577 F.3d 1284 (10th Cir. 2009), 06-5179, Wilson v. Workman

Docket Nº:06-5179, 07-7034, 07-7056.
Citation:577 F.3d 1284
Party Name:Michael Lee WILSON, Petitioner-Appellant, v. Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee. Donald Wackerly II, Petitioner-Appellant, v. Randall G. Workman, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
Attorney:Howard A. Pincus, Assistant Federal Public Defender, Denver, CO (Raymond P. Moore, Federal Public Defender, and Lanita B. Henricksen, Henricksen & Henricksen, Oklahoma City, OK, with him on the briefs), for Petitioners Mr. Wilson and Mr. Wackerly. Seth S. Branham, Assistant Attorney General, Okla...
Judge Panel:Before HENRY, Chief Judge, TACHA, KELLY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges. McCONNELL, Circuit Judge, joined by HENRY, Chief Judge, and KELLY, LUCERO, MURPHY, HARTZ, and HOLMES, Circuit Judges. BRISCOE, J., dissenting. TYMKOVICH, J....
Case Date:August 27, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1284

577 F.3d 1284 (10th Cir. 2009)

Michael Lee WILSON, Petitioner-Appellant,

v.

Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

Donald Wackerly II, Petitioner-Appellant,

v.

Randall G. Workman, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

Nos. 06-5179, 07-7034, 07-7056.

United States Court of Appeals, Tenth Circuit.

August 27, 2009

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[Copyrighted Material Omitted]

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Howard A. Pincus, Assistant Federal Public Defender, Denver, CO (Raymond P. Moore, Federal Public Defender, and Lanita B. Henricksen, Henricksen & Henricksen, Oklahoma City, OK, with him on the briefs), for Petitioners Mr. Wilson and Mr. Wackerly.

Seth S. Branham, Assistant Attorney General, Oklahoma City, OK (W.A. Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, OK, with him on the briefs), for Respondent Mr. Workman.

Before HENRY, Chief Judge, TACHA, KELLY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

McCONNELL, Circuit Judge, joined by HENRY, Chief Judge, and KELLY, LUCERO, MURPHY, HARTZ, and HOLMES, Circuit Judges.

This court granted rehearing en banc to determine whether to accord deference to decisions of the Oklahoma state courts on claims of ineffective assistance of counsel under 28 U.S.C. § 2254 where those claims are based on evidence that was not part of the original trial court record and where the state court declined to supplement the record with the proffered evidence, based on Oklahoma Appellate Rule 3.11(B)(3)(b). Under Oklahoma procedure, appellate review of a criminal conviction is confined to the original trial record unless that record has been supplemented through an evidentiary hearing. Rule 3.11(B)(3)(b) allows a defendant, on direct appeal, to offer non-record evidence in support of an ineffective assistance of trial counsel claim. If the court finds, " by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence," the Oklahoma Court of Criminal Appeals

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(" OCCA" ) will remand to the trial court for an evidentiary hearing based on the claims raised in the application. Okla. Stat. tit. 22, ch. 18, App. Rule 3.11(B)(3)(b) [hereinafter " Rule 3.11" ]; Dewberry v. State, 954 P.2d 774, 775-76 (Okla.Crim.App.1998). Following the evidentiary hearing, the trial court makes written findings of fact and conclusions of law. " It is the record from this evidentiary hearing which ... supplements the trial court record on appeal." Dewberry, 954 P.2d at 776. Any affidavits or other evidence supplied in support of the evidentiary hearing are not considered part of the record on which the OCCA bases its Strickland ruling unless they are properly introduced at the evidentiary hearing. Id. (" The record on appeal must remain as only that which has been presented through the trial court." ) (emphasis added).

In Wilson v. Sirmons, 536 F.3d 1064 (10th Cir.2008), a divided panel held that where the Oklahoma Court of Criminal Appeals rejects an ineffective assistance of counsel claim in a capital case predicated on non-record evidence without ordering an evidentiary hearing to supplement the record and without otherwise considering that evidence under the standards set forth in Strickland, the decision of the OCCA on that claim is not entitled to deference under Antiterrorism and Effective Death Penalty Act (" AEDPA." ) Id. at 1079-1083. In Wackerly v. Workman, No. 07-7034 & 07-7056, the panel faced a similar question. Recognizing that our circuit's precedents have not been consistent on this point, the full court voted to grant rehearing en banc in Wilson, and initial en banc review in Wackerly, on the following issues:

(1) When a defendant bases his claim of ineffective assistance of counsel in part on non-record evidence proffered under Oklahoma Rule 3.11, and the OCCA denies the motion for an evidentiary hearing and also denies the ineffective assistance of counsel claim without reference to the proffered non-record evidence, is the OCCA's decision on the defendant's ineffective assistance claim an " adjudication on the merits" warranting deference under § 2254(d)?

