515 F.3d 682 (6th Cir. 2008), 05-5191, Wilson v. Parker

Docket Nº:05-5191.
Citation:515 F.3d 682
Party Name:Gregory WILSON, Petitioner-Appellant, v. Phil PARKER, Warden, Respondent-Appellee.
Case Date:January 29, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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515 F.3d 682 (6th Cir. 2008)

Gregory WILSON, Petitioner-Appellant,


Phil PARKER, Warden, Respondent-Appellee.

No. 05-5191.

United States Court of Appeals, Sixth Circuit.

January 29, 2008

         Argued: Sept. 11, 2007.

         Appeal from the United District Court for the Eastern District of Kentucky at Covington. No. 99 00078 David L. Bunning, Disrtict Judge.

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         Bruce P. Hackett, Office of Jefferson District Public Defender, Louisville, Kentucky, for Appellant.

         David A. Smith, Office of the Attorney General, Frankfort, Kentucky, for Appellee.

         ON BRIEF:

         Bruce P. Hackett, Daniel T. Goyette, Leo G. Smith, Office of Jefferson District Public Defender, Louisville, Kentucky, for Appellant.

         David A. Smith, Office of the Attorney General, Frankfort, Kentucky, for Appellee.

         Before BOGGS, Chief Judge; and GIBBONS and COOK, Circuit Judges.


         BOGGS, Chief Judge.

         Gregory Wilson appeals a district court order denying his petition for a writ of habeas corpus. Wilson raised twenty-four claims in his petition, the district court granted him a certificate of appealability as to eight claims, and this court later expanded the certificate to include a portion of one other claim. In brief, the claims before this court are: invalid waiver of Wilson's right to counsel, ineffective assistance of trial counsel, Brady violations, failure to grant Wilson a separate trial from his co-defendant, due process violation due to admission of hair-matching evidence, ineffective assistance of appellate counsel, denial of a state-court forum in which to raise the ineffective assistance of appellate counsel claim, and failure to disclose

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information relating to an affair between Wilson's co-defendant and a judge (not the trial judge) of the state court in which his trial was conducted. In expanding the certificate of appealability, we also agreed to hear Wilson's claim that his state trial judge should have recused himself, to the extent that claim relates to Wilson's claim that his state trial was prejudiced because of an alleged affair between his co-defendant and a different judge.

         After reviewing all of Wilson's claims, we hold that none of them meets the standard required for a grant of the writ. Accordingly, we affirm the district court's denial of the writ.


         A. Factual History

         The Kentucky Supreme Court summarized the facts of the case as follows:

The victim was a restaurant employee in Newport. On Friday, May 29, 1987[,] at 11:45 p.m., she left her best friend's house and said she was going straight home. The prosecution presented evidence that she had just parked her car outside of her apartment in Covington when she was abducted by Wilson and co-defendant Humphrey at knife point.

Testimony at trial from various sources, including Humphrey, indicated that the victim was forced into the back seat of her own car. Humphrey drove the car to the flood wall in Covington. Wilson took the victim out of the car and took her up on the flood wall and made her lie down with her eyes closed while Humphrey went to put gas in the car. After Humphrey returned from the gas station, Wilson again forced the victim into the back seat of the car.

Wilson made the victim unbutton her blouse. Wilson finished undressing the victim and raped her. He then tied her hands with a lamp cord, and the victim began begging for her life. Wilson told her she would have to die. Humphrey said, "You have seen us. You know who we are, and you have to die." The victim kept begging, "Please don't kill me. I don't want to die." Wilson robbed her and strangled her to death before they crossed the state line into Indiana.

Wilson and Humphrey disposed of the victim's naked corpse in a wooded thicket in rural Hendrix [sic] County, Indiana. Later that same morning, Saturday, May 30, Wilson and Humphrey stopped at a Holiday Inn in Crawfordsville, Indiana. According to a registration card, Humphrey and a guest checked into the hotel at 4:19 a.m. Two of the maids there identified the pair as Wilson and Humphrey.

Wilson and Humphrey proceeded to a Payless Shoe Store in Danville, Illinois where the victim's credit card was used to purchase two pairs of women's shoes and some hosiery. Later that same day, May 30, 1987, Wilson and Humphrey went to a K-Mart in Danville where the victim's credit card was used to make purchases totaling $227.46. Included in these purchases were a man's Seiko watch and a woman's Gruen watch for $68.00 each. Wilson and Humphrey also paid cash for a number of cosmetic items and some clothing. Later that day, the victim's credit card was used to make a $24.50 purchase at an Amoco gas station in Urbana-Champaign, Illinois.

