Wilson v. Sirmons

summary judgment was and ambiguous a Idaho Code. Absent in the given tions in premature. statutory reference specific and direct statutory provision a or even easement the Activity B. Commercial easement, nothing the to closely related the meaning of plain that the the Parks’ that suggests court held The district are defined easement in the com- prohibited terms business was dog kennel statutory provi- Idaho specific reference Parks are Although the activity. mercial must be understood terms The fact sions. profit, for the kennel running of the parties. to the intention give effect from operation also the preclude does not P.3d at 1238. Benninger, 129 See farming use. livestock being permissible undertaken for surely can be Farming the that convinced are also not We expressly states the easement profit con- the Idaho Code conceded that Parks Parks, “retain now the grantors, that the refer- of livestock. The definition trols the crop and engage “general in right” to Parks’ the in the Code to the Idaho ences was re- right farming.” judgment livestock This summary and in their pleadings only The consis- exception. that should tained only the law without filings pertain is restriction as understand the way the tent interpretation of easement. the govern except to activity commercial against govern- prohibiting the argued They expressly crop “general it as qualifies Code should that that the Idaho the extent position ment’s farming.” of the meaning for the the basis and livestock as serve in the easement. terms farming” is term “livestock Because the easement, argument of its it the Finally, support is used ambiguous to the cannot prior of the land use” easement “regular interpretation farming and “crop summary judgment. grant was resolved easement ranching,” govern- court is reversed and horse of the district judgment cattle proceedings. Ad- extrinsic evidence—the for offers remand further ment and we property Plan for ministrative AND REMANDED. REVERSED Forest by the Monroes prepared grant at the easement time Service in con- the Parks made statement summary motion with their

nection is admissi- Extrinsic evidence

judgment. is the easement only when a term ble WILSON, Petitioner- Lee Michael fact inter- the trier of must ambiguous and Appellant, first in the instance. ambiguity pret Because P.3d at 1238. Benninger, 129 See Warden, SIRMONS, Marty Oklahoma judg- summary granted district court Penitentiary, Respondent- State that “livestock” ground on the ment Appellee. term, has no trier fact unambiguous ambiguity and we will interpreted No. 06-5179. the extrinsic evidence on what comment Appeals, States Court United

may demonstrate. Tenth Circuit. a uniform definition the lack of Given Aug. the absence of of “livestock” and corners the four guidance within

easement, term we conclude (Mark Henricksen, Henricksen,

Lanita briefs), & Hen- her on the Henricksen with OK, Inc., City, Lawyers, Oklahoma ricksen Petitioner-Appellant. Miller, Attorney B. Assistant Jennifer (W.A. Edmondson, General, Attor- Drew Oklahoma, her on the ney General OK, briefs), City, for the Re- Oklahoma spondent-Appellee. HARTZ,

Before McCONNELL TYMKOVICH, Judges. Circuit McCONNELL, Judge. Circuit Wilson, inmate Lee a death row Michael Penitentiary, ap- State the Oklahoma peti- of his the district court’s denial peals corpus pur- filed tion for a writ of habeas § 2254. Mr. suant to 28 U.S.C. count of murder was convicted of one robbery with a dan- degree the first sentencing phase, gerous weapon. statutory aggravating found three to death for factors. He was sentenced in murder and to life degree the first robbery. For the reasons prison for the below, affirm the district set forth we other than ineffective court as to all issues mitigation assistance of counsel we re- phase; with to that issue respect evidentiary Judge hearing. mand for an Tymkovich join all but Judge Hartz and opinion, Part III of this which addresses of counsel claim. the ineffective assistance III(c) joins Part and concurs Judge Hartz Judge Tymkovich Part III. the result of Part III. holding from the dissents Background I. findings of the The factual Oklahoma (“OCCA”) Appeals are Court of Criminal by clear cuffs on Yost’s wrists he held correct unless rebutted his hands presumed convincing evidence. 28 U.S.C. above in an attempt his head to block the 2254(e)(1). account of the crime § Our eventually blows. These blows caused opin the trial is based on the OCCA’s Yost’s death. Id. (Okla. State, P.2d 448 ion in Wilson v. attack, During the Mr. Wilson exited the (“Wilson ”). I Crim.App.1998) room, hands, put back examined his on a QuikTrip jacket, and went behind the A. The Crime greeted counter. they He customers as Wilson, along Billy with Michael Lee sales, entered and completed attempting to Alverson, Brown, Darwin and Richard remove the safe below the counter be- Harjo, planned QuikTrip to rob the con- eventually tween customers. He succeed- Tulsa, Oklahoma, venience store where ed. money He also took from the cash an employee. plan- Mr. Wilson was The currency drawer and from the ma- change ning approximately occurred two chine, and removed the video from the prior p.m. weeks to the crime. At 11:00 Using surveillance camera recorder. 25,1995, February Mr. night Wilson store, dolly from the the defendants loaded completed QuikTrip his shift at the money the safes and into Mr. car. early replaced Richard Yost. In the Id. morning February hours of Mr. Wil- A customer body discovered Yost’s dead Brown, son, Alverson, along with and Har- Quik- soon after the defendants left the jo, QuikTrip. subsequent entered the The Trip. gruesome It was in a condition. captured events were on the store’s sur- taped together Yost’s ankles had been I, tape. veillance 983 P.2d at 455. tape. duct There awas handcuff near his cleaning win- four found Yost body; piece was later discovered embed- and surrounded him. dows on the coolers body ded into his head. His in a lying away, tried to walk When Yost the four milk, beer, pool spilled and blood. dragged him and him into the attacked witnesses, speaking After police back room. What occurred that room is discovered that Mr. had been in the tape, not visible on surveillance but the store between 4:00 a.m. and 6:00 a.m. tape captured coming noises from there. during At When failed to come to work point, some Yost was handcuffed. he p.m. day, scheduled 3:00 shift Officer helping drag After Yost to the back Wayne up Allen set surveillance Mr. room, exited, picked up Alverson some p.m., gray Wilson’s home. Around 5:00 a items had been knocked from the pulled up vehicle to Mr. Wilson’s house. during struggle, kept shelves the and car, got picked up Mr. out of the a Wilson after, Harjo for watch customers. Soon air; after, shovel and waived it in the soon also left the room and the two walked back he and the car returned the vehicle exited, together. they out of the store As away. stopped drove Officer Allen the car yelled help, Yost and screamed for believ- along and arrested Mr. Wilson with Alver- ing a customer had entered the store. son, Brown, Harjo, and also who were returned, Harjo Harjo When Alverson and police large inside. The sums discovered a aluminum carrying was black baseball money except on all of the defendants bat. Both returned to the back room. Id. for Mr. Wilson. Id. striking Sounds of the bat Yost are audi- arrest, Following the Detective Charles tape. ble on the surveillance addition head, questioned Folks Mr. Part of the striking suggest- trial evidence Wilson. recorded, but questioning ed the baseball bat struck the hand- was another preventing a avoiding or purpose for the In an unrecorded was not. component (3) it was prosecution; that he lawful arrest indicated Mr. Wilson component, commit would killed, that the that the defendant probable would knew Yost that would consti- acts of violence robbery approxi- criminal planned had four society. Okla. continuing to act tute a threat mately weeks. Mr. Wilson two (7). 21, 701.12(4),(5), § & Ann. tit. Yost was “taken Stat. clerk after as the sales of all three jury The found the existence care of.” Id. and recom- aggravating circumstances searched Alverson’s police When sentenced to that Mr. Wilson be mended safe, drop home, they discovered agreed, and sen- The trial court death. cleaner, tubes, money dolly, QuikTrip glass tenced Mr. Wilson death. tape. Nothing video and the surveillance Mr. The affirmed both home. OCCA at Mr. Wilson’s was discovered degree first 27, in the conviction for murder However, February Mr. Wilson’s on It reversed his and his death sentence. mother, Taylor, requested that Patricia a robbery with they and sentence for conviction to her house. When police come Mr. Wilson bat, bloody weapon; arrived, dangerous a because they found a baseball murder, felony under convicted of Mr. name on was jacket with Yost’s QuikTrip (which law, convicted of he could not be it, jacket, Oklahoma Mr. Wilson’s Nike I, felony.1 P.2d Wilson underlying during the rob- matched the one he wore handcuff, Supreme Court placed all on at 463. The United States bery), and the other petition for writ of denied Mr. Wilson’s porch. Id. at 455-56. the front 1999. Wilson certiorari on October Proceedings B. Judicial Oklahoma, (1999). The OCCA denied L.Ed.2d 205 tried, along with Darwin Mr. Wilson relief on November post-conviction Brown, jury County in the Tulsa before Denying “Opinion Ill Box 1999. R. Vol. jury court used a dual District Court. The II”). (“Wilson Relief’ Posb-Conviction one trial was conducted procedure, where petition filed a for writ Mr. Wilson juries. two One was as- in front of corpus to 28 U.S.C. pursuant habeas adjudicate charges against signed to § District Court for the North separate jury was as- Mr. Brown while February on I, ern District of Oklahoma signed to Mr. Wilson’s case. Wilson Sirmons, 00-CV-147, No. jury convicted Mr. Wil- P.2d at 456. The 2006) (N.D.Okla. Aug. WL robbery degree son of first murder III”). (‘Wilson dangerous weapon. awith petition district court denied the Bill of Par- sentencing At the phase, 8, 2006, granted but a certificate of August that Mr. should be charged ticulars (“COA”) pursuant to 28 appealability by death to the existence of punished due 2253(c)(2) grounds: § on fourteen U.S.C. aggravating three circumstances: (2) (1) jury heinous, atrocious, procedure; the use of the dual especially murder was (2) evidence without cruel; committed the introduction DNA the was or murder felony mur charged that Mr. Wilson was under alternative convicted Mr. Wilson the benefit of the degree der so that he could "receive murder: either malice theories of first court, convicted of rule that a defendant felony howev cannot murder or murder. er, felony." underlying degree felony-murder and gave jury general first only I, form, (citing v. P.2d at 463 Munson making impossible to Wilson 983 murder verdict it 324, State, (Okla.Crim.App. theory P.2d 332 found 758 determine under which 1988)). result, . guilty. As a the OCCA assumed him

