Willingham v. Mullin

• Decision Date: 17 June 2002
• Docket Number: No. 01-6071.,01-6071.
• Citation: 296 F.3d 917
• Parties: Jackie Lee WILLINGHAM, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

296 F.3d 917

Jackie Lee WILLINGHAM, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 01-6071.

United States Court of Appeals, Tenth Circuit.

June 17, 2002.

COPYRIGHT MATERIAL OMITTED

Fred L. Staggs, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General, Criminal Division (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE, Circuit Judge.

BRORBY, Senior Circuit Judge.

Jackie Lee Willingham appeals from an order of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Upon a thorough review of the record and the arguments presented, we conclude Mr. Willingham is not entitled to habeas relief.

In 1995, an Oklahoma jury found Mr. Willingham guilty of first degree malice murder. See Okla. Stat. tit. 21, § 701.7. At the penalty phase, the jury rejected the State's allegation that Mr. Willingham posed a continuing threat to society, see id. § 701.12(7), but found that the murder was especially heinous, atrocious, or cruel (HAC aggravator), see id. § 701.12(4). After weighing the HAC aggravator against the evidence presented in mitigation, the jury determined that Mr. Willingham should be put to death for the crime. The trial court formally imposed the recommended sentence, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed both conviction and sentence on direct appeal. See Willingham v. State, 947 P.2d 1074 (Okla.Crim.App.1997). The OCCA also denied Mr. Willingham's subsequent application for post-conviction relief. See Willingham v. State, No. PC 97 389 (Okla. Crim.App. Mar. 19, 1998) (unpub.).

Mr. Willingham then commenced the instant habeas proceeding, alleging fifteen grounds for relief. The district court denied the petition in its entirety, and Mr. Willingham appealed. The district court granted a certificate of appealability (COA) on ten issues. See generally 28 U.S.C. § 2253(c). Following the case management conference, this court issued its standard order directing that, unless Mr. Willingham submitted a motion to expand the COA within ten days, "[t]he issues to be raised in the opening brief are those set forth by the district court in its order granting a[COA]." Case Management Order, April 18, 2001. No such motion was filed. In accordance with the case management order and § 2253(c), we limit our consideration to the ten issues properly certified for review:¹

1. Refusal to Instruct on Second Degree Murder;

2. Use of Victim Impact Evidence;

3. Ineffective Assistance of Counsel;

4. Admission of Willingham's Post-Arraignment Statements;

5. Prosecutorial Misconduct during Second Stage Closing Argument;

6. Admission of Cumulative Photographs of the Victim;

7. Admission of Willingham's Videotaped Statement at Crime Scene;

8. Sufficiency of the Evidence Supporting the HAC Aggravator;

9. Use of an Improper Reasonable Doubt Instruction; and

10. Cumulative Error

FACTS

Most of the pertinent facts were established by Mr. Willingham's own trial testimony and his earlier admissions to the police. On the day of the murder, Mr. Willingham was selling perfume door to door in Lawton, Oklahoma. Working his way through a downtown building, he came to the office occupied by Mrs. Jayne Van Wey. Although she told him she did not wish to purchase any perfume, he continued to press her, adhering to his standard sales procedure of insisting on three "no" answers from a potential customer. The repeated rejections that ensued led to an escalation of the situation to what Mr. Willingham claims was a rude rebuff by Mrs. Van Wey and hostile vulgarity on both sides.

After calling on some other offices in the building, Mr. Willingham noticed Mrs. Van Wey enter a restroom off the hallway near her office. Still angry over their earlier confrontation, he eventually followed her into the restroom, pulled her from a stall, and struck her several times in the face. As she continued to struggle with him, he slammed her head into the wall and let her fall backward onto the floor. When she rolled over and began to push herself up onto her hands and knees, he kicked her in the face with his boot. At that point, all resistance ceased, and he left. Mrs. Van Wey lost consciousness and died asphyxiating on the blood from her injuries.

Shortly after the murder, the police found a sales brochure left at one of the other offices Mr. Willingham had visited. Upon contacting the company and speaking with a supervisor, the police learned that a sales team in Lawton would be meeting at a local restaurant later that afternoon. The supervisor also indicated that at least one member of the team, Kevin Longenecker, fit the suspect's description. The police proceeded to the restaurant and approached the group of salesmen. Detective John Whittington asked about Mr. Longenecker and was told by Mr. Willingham that he was not there. Detective Whittington noticed that Mr. Willingham was extremely uneasy and had a fresh scratch on his neck. After Mr. Willingham offered a facially implausible explanation of the scratch, Detective Whittington asked him to come to the police station. The detective said the entire group would need to come, and explained that the police were investigating an attack on a woman (he did not say murder) downtown that day.

At the police station, Mr. Willingham was advised of his Miranda rights,² which he waived in writing. He initially denied any involvement in the attack, but after Detective Whittington pointed out what looked like blood on his boots and asked him to tell his side of the story, Mr. Willingham admitted he had beaten Mrs. Van Wey. However, some of the details of his version of the attack did not fit the physical evidence, and he was asked to return to the scene and clarify his account. After again waiving his Miranda rights, Mr. Willingham walked through the crime scene describing the attack, somewhat differently, on videotape.

Thereafter, Mr. Willingham learned that Mrs. Van Wey had died. He was interviewed again to clear up additional questions raised by the physical evidence, and at this point finally admitted he had forcefully kicked Mrs. Van Wey in the head before leaving the restroom. Finally, after two of Mrs. Van Wey's credit cards were found in the restaurant where Detective Whittington had first spoken with Mr. Willingham, he was advised of his rights and questioned once more, to explain this new development. He eventually admitted he had not immediately followed Mrs. Van Wey into the restroom but had stopped in her office and taken the cards from her purse first, "to make it look like a robbery."

Mr. Willingham's only defense at trial was to challenge the State's case on the element of intent. Specifically, he testified that while he had attacked Mrs. Van Wey out of anger over their prior confrontation, he had not intended to kill or seriously injure her. Accordingly, the defense requested instructions on the lesser offenses of heat-of-passion manslaughter and second degree depraved-mind murder. The trial court granted the first instruction but denied the second. The jury ultimately rejected Mr. Willingham's intent defense, finding him guilty of first degree malice murder.

STANDARDS OF REVIEW

Mr. Willingham filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which therefore governs the proceeding. See Williams v. Taylor, 529 U.S. 420, 429, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). This court has summarized the significance of AEDP1A for habeas review as follows:

Under AEDP1A, if a claim was adjudicated on its merits in state court, a petitioner is entitled to federal habeas relief only if he can establish that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). Under § 2254(d)(1), a federal court may grant a writ of habeas corpus only if the state court reached a conclusion opposite to that reached by the Supreme Court on a question of law, decided the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts, or unreasonably applied the governing legal principle to the facts of the petitioner's case. See Williams [v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)]. "Under § 2254(d)(1)'s `unreasonable application' clause ..., a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams, [529 U.S. at 411, 120 S.Ct. 1495]. "In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams, [529 U.S. at 412, 120 S.Ct. 1495]. AEDP1A also requires federal courts to presume state court factual findings are correct, and places the burden on the petitioner to rebut that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

"If[, however, a] claim was not heard on the merits by the state courts, and the federal district court made its own determination in the first instance, we review the district court's conclusions of law de novo and its findings of fact, if any, for clear error." LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir.1999). If the district court's factual findings are based only on a review of...