(2) What effect, if any, does the extent of the OCCA's discussion of the Rule 3.11 motion, and the proffered non-record evidence, have on whether the OCCA's decision on the petitioner's ineffective assistance of counsel claim is entitled to deference under § 2254(d)? The briefs should consider circumstances where the OCCA denial, (a) is made summarily without reasoning or discussion of the Rule 3.11 materials, or otherwise lacks substantive reasoning, (b) cites to Rule 3.11 but does not discuss proffered evidence, or (c) cites to Rule 3.11 and discusses proffered evidence.

Wilson v. Sirmons, 549 F.3d 1267, 1268-69 (10th Cir.2008).

Having received supplemental briefs and heard oral argument in these cases, we conclude that the panel in Wilson was correct in its holding that AEDPA deference does not apply when, pursuant to Rule 3.11, the OCCA decides an ineffective assistance of counsel claim without consideration of non-record evidence that, " if true and not contravened by the existing factual record, would entitle the petitioner to habeas relief" under Strickland. Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir.1998). We therefore reinstate the panel decision in Wilson, and remand to the panel in Wackerly for disposition consistent with this decision.

I. BACKGROUND

Michael Lee Wilson and Donald Wackerly II were convicted of first degree murder in unrelated cases and both were sentenced to death. Both defendants raised

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claims of ineffective assistance of counsel on appeal, and in support of those claims, proffered affidavits and other non-record evidence purporting to show that their trial counsel's performance fell below constitutional standards of effectiveness under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Oklahoma Appellate Rule 3.11(B)(3)(b), they requested an evidentiary hearing to submit non-record evidence on their ineffective assistance claims. The OCCA denied this request in both cases.

Mr. Wilson's primary claim was that his trial counsel was constitutionally deficient with respect to mental health mitigation at the sentencing phase. He proffered five affidavits in support of this claim. Three of these affidavits were from family members and one was from his former girlfriend, who is also the mother of his child. All described different mental health problems Mr. Wilson had, along with other struggles he experienced throughout his youth. The fifth was from the trial expert, Dr. Eugene Reynolds, who had been engaged by trial counsel only three weeks prior to the trial. In his affidavit, Dr. Reynolds explained that he had not had time prior to trial to properly examine Mr. Wilson. In particular, although one of the tests he administered prior to trial indicated the possibility of schizophrenia, the test was invalid; but Dr. Reynolds did not have time to readminister the test. Nor did he have the benefit of information from the family prior to making his pre-trial diagnoses. Dr. Reynolds then set forth the diagnoses that he reached after trial with the benefit of the additional affidavits from Mr. Wilson's family, provided by appellate counsel, as well as the retesting and further examination. These diagnoses showed, among other things, that Mr. Wilson suffered from schizophrenia and hallucinations. He also outlined the diagnoses he was able to make prior to the sentencing phase but which were nonetheless never presented to the jury, and recounted his interactions with the defendant. Wilson, 536 F.3d at 1075, 1077. All of these affidavits were prepared after judgment had been rendered at trial, and thus were not part of the trial record.

In denying Mr. Wilson's claim, the OCCA explained that " [Mr.] Wilson has filed ... an application for an evidentiary hearing regarding ineffective assistance of counsel in an attempt to supplement the record with materials not found in the record." Wilson v. State, 983 P.2d 448, 472 (Okla.Crim.App.1998). The court then dealt with the issue in a single paragraph, beginning with the words: " A review of the trial record shows ..." and containing a summary of Dr. Reynolds's trial testimony, with no mention of his post-trial affidavit. Id. The court then concluded:

The mere fact more evidence could have been presented is not, in itself, sufficient to show counsel was deficient. Reynold's [sic] testimony was credible and well developed. We find [Mr. Wilson] has failed to carry his burden to show either deficient performance by counsel, or prejudice from the omission of this specific evidence.

Id. (citation omitted). In an accompanying footnote, it denied Mr. Wilson's motion for an evidentiary hearing, without reference either to the Strickland standard or to the Rule 3.11(B)(3)(b) standard. Id. at n. 8. The court did not quote, summarize, or analyze the substance of the non-record evidence.

On habeas review, the federal district court applied AEDPA deference to the issue of whether counsel was ineffective at the sentencing phase and found that the OCCA's denial of the claim was not an unreasonable application of Supreme Court precedent.

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Wilson v. Sirmons, 2006 WL 2289777, at *43 (N.D.Okla. Aug.8, 2006). It denied both his habeas petition and his request for an evidentiary hearing.

Mr. Wackerly also proffered non-record evidence that he argued trial counsel should have submitted as mitigating evidence at the penalty stage. This included records of longstanding health problems and cognitive disorders, including suicide...

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