Wilson v. Warden, Ga. Diagnostic Prison

• Decision Date: 10 August 2018
• Docket Number: No. 14-10681,14-10681
• Citation: 898 F.3d 1314
• Parties: Marion WILSON Jr., Plaintiff-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

898 F.3d 1314

Marion WILSON Jr., Plaintiff-Appellant,

v.WARDEN, GEORGIA DIAGNOSTIC PRISON, Defendant-Appellee.

No. 14-10681

United States Court of Appeals, Eleventh Circuit.

August 10, 2018

Brian Kammer, Marcia A. Widder, Georgia Resource Center, Atlanta, Gabrielle Elizabeth Bina, Emily Jane Greb, David J. Harth, Lissa Rose Koop, Autumn N. Nero, Perkins Coie LLP, Madison, WI, Marion Wilson, Jr., Hays SP, Trion, GA, for Petitioner-Appellant.

Beth Attaway Burton, Sabrina Graham, Attorney General's Office, Atlanta, GA, for Respondent-Appellee.

Adam Mortara, Bartlit Beck Herman Palenchar & Scott, LLP, Chicago, IL, for Amicus Curiae.

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and JORDAN, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

WILLIAM PRYOR, Circuit Judge:

This appeal is on remand from the Supreme Court of the United States for us to reconsider the denial of Marion Wilson Jr.’s petition for a writ of habeas corpus. Wilson, a Georgia prisoner sentenced to death for the murder of Donovan Corey Parks, argues that he was deprived of a fair trial because his counsel provided ineffective assistance during the penalty phase of his trial. In state postconviction proceedings, Wilson argued that his trial counsel were constitutionally ineffective because they failed to discover and introduce mitigating evidence. The state superior court ruled that Wilson’s claim of ineffective assistance of counsel failed, and the Supreme Court of Georgia declined to review that decision. After we ruled that the one-line decision of the Supreme Court of Georgia was the relevant decision for our review and affirmed the denial of Wilson’s petition, the Supreme Court granted Wilson’s petition for writ of certiorari and reversed. Wilson v. Sellers , ––– U.S. ––––, 138 S.Ct. 1188, 200 L.Ed.2d 530 (2018). The Supreme Court held that we must "look through" an unexplained decision by a state supreme court to the last reasoned decision and presume that the state supreme court adopted the reasoning in the decision by the lower state court. Id. at 1192. Because the superior court reasonably concluded that counsel provided Wilson effective assistance, we affirm the denial of Wilson’s petition for a writ of habeas corpus.

I. BACKGROUND

We divide our discussion of the background in three parts. First, we discuss the facts of Parks’s murder and the evidence presented at Wilson’s trial and sentencing. Second, we discuss Wilson’s state petition for a writ of habeas corpus. Third, we discuss Wilson’s federal petition.

A. Wilson’s Trial and Sentencing

In 1996, Marion Wilson Jr. and Robert Earl Butts killed Donovan Parks in Milledgeville, Georgia. Wilson v. State , 271 Ga. 811, 525 S.E.2d 339, 343 (1999). Wilson and Butts approached Parks in a Wal-Mart parking lot to ask for a ride. Id. Wilson, Butts, and Parks then entered Parks’s automobile. Id. A few minutes later, Parks’s dead body was found nearby on a residential street. Id. Parks’s clothing was saturated with blood, and he had a "gaping" hole in the back of his head. His skull was filled with metal shotgun pellets and a spent shot shell cup.

After officers arrested Wilson, he told the officers that after Parks got in the automobile, Butts pulled out a sawed-off shotgun and ordered Parks to drive around. Id. According to Wilson, Butts later told Parks to exit the automobile and lie on the ground, after which Butts shot Parks in the back of the head. Id. Wilson and Butts drove Parks’s automobile to Atlanta in an attempt to locate a "chop shop" to dispose of the automobile. Id. They were unable to find a "chop shop" so they purchased gasoline cans, drove to Macon, and burned the automobile. Id. Police later searched Wilson’s residence and found a "sawed-off shotgun loaded with the type of ammunition used to kill Parks" and notebooks filled with handwritten gang creeds and symbols. Id.

At trial, Wilson was represented by two appointed attorneys, Thomas O’Donnell Jr., who served as lead counsel, and Jon Phillip Carr. Wilson v. Humphrey , No. 5:10-CV-489 (MTT), 2013 WL 6795024, at *10 (M.D. Ga. Dec. 19, 2013) ). They argued that Wilson was "mere[ly] presen[t]" during Butts’s crimes, id. at *34, but the jury convicted Wilson "of malice murder, felony murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a sawed-off shotgun," id. at *2.

