191 F.3d 1235 (10th Cir. 1999), 98-7116, Wallace v. Ward

Docket Nº:98-7116
Citation:191 F.3d 1235
Party Name:GEORGE KENT WALLACE, Petitioner-Appellant, v. RON WARD, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
Case Date:September 10, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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191 F.3d 1235 (10th Cir. 1999)

GEORGE KENT WALLACE, Petitioner-Appellant,


RON WARD, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 98-7116

United States Court of Appeals, Tenth Circuit

September 10, 1999


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Scott W. Braden, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Petitioner-Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert L. Whittaker, Assistant Attorney General, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

Petitioner George Kent Wallace, an Oklahoma state prisoner, entered guilty pleas to two counts of first degree murder and sought the death penalty, which the state trial court imposed. After direct criminal appeal and post-conviction proceedings, petitioner filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. The district court denied relief. On appeal, petitioner argues (1) application of the new standards of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (ADEPA) would have an impermissible retroactive effect; (2) the

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trial court violated his due process rights by analyzing his competency under the "clear and convincing evidence" standard prohibited by Cooper v. Oklahoma, 517 U.S. 348 (1996); and (3) his trial counsel was ineffective due to a conflict of interest and his failure to investigate mitigating evidence. Petitioner also argues the federal district court abused its discretion in denying his request for discovery on the conflict issue. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253, and we affirm the federal district court's judgment.


On February 17, 1987, petitioner, posing as a police officer, pretended to arrest fifteen year old William Von Eric Domer in Van Buren, Arkansas. Petitioner frisked, handcuffed, and shackled Domer and then put him in the back seat of petitioner's rental car. Petitioner drove across the Arkansas state border to Leard Pond near Pocola, Oklahoma. There, petitioner pulled down Domer's pants and underpants and attempted to beat him with a paddle. After Domer resisted, petitioner pulled up his clothing, removed him from the car, and walked him down a hill. Petitioner shot Domer twice in the back with a .25 caliber pistol. Thereafter, petitioner removed the handcuffs and leg irons, dragged Domer's body, and threw the body into the pond.

On November 11, 1990, petitioner, again posing as a police officer, stopped fourteen year old Anthony McLaughlin in Van Buren. Petitioner pretended to arrest McLaughlin, frisked him, placed handcuffs and leg irons on him, and then put him in the back seat of petitioner's rental car. As with Domer, petitioner drove to Leard Pond. Upon arriving, petitioner got in the back seat with McLaughlin, pulled down his pants and underpants, and spanked him with a wooden plunger handle. After doing so, petitioner pulled up McLaughlin's clothing, got him out of the car, walked him to the pond, and shot him in the back once with a .22 caliber pistol. Thereafter, petitioner removed the handcuffs and leg irons and threw McLaughlin's body in the pond.

Arkansas authorities arrested petitioner on December 9, 1990. On that day, petitioner again impersonated a police officer when he pretended to arrest Ross Allen Ferguson in Van Buren. Petitioner placed handcuffs and leg irons on Ferguson and then put him in the backseat of another rental car. Petitioner drove to a country road, parked the car, climbed in the backseat, pulled down Ferguson's pants and underpants, and beat him with a rod. After the beating, petitioner removed Ferguson from the car and began walking him down the road. Ferguson, who was aware of the McLaughlin murder, asked petitioner if he intended to shoot him. Petitioner replied that he would not and proceeded to stab Ferguson six times with a knife. Feigning death, Ferguson allowed petitioner to drag him to a nearby pond. When petitioner removed the handcuffs and leg irons, Ferguson ran to the rental car, drove away, and notified Arkansas authorities. Petitioner was arrested near the scene a short while later.