1073 (3) son, 1257, introduction of 1264-65 hearing; Cir. a Daubert 1999)). dis- of the Oklahoma legal analysis evidence in violation The district court’s (4) code; give jury the failure to covery de novo and is reviewed factual find offense; on a lesser included instructions ings are reviewed for clear error. Turren (5) at trial of Mr. Wilson’s the introduction tine, 1189; Smallwood, 390 F.3d at 191 obtained without Miranda statements F.3d at 1264-65. (6) prejudicial warnings; the admission “contrary” A state court decision is (7) sufficiency of the evidence hearsay; clearly “if established law the state court heinous, atrocious, cruel or support applies governing a rule different from the constitutionality of the aggravator and the cases, [Supreme set forth in law or Court] (8) heinous, atrocious, aggravator; or cruel differently if it decides case than [the and prejudi- the introduction of irrelevant Supreme Court done on a set of mate- has] (9) evidence; prosecutorial miscon- cial rially indistinguishable facts.” v. Bell (10) duct; sequence of voir improper Cone, 685, 694, 1843, 122 535 U.S. S.Ct. (11) improper use of questioning; dire (2002). A L.Ed.2d 914 state court (12) evidence; ineffective as- impact victim application” decision is an “unreasonable (13) counsel; of the application sistance of clearly established law when the state aggravator threat and the con- continuing governing court “identifies the correct le- stitutionality continuing ag- threat gal principle Supreme from [the Court’s] (14) gravator; impact the cumulative unreasonably applies decisions but rights. Mr. of the errors on Wilson’s petitioner’s to the facts of case.” principle of Review II. Standard Smith, 510, 520, Wiggins v. 539 U.S. (2003) (citing S.Ct. 156 L.Ed.2d 471 corpus peti- Mr. filed his habeas 362, 413, Taylor, v. 529 U.S. enactment of the Antiterror- Williams tion after the (2000)). Penalty and Effective Death Act of 146 L.Ed.2d 389 ism S.Ct. (“AEDPA”). Therefore, AEDPA’s state court’s decision must have “[T]he adjudicated apply to all claims standards than incorrect or ... been more erroneous proceedings. court on the merits state ‘objectively must have been unreason- [it] ” AEDPA, corpus a writ of habeas Under 520-21, (citing able.’ Id. at 123 S.Ct. 2527 granted unless the state court’s will not be 1495). Williams, 529 U.S. S.Ct. (1) adjudication of the claim resulted in a erred, If we find that the state court we to, contrary or involved decision still must determine whether the error is of, clearly application an unreasonable es- structural defect “in the constitution of the law, as determined tablished federal mechanism, analysis by trial which def[ies] States; Supreme Court of the United ‘harmless-error’ standards.” Arizona v. resulted a decision was based Fulminante, 279, 309, 111 499 U.S. S.Ct. of the facts an unreasonable determination (1991). 1246, 113 L.Ed.2d 302 If it is not a in the light presented of the evidence error, apply then we the harm structural court 28 U.S.C. proceeding. state articulated in Brecht v. less-error standard 2254(d)(l)-(2); Mullin, § Turrentine Abrahamson, 507 U.S. (10th Cir.2004). We (1993), 123 L.Ed.2d 353 and in O’Neal must that the state court’s factual presume McAninch, 992, 130 findings petitioner are correct unless (1995). the harmless- L.Ed.2d Under presumption by rebuts the clear and con- test, only proper if the error error relief is 2254(e)(1); § vincing evidence. 28 U.S.C. injurious and effect or Mullin, 919, “had substantial 924-25 Smith v. 379 F.3d (10th Cir.2004) determining jury’s in (quoting v. influence ver- Smallwood Gib- 1074 and 623, years, Supreme Court Brecht, 113 recent S.Ct.