During the penalty phase, defense counsel argued that the jury should not sentence Wilson to death because there was residual doubt about his guilt. Id. at *16. They presented evidence that Butts gave inconsistent statements to the police and that Butts confessed to three other inmates that he was the triggerman. Trial counsel again tried to convince the jury that Wilson was "mere[ly] presen[t]" during the crimes.

Trial counsel introduced testimony from Wilson’s mother, Charlene Cox. She testified that Wilson had a difficult childhood and did not deserve to die even though he had a history of criminality. She explained that Wilson’s father played no role in Wilson’s upbringing, that she supported Wilson by working low-wage jobs, and that Wilson had an 18-month-old daughter. Id. at *25.

Trial counsel also introduced testimony from Dr. Renee Kohanski, a forensic psychiatrist. Id. at *20. Dr. Kohanski relied on the records defense counsel requested from agencies, schools, and medical facilities, and interviewed Wilson to create a "cursory" social history, but she did not conduct an independent investigation of Wilson’s background. Id. at *20–21. Dr. Kohanski testified that Wilson had a difficult, sickly, and violent childhood. She explained that Wilson was so aggressive as a child that his elementary school performed a psychological assessment of him. Id. at *25. The assessment found that Wilson had difficulty staying on task, a poor self-image, and an "excessive maternal dependence." Id. Dr. Kohanski told the jury that school officials also requested a medical evaluation because they suspected that Wilson suffered from an attention deficit disorder

, but testing was never performed. Id. She testified that Wilson had no parental support or male role model, and that, by age 9 or 10, he fended for himself on the streets and joined a gang as a substitute for a family. Id. Dr. Kohanski told the jury that Cox’s boyfriends "came and went" and frequently used drugs. Id. Dr. Kohanski testified about one "not ... uncommon event," id. at *25, in which six- or seven-year-old Wilson witnessed Cox’s "common law" husband hold a gun to Cox’s head, id. at *17.

On cross-examination, both Cox and Dr. Kohanski testified about unfavorable background evidence. Cox admitted that Wilson was incarcerated for every day of his daughter’s life and that Cox had difficulty raising Wilson and sometimes needed police assistance to control Wilson. Id. at *26. Dr. Kohanski told the jury that Wilson was of average intelligence and suffered from no known brain damage, but that he was in two car accidents as a child and she "would have been interested to see [brain imaging

scans from] that time" to look for brain damage. She also testified that, regardless of any possible brain damage, Wilson knew right from wrong at the time of the murder.

The prosecution then presented evidence of Wilson’s extensive criminal history. The jury heard that, from the age of 12 years, Wilson was "either out committing crimes or incarcerated somewhere." Id. at *22 (alteration adopted). The jury heard that Wilson had been charged with first-degree arson, criminal trespass, and possession of crack cocaine with intent to distribute, and that in a period of 11 weeks Wilson was charged with 10 misdemeanor offenses. Id. at *22–24. The jury heard that, as a 15-year-old, Wilson shot a stranger, Jose Valle, in the buttocks because he "wanted to see what it felt like to shoot somebody," id. at *22, and that Wilson sold crack cocaine to Robert Underwood and then shot him five times and "casually walked off," id. at *23. The jury also heard testimony that Wilson was charged with cruelty to animals after he "shot and killed a small dog for no apparent reason." Id.

The prosecution presented other evidence of Wilson’s violence and gang activity. The jury heard that Wilson threatened a neighbor and his elderly mother, saying "I’ll blow ... that old bitch’s head off"; that Wilson committed unprovoked attacks on his schoolmates; and that Wilson attacked one of the employees during his incarceration at Claxton Regional Youth Development Center. Id. at *22–23. The jury heard details of an incident in which a "belligerent" Wilson and five others were shouting at students in a parking lot at Georgia College. Id. at *23. When police arrived, Wilson rushed one of the officers and had to be subdued with pepper spray when he attempted to grab the officer’s gun. Id. The jury heard portions of Wilson’s post-arrest interrogation in which he confessed that he was the "God damn chief enforcer" of the Milledgeville FOLKS gang, a rank he achieved by "fighting and stuff like that." Id. at *24.

At the close of testimony, the trial court instructed the jury to consider all of the evidence from both the guilt and penalty phases of trial. After deliberating for less than two hours, the jury sentenced Wilson to death for the crime of malice murder. Id. at *26. The Supreme Court of Georgia affirmed Wilson’s conviction and sentence on direct appeal. Id. at *2.

B. Wilson’s State Petition for a Writ of Habeas Corpus

Wilson filed a petition for a writ of habeas corpus in a state court, in which he argued that his trial counsel had been ineffective because they failed to investigate his background thoroughly and to present adequate mitigation evidence at his sentencing. Id. at *13 ; see Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Wilson argued that effective counsel would have interviewed teachers, social workers, and relatives to find mitigation evidence from...