Wilson v. State, No. 08-5101 (10th Cir. 1/28/2010), 08-5101.
| Decision Date | 28 January 2010 |
| Docket Number | No. 08-5101.,08-5101. |
| Parties | JESIL ABRAHAM WILSON, Petitioner-Appellant, v. STATE OF OKLAHOMA; JUSTIN JONES; TULSA COUNTY, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before O'BRIEN, BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.
ORDER AND JUDGEMENT*
Jesil Abraham Wilson, a minor, was charged with First Degree Murder in adult court. The Oklahoma trial court denied Wilson's motion to be certified as a child and proceed in juvenile court (reverse certification). Wilson was convicted by a jury and sentenced to life imprisonment. He filed a 28 U.S.C. § 2254 federal habeas petition alleging ineffective assistance of counsel with respect to the reverse certification proceedings. The district court concluded his claim as to pretrial counsel1 was procedurally barred and Wilson had failed to show ineffective assistance of appellate counsel constituted cause and prejudice to overcome the bar. We affirm.
The following facts derive mainly from the testimony of Officer Mark Brisbin, Detective Alvin McDonald and the victim's sister at the reverse certification hearing held on November 4, 1998.
At approximately 1:30 a.m. on January 3, 1997, 13-year-old Wilson and his cousin Zachary Ferguson went to Mitchell Knighten's apartment in Tulsa, Oklahoma, to retrieve a gun Knighten had taken from Wilson a few days earlier. Wilson knocked on the door, while Ferguson concealed himself around the corner. Knighten's sister answered the door. Wilson asked her to get her brother; Knighten then came to the door. Wilson demanded the gun from Knighten. When Knighten did not return the gun, Ferguson emerged from around the corner and fatally shot Knighten. Wilson and Ferguson fled the scene.
Police officer Mark Brisbin responded to the shooting and took a formal statement from Knighten's sister. While she was giving her statement, Wilson, Ferguson and Kelvin Kelly arrived in a car. Knighten's sister observed Wilson and Ferguson get out of the car, pointed at them and said, "Hey, there they are." (Appellant's Reply Br., Ex. 1 at 22.) Brisbin, allegedly at gunpoint, handcuffed Wilson and Ferguson and placed them in a patrol car. Kelly, who did not get out of the car, was also detained.
Detective Alvin McDonald also responded to the scene. He identified Wilson, Ferguson and Kelly as witnesses; they were transported to the police station where McDonald interviewed them. Kelly said Ferguson had shot Knighten and Wilson was with Ferguson at the time of the shooting. Ferguson denied any involvement in the murder. Wilson initially denied involvement but eventually admitted he was with Ferguson at the time Knighten was shot. He then said he shot Knighten once and Ferguson shot Knighten twice. Based on these statements, McDonald no longer considered Wilson a witness but rather a suspect. He stopped the interview and called Wilson's mother.
When Wilson's mother came to the police station, McDonald presented both Wilson and his mother with a form explaining Wilson's rights. It provided:
BEFORE WE ASK YOU ANY QUESTIONS YOU MUST UNDERSTAND YOU HAVE THE FOLLOWING RIGHTS
1. You have the right to remain silent.
2. Anything you say can and will be used against you in court.
3. You have the right to talk to a lawyer before we ask you any questions and you have the right to have him with you during the questioning.
4. If you cannot afford a lawyer and want one, the court will appoint one for you before you are asked any questions.
5. If you want to answer questions now without a lawyer present you may do so. You have the right to stop answering questions at any time. You may consult a parent/guardian in private concerning these rights before making a decision concerning these rights.
6. You are advised that under Oklahoma law there is a possibility that you may be certified and tried as an adult for this offense.
(R. Vol. I, Doc. 36-7 at 1.) According to McDonald's testimony, he read these rights to Wilson and his mother.
The form also contained a "WAIVER" section stating: (Id.) Under this section, three statements appeared: (1) "I have had the opportunity to confer with the juvenile in private concerning these rights"; (2) "I want the juvenile to answer questions or make a statement at this time"; and (3) "I do not want the juvenile to answer questions or make a statement at this time." (Id.) Before each statement is a box. Wilson and his mother checked the box in front of the second statement and signed the form.