diet.” 507 U.S. States, increasing empha placed have this Court v. (citing Kotteakos United 1710 in of defense counsel obligation sis on the 750, 776, 1239, L.Ed. 90 66 S.Ct. 328 U.S. — miti Pliler, develop present and capital cases (1946)); v. Fry see also 1557 penalty phase in the 2321, 2327-28, gating evidence -, 168 127 S.Ct. trial, family upbring (2007). often on the basis and A ‘“substantial L.Ed.2d 16 is a closer ing and mental health. This finds injurious when the court effect’ exists some, defense counsel case than because effect of ‘grave about the itself doubt’ expert, provide appropriate did hire an Bland v. jury’s on the verdict.” the error information, present and background Sirmons, 999, some F.3d 1009 Cir. 459 jury. findings to the 2006) O’Neal, 436, expert’s some of the 115 (citing 513 U.S. at Sirmons, 1131 992). Anderson v. 476 F.3d “grave doubt” when There is Cf. (10th Cir.2007) (reversing denial of habeas evenly “is so the issue of harmlessness utterly failed relief where defense [itself] feels [the court] balanced mitigating based on present evidence harmlessness of equipoise as to the virtual health). and mental O’Neal, 435, family history the error.” 513 U.S. Court, however, has made clear Supreme S.Ct. 992. investigation presentation the state court did not decide If is mitigating some not sufficient merits, stringent princi- on claim the standard, if to meet the constitutional § deference under 28 U.S.C. ples of reasonably investigate counsel fails to Gibson, inapplicable. Mitchell v. are neglects present available sources or (10th Cir.2001). Addition- mitigating strong evidence without a stra findings factual ally, if the district court’s Smith, tegic Wiggins reason. entirely on the state court dependent are L.Ed.2d 471 record, findings our of those is de review (2003); Bar Association Guide American Smallwood, at 1265 n. 1. novo. 191 F.3d Perform Appointment lines for the Penalty ance in Death Cases of Counsel III. Ineffective Assistance of Counsel “ABA Guide [hereinafter 11.8.6 persuasive most claim is Petitioner’s Gibson, said in Romano v. As we lines”]. deprived of effective assistance he was (10th Cir.2001): “The attorney’s trial of counsel because of his sentencing stage phase is the most critical adequately prepare failure “to his mental Any competent penalty of a death case. Eugene Reynolds, to expert, health Dr. thorough importance counsel knows the testify stage or even make use of second ly mitigating investigating presenting mitigating all information about Pe- allega evidence.” Because Mr. Wilson’s Reynolds titioner’s mental state that Dr. tions, fully developed, if true and would provided jury.” Aplt. could have to the relief, entitle him to we reverse the district that he argues Br. 71. Mr. Wilson evidentiary hearing court’s denial of an evidentiary hearing on this entitled to an claim, and remand to district matter, yet he has to receive. If not which court. AEDPA, by is entitled barred defendant evidentiary hearing long “so as his Background A. Factual if contravened allegations, true and not 1. Pre-trial Preparation record, entitle existing factual would to de- Champi- Although appointed him counsel was to habeas relief.” Miller (10th Cir.1998). on, years before fend Mr. Wilson some two already begun, Reynolds had trial, just three weeks be- selection Dr. until he waited counsel, and before he contacted to fore trial started made his results available trial expert to assist hired a mental health though it is unclear what form. We do Eugene Dr. expert This mitigation. know, however, that counsel did not meet No ex- psychologist. a clinical Reynolds, Reynolds with Dr. to discuss these results delay appears in the for this planation day until the before the sentencing phase to Mr. Reynolds Dr. was able visit record. began days Reynolds’ Dr. tes- before —two sentencing to the prior three times Wilson timony. only during the first visit did phase, but only family The member counsel made any privacy. Pet. Addendum the two have Reynolds Dr. available to was Ms. Patricia ¶ 2/19/97, 2; Tr. trans. at 53-54. The at mother, Taylor, Mr. Wilson’s and Dr. in a two visits were conducted cubi- second Reynolds spoke only to her after he com- and hallway, police in the with officers cle pleted testing. point his At no did counsel by within earshot. Pet walking inmates Taylor himself interview Ms. about Mr. ¶ provided at 2. Trial counsel Addendum Wilson’s life. Neither nor Dr. Reynolds following Dr. materials: Reynolds spoke family other mem- Records, Hillcrest Medical Center Scholas- ber. Mr. has a sister Wilson and broth- Records, tic Children’s Medical School er, a girlfriend, as well as with whom he Records, by five and statements Center ahas child. individuals, at trial. three of whom testified came from fami- None of those statements 2. Mitigation Phase at Trial ly During his interviews with members. Wilson, Reynolds Mr. Dr. administered During mitigation phase, counsel psychological several tests from which he testify called six witnesses for Mr. Wil- (1) major formulated three conclusions: son. Two individuals knew Mr. Wilson 126; IQ that Mr. had an score of Wilson church, through they but provide could (2) neurolog- that there no evidence of only limited observations about Mr. Wil- organic damage; ical or and brain son, “mannerable,” including that he was generalized Mr. suffered from anxi- “respectful,” “intelligent.” and Tr. trans. (severe disorder, ety bipolar disorder with- 2/19/97, 13, 19, 22. Two of Mr. Wilson’s features), psychotic post-traumatic out and former teachers also testified. Because (PTSD). testing stress disorder also they had not him in approximately seen paranoid personality indicated disorder years, they only provided five to six also personality and narcissistic disorder with Mr. insight, describing limited passive-aggressive schizotypal person- “respectful,” “fun-loving,” “very and a ality suggested features. One test Mr. good student.” Id. at 38. schizophrenia; Wilson suffered from how- important Counsel’s most witness was ever, that According test was invalid.2 examination, Reynolds. Dr. direct On Reynolds, testing” Dr. “additional Reynolds generally Dr. counsel asked required “further collateral data” were to Mr. about the tests administered Wil- “[ujnfortunate- support diagnosis, but Reynolds Mr. son. He asked Dr. about ly, there time to enough wasn’t obtain this high IQ approximately trial.” information before the Pet. Adden- ¶ placing range Mr. Wilson days “superior dum Twelve before which, Reyn- testimony, days intelligence” category, was four after Dr. which invalid, briefs, exactly testing 2. What nor could habeas counsel made from argument. precisely, clarify Court at oral what “invalid” means is not clear this for the the most Q: psychopaths And aren’t stated, that Mr. Wilson indicated olds re-offend, Tr. based on the studies? something likely with himself.” to could “do 2/19/97, 55-56, asked 63. Counsel trans. A: Yes. ques- Reynolds only a few additional Dr. 2/19/97, Later in the trans. at 65. Tr. In testing. his the results of tions about examination, contin- prosecutor cross that Mr. Reynolds Dr. testified response, ued: mental dis- experienced a “severe

Wilson Q: superficial good charm and [A]ren’t many personality scales order with cunning and intelligence, coupled with that he has suggest That would elevated. behav- imp[ul]sivity lack of manipulative Id. at personality disturbance.” a severe psychopath? of a ior characteristics Reynolds fact that Dr. Despite 57. Yes, they A: are. asked diagnoses give, had other has, Q: what And that’s Mr. questions specific further about the him no it? isn’t psychiat- from the results and conclusions characteristics, briefly about he testing. ric Counsel asked A: of those Some Reynolds Dr. history; social Mr. Wilson’s has. in a Mr. Wilson’s described few sentences 2/19/97, closing Tr. trans. at 76. active in father someone who was prosecutor used this testi- argument, alcohol, much ... “drugs pretty mony “psycho- call Mr. Wilson a again Id. at 59. not involved Michael’s life.” on the evidence.” Tr. pathic killer based Reynolds primarily on the Dr. focused 2/20/97, trans. at 46. hand, pictures” of Mike. “On the one “two testified at Finally, Mr. Wilson’s mother you Sunday of the school- picture have had talked with defense trial. She hand, you have going child. On the other any point prior counsel at to her testimo- gang and the uninvolved picture of the briefly about Mr. ny. spoke She Wilson’s father, good particularly who did not set a Mr. involve- father and discussed Wilson’s Id. at 60. role model.” Taylor church. That Ms. had ment at point Reyn- At elicit Dr. no did counsel from her state- say apparent more to was concrete, scientifically more rooted olds’ ment, finished his after defense counsel PTSD, dis- diagnoses, including bipolar say “did want questioning, she disorder, order, generalized anxiety else, if I’m allowed.” Tr. trans. something features. The en- schizotypal personality 2/19/97, at Because defense counsel tirety Reynolds’ description of Dr. of Mr. rested, her permit had the court could not psychological state is no more

Wilson’s to do so. sentencing transcript. a page than occurred on What cross-examination Investigation By 3. Postr-Conviction prose- a train wreck for Mr. Wilson. The Appellate Counsel Reynolds: cutor asked Dr. ap- appeal, On direct new counsel Q: psychopathic there criminals [A]re Appel- Mr. pointed represent Wilson. superior intelligence? who have provided Reynolds Dr. late counsel A: Yes. information, including Tulsa additional Records,