Petitioner confessed to the two murders and pleaded guilty to two counts of first degree murder. After the State presented its aggravating evidence at the punishment trial, petitioner took the stand himself and requested that the trial court impose the death penalty. The trial court found three aggravating circumstances: petitioner had previously been convicted of a felony involving the threat or use of violence, the murders were especially heinous, atrocious or cruel, and petitioner would pose a continuing threat to society. The trial court imposed the death penalty. At sentencing, the trial court advised petitioner of his appeal rights, including the Oklahoma requirement that he withdraw his guilty pleas in order to appeal his convictions. See Tr. of 4/12/91 Hr'g at 7-12.1 Petitioner

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waived his appeal rights both verbally and in writing and did not attempt to withdraw his guilty pleas. Instead, he expressed his desire to be executed as soon as possible. See id. at 10-12.

Because Oklahoma provides for mandatory sentence review, see Okla. Stat. tit. 21, § 701.13(A), the trial court appointed counsel to represent petitioner on appeal. The Oklahoma Court of Criminal Appeals remanded the case to the trial court to determine, among other things, who represented petitioner on appeal, whether petitioner waived an appeal other than mandatory sentence review, and whether petitioner's request for an appeal out of time should be granted. After holding a hearing, the trial court found that petitioner had waived an appeal, except mandatory sentence review, but, nonetheless, he should be allowed an appeal. The Oklahoma Court of Criminal Appeals granted an appeal out of time, determined petitioner had waived all issues other than mandatory sentence review because he did not file an application to withdraw his guilty plea, and upheld the death sentences. See Wallace v. State, 893 P.2d 504, 509-10, 517 (Okla. Crim. App.), cert. denied, 516 U.S. 888 (1995).2 That court later denied post-conviction relief, discovery, and an evidentiary hearing. See Wallace v. State, 935 P.2d 366 (Okla. Crim. App.), cert. denied, 521 U.S. 1108 (1997).

Petitioner commenced a habeas action in federal district court, and again moved for discovery and an evidentiary hearing. The district court denied all relief and denied a certificate of appealability (COA). See 28 U.S.C. § 2253(c). This court granted COA on the issues listed above and denied it on all others.3


Petitioner first argues the district court erred in applying the standards of review set forth in AEDPA, even though he filed his habeas petition after the effective date of AEDPA. Petitioner submits that application of AEDPA's new standards to state court proceedings completed before enactment or effectiveness of AEDPA is unconstitutionally retroactive. This court has held to the contrary, determining that AEDPA applies to cases filed after its effective date, regardless of when state court proceedings occurred. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999); see also Berget v. Gibson, No. 98-6381, 1999 WL 586986, at *2-*4 (10th Cir. Aug. 5, 1999) (unpublished order and judgment in capital case citing Rogers and holding that application of AEDPA to cases filed after its effective date is not impermissibly retroactive); Mueller v. Angelone, 181 F.3d 557, 565-72 (4th Cir. 1999).

Under AEDPA,

a state prisoner will be entitled to federal habeas corpus relief only if he can establish that a claim adjudicated by the state courts "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the

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facts in light of the evidence presented in the State court proceeding." [28 U.S.C. § 2254(d).] Further, "a determination of a factual issue made by a State court shall be presumed to be correct." [Id.] § 2254(e)(1). That presumption of correctness is rebuttable only "by clear and convincing evidence." Id.

Boyd v. Ward, 179 F.3d 904, 911-12 (10th Cir. 1999). If, however, a state court did not decide a claim on its merits and instead the federal district court decided the claim in the first instance, this court reviews the district court's conclusions of law de novo and factual findings, if any, for clear error. See LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).

We have applied, but not defined, AEDPA's standards. See Bryson v. Ward, No 97-6435, 1999 WL 590738, at n.3 (10th Cir. Aug. 6, 1999). The United States Supreme Court has granted certiorari to review the Fourth Circuit's interpretation of the standards. See Williams v. Taylor, 119 S.Ct. 1355 (1999); see also 67 U.S.L.W. 3608 (Apr. 6, 1999) (listing issues presented). Under any possible interpretation, the outcome of this appeal will be the same. Thus, we decline to interpret the standards in this case.


Petitioner argues that his due process rights were...

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