Gilson v. Sirmons

Decision Date02 April 2008
Docket NumberNo. 06-6287.,06-6287.
Citation520 F.3d 1196
PartiesDonald Lee GILSON, Petitioner-Appellant, v. Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Timothy R. Payne, Assistant Federal Public Defender (James A. Drummond, Federal Public Defender, and Mariatu Kargbo, Research and Writing Specialist, with him on the briefs) Death Penalty Federal Habeas Corpus Division, Office of Federal Public Defender, Oklahoma City, OK, for Petitioner-Appellant.

Preston Saul Draper, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before HENRY, Chief Circuit Judge, TACHA and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Donald Lee Gilson, an Oklahoma state prisoner convicted of first degree child abuse murder and sentenced to death, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.


The pertinent facts of this case were well summarized by the Oklahoma Court of Criminal Appeals (OCCA) in resolving Gilson's direct appeal:

On February 9, 1996, the skeletal remains of eight (8) year old Shane Coffman were found in an abandoned freezer located next to a mobile home formerly rented by his mother, Bertha Jean Coffman. A subsequent search of the mobile home revealed a photograph of [Gilson]. On February 11, 1996, authorities from the Cleveland County Sheriffs Office met with [Gilson] at his mobile home. Living in the mobile home with [Gilson] was Bertha Jean Coffman and her four children, twelve (12) year old Isaac, ten (10) year old Tia, eleven (11) year old Tranny and seven (7) year old Crystal. The children were immediately removed from the trailer and taken to Children's Hospital in Oklahoma City. [Gilson] and Bertha Jean Coffman were detained by the deputies.

Examinations of the children conducted in the emergency room revealed Tranny and Crystal were healthy with a few small scars on each. However, Isaac and Tia were malnourished and emaciated. Tia's feet were swollen and she had difficulty walking. She had gangrenous tissue on her right foot. On her right buttocks was a large open ulcer. Isaac was in the worst condition, emaciated and needing assistance to walk. He was malnourished and had several injuries, in various stages of healing, and scars throughout his body.

In their initial interview with police, [Gilson] and Coffman both denied any knowledge as to the manner in which Shane died. They stated he had run away from home during the early part of November and they had found him dead in the weeds near Coffman's trailer. They decided that putting him in the freezer would be the best thing to do. However, in subsequent interviews both [Gilson] and Coffman recanted this story and admitted to knowing more about the circumstances surrounding Shane's death. From interviews with [Gilson], Coffman, the Coffman children and other witnesses, the following picture emerged.

The four Coffman children mentioned above, along with the murder victim in this case, and another brother, thirteen (13) year old Jeremy, lived with their mother Bertha Jean Coffman, in a mobile home. During the fall of 1994, the Cleveland County Sheriffs Department received complaints of sexual abuse committed upon one of the Coffman children by Coffman's then boyfriend (not [Gilson]). The investigating detective visited Coffman's mobile home and found the conditions deplorable and unsanitary. The children were removed from Coffman's home until conditions improved. It was about this time that Bertha Jean Coffman met [Gilson]. They were both working as janitors at Little Axe Schools. [Gilson] fixed up Coffman's trailer so she could get her children back. The children were subsequently returned to their mother.

Thereafter, [Gilson] began spending more and more time with Coffman and was given the authority to discipline the children. In June of 1995, the oldest child, Jeremy, ran away [as a result of his mistreatment by Gilson]. The next month, Coffman and her children walked to [Gilson]'s trailer for a visit and never returned to their home. Whatever possessions they had were left at Coffman's trailer. [Gilson]'s trailer had only 2 bedrooms; [Gilson] and Coffman slept in one room and the other room contained [Gilson]'s leather working material. As a result, all five children were forced to sleep on blankets in the living room. They were not permitted to go outside, but had to remain inside the trailer at all times. The children were taken out of school and claimed to be homeschooled by Coffman, although no evidence of homeschooling was ever found. The children were also not permitted to go to church.

[Gilson] and Coffman both disciplined the children. This discipline took several forms, including standing at the wall, sometimes for hours at a time, and beatings with a bamboo stick, a belt, boards, wooden rulers, metal ruler, and a bullwhip. The children were also made to sit in the bathtub, often for hours at a time. Food was withheld, particularly from Isaac and Tia, as punishment. The abuse inflicted upon Shane Coffman resulted in his death on August 17, 1995.