County Gang Intervention Team Q: ex- sharp Wilson] contrast records, [Mr. hospital public Tulsa school rec- designs ... aren’t those hibits classic ords, and, significantly, most affidavits psychopath? or ‘no’? (Mr. ‘Yes’ Taylor, Leon from Ms. James (Mr. brother), A: It can Staci Faenze Wil- be. (Mr. home, had on Mr. Wilson. Mr. sister), Tonya Holt Wilson’s Wil- and son’s brother, of his and the mother girlfriend son’s older with whom Mr. Wilson former child). back- this information as close, With very dope was sold to support the material, performed' Reynolds Dr. ground family eventually and became hooked on sup- tests of tests. These a second set He, father, crack cocaine. like his was para- diagnosis schizophrenia, ported a prison. and out of The brother heavi- was include “de- Typical symptoms type. noid ly involved in a from gang the time Mr. hallucinations, lusions, disorganized young, Wilson was and Mr. Wilson in turn or catatonic behavior speech, disorganized grew up by surrounded and involved with Pet. Adden- manifestations. negative” and the same individuals. Mr. Wilson’s broth- ¶7, Testing also revealed at dum gang er stated that members fired shots psychologi- a “severe had that Mr. Wilson every Mr. “at Wilson least once week.” possibility of delu- cal disturbance with ¶ Pet. Addendum at 4. ¶ 7. Dr. Id. at sions or hallucinations.” Reynolds Dr. stated his affidavit that be- that Mr. Wilson Reynolds reported testing and additional “[t]hese affidavits times, him at possessed spirits” lieved “evil helped diagnosis me reach a more accurate “possible Wilson] it [Mr. and that was information not previously since this the time of delusional at could have been ¶ provided during my first evaluation.” Pet. crime.” Id. at 10. ¶ Addendum at 7. He concluded: family members re- with the Interviews from de- that Mr. suffered vealed Wilson My testimony improved could have been and de- problems, concentration pression, upon enormously provided had I been voices, lusions, that he he heard and that provided with the additional information memory lapses. experienced frequently Appellate to me Defense Council girlfriend his informed point, At one when provides This information the his- [sic]. voices, heard Mr. Wilson she Mr. tory experiencing of Micheál delu- [sic] too, them I hear responded “I’ve heard hallucinations, sions and and other be- just fight have to voices and its OK. You supports diagnosis haviors which them, you just pray away have them schizophrenia, paranoid type. Knowing they go away.” Pet. Addendum will may jury better helped this have ¶ members, family All of the as well at 11. emotional ill- [sic] understand Micheal’s the vio- girlfriend, vividly his described participated ness and how he could have nightmares lent from which Mr. Wilson in the crime. life, throughout during his which suffered ¶ Id., 15. kick, night. punch and shout all he would head- experienced often severe Mr. Wilson Decision OCCA A aches that lasted for hours and sometimes days. rejected appeal, direct the OCCA On argument trial counsel’s Petitioner’s highlighted also several

The affidavits to mental representation respect youth experiences during Mr. Wilson’s constitutionally defi- mitigation health may have led to his emotional below, fully more explained cient. As relationship problems, including mental post- made no reference to the OCCA Although there was testi- with his father. affidavits, rely- investigation conviction that Mr. father was mony trial at trial. After ing entirely on the record life, the affidavits ex- uninvolved in his Reynolds’ absence, briefly summarizing prepa- Dr. the effect that plained ration, court concluded: drug in and out of his father’s constant use portion had a se- on this of his ineffective assis- Reynolds testified Reynolds disturbance. of counsel claim. personality vere tance unusual, had some explained that Wilson finding made no Id. The district court sug- thinking that would types bizarre prejudice, and also denied Mr. Wilson’s reality not in touch with gest that he is evidentiary hearing. request for an testimony Reynolds indi- [sic] at times. this crime that committed cated Nonresponsive Brief B. The State’s intelligent person, but immature as an Court, In in this the State offers its brief that, family support of his because perform- no defense of counsel’s almost intelligence, capabili- he had the and his entirety argument ance. of its is The mere fact ty being of rehabilitated. paragraph: found in this short present- evidence could have been more Reynolds Dr. to Trial counsel hired itself, not, in ed is sufficient show provide complete Appel evaluation of Reynold’s [sic] counsel was deficient. addition, lant’s mental health. coun testimony was credible and well devel- Reynolds Dr. provided sel information to Appellant find has failed to oped. We Appellant and made the and others carry to show either deficient his burden Tri diagnosis. available to assist in the counsel, prejudice or performance provide per al did deficient specific of evi- from the omission this Ward, formance. See Trice v. dence. (10th Cir.1999). 1151, 116[sic] (citation I, 983 P.2d at 472 omit ted). finding any no that The court made Significantly, Br. of- Resp. State in trial counsel’s alleged of the deficiencies regard fers no reason we should the affida- performance product strategic were a post-conviction investigation vits based on Petitioner’s motion judgment. It denied substantively or procedurally as either de- evidentiary hearing. for an ficient, argument and no of the per- in trial counsel’s alleged deficiencies Court Decision 5. The District strategic were the product formance petition court denied the The district judgment. analysis, based on the OCCA’s which the entirety obligation If the appli- court found was not an unreasonable counsel’s mitigation on men- Supreme precedent. present cation of Court Wil- evidence based (no III, expert son at *43. Accord- tal health were to hire an mat- WL ing when), court: provide to the district ter him some “informa- tion,” arrange and to for access to the reading transcript

A careful of the trial member, family defendant and one this trial counsel confirms Petitioner’s It responsive. unresponsive would be is questioned Reynolds thoroughly Dr. specific when the defendant has introduced stage testimony. This during his second indicating that counsel hired the nothing per- Court finds deficient in the expert process so late that he was Accordingly, formance of trial counsel. necessary rejec- complete that the unable to mental Court finds OCCA’s evaluations, appeal tion of this claim on direct health that counsel failed to readily application gather provide not an unreasonable available rele- by the vant that would have affected legal principle announced Su- information preme diagnosis, in Strickland to the facts and that counsel failed to Court expert’s diagnoses actual present of Petitioner’s case. Petitioner has 2254(d) satisfy jury. § failed to standard mention, therefore, evidentiary proffer excep- much falls within an bears

