Wilkerson v. Newton-Embry

• Decision Date: 02 July 2012
• Docket Number: Case No. 09-CV-0251-CVE-TLW
• Parties: KIABI WILKERSON, Petitioner, v. MILLICENT NEWTON-EMBRY, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

KIABI WILKERSON, Petitioner,

v.MILLICENT NEWTON-EMBRY, Respondent.

Case No. 09-CV-0251-CVE-TLW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

Dated: July 2, 2012

OPINION AND ORDER

Before the Court is the 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 1) filed by Petitioner Kiabi Wilkerson, a state prisoner appearing pro se. Respondent filed a response to the petition (Dkt. # 5), and provided the state court record necessary for resolution of Petitioner's claims (Dkt. ## 5, 6, and 7). Petitioner filed a reply (Dkt. # 8). For the reasons discussed below, the Court finds the petition for writ of habeas corpus shall be denied.

BACKGROUND

On December 28, 2005, Petitioner Kiabi Wilkerson, along with Commencia Foster and Germicca Davis, had a heated argument with Emily Jones at the house where Jones lived along with her sister, Angela Hope and her uncle, Fred Tucker. Petitioner was armed with a mini-baseball bat during this initial altercation. As the verbal argument escalated, Tucker asked Petitioner, Foster and Davis to leave. They complied with Tucker's request, but returned after 20-30 minutes. As Foster drove past Jones' house, Jones came out of the house. Petitioner, who was in the front passenger seat and nearest to Jones, retrieved a gun from Foster's purse and fired the gun 3-4 times from her position in the car. One of the bullets struck and killed Angela Hope, who had walked to the front door when the car drove up. Petitioner claimed she shot the gun into the air and never intended toinjure anyone. She also claimed that she panicked and fired the gun because Jones was approaching the car armed with a knife.

Based on those events, Petitioner was charged by an amended information filed in Tulsa County District Court, Case No. CF-2006-14, with one count of First Degree Murder or, in the alternative, one count of Second Degree Murder. At the conclusion of a jury trial, Petitioner was found guilty of Second Degree Murder. On April 16, 2007, the trial court judge sentenced Petitioner in accordance with the jury's recommendation to life imprisonment with the possibility of parole. Petitioner was represented during trial and sentencing proceedings by attorney Jackson Zanerhaft. The case was prosecuted by Assistant Tulsa County District Attorneys Steve Kunzweiler and Tanya Wilson.

Petitioner perfected a direct appeal in the Oklahoma Court of Criminal Appeals ("OCCA"). Represented by attorney Kathleen M. Smith, Petitioner raised the following propositions of error:

Proposition 1: Ms. Wilkerson's jury was tainted by exposure to extraneous information in violation of her rights to a fair trial.

Proposition 2: The trial court committed reversible error by allowing the State to introduce minimally relevant and highly prejudicial evidence in violation of Ms. Wilkerson's rights under the Fourteenth Amendment to the United States Constitution and Article II, §§ 7 and 9 of the Oklahoma Constitution.

Proposition 3: Prosecutorial misconduct deprived Ms. Wilkerson of a fair trial.

A. Comments on the defendant's failure to produce evidence.

B. Inflammatory character evidence.

C. Vouching for the credibility of state witnesses.

D. Improperly evoking sympathy and societal alarm.

E. Conclusion.

Proposition 4: Ms. Wilkerson was deprived of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the Untied States Constitution and Article II, §§ 7, 9 and 20 of the Oklahoma Constitution.

Proposition 5: Ms. Wilkerson's sentence was excessive.

Proposition 6: The accumulation of error in this case deprived Ms. Wilkerson of due process of law and a fair trial in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7, 9 and 20 of the Oklahoma Constitution.

See Dkt. # 5, Ex. 1. In an unpublished summary opinion filed November 7, 2008, in Case No. F-2007-384 (Dkt. # 5, Ex. 3), the OCCA affirmed the Judgment and Sentence of the district court.

On April 29, 2009, Petitioner filed her federal petition for writ of habeas corpus (Dkt. # 1). In her petition, Petitioner identifies five (5) grounds for relief, as follows:

Ground 1: Defendant's Sixth Amendment right was violated when trial judge declined mistrial.