On Sunday, May 31, Wilson and Humphrey returned to the home of Humphrey's best friend, Beverly Finkenstead. Finkenstead testified that Humphrey had a K-Mart bag with a blouse in it. They both had a watch on and were each wearing a necklace.

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On Sunday, June 7, Humphrey visited Finkenstead and told her details of the crimes in which she and Wilson had participated the previous weekend. Eight days later, on June 15, Finkenstead reported to the police what Humphrey had told her. Also on June 15, the Hendrix [sic] County, Indiana Sheriff's Department was summoned to a wooded thicket where a corpse had been discovered.

Authorities were able to determine the identity of the corpse only by comparing its remaining teeth with the victim's dental X-rays. The cause of death could not be determined due to the absence of internal organs. A forensic entomologist testified that, based on the extent of blowfly maggot development in and on the corpse, the estimated time of death had occurred 15 to 19 days prior to his June 16 examination of the corpse.

Wilson told cell mate Willis Maloney details of the crimes including that the initial intent had been to "snatch" the victim and rob her; that the victim was still alive when her money was taken from her; that the victim was killed before they crossed the state line into Indiana; that the corpse would be so badly decomposed that no sperm would show up; and that they had used the victim's credit card to purchase, among other things, a watch Wilson was wearing at the time of his arrest which Humphrey later obtained by signing it out from one of the jailers. Wilson also told Maloney, "I bet they can't find what I used to strangle her with."

Maloney's and Humphrey's account of the rape was corroborated by the presence of semen on the back seat of the victim's car. Head hairs similar to those belonging to Humphrey were found inside the victim's car. Pubic and head hairs similar to those belonging to Wilson were also found inside the victim's car. A handwriting expert established that Humphrey had authored the forged credit card receipts. A search of the hotel room where Wilson and Humphrey were arrested produced various items of clothing, all bearing K-Mart price tags.

Humphrey was the only defense witness during the guilt/innocence phase of the trial. Wilson gave his own closing argument in which he told the jury he was not guilty, he "never met nor knew the victim" and that Humphrey told her sister that she killed the victim. The jury returned guilty verdicts against both defendants. After the penalty phase, Wilson was sentenced to death for kidnapping and murder. He was sentenced to consecutive prison terms of 20, 20 and 10 years respectively for first-degree rape, first-degree robbery and criminal conspiracy to commit robbery.

Wilson v. Commonwealth, 836 S.W.2d 872, 876-77 (Ky. 1992), cert. denied, 507 U.S. 1034, 113 S.Ct. 1857, 123 L.Ed.2d 479 (1993).

         B. Procedural History

         The Kentucky Supreme Court affirmed Wilson's convictions and sentences for murder, rape, robbery, and conspiracy, but set aside the jury's death sentence for kidnaping and remanded the case for resentencing on that charge. Id. at 890-91, overruled by St. Clair v. Roark, 10 S.W.3d 482, 488 (Ky. 1999) (overruling Wilson's holding that a double jeopardy violation occurs in convicting a defendant of both the murder and the capital kidnaping of the same victim and imposing separate death sentences for each conviction). In January 1995, the trial court imposed a sentence of life imprisonment for kidnaping. Wilson appealed, and the Kentucky Supreme Court reversed the sentence and remanded with the requirement that Wilson be resentenced by a jury unless the

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trial court imposed the minimum sentence. In March 1996, the trial court sentenced Wilson to twenty years of imprisonment for kidnaping. The Kentucky Supreme Court affirmed the sentence in January 1997.

         While Wilson's appeal was pending, the Governor of Kentucky signed a warrant requiring that Wilson be executed on February 1, 1996. The Kentucky Supreme Court granted a motion to stay the execution for sixty days to allow Wilson to file a post-conviction motion pursuant to Kentucky Rule of Criminal Procedure 11.42. See Bowling v. Commonwealth, 926 S.W.2d 667 (Ky. 1996). In his Rule 11.42 hearing, Wilson alleged, among other things, that he did not knowingly and voluntarily waive his right to counsel and that he received ineffective assistance of trial and appellate counsel. The trial court held a nine-day evidentiary hearing in September and October 1996 and denied the motion in March 1997. The Kentucky Supreme Court affirmed that decision in May 1998. See Wilson v. Commonwealth, 975 S.W.2d 901 (Ky. 1998). The United States Supreme Court denied certiorari in March 1999. See Wilson v. Kentucky...

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