It analysis 2254(e)(2)’s dissenting opinion’s § ban on the tion to 28 U.S.C. developed, or arguments not on Miller, based admission of new evidence. at, by the State’s brief. even hinted at 1253. But the State does not satisfy argue that Mr. Wilson failed to De Review The Need for Novo C. and we find that he acted requirement, already.noted, the district court As diligently before the OCCA. request for re Petitioner’s habeas denied clear, To be this does not mean that we lief, evidentiary hearing, on the or even an every apply de novo review time the state decision of deference to the OCCA’s basis hearing a defen- court declines to hold arguments Petitioner’s on direct rejecting evidentiary proffer. dant’s Had the state ordinarily required by 28 U.S.C. appeal, 2254(d). III, 2289777, § 2006 WL Wilson in court evaluated the non-record evidence similarly rests on this at *43. The State its denial of Mr. Strickland claim arguing in standard of review deferential request evidentiary hearing, for an and his Br. cannot Resp. affirmance. 78. We for apply we would AEDPA’s deferential stan- we review a dis path. While follow See, Sirmons, e.g., v. dard. Welch evidentiary an hear trict court’s denial of (10th Cir.2006) 675, 704, (ap- F.3d 708-09 discretion, ing for abuse of see Coronado AEDPA deference when the OCCA plying (10th Cir.2008), Ward, 1212, 1217 517 F.3d affidavits in the proffered referred in this that it is well established Circuit denying course of an ineffective assistance disposition court’s of mixed when state Sirmons, claim); Bland v. 459 F.3d fact, including a claim question of law (the (10th Cir.2006) OCCA “[e]xam- assistance, on an of ineffective is based prof- the affidavits would be in[ed] record, through factual no fault incomplete [evidentiary] hearing.”). fered at such a[n] defendant, complete of the and the factual cases, state court examined these developed and is record has since been merits, including prof- on the the claim Court, apply de novo review before this we evidence, decided non-record but fered underlying claim. our evaluation of the fully if that new evidence were that even Mullin, Bryan could not meet developed, the defendants Cir.2003) (en Miller, banc); see As we their burdens under Strickland. (when court [does] at 1254 “the state below, the in this fully more OCCA explain evidentiary hearing” on non-record hold an case, contrast, that it was made clear appeal, the proffered on direct record, trial and not relying solely on the position in same to evaluate Court is “the evidence, when it denied court] factual record as state the non-record [the was.”). court makes factu hearing. When the state evidentiary the claim and incomplete of an findings (“[a] al on the basis I, at 472 & n. 8 983 P.2d case, in such a “we need not factual record trial coun- of the trial record shows review findings any deference.” Mil afford those expert.... forth mental health put sel did ler, 161 F.3d at 1254. further find that Wilson’s Accordingly, we evidentiary hearing on application for an course, evidentiary to obtain an Of denied.”). Because this claim should be habeas, Mr. has the hearing on receive consideration Mr. Wilson did not showing “diligently burden of first he claim, Bryan, 335 F.3d his non-record under sought develop the factual basis Miller, govern court lying petition, but a state his habeas in so,” of review this case. doing him or that his the standard prevented from then, question, is whether the state importance of stan Because case, it ren court considered this evidence when of review to this we now set dard so, If its decision is conclude dered its decision. forward in detail the reasons we deference; not, if we must entitled to diligent pur that Mr. both Wilson was make our own de novo evaluation. Okla his non-record claims and that the suing 3.11(B)(3)(b) Rule allows a Appellate non-record evi homa OCCA did not consider his defendant, appeal, on direct to offer non- affirming the sen dence the course support of an ineffective denying for an record evidence application tence and his trial claim. If the evidentiary hearing. assistance of finds, “by convincing evi court clear appeal new counsel on direct Assigned strong possibility trial dence there is OCCA, to the Petitioner asserted failing counsel was ineffective for to utilize during trial counsel was ineffective evidence,” identify complained-of phase sentencing of trial because he failed trial will remand to the court OCCA properly investigate Mr. Wilson’s men- evidentiary hearing based on the background adequately tal and to health application. raised in Okla. claims prepare expert witness. Petitioner 3.11(B)(3)(b); App. Stat. tit. ch. Rule also claimed that defense counsel did not (Okla. State, Dewberry v. 954 P.2d properly present diag- those mental health Crim.App.1998). Following evidentia- expert prior noses that the did make ry hearing, the trial court makes written proffered trial. Petitioner in five affidavits findings fact and of law. “It conclusions of these support claims. Three of these evidentiary hearing is the record from this family affidavits from were members supplements which ... the trial court rec girl- one was from Mr. Wilson’s former appeal.” Dewberry, ord on 954 P.2d at friend, who is also the mother of his child. Any sup 776. affidavits or other evidence All prob- described different mental health plied support evidentiary hearing had, along lems Mr. Wilson with other part are not considered of the record on struggles experienced he throughout his rul which the OCCA bases its Strickland youth. expert, The fifth was from the trial they ing properly unless are introduced at affidavit, Eugene Reynolds. Dr. In his Dr. (“The evidentiary hearing. Id. record Reynolds diagnoses described the he appeal only on must remain as that which receiving reached after the additional affi- presented through has been the trial family, davits from Mr. provided court.”) added). (emphasis If it does not by appellate counsel. He also outlined the evidentiary hearing remand for an or con diagnoses prior sentencing he made to the sider the non-record in the course phase presented but which were never denying application for an evidentia- jury, and recounted his interactions ry hearing, ruling the OCCA’s ultimate on develop with the defendant. To his inef- the Strickland issue cannot based on fective claim bring assistance this non- proffered the non-record information record, record evidence into the Mr. Wil- support of the claim. requested evidentiary hearing son an un- Appeals’ Judge Tymkovich argues der Oklahoma Court of Criminal 3.11(B)(3)(b). “[bjecause Rule obtaining Okla. Stat. tit. ch. the standard for an 3.11(B)(3)(b). 18, App. evidentiary hearing Rule This was suf- under Rule 3.11 is low the “diligence” requirement ficient meet er than the standard set forth in Strick 2254(e)(2), § petitioner only ‘strong of 28 U.S.C. and the State need show a land — possibility’ does not contend otherwise. of ineffective assistance —when part such affidavits are not of the rec- evidentiary hearing an denies the OCCA 3.11, necessarily appeal.” Respondent-Ap- makes a Brief of it ord Rule under I, cannot n. petitioner pellee at 70 983 P.2d 448 merits determination Strickland, standard.” argument At oral (Okla.Crim.App.1998). meet the substantive accept cannot Op. Court, 1129. We Diss. counsel for the before this State Rule 3.11 uses Although interpretation. that the affidavits would not have conceded (“strong possi- standard lower substantive part been of the OCCA’sStrickland deter- evidentiary higher a much bility”) it erects Bryan, mination. See 335 F.3d at 1215 standard: to ob- meeting hurdle (applying de novo review where the defen- hearing under Rule evidentiary an tain evidentiary sought hearing dant an before 3.11, “clear and provide the movant must affidavits, the OCCA and attached but the “strong possi- of this convincing evidence” only OCCA decided the case with a minor not im- standard does bility.” The federal evidence); reference to the new accord convincing evidence” this “clear and pose Miller, 161 F.3d at 1254. evidentiary hearing an To receive hurdle. Had the district court held an evidentia- claim, petitioner need aon Strickland ry hearing or otherwise made factual if true and only allegations, that “the show affidavits, findings based on the we would existing factual by the not contravened findings they were accept those unless record, him to habeas relief.” would entitle Bryan, clearly erroneous. Miller, Although 1249. F.3d at However, the district court relied two standards —one interplay of these reading of the trial only on a “careful demanding, demanding, one less more transcript” denying Mr. Wilson’s inef- clear, we cannot the federal —is not than III, . claim. fective assistance the state court denies conclude that when have at *43. We therefore WL Rule 3.11 it evidentiary hearing under legal review no choice but to both that the federal necessarily decided has novo, light in findings factual de was not satisfied. standard by allegations made affidavits filed and an not remand for evi- The OCCA did by the the defendant but not considered I, dentiary 983 P.2d at 472 hearing, Wilson purposes court. For OCCA or the district in it consider the affidavits n. 8. Nor did Mr. is enti- determining whether Wilson applica- Mr. denying the course of evidentiary hearing on his tled to an hearing. en- evidentiary an The tion for claim, allega- we treat these Strickland of the Strick- tirety analysis of the OCCA’s Miller, at 1258. as true. tions the court’s review was based on land issue v. Lan argues The dissent Schriro (“A Id. at 472 review of the trial record. — U.S.-, drigan, that counsel did the trial record shows (2007), prior overruled our L.Ed.2d 836 expert....”). forth a mental health put novo review' of precedent requiring de to the affidavits court’s sole reference The involving claims non- timely-filed habeas filed, contem- to note that “Wilson has considered record evidence not issue, application with this an poraneously way. it that court. We do not read state in evidentiary hearing ... an at- for an Schriro, stated: Supreme Court ...,” id., supplement the record tempt pre deferential standards “Because the deny application. This and then. to grant by § control whether to scribed litigation was consistent with the State’s relief, take a federal court must habeas appellate position appeal. on State’s deciding in into account those standards stated that “the infor- brief to the OCCA evidentiary hearing appro whether an ... the affidavits mation contained with It is this statement Id. at 1940. priate.” to in this brief being referred [sic] are Judge Tymkovich thinks overrules It held that the federal courts were bound Bryan. AEDPA to defer to the state court’s prior precedent our in Miller and under precedent, finding how- reasonable that the defendant had Op. See Diss. 1128. Our account”) (or ever, present mitigat- “take into instructed counsel not to does consider 2254(d), evidence, any § ing mandate. and that this rendered AEDPA’s Under questions in- applies regarding AEDPA’s standard of deference factual counsel’s only “adjudicated vestigation claims that have irrelevant: “If [the defendant] been instruction, proceedings.” in issued such an counsel’s failure on the merits State court further investigate a state court has not examined the could not have been When evidence, prejudicial it con- under Id. non-record has reached no Strickland.” clusion “on the merits.” See Hoffman propo thus for the Schriro stands (9th Cir.2001) Arave, that if a state non- sition court considers (“Because Hoff- the state court denied record evidence and to hold an declines man’s ineffective of counsel assistance evidentiary hearing example, because —for ... holding hearing claims without those flatly it that the record finds refutes litigated have never on the claims been evidentiary proffer or renders it irrele merits.”). vant —the federal court must defer to that analy- Schriro does not undermine this determination unless it is “based on an case, sis. In that the defendant —first unreasonable determination of the facts” application post-conviction for state re- light record. 28 U.S.C. sought lief and later on federal 2254(d)(2). § It was therefore error habeas — evidentiary hearing to show that his trial Appeals Schriro the Court of to make counsel had failed to investigate certain its independent judgment own of the facts. mitigating evidence. The state court de- But when the state court makes no refer evidentiary hearing clined- to hold an new, ence non-record allegations, ground the defendant had in- simply ignores either because it the infor structed trial not to present employs procedural mation or because it mitigating sentencing at the hear- against incorporating bar non-record evi ing, rendering any failure to investigate higher permitted by dence than that nonprejudicial. The federal district court Constitution, AEDPA deference is not due grant likewise refused to him an evidentia- to the state’s decision not to hold the evi- ry hearing, Appeals but the of re- Court dentiary hearing, or to factual deter versed, in- finding that the defendant’s minations made without reference to the only structions referred to a narrow proffered subset Bryan, evidence. See 335 F.3d potential of the mitigating evidence. at 1215-16. therefore regard We do not Schriro, 127 S.Ct. at 1938-39. The Su- having prior prec Schriro as overruled our reversed, preme finding Court turn Bryan. edent Miller and We continue the trial record Ari- by precedent. to be bound “establish[ed] See Dubuc Johnson, (10th postconviction 1205, zona court’s determination v. 1209 Cir. 2003).3 of the facts was reasonable.” Id. at 1941. Supreme granted recently 'adjudicated

