilson and Jacqueline were in her bedroom, Altomika heard her mother say "Kenny, why you doing this to me? I go with Pinkey [Altomika's father], why you doing this to me?" Approximately twenty-five minutes later, Wilson and Jacqueline returned to the bedroom where the girls were. At Wilson's request, Jacqueline told the girls not to say anything; she then took a shower. While Jacqueline was showering, Wilson ordered Takeshia to disrobe, tied both girls to a bed, and blindfolded them. Wilson, while naked, proceeded to stab both girls, cutting them in the neck.

After Takeshia screamed, Jacqueline confronted Wilson in the hallway. A struggle between Wilson and Jacqueline then ensued, and Altomika thought she heard her mother fall down the stairs. Altomika and Takeshia escaped their bindings and barricaded the bedroom door, but Wilson soon returned and threatened to kill Jacqueline if the girls did not open it. The girls complied, and Wilson secured their bindings and blindfolded them again. He then left the room briefly but soon returned and taunted the blindfolded girls with the knife. Wilson left again, yelling at Jacqueline to find her car keys. Altomika heard her mother begin to scream then suddenly stop screaming. Wilson returned once more, threatened to kill the girls, then withdrew. A neighbor saw Wilson depart in Jacqueline's vehicle at approximately 6:30 a.m. Shortly thereafter, the police found Jacqueline's naked body covered with blood and tied to her bed. Pubic hairs and a dried white substance which appeared to be semen were observed on her body.

A few hours later, police found Wilson in a trash dumpster, acting "peculiar." Blood tests taken at a hospital the next day revealed cocaine and opiates in his system. He also was experiencing rhabdomyolysis, a condition involving the breakdown of muscle tissue produced by severe intoxication with certain drugs, including cocaine.

Wilson was charged with murder during the commission of attempted rape, attempted rape, grand larceny, and several counts of abduction and malicious wounding. Wilson's original trial counsel requested a psychological evaluation to determine both Wilson's competency to stand trial and his sanity at the time of the offense. On May 10, 1993, Dr. Don Killian, a court-appointed clinical psychologist, reported that Wilson was competent to stand trial. In a separate report, with the heading "for defense attorney only," Dr. Killian also reported that Wilson was sane at the time of the offense. In late October, Wilson's new trial counsel filed a "Motion for Neurological, Psychological, Psychiatric and Physical Evaluation of the Defendant." The trial court granted the motion on October 27 and appointed Dr. Killian to conduct the evaluation. Dr. Killian again met with Wilson on November 5, but this time Wilson declined to discuss "his thoughts, feelings, or actions" around the time when the crime occurred and stated that his attorneys had advised him not to "discuss the details of these activities with anyone." At a November 15 hearing, Wilson confirmed that he did not want to speak to Dr. Killian.

After the trial, at which Wilson testified, a jury convicted him on all counts. Following the sentencing phase, the jury recommended a death sentence based on findings of future dangerousness and vileness, and the trial court later sentenced him to death. On appeal, the Virginia Supreme Court upheld the conviction and sentence. Wilson v. Commonwealth, 249 Va. 95, 452 S.E.2d 669 (1995). The conviction became final on October 2, 1995, when the United States Supreme Court denied certiorari. Wilson v. Virginia, 516 U.S. 841, 116 S.Ct. 127, 133 L.Ed.2d 76 (1995). The Virginia Supreme Court later denied Wilson's petition for a writ of habeas corpus. After the district court subsequently denied his federal petition, Wilson brought this appeal. Since Wilson filed his federal petition in 1997, it is governed by the noncapital provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Green v. French, 143 F.3d 865, 868-69 (4th Cir.1998).

II.

Wilson alleges several trial errors relating to his mental health. He attributes these errors to two parties: his court-appointed mental health expert and his trial counsel. Wilson claims that Dr. Killian performed an inadequate evaluation of his sanity at the time of the offense. He also blames trial counsel for not developing evidence of his insanity and for not requesting a confidential mental health evaluation before trial. In support of these claims, Wilson relies primarily on the report of Dr. Brad Fisher, a clinical forensic psychologist appointed by the district court to assist with the preparation of Wilson's federal habeas petition. Dr. Fisher met with Wilson, examined Wilson's medical and family history, and reviewed portions of the transcript from Wilson's trial. Dr. Fisher found "the evidence is suggestive but not conclusive about the existence of a temporary condition that might have led to a plea of insanity." However, he concluded there was "little evidence of a permanent major thought disorder, psychosis, or major organic impairment." ¹

A.

We first consider Wilson's arguments relating to the evaluation performed by Dr. Killian. In Ake v. Oklahoma, the Supreme Court held that under some circumstances a state must assure an indigent defendant "access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Wilson aims his attack solely on whether Dr. Killian conducted an "appropriate" examination. He contends that, had Dr. Killian conducted one, he would have uncovered the information discussed in Dr. Fisher's report.

We disagree. The Constitution does not entitle a criminal defendant to the effective assistance of an expert witness. To entertain such claims would immerse federal judges in an endless battle of the experts to determine whether a particular psychiatric examination was appropriate. See Harris v. Vasquez, 949 F.2d 1497, 1518 (9th Cir.1990); Silagy v. Peters, 905 F.2d 986, 1013 (7th Cir.1990). Furthermore, it would undermine the finality of state criminal convictions, which would constantly be subject to psychiatric reappraisal years after the trial had ended. Harris, 949 F.2d at 1517-18; Silagy, 905 F.2d at 1013.

This circuit consistently has "rejected the notion that there is either a procedural or constitutional rule of ineffective assistance of an expert witness, rather than ineffective assistance of counsel." Pruett v. Thompson, 996 F.2d 1560, 1573 n. 12 (4th Cir.1993); see also Poyner v. Murray, 964 F.2d 1404, 1418 (4th Cir.1992); Waye v. Murray, 884 F.2d 765, 766-67 (4th Cir.1989) (per curiam). For example, the defendant in Waye claimed that his psychiatrist had not performed adequately because he had failed to emphasize Waye's diminished capacity in his trial testimony. We rejected this claim and observed:

[i]t will nearly always be possible in cases involving the basic human emotions to find one expert witness who disagrees with another and to procure an affidavit to that effect from the second prospective witness. To inaugurate a constitutional or procedural rule of an ineffective expert witness in lieu of the constitutional standard of an ineffective attorney, we think, is going further than the federal procedural demands of a fair trial and the constitution require.

884 F.2d at 767.

Waye thus squarely forecloses Wilson's argument to the extent that he grounds it in a right to effective assistance from Dr. Killian. Wilson's attempt to locate such a right in the Ake decision also fails. Although Ake refers to an "appropriate" evaluation, we doubt that the Due Process Clause prescribes a malpractice standard for a court-appointed psychiatrist's performance. Rather, the decision in Ake reflects primarily a concern with ensuring a defendant access to a psychiatrist or psychologist, not with guaranteeing a...