536 F.3d 1064 (10th Cir. 2008), 06-5179, Wilson v. Sirmons

Docket Nº:06-5179.
Citation:536 F.3d 1064
Party Name:Michael Lee WILSON, Petitioner-Appellant, v. Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
Case Date:August 08, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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536 F.3d 1064 (10th Cir. 2008)

Michael Lee WILSON, Petitioner-Appellant,


Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 06-5179.

United States Court of Appeals, Tenth Circuit.

August 8, 2008

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Lanita Henricksen, (Mark Henricksen, with her on the briefs), Henricksen & Henricksen Lawyers, Inc., Oklahoma City, OK, for Petitioner-Appellant.

Jennifer B. Miller, Assistant Attorney General, (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the briefs), Oklahoma City, OK, for the Respondent-Appellee.

Before HARTZ, McCONNELL and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

Michael Lee Wilson, a death row inmate in the Oklahoma State Penitentiary, appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr. Wilson was convicted of one count of murder in the first degree and robbery with a dangerous weapon. In the sentencing phase, the jury found three statutory aggravating factors. He was sentenced to death for the first degree murder and to life in prison for the robbery. For the reasons set forth below, we affirm the district court as to all issues other than ineffective assistance of counsel at the mitigation phase; with respect to that issue we remand for an evidentiary hearing. Judge Hartz and Judge Tymkovich join all but Part III of this opinion, which addresses the ineffective assistance of counsel claim. Judge Hartz joins Part III(c) and concurs in the result of Part III. Judge Tymkovich dissents from the holding of Part III.

I. Background

The factual findings of the Oklahoma Court of Criminal Appeals (“OCCA" ) are

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presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Our account of the crime and the trial is based on the OCCA's opinion in Wilson v. State, 983 P.2d 448 (Okla.Crim.App.1998) ( “Wilson I " ).

A. The Crime

Michael Lee Wilson, along with Billy Alverson, Darwin Brown, and Richard Harjo, planned to rob the QuikTrip convenience store in Tulsa, Oklahoma, where Mr. Wilson was an employee. The planning occurred for approximately two weeks prior to the crime. At 11:00 p.m. on the night of February 25, 1995, Mr. Wilson completed his shift at the QuikTrip and was replaced by Richard Yost. In the early morning hours of February 26, Mr. Wilson, along with Alverson, Brown, and Harjo, entered the QuikTrip. The subsequent events were captured on the store's surveillance tape. Wilson I, 983 P.2d at 455.

The four found Yost cleaning the windows on the coolers and surrounded him. When Yost tried to walk away, the four attacked him and dragged him into the back room. What occurred in that room is not visible on the surveillance tape, but the tape captured noises coming from there. At some point, Yost was handcuffed.

After helping to drag Yost to the back room, Alverson exited, picked up some items that had been knocked from the shelves during the struggle, and kept watch for customers. Soon after, Harjo also left the back room and the two walked out of the store together. As they exited, Yost yelled and screamed for help, believing that a customer had entered the store. When Alverson and Harjo returned, Harjo was carrying a black aluminum baseball bat. Both returned to the back room. Id.

Sounds of the bat striking Yost are audible on the surveillance tape. In addition to striking his head, trial evidence suggested that the baseball bat struck the handcuffs on Yost's wrists as he held his hands above his head in an attempt to block the blows. These blows eventually caused Yost's death. Id.

During the attack, Mr. Wilson exited the back room, examined his hands, put on a QuikTrip jacket, and went behind the counter. He greeted customers as they entered and completed sales, attempting to remove the safe below the counter between customers. He eventually succeeded. He also took money from the cash drawer and from the currency change machine, and removed the video from the surveillance camera recorder. Using a dolly from the store, the defendants loaded the safes and money into Mr. Wilson's car. Id.

A customer discovered Yost's dead body soon after the defendants left the QuikTrip. It was in a gruesome condition. Yost's ankles had been taped together with duct tape. There was a handcuff near his body; a piece was later discovered embedded into his head. His body was lying in a pool of spilled milk, beer, and blood.