3. The Court certio- is reserved for claims split very rari court, resolve a circuit on this merits’ in state a evaluate claim - -, question. Kelly, Bell v. U.S. 128 predicated prejudice on evidence of the state 2108, (2008) granting S.Ct. 171 L.Ed.2d 228 court refused to consider." Petition for Writ cert, (4th Kelly, Fed.Appx. in Bell v. 260 599 Certiorari, 819276, Kelly, of Bell v. WL 2008 Cir.2008) (considering whether "the Fourth (March 26, (No. 2008) 07-1223)). *1 It applied Circuit when err[ed] ... it the defer- unlikely already seems that Schriro answers 2254(d), § ential standard of 28 U.S.C. which

1083 2052). “federalism, comity, and U.S. at S.Ct. To assess Finally, while 1126, undoubtedly thoroughness investigation of counsel’s Op. are finality,” Diss. values, importance of these performance, counsel’s overall the Court important never when a claim has objective is reduced review meas values must conduct merits. Most on the considered prevailing been ured for “reasonableness under on evidence Smith, claims are based Wiggins Strickland norms.” v. professional trial, per- which after the initial gathered 2527, 510, 523, 123 S.Ct. 156 539 U.S. A original record. part not Strickland, force is (citing L.Ed.2d 471 466 diligently presented who has petitioner 2052). 688, are 104 S.Ct. We U.S. timely fashion is entitled a claim in a such decision, to counsel’s “highly deferential” review a de novo perform have a court pre must “overcome the petitioner and a If of ineffective assistance. of his evidence not sumption that counsel’s conduct was this re- perform does not the state court Wallace, constitutionally defective.” its review to the confínes view but instead at 1247. F.3d record, the federal court trial original analysis today guided by the Su Our that de judgment anyway, defers to its jurisprudence em preme Court’s recent performed. never be novo review will in importance thorough phasizing health vestigation particular, mental —in Defective Per- Specific Claims of D. preparation evidence—in for the sentenc By Trial formance Counsel initially, trial. ing phase capital While argues that trial counsel was Mr. Wilson Supreme applied Court Strickland investiga- poor of his ineffective because see, narrowly, e.g., Burger Kemp, v. rather sentencing for the preparation tion in 3114, 776, 789-92, 107 483 U.S. put failure to on relevant and his phase (1987), longer this is no L.Ed.2d 638 “To establish mitigating evidence at trial. 362, Taylor, v. 529 U.S. case. Williams counsel, petition- assistance of ineffective 1495, (2000), 120 S.Ct. 146 L.Ed.2d 389 per- deficient prove er must that counsel’s Smith, 510, Wiggins v. 539 U.S. 123 S.Ct. constitutionally deficient and formance was (2003), Rompil 156 L.Ed.2d preju- performance that counsel’s deficient Beard, la v. 125 S.Ct. defense, depriving petitioner diced the (2005), counsel conducted 162 L.Ed.2d 360 Boyd a fair trial with a reliable result.” inquiries, required some but the Court Cir.1999) (10th Ward, robust, teth complete investigation, more Washington, 466 (citing Strickland adequate minimum to the norms of ered 668, 687, L.Ed.2d 674 American articulated investigation (1984)). performance must Counsel’s for Criminal Bar Association Standards to be constitu- “completely unreasonable” in Because of counsels’ deficient Justice. ineffective, tionally “merely wrong.” over vestigations, Supreme Court Kerby, Hoxsie v. in petitioners’ turned the death sentences Cir.1997). adequacy is the When the issue each case. investigation for the sentenc- of counsel’s 362, Taylor, 529 U.S. v. Williams trial,, capital “hindsight is ing phase of (2000), 1495, L.Ed.2d 389 120 146 S.Ct. adequacy to ‘coun- by pegging discounted Court, un- the first time Supreme the for investigative at the time’ perspective sel’s test, two-part reversed Beard, der Strickland’s Rompilla are made.” v. decisions as- on an ineffective 2456, death sentence based 374, 381, 162 125 S.Ct. 545 U.S. Jenny Strickland, counsel claim. See 466 sistance of (citing L.Ed.2d 360 granted tiorari in Bell. question which the Court cer- the 1084 Little, Roberts, history” may Too Too Late: “troubled diminish mor- Ineffective Counsel, 535, Duty culpability. al

