Wilkins v. Ludwick, C13-4024-MWB

• Decision Date: 21 July 2014
• Docket Number: No. C13-4024-MWB,C13-4024-MWB
• Court: U.S. District Court — Northern District of Iowa
• Parties: OMAR WILKINS, Petitioner, v. NICK LUDWICK, Respondent.

OMAR WILKINS, Petitioner, v. NICK LUDWICK, Respondent.

No. C13-4024-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

DATED: July 21, 2014

ORDER ON PENDING MOTIONS;

and

REPORT AND RECOMMENDATION

ON PETITION FOR WRIT OF

HABEAS CORPUS PURSUANT TO

28 U.S.C. § 2254

TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................................. 2

A. Factual Background ............................................................... 3

B. Procedural Background ................................................... 5

1. State Court Proceedings ................................................... 5

a. Direct Appeal ................................................... 5

b. Post-conviction Relief Proceedings ................................................... 5

2. Federal Proceedings ..................................................... 10

II. STANDARD OF REVIEW..............................................................11

III. DISCUSSION ................................................... 14

A. Motion to Expand the Record and Motion to Add Supplemental Claim ................................................................................................................................... 14

B. Motion to Strike Petitioner's Pro Se Reply Brief ........................... 19

C. Ineffective Assistance of Counsel Claims .................................... 20

1. Failure to Object to Prosecutor's Use of "O.J." Nickname at Trial ................................................... 20

2. Failure to Investigate Information from Johnson and Call Him as a Witness ................................................... 26

IV. ORDER AND RECOMMENDATION ...................................................29

I. INTRODUCTION

An Iowa District Court jury convicted Omar Wilkins (Wilkins) of first-degree felony murder on January 31, 2003. He was sentenced to a life term of imprisonment without the possibility of parole. The Iowa Supreme Court affirmed his conviction on direct appeal. State v. Wilkins, 693 N.W.2d 348 (Iowa 2005).

Wilkins then filed a state action for post-conviction relief (PCR), which was denied. The Iowa Court of Appeals affirmed that denial, Wilkins v. State, 820 N.W.2d 769 (Iowa Ct. App. July 11, 2012) (unpublished table decision), and the Iowa Supreme Court denied further review. The Clerk of the Iowa Court of Appeals issued the procedendo, signifying the conclusion of the PCR appeal, on September 6, 2012. Doc. No. 12-24.

On February 25, 2013, Wilkins filed a pro se petition (Doc. No. 1) for writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254. Attorney Shelley Goff was appointed to represent him after a previous attorney withdrew from the case. Wilkins filed a merits brief (Doc. No. 21) on November 29, 2013, along with a motion to expand the record (Doc. No. 19) and a motion to add a supplemental claim (Doc. No. 20). I reserved ruling on the motions and stated they would be taken up with the merits of the petition. Doc. No. 28. I directed the respondent to proceed as if the proposed additional evidence and supplemental claim were part of the record and petition. Id. Respondent filed his merits brief (Doc. No. 38) on April 3, 2014. Wilkins filed a pro se reply (Doc. No. 39) on May 15, 2014. Respondent filed a motion to strike the pro se reply (Doc. No. 40) and Wilkins filed a pro se resistance (Doc. No. 43). Wilkins also submitted a reply brief through his attorney. (Doc. No. 41). I reserved ruling on the respondent's motion and indicated it would be taken up with the merits of the petition as well. Doc. No. 44. All matters are now fully submitted. The Honorable Mark W. Bennett, United States District Judge, has referred the habeas petition to me for preparation of a report and recommended disposition.

A. Factual Background

The Iowa Court of Appeals summarized the factual background of Wilkins's trial in its opinion on Wilkins's PCR appeal. Absent rebuttal by clear and convincing evidence, I must presume that any factual determinations made by the Iowa courts were correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586 F.3d 624, 630 (8th Cir. 2009) (a federal court must deem factual findings by the state court to be presumptively correct, subject to disturbance only if proven incorrect by clear and convincing evidence). As no such rebuttal has been made, I adopt the following facts as determined by the Iowa Court of Appeals:

On July 3, 2002, Myree Coleman Jr. drove his friend David Hayes to 1510 Jones Street, Sioux City, so Hayes could purchase crack cocaine from Omar Wilkins.