At trial, Tranny testified that he last saw his brother Shane sitting in the bathtub. Tranny said Shane had gotten in trouble for going to the bathroom on the living room carpet. He said that before Shane was put into the bathtub, [Gilson] beat him with a board. Tranny said Shane received several beatings with the board, all over his body. After the beating, [Gilson] put Shane into the bathtub. After a couple of hours, Shane was let out of the bathtub. He then got into trouble again. Tranny said [Gilson] and Coffman then took Shane outside the trailer. Tranny did not know what happened to Shane while he was outside, but he said he could hear Shane screaming. [Gilson] and Coffman carried Shane back inside the trailer. Tranny said Shane's arms were swollen, he was breathing "weird", and he had a soft spot on his head. Pursuant to [Gilson]'s "house rules", the other children were not permitted to talk to Shane. [Gilson] then carried Shane to the bathroom and placed him in the bathtub. Tranny said he and the other children heard a few more screams and banging noises. He said both [Gilson] and Coffman were with Shane when they heard the screams. The children then decided to try and go to sleep. He said they were awakened some time later by [Gilson] and Coffman and told that Shane had run away, and that [Gilson] and Coffman were going to look for him.

Isaac testified [Gilson] first sent Shane to stand at the wall for wetting the bed. While he was standing at the wall, [Gilson] hit him with a board. [Gilson] and Coffman eventually took Shane to the bathroom and put him in the bathtub. Isaac said [Gilson] made all the other children go to the bathroom and tell Shane what a bad boy he was. He said that both [Gilson] and Coffman remained in the bathroom with Shane while the children watched television. He said they could hear Shane crying. Isaac further stated that later that night, [Gilson] and Coffman told them Shane had run away.

In a statement made to police shortly after his arrest, and admitted at trial as State's Exhibit 2, [Gilson] stated that on August 17, 1995, he had put Shane in the bathtub as punishment. [Gilson] said he was trying to teach Shane a lesson, so he spanked him and put him in the bathtub where he was to remain until he stopped the disruptive behavior. He said the water in the bathtub was initially warm to help the pain from the spanking, but then he changed it to a cold bath. [Gilson] said Shane was crying as Coffman talked to him about his behavior. He said he then laid down on the couch to watch television with the rest of the kids where he eventually fell asleep. Coffman was in and out of the bathroom talking to Shane before she went to the bedroom to lay down. A while later, Coffman came into the living room in tears and told [Gilson] to come to the bathroom. He said Coffman had taken Shane out of the bathtub and laid him on the floor. Shane's lips were blue and he was not breathing. [Gilson] said he performed CPR for approximately an hour to an hour and half. When his efforts were unsuccessful, [Gilson] took the comforter off of his bed, wrapped Shane up and placed him back in the bathtub.

[Gilson] said he and Coffman discussed what to do next. He said Coffman was worried that the Department of Human Services (hereinafter DHS) would take her kids away if the authorities found out Shane had died. So they left Shane in the bathtub, waiting until the other children had gone to sleep to remove him from the house. [Gilson] said they carried Shane outside and placed him in the back of a truck. He said they discussed "just dumping him somewhere" or "bury[ing] him out in the middle of the boonies." But they decided neither of those options were right and "even though he wasn't alive he would still be part of the family bein (sic) on her property, ... thought about putting him in the freezer, it wouldn't hurt him and then concreting it over. And making a flower bed out of it." So [Gilson] and Coffman took Shane's body to the freezer located next to Coffman's trailer and put him inside. [Gilson] said he and Coffman told the other children Shane had run away.

Bertha Jean Coffman testified at trial to disciplining her children by making them stand at the time-out wall, and spanking them, only on their bottoms, with a cloth belt or a wooden paddle. She also testified that [Gilson] disciplined her children by spanking them with the wooden paddle, but at various places on their bodies. Coffman stated [Gilson] had a quick temper and did not want the children tearing up his trailer.

In her statement to police on August 17, 1995, Coffman said she and [Gilson] found Shane sexually assaulting his younger b...

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