Gingras v. Weber (CA8)

Gingras v. Weber, No. 07-3114 — The court affirmed the denial of a § 2254 petition challenging a conviction for selling marijuana.  The petitioner’s home was searched pursuant to a warrant, and the petitioner gave a statement to the police after being informed of his Miranda rights.  He filed a motion to suppress the statement before trial, which the trial court did not resolve before the petitioner pleaded guilty pursuant to a plea agreement.  The petitioner had claimed — and the Eighth Circuit ultimately considered on appeal — that trial counsel was ineffective for failing to tell him that the motion to suppress the statement had not yet been ruled on at the time he pleaded guilty, and that but for that failure he would not have pleaded.

Despite the possibility that there existed an avenue under South Dakota law for the petitioner to resolve the claim in state court, the Eight Circuit addressed the merits.  Under the pre-AEDPA standard of review, the court concluded that there was “scant support in the record” for the idea that the petitioner’s statement to the police was not voluntarily made.  He was initially upset and crying when the police came to his house, but he had calmed down sufficiently to talk to the police in a calm and coherent manner.  There was no coersion on the police’s part.  These conclusions were reasonable, and did not suggest that the trial court would have granted the motion to suppress.  Consequently, there was no prejudice under Strickland and Hill v. Lockhart, 474 U.S. 52 (1985).

The petitioner had sought an evidentiary hearing in federal court on this claim.  The Eighth Circuit affirmed the denial of the hearing, because the petitioner was not diligent in pursuing a hearing as to this claim.  The state habeas court did hold a hearing, but only on a different claim, and there was no indication that the petitioner had sought to bring this claim before the state courts on habeas review.  Consequently, he “failed to develop” the claim in state court, and was not entitled to a hearing under 28 U.S.C. § 2254(e)(2).

CA5 — memorandum disposition

Shelton v. Quarterman, No. 06-10448 — This is a murder case.  The petitioner was convicted of shooting his business partner and his partner’s wife outside their home.  The partner died; the wife survived.  The partner’s wife claimed that the petitioner’s wife participated in the chooting; the petitioner’s wife was never charged.  The partner’s wife sued the petitioner’s wife for wrongful death.  During discovery, additional facts related to the murder emerged that were not presented at the petitioner’s trial.  Eventually the wrongful death lawsuit was dismissed, and the petitioner’s wife won a libel judgment for public allegations that she was involved in the shooting.

The lawyer who represented the petitioner’s wife at trial wrote a letter to the petitioner, explaining the additional evidence that had emerged during discovery and describing his belief that the prosecution had wrongfully withheld the evidence at the trial.  The petitioner then sought state habeas relief, which both the trial court and the Texas Court of Criminal Appeals denied.

The petitioner then filed a § 2254 petition, and also asked for discovery and to expand the record in federal court.  The district court denied both the requests for evidentiary development as well as the petition on the merits.  The Fifth Circuit certified the issues for appeal.

As for the petitioner’s request for additional discovery, it was grounded in an allegation that the prosecution had presented false testimony from the partner’s at the criminal trial.  But the petitioner failed to allege what was false about the testimony, such that further discovery would have allowed him to flesh that out.  Moreover, the trial court in the wrongful death lawsuit never ruled that the partner’s wife had lied on the stand.  Records from the company that maintained a portable toilet in which evidence of the shooting was found were not material under Brady.  Phone records the prosecution allegedly withheld were not exculpatory.  Because these allegations were insufficient to establish “just cause” for discovery, Bracy v. Gramley, 520 U.S. 899 (1997), the district court did not abuse its discretion to deny discovery.

As for the petitioner’s request to expand the record, the court began by noting that the provisions of § 2254(e)(2) apply to requests to expand the record as well as for evidentiary hearings.  Because the petitioner did not apprise the state habeas courts of the evidence by which he sought to expand the record, he had “failed to develop the factual basis of the claims” in state-court proceedings.  The facts were not sufficient to establish by clear and convincing evidence that no reasonable factfinder would have convicted him, so the district court properly denied the request to expand the record, and for an evidentiary hearing as well.

Finally, trial counsel was not ineffective for failing to investigate the records maintained by the portable toilet company regarding the maintenance of the particular toilet where inculpatory evidence was found.  The records were not “facially exculpatory,” and they did not indicate that the jury would have believed his alibi explanation that he placed the evidence in the portable toilet on a different day.  In light of the strength of the other evidence against the petitioner, the court concluded that the state courts’ conclusion on Strickland prejudice was not unreasonable.

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.