Within hours, early in the morning of July 4, 2002, Hayes again asked for a ride so he could purchase more crack cocaine from Wilkins. Coleman again drove Hayes to Jones Street. During this outdoor transaction, Hayes flashed a wad of bills, a fight occurred, and Hayes was shot and killed. Coleman fled. At 2:24 a.m., the police were dispatched to a report of shots fired in the 1500 block of Jones Street. The officers found the murder weapon and Wilkins, Ezzard Woods, and Wayne Richard Edwards in Shirley Smith's house, 1507 Jones Street. Woods had a white cast on one arm. Alton Burden, Shirley Smith's son, was located nearby. Subsequently, Wilkins, Woods, Edwards, and Burden were arrested as material witnesses to the murder. Wilkins told the police he was not out of the house at the time of the shooting.

Wilkins was charged with the murder of Hayes and in January 2003, his trial to a jury commenced. The testimony of Coleman, Woods, Edwards, Burden, and Smith supported the State's theory that Wilkins was the person who shot and killed Hayes. Michael Daniels, the upstairs tenant of 1510 Jones Street, testified he looked out his window when he heard a commotion, he didn't see the gun, but he saw the flash and the "flash came from where that white cast was."

Wilkins's attorney argued Woods, who had a white cast, shot Hayes. Wilkins's attorney attacked the credibility of Woods and Edwards, pointing out their favorable plea agreements. Further, Wilkins's attorney argued Smith's and Burden's testimony was suspect because Smith was admittedly intoxicated and Burden testified he had been high for two days at the time of the shooting. The attorney argued Coleman's testimony was unreliable because he drove away and was not interviewed by the police until the next day, July 5.

In February 2003, the jury, by special interrogatory answer, found Wilkins guilty of first-degree felony murder—underlying felony of second-degree robbery.

Wilkins appealed his conviction. On March 8, 2004, the appellate defender's office received the handwritten affidavit of Kevin Demale Johnson, stating:

In August of 2002, I was being held in the Woodbury County Courthouse Jail in E. Block.... Alton Burton ... was also in E. Block being held as a material witness to a murder. After me and Alton first met each other, we became real close and shared a lot of personal information.

Johnson's affidavit "purports to have heard some of the witnesses against the defendant concoct a conspiracy to convict him." State v. Wilkins, 693 N.W.2d 348, 352 (Iowa 2005). Additionally, this affidavit states Alton told Johnson that Edwards was the killer.

Wilkins v. State, 820 N.W.2d 769, at *1 (Iowa Ct. App. July 11, 2012) (unpublished table decision) [footnotes omitted].

B. Procedural Background

1. State Court Proceedings

Wilkins was charged with first-degree murder under the alternative theories of having killed Hayes willfully, deliberately and with premeditation or while participating in a forcible felony. Wilkins went to trial where he was represented by Michael Williams of the Public Defender's Office. The jury returned a special verdict on January 31, 2003, finding Wilkins guilty of murder in the first degree under the felony murder theory.

a. Direct Appeal

Wilkins appealed his conviction to the Iowa Supreme Court. He argued he was deprived of the right to fair trial and prejudiced by the court's denial of a challenge to a prospective juror and prosecutorial misconduct. State v. Wilkins, 693 N.W.2d 348 (Iowa 2005). Wilkins also presented the newly discovered evidence from Johnson. The court found that neither of Wilkins's claims warranted reversal of his conviction. It did not consider the claim based on the newly discovered evidence, but preserved the claim for PCR proceedings.

b. Post-conviction Relief Proceedings

i. Iowa District Court Decision

Wilkins filed his PCR petition on May 4, 2005. He argued ineffective assistance of counsel based on his trial counsel's (a) waiver of his right to a speedy trial without consulting him, (b) failure to properly investigate the case, (c) failure to properly cross-examine Zachary Chwirka, an expert witness, and (d) failure to either object or file a motion to prevent the use of his nickname, "O.J." at trial. Doc. No. 12-19 at 87-92. He also argued the newly discovered evidence from Johnson required his conviction and sentence to be reversed and vacated. Id.

The state filed a motion for summary judgment, which was granted on Wilkins's claims of ineffective assistance of counsel based on his trial counsel's (1) failure to properly investigate the case, (2) waiver of the speedy trial and (3) failure to prevent the use of the nickname "O.J." Doc. No. 12-19 at 112-15. Wilkins amended his petition and the district court held the PCR trial on July 22, 2009. The court considered the following ineffective assistance of counsel claims: (1) failure to investigate potential testimony of Johnson and call Johnson to testify at trial, (2) failure to adequately cross-examine expert witness Chwirka and (3) failure to request and/or object to several jury instructions. The court also considered a claim based on newly discovered evidence from Johnson. Because Wilkins appealed only from the district court's ruling as it related to Johnson, I will limit my discussion of that ruling accordingly.

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