Wilson v. Sirmons (CA10)

Wilson v. Sirmons, No. 06-5179 (CA10, capital case) — The panel affirmed the denial of the petitioner’s guilt-phase claims, and remanded for an evidentiary hearing with respect to the petitioner’s claim of IAC at sentencing.  The court’s opinions total 180 pages.

This case involves a robbery and murder committed by four men, including Wilson, at a convenience store in Tulsa, Oklahoma.  Wilson and three accomplices robbed the convenience store after Wilson’s shift there had ended.  One of the accomplices dragged the clerk on duty into the back room and beat him to death with a baseball bat.  The clerk had been bound and handcuffed.  A piece of the handcuffs was embedded into the clerk’s skull, and the body was discovered lying in a pool of milk, beer, and blood.

Wilson and one of his accomplices were tried together before separate juries.  Wilson was convicted of first-degree felony murder and robbery, and sentenced to death.  On direct appeal, the Oklahoma Court of Criminal Appeals reversed the robbery conviction under the merger doctrine but affirmed the murder conviction and death sentence; the U.S. Supreme Court denied certiorari review.  The Oklahoma Court of Criminal Appeals also denied Wilson’s petition for post-conviction relief.  The district court denied the 2254 petition, but certified 14 issues for appeal.

The court considered Wilson’s claim of IAC at sentencing to be most persuasive.  Although Wilson’s trial counsel did present some mental health evidence at the sentencing hearing, “the investigation and presentation of some mitigating evidence is not sufficient to meet the constitutional standard [under Strickland v. Washington, 466 U.S. 668 (1984),] if counsel fails to investigate reasonably available sources or neglects to present mitigating evidence without a strong strategic reason.”

Trial counsel hired a mental health expert three weeks before trial began, even though counsel had been appointed two years before trial began.  This expert concluded that Wilson’s IQ was 126, that there was no evidence neurological or organic brain damage, and that he suffered from anxiety, PTSD, and bipolar disorder.  Counsel did not discuss these findings with the expert until the day before the sentencing hearing began.  Character witnesses at the trial included teachers and fellow church parishioners, but none of them provided much meaningful insight.  The mental health expert was thus the most important witness for Wilson at the sentencing hearing.  Yet the “entirety of [the expert's] description of Mr. Wilson’s psychological state is no more than a page of the sentencing transcript.”  Moreover, what “occurred on cross-examination was a train wreck for Mr. Wilson,” because the prosecutor was able to get the expert to concede that psychopaths like Mr. Wilson are the most likely to reoffend.

Direct appeal counsel provided the expert with more information relating to Wilson’s background.  This information allowed the expert to conclude that Wilson is a paranoid schizophrenic.  The information shed more light on Wilson’s relationship with his father, which may have led to his mental health difficulties.  But the Oklahoma Court of Criminal Appeals ignored this investigation when it rejected Wilson’s IAC claim.  “The mere fact that more evidence could have been presented is not,” the state court ruled, “sufficient to show counsel was deficient.”  The district court, too, found no deficient performance in trial counsel, and denied relief.

The court chastizes the Oklahoma attorney general’s office for its skimpy presentation on this claim.  Its entire argument on this claim is that “Trial counsel did not provide deficient performance” becuase trial counsel hired a mental health expert.  This argument was “unresponsive” to the IAC claim because “the defendant has introduced specific evidence indicating that counsel hired the expert so late in the process that he was unable to complete necessary mental health evaluations, that counsel failed to gather or provide readily available relevant information that would have affected the diagnosis, and that counsel failed to present the expert’s actual diagnoses to the jury.”

The court proceeded to review Wilson’s IAC claim de novo, apart from the strictures of AEDPA deference.  “When a state court’s disposition of a mixed question of law and fact… is based on an incomplete factual record, through no fault of the defendant, and the complete factual record has since been developed and is before this Court, we apply de novo review to our evaluation of the underlying claim.”

The Tenth Circuit also found that Wilson had been “diligent” in developing the facts before the Oklahoma Court of Criminal Appeals.  Wilson had uncovered evidence not presented to the trial court, and then asked the Oklahoma Court of Criminal Appeals for an evidentiary hearing so that he could present that new evidence in a procedurally proper manner.  Schriro v. Landrigan, 127 S. Ct. 1933 (2007), did not bar an evidentiary hearing in federal court, because in that case the state courts did consider non-record evidence and nevertheless declined to hold an evidentiary hearing.  In this case, by contrast, the state courts did not consider the non-record evidence, and if they had, they arguably might have granted relief.

In light of Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003); and Williams v. Taylor, 529 U.S. 362 (2000); and its own precedents, the court found that Wilson received ineffective assistance of counsel.  There remained a question of prejudice, and it was to resolve this issue that the court remanded the case for a hearing.