After signing the form, Wilson told McDonald he and Ferguson went to Knighten's house to retrieve Wilson's gun which Knighten had taken from him. The plan was to first get Knighten outside the apartment. Once Knighten was outside, Wilson's "job" was to retrieve the gun. (Appellant's Reply Br., Ex. 1 at 33.) If he did not retrieve the gun, he was to step back, thereby signaling to Ferguson to shoot. "[T]he plan was to fix it where Mr. Knighten would never walk again, paralyze him" if he did not return the gun. (Id. at 32.) McDonald asked Wilson how he felt about Knighten being dead; Wilson said "he didn't care." (Id. at 34.) When asked why he had earlier said he shot Knighten, Wilson responded: "[T]o take some of the heat off of [my] cousin, [Ferguson], cause [Ferguson] was going to be going to prison for him for a long time." (Id. at 44.)
In Oklahoma, a 13-year-old charged with having violated any state statute or municipal ordinance is normally tried in a juvenile proceeding. See Okla. Stat. Ann. tit. 10, §§ 7301-1.3(4), 7303-4.3(A).2 However, if the offense would be a felony if committed by an adult, the juvenile court, on its own motion or at the request of the district attorney, may seek to certify the juvenile to stand trial as an adult (adult certification). In such circumstances, the juvenile court must first conduct a preliminary hearing to determine whether there is prosecutive merit to the charge. Id. § 7303-4.3(B). If so, the court must continue the hearing to determine if the juvenile should be held accountable for his acts as if he were an adult (adult certification). Id. In making this determination, the court considers such factors (not listed in order of importance) as the seriousness of the alleged offense to the community; whether it was committed in a violent or premeditated manner; the nature of the alleged offense; the maturity of the child and his ability to distinguish right from wrong; the juvenile's previous record; the prospects for adequate protection of the public and the likelihood of rehabilitating the juvenile in the juvenile system; and whether the offense occurred while the juvenile was escaping. Id. If the court decides adult certification is warranted, the juvenile proceeding will be dismissed and an adult criminal proceeding will be commenced against the juvenile. Id.
In certain circumstances, a juvenile is automatically considered an adult based on his age and the nature of the crime. Id. § 7306-1.1 (A), (B). Relevant here, a 13-year-old charged with First Degree Murder is required to be considered as an adult; no certification hearing is required. Id. § 7306-1.1(B) (). However, the juvenile may file a motion for certification as a child (reverse certification) before the start of the preliminary hearing. Id. § 7306-1.1(E). At the conclusion of the State's evidence at the preliminary hearing, the juvenile may offer evidence to support his reverse certification motion. Id. In deciding the reverse certification motion, the court must give consideration to the following factors listed in order of importance: (1) whether the offense was committed in an aggressive, violent, premeditated or willful manner; (2) whether the offense was against persons or property; (3) the record and past history of the juvenile; and (4) the prospects for adequate protection of the public if the accused person is processed through the juvenile system. Id. If the court grants the motion, the charge will be expunged and the case will proceed in the juvenile division of the district court. Id. § 7306-1.1(F). This case involves both an adult certification and a reverse certification proceeding.
In September or October 1997, Wilson was charged as a juvenile with Accessory to First Degree Murder.3 Cliff Stark was appointed to represent him. The case was assigned to District Court Judge Chappelle. On July 30, 1998, Judge Chappelle held a hearing and found prosecutive merit to the charge.
It is unclear from the record whether the State moved for adult certification or whether Judge Chappelle did so sua sponte. In any event, on September 17, 1998, Judge Chappelle held another hearing to determine whether Wilson should be certified to stand trial as an adult. He concluded Wilson should be so certified. In doing so, he considered the factors set forth in Okla. Stat. Ann. tit. 10, § 7303-4.3(B), finding: (1) the offense was committed in an aggressive, violent, premeditated and willful manner against a person and resulted in the loss of a person's life; (2) Wilson had a fair understanding of appropriate social behavior, was capable of making adequate decisions about social situations, and was capable of understanding right from wrong; (3) Wilson minimized responsibility for his actions and lacked respect for other people and property; (4) while Wilson had only a few previous contacts with law enforcement, his mother had recently obtained a protective order against him,4 he had been referred to law enforcement for possessing marijuana and...
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