Ground 2: Defendant's Fourteenth Amendment rights were violated when trial court allowed highly prejudicial but minimally relevant evidence.

Ground 3: Defendant's constitutional rights were violated when the prosecutor shifted the burden of proof to the defense when the State implied that due to a lack of witnesses the defendant was lying.

Ground 4: Defendant was denied effective counsel rendering her trial unfair.

Ground 5: Defendant's sentence was excessive.

Ground 6: The accumulation of error denied the defendant a fair trial in violation of her constitutional rights.

See Dkt. # 1. In response to the petition, Respondent asserts that Petitioner is not entitled to habeas relief under 28 U.S.C. § 2254(d). See Dkt. # 6.

ANALYSIS

A. Exhaustion/Evidentiary Hearing

Before addressing the claims raised in the petition, the Court must determine whether Petitioner meets the exhaustion requirement of 28 U.S.C. § 2254(b) and (c). See Rose v. Lundy, 455U.S. 509, 510 (1982). Upon review of the petition and the state court record, the Court finds that Petitioner has exhausted her state court remedies.

In addition, the Court finds that Petitioner is not entitled to an evidentiary hearing. See Williams v. Taylor, 529 U.S. 420 (2000).

B. Claims adjudicated by the OCCA

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides the standard to be applied by federal courts reviewing constitutional claims brought by prisoners challenging state convictions. Under the AEDPA, when a state court has adjudicated a claim, a petitioner may obtain federal habeas relief only if the state 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." See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402 (2000); Neill v. Gibson, 278 F.3d 1044, 1050-51 (10th Cir. 2001). When a state court applies the correct federal law to deny relief, a federal habeas court may consider only whether the state court applied the federal law in an objectively reasonable manner. See Bell v. Cone, 535 U.S. 685, 699 (2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002).

In this case, the OCCA adjudicated Petitioner's grounds 1-6 on direct appeal. Therefore, Petitioner's claims will be reviewed pursuant to § 2254(d).

1. Denial of request for mistrial based on introduction of extraneous evidence during jury deliberations (ground 1)

In her first proposition of error, Petitioner claims that her rights under the Sixth Amendment were violated when the trial judge denied her motion for a mistrial after a juror visited the scene ofthe shooting while on a lunch break during deliberations. On direct appeal, the OCCA rejected this claim, citing Edwards v. State, 637 P.2d 886, 886 (Okla. Crim. App. 1981), and stating as follows:

[W]e find no reasonable possibility that Juror A.'s conduct, in driving by the crime scene during a lunch break after deliberations had begun, prejudiced the remaining jurors against Appellant. The trial court did not abuse its discretion in refusing to grant a mistrial. Proposition 1 is denied.

(Dkt. # 5, Ex. 3 (citations and footnote omitted)). In footnote 1 of the summary opinion, the OCCA summarized the facts underlying this claim and further explained that:

After receiving a note from the jury that Juror A. had driven by the crime scene, the trial court inquired of the other jurors individually to determine whether Juror A.'s comments about her conduct would affect their own deliberative processes, and concluded that they would not. Juror A. was excused from further service, and an alternate was seated in her place. We believe that the trial court's handling of the situation was entirely appropriate. See Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982) ("[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation . . . Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen").

(Dkt. # 5, Ex. 3 at 2 n.1).

The OCCA's decision was neither an unreasonable application of Supreme Court law nor an unreasonable determination of the facts. The Sixth Amendment requires that a "verdict must be based upon the evidence developed at the trial." Irvin v. Dowd, 366 U.S. 717, 722 (1961). "In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Turner v. Louisiana, 379 U.S. 466, 472-73 (1965). "Evidence" provided by a fellow juror during deliberations is therefore inconsistent with the right to trial by jury. See Bibbins v. Dalsheim, 21 F.3d 13, 16-18 (2d Cir. 1994) (per curiam) (considering the prejudicial effect of ajuror's statements about the crime scene during deliberations). But not all extraneous evidence requires setting aside the verdict. Black v. Workman, --- F.3d ---, 2012 WL 2152828, at *17 (10th Cir. 2012). A habeas petitioner challenging a state court conviction is entitled to relief only if the error "had substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Vigil v. Zavaras, 298 F.3d 935, 940 (10th Cir. 2002) (internal quotation marks omitted)). Factors to consider when evaluating...