Assistance Inves- Id. at 123 S.Ct. 2527. Discovery tigate, and Pretrial in Crimi- Beard, recently, Rompilla Most in 545 Cases, 1097, nal 31 Fordham Urb. L.J. 374, 2456, 125 S.Ct. 162 L.Ed.2d 360 (2004). 1110 The Court focused not on (2005), the Court reaffirmed that counsel’s trial, presented what was at but on the unreasonably investigation limited cannot adequacy preparation of trial for counsel’s scrutiny withstand under Strickland. Williams, mitigation phase. 529 U.S. in Rompilla Counsel conducted a more 396, at 120 1495. To evaluate the S.Ct. thorough investigation prior than in the prepara- reasonableness of trial counsel’s cases, speaking family two with five mem- tion, the Court looked to the standards employing experts bers and three who ex- in adequate investigation expressed amined the defendant’s mental health ABA Standards for Criminal Justice. 381-82, the time of the offense. Id. 396, (citing Id. at 1 ABA Rompilla unhelp- S.Ct. 2456. himself was 4-4.1, Standards for Criminal Justice ful and even sent counsel on false leads. (2d ed.1980)). cmt., p. 4-55 The Court 381, this, Id. at Despite 125 S.Ct. 2456. found that undiscovered evidence of the Court found counsel ineffective. The abusive childhood and borderline mental Standards, again Court relied on the ABA may retardation have “influenced the holding that investigate counsel must ev- jury’s appraisal culpability.” of his moral erything penalty phase, relevant to the Id. at 120 S.Ct. 1495. regardless of the accused’s admissions or after, Soon Wiggins Court decided Rompilla, statements. 545 U.S. at Smith, (quoting 125 S.Ct. 2456 1 ABA Standards (2003), again L.Ed.2d 471 focusing on trial (2d. for Criminal 4-4.1 Justice ed 1982 counsel’s investigation stressing Supp.)). Wiggins, knowledge po- As counsel, cases, pursue most all must tential triggering leads was critical in reasonable leads. In Wiggins, trial coun- duty to investigating, continue and as in employed psychologist, sel used Social cases, prior both the Court found that the Records, through Services and read evidence of child abuse and mental health Investigation Presentence Report pre- problems have persuasive would been pare mitigation for the phase. The Court 392-93, mitigation phase. Id. at nonetheless found investigation counsel’s S.Ct. 2456. unreasonable, as he did prepare a fo- impor These cases stand for three history report rensic social as recom- principles. First, tant question is not ABA, mended pursue and failed to whether something-, counsel did already leads he suggesting had his client must a full investigation pur conduct history suffered from a of abuse and ne- they sue reasonable leads when become glect. Id. at 123 S.Ct. 2527. The evident. Bagley, See Dickerson v. only Court stressed that it “not (6th Cir.2006) (stating that in quantum already of evidence known to counsel, Wiggins, Supreme Williams and but also whether the Court known evi- dence “made it clear and attorney c[a]me would lead a reasonable down hard on investigate point thorough further” that that a appropri- complete is the and inquiry 527, mitigation ate investigation absolutely under Strickland. Id. at is nec essary cases.”); Dretke, 123 S.Ct. 2527. It in capital also reminded us that Smith v. (5th Cir.2005) (same). physical and sexual abuse and diminished 278-79 capacities compose Second, mental the kind of to determine what is reasonable Preparation 1. Pre-Trial first to the must look investigation, courts Deficiencies serve as reference which guidelines, ABA Health Ex- Delay Hiring Mental a. acceptable preparation for what points pert case. capital of a phase mitigation for First, Reynolds only hired Dr. counsel at n. 125 S.Ct. Rompilla, 545 U.S. trial and met with prior to three weeks (“[The appl[y] Guidelines 1989] testified, he de- only days him two before ”); investigation.... for requirements clear to assigned the fact that counsel spite at 123 S.Ct. Wiggins, trial. years in of this two advance case work (“[T]he capital defense for standards Association the American Bar Under Bar Associa- American articulated Guidelines, sentencing for the “preparation (ABA) ‘guides used] ... [should tion ”). investigation, should Fi- in the form phase, is reasonable.’ determining what to entry immediately upon role counsel’s mitigating begin crucial nally, because men- upbringing or poor ABA Guidelines 11.8.3 that evidence of into the case.” have in sen- (1989). can problems tal health ABA’s di- reason for the pur- defense counsel must tencing phase, suffi- must be rection is obvious—there due investigation with this sue avenue interviews, research, and cient time empha- has own Circuit diligence. Our strategic planning adequate testing before Smith guiding principle. sized this if begin. Additionally, counsel can even (10th Cir.2004), Mullin, trial, immediately it is before waits until unreason- “patently held that it we or to tests too late to correct invalid present to fail to trial counsel able” for testing during the pursue discovered leads re- borderline mental evidence of Smith’s to be for counsel process, requirement tardation, and damage, troubled brain Rompilla, See effective. type of childhood, this and stated (effective counsel would exactly sort of “is mitigating evidence investigation after further have conducted sympathy the most that garners evidence investiga- in initial discovering flags” “red aggrava- Though the state’s jurors.” from tion). invariably will prepare The rush to strong, we re- ting particularly case was untapped resources. and lead unnoticed death sentence because versed Smith’s prob- exemplifies the case Mr. Wilson’s had mitigating power Dr. investigation. delaying the lems jury. Id. at to the explain his behavior to conduct not have time Reynolds did diagnosis testing to confirm additional Williams, Wiggins, inAs defense team nor could schizophrenia, based complaint is Rompilla, Petitioner’s might pro- collateral evidence gather limited into investigation counsel’s on his psychology. Mr. Wilson’s insight into vide Mr. mitigating evidence about potential flatly affidavit, Reynolds Dr. states In his health, coun as well as Wilson’s mental fur- testing, and additional that “I needed men present the available failure to sel’s schizo- [a to support collateral data ther Peti Specifically, diagnoses. tal health “[unfortunately, diagnosis” but phrenia] objections to counsel’s raises two tioner Adden- time.” Pet. enough there wasn’t engage failure preparation: his pre-trial ¶ that, with further 4. He stated dum at shortly trial, and his until before expert provided family information the additional readily expert with supply the failure to after conviction by appellate information. Petitioner available relevant per- he could then testing the additional counsel’s objection perform raises one a more .accu- form, to “reach was able he present failure to at trial: his ance ¶ 7, id. diagnosis,” rate jury. to the diagnoses actual expert’s improved testimony regarded would have his “enor- of this sort could be as “strate- “ mously” “helped jury and un- better gic,” commenting that would ‘strip[ this ] ” derstand Micheal’s emotional illness [sic] that (quoting term of all substance.’ Id. participated and how he could have in the Ratelle, (9th Sanders v. ¶ opinion crime.” Id. at 15. He stated his Cir.1994)). The court concluded: “The among important sig- “the most complete lack of effort trial Bloom’s nificant to data tell the was Mr. Wil- psychiatric expert counsel to obtain a until diagnosis paranoid personality son’s of dis- trial, days before combined with counsel’s ¶ order,” 14; schizophrenia. Id. at see failure to adequately prepare expert his ¶ (“Mr. also id. Wilson meets the witness, and then him present as a trial diagnosis criterion for a schizophrenia, constitutionally perform- deficient ”). paranoid type.... Time constraints Below, ance.” Id. explain why we this tardy due to preparation preclud- counsel’s case, Bloom, like inadequate involved ed this more helpful diagno- accurate and preparation and presentation expert ¶ testimony. sis and Id. at 4. witness, delay as well in engagement. as Simmons, In Anderson 476 F.3d 1131 are, therefore, We driven the same con- (10th Cir.2007), we concluded trial clusion. counsel in a capital case was constitution- Judge Tymkovieh argues, dissent, ineffective, ally partly ground on the that the decision not to readminister investigator assigned investigate MMPI-2 test or collect collateral data was mitigation the case in begin did not his time, attributable not to the lack of but to work until the month before trial. Id. at Reynolds’ Dr. failure to recommend fur- Citing the 2003 version of the ABA ther testing to counsel: “Wilson’s counsel Commentary, Guidelines 10.7 the Court appropriately Reynolds relied on Dr. regarded delay this as indicative of inef- many decide how rounds of mental health fectiveness, specific even without testing should be conducted. The record regarding consequences delay. Id. Reynolds does not reveal that Dr. ever (“The mitigation investigation should be- testing beyond advised counsel further gin quickly possible, as may because it initial round necessary or advisable.” investigation affect the phase of first de- 1133-34; Op. Diss. see also id. at 1144 ..., fenses decisions about the need for (“counsel did not consider additional tests expert ..., practice, evaluations motion necessary”). interviews plea negotiations.”). regard We engagement expert timeliness of evalu- We do not read way. the record that important. ators as no less affidavit, According to Reynolds Dr. administered the MMPI-2 during test The Ninth Circuit reversed a denial of (for battery testing, first but an unex- corpus grounds habeas of ineffective reason) plained the results were invalid. assistance a case with similar facts. “[Bjecause invalid,” his first MMPI-2 was Calderon, Bloom v. Reynolds Dr. explains, “I needed addition- Cir.1997), defense counsel contacted a testing, al and further collateral data to psychiatric expert twenty days before tri- support this diagnosis. period Unfortunately, al—a almost identical to the three there wasn’t enough time to obtain weeks this case. “Because counsel did acquire information before key the services of this trial.” Pet. Addendum witness ¶ days trial, until at 4. before nothing hurried and inac- failure retest had report curate resulted.” Id. at 1277. The to do with whether Dr. Reynolds “advised roundly rejected court the claim that delay testing beyond counsel further the initial Investigation Dr. b. necessary or advisable.” round was Deficient from authorization did not need Reynolds exi- counsel’s are also disturbed We According test. invalid redo the requires to ABA counsel The investigation. guous inability to administer affidavit, familiar his “[witnesses consider to his to counsel n withand the due to the client’s relating time was to evidence a second MMPI-2 the to the from birth development, fault counsel’s life and That was of time. lack ABA Guidelines sentencing....” just be- time of until Reynolds Dr. engaging not (1989). includes specifically 11.8.3 This fore trial. fami- the victim’s from drawn “[witnesses nega- no also suggests The dissent speak willing are to ly or intimates who hir- the late from flowed consequences tive counsel Id. Yet the client.” against killing had considered counsel ing “[i]f because family single neglected to interview necessary, he could investigation further mother, his fact that despite the member — or conducted a continuance sought have were brother, girlfriend all sister, and possible investigation further what As willing to talk. readily available and (em- Op. Diss. remaining.” the time facts Anderson on similar we concluded omitted). so, does but that Perhaps not under- phasis Sirmons, did “Trial counsel ineffec- any less case to performance in this strategic not make take a decision as exacer- regarded evidence might mitigation well identified tive. It omit background]; performance family [including ineffective counsel’s above bating investigate and not steps repair simply did any counsel not take that he did evidence did not know such therefore start even when his late damage of at 1145. Dr. available.” apparent. became consequences affidavit, stated follows: in his Reynolds, affidavits, interviews As described 1-22-97, performed were “Evaluations would have produced members family with made were 1-29-97, 2-06-97. Results and Wil- of Mr. evidence valuable potentially shortly after hallucinations, nightmares, delusions, to defense available son’s 2, at reali- 7th, Pet. Addendum with 1997.” contact February inability to maintain evi- provided ¶ some “provided have They also would ty. MMPI-2 test 13. The diag- schizophrenia schizophrenia,” supporting diagnosis of for a dence evidence problems, Testimony about these ¶ had to be nosis. was invalid but id. family, and the Reynolds Dr. from both did If counsel again. administered the substance changed have would accu- obtaining an importance grasp the would hearing and sentencing tone of to do deliberately chose diagnosis and rate any testi- and color meaning given have suggest, seems the dissent nothing, as disturbance,” “personality mony about un- lack of of his confirmation this is but jury 2/19/97, providing tr. trans. health of mental derstanding of role of Mr. the depth highlighting details with capi- of a mitigation phase in the problems. clear event, far from it is tal trial. affidavit, Reynolds testified requested continu- Dr. had if counsel In his this information. granted have ance, importance would judge to the statements, family’s have might well that the explained trial court He motion. me testing, “helped sitting additional keep along reluctant been diagnosis since already accurate a more into reach days so late additional provided previously was not information problem aof trial on account lengthy Adden- Pet. my first evaluation.” during dilatoriness. by counsel’s own caused 1088 ¶ 2,

dum at 7. He stated that his “testi- without interviewing any family mem- mony could have improved been upon particularly those in the immediate bers— enormously had I been provided with the family. additional provided information byme Nor were witnesses did in- counsel Appellate Defense Council [sic].” Id. present terview and adequate substitutes ¶at 15. family for the members. The two teachers All of this information was easily within had not seen Mr. Wilson in five to six reach, yet counsel’s and he never contacted years. There is no evidence that the fami- family. The investigation per- ly friends from church knew Mr. Wilson formed here was far more than deficient well; particularly their testimony at sen- that conducted in Rompilla, where counsel tencing certainly not suggest does a close at least interviewed family members, five relationship. 2/19/97, See tr. trans. at 381-82, 545 at U.S. 125 S.Ct. and 19, 22 (describing Mr. Wilson as “manner- where he had some reason to believe addi- able,” “respectful,” and “intelligent.”). tional investigation would not be fruitful. None of them were in a position to observe sure, To be although counsel did not behavior, the kind of strange nightmares, mother, interview Mr. Wilson’s Patricia delusions noted family mem- Taylor, he did make her available to Dr. affidavits, bers in their much of which took Reynolds, who approx- interviewed her for place during the night or at odd times imately one hour. But he neither inter- when outsiders would not present. be And viewed the other immediate family mem- general, there is no substitute for the bers nor them made available. Counsel information glean counsel can from the cannot know whether other mem- family family researching when the defendant’s bers are able to important contribute in- background, they are always almost formation without talking to them. only people provide who can a complete This example, then, is an of trial counsel narrative of the defendant’s life. who did not trouble even to talk a large portion of the “reasonably available” wit- precedents, Under our this was ineffec- Wiggins, nesses. 546-47, performance. Anderson, tive 476 F.3d at S.Ct. 2527. Interviewing the family mem- 1145; Mullin, Hooper v. 314 F.3d hardly bers is requirement, onerous (10th Cir.2002). 1170-71 delay As with the rather, it is the starting point most in engaging a expert, mental health other investigation. Rompilla, See 545 U.S. at appeals courts of have found ineffective 381-82, (counsel 125 S.Ct. 2456 at least assistance the basis aof similar failure defendant). family interviewed It is family See, interview e.g., members. times, true that at some investigation will Mitchell, Morales 931-35 produce no new information. But while (6th Cir.2007); Mitchell, Haliym v. we do not require counsel to interview Cir.2007). F.3d every single family member, see, extended Judge Tymkovich, dissent, argues e.g., Rompilla, 545 U.S. at that “counsel fulfilled obligation by en- (“[questioning a family few more gaging Reynolds Dr. members ... promise providing can him less look- than ing mother, for a with in a access to Wilson’s haystack needle other wit- when lawyer nesses, truly has reason to doubt and Wilson’s there is Op. records.” Diss. ” any needle (emphasis added)), there Reynolds it is “If Dr. thought further incomprehensible that counsel can be ef- would helpful, interviews he could have fective in a case where life is at stake suggested counsel, them to but we have no strategic potential strength each Id. did so.” Reynolds Dr. information contingent on outcome choice agree. cannot We Hooper, investigation. initial here —interviews information Collins, 1170-71; Bouchillon so basic members —is family close Cir.1990). (5th Wiggins makes 589, 597 by an told to be not have should counsel reasonably diligent, coun- to be clear that ABA necessary. they