After speaking to witnesses, the police discovered that Mr. Wilson had been in the store between 4:00 a.m. and 6:00 a.m. When he failed to come to work during his scheduled 3:00 p.m. shift that day, Officer Wayne Allen set up surveillance at Mr. Wilson's home. Around 5:00 p.m., a gray vehicle pulled up to Mr. Wilson's house. Mr. Wilson got out of the car, picked up a shovel and waived it in the air; soon after, he returned to the vehicle and the car drove away. Officer Allen stopped the car and arrested Mr. Wilson along with Alverson, Harjo, and Brown, who were also inside. The police discovered large sums of money on all of the defendants except for Mr. Wilson. Id.

Following the arrest, Detective Charles Folks questioned Mr. Wilson. Part of the questioning was recorded, but another

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component was not. In an unrecorded component, Mr. Wilson indicated that he knew Yost would be killed, and that the four had planned the robbery for approximately two weeks. Mr. Wilson was to act as the sales clerk after Yost was “taken care of." Id.

When the police searched Alverson's home, they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes, and the surveillance video tape. Nothing was discovered at Mr. Wilson's home. However, on February 27, Mr. Wilson's mother, Patricia Taylor, requested that the police come to her house. When they arrived, they found a baseball bat, a bloody QuikTrip jacket with Mr. Yost's name on it, Mr. Wilson's Nike jacket, (which matched the one he wore during the robbery), and the other handcuff, all placed on the front porch. Id. at 455-56.

B. Judicial Proceedings

Mr. Wilson was tried, along with Darwin Brown, before a jury in the Tulsa County District Court. The court used a dual jury procedure, where one trial was conducted in front of two juries. One jury was assigned to adjudicate the charges against Mr. Brown while a separate jury was assigned to Mr. Wilson's case. Wilson I, 983 P.2d at 456. The jury convicted Mr. Wilson of first degree murder and robbery with a dangerous weapon.

At the sentencing phase, the Bill of Particulars charged that Mr. Wilson should be punished by death due to the existence of three aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) it was probable that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Okla. Stat. Ann. tit. 21, § 701.12(4),(5), & (7). The jury found the existence of all three aggravating circumstances and recommended that Mr. Wilson be sentenced to death. The trial court agreed, and sentenced Mr. Wilson to death.

The OCCA affirmed both Mr. Wilson's conviction for murder in the first degree and his death sentence. It reversed his conviction and sentence for robbery with a dangerous weapon; because Mr. Wilson was convicted of felony murder, under Oklahoma law, he could not be convicted of the underlying felony.1 Wilson I, 983 P.2d at 463. The United States Supreme Court denied Mr. Wilson's petition for writ of certiorari on October 4, 1999. Wilson v. Oklahoma, 528 U.S. 904, 120 S.Ct. 244, 145 L.Ed.2d 205 (1999). The OCCA denied post-conviction relief on November 15, 1999. R. Vol. III Box 2, “Opinion Denying Post-Conviction Relief" (“Wilson II " ). Mr. Wilson filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the District Court for the Northern District of Oklahoma on February 16, 2000. Wilson v. Sirmons, No. 00-CV-147, 2006 WL 2289777 (N.D.Okla. Aug. 8, 2006) (“Wilson III " ).

The district court denied the petition on August 8, 2006, but granted a certificate of appealability (“COA" ) pursuant to 28 U.S.C. § 2253(c)(2) on fourteen grounds: (1) the use of the dual jury procedure; (2) the introduction of DNA evidence without

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a Daubert hearing; (3) the introduction of evidence in violation of the Oklahoma discovery code; (4) the failure to give jury instructions on a lesser included offense; (5) the introduction at trial of Mr. Wilson's statements obtained without Miranda warnings; (6) the admission of prejudicial hearsay; (7) the sufficiency of the evidence to support the heinous, atrocious, or cruel aggravator and the constitutionality of the heinous, atrocious, or cruel aggravator; (8) the introduction of irrelevant and prejudicial evidence; (9) prosecutorial misconduct; (10) the improper sequence of voir dire questioning; (11) the improper use of victim impact evidence; (12) ineffective assistance of counsel; (13) application of the continuing threat aggravator and the constitutionality of the continuing threat aggravator; and (14) the cumulative impact of the errors on Mr. Wilson's rights.

II. Standard of Review

Mr. Wilson filed his habeas corpus petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA" ). Therefore, AEDPA's standards apply to all claims adjudicated on the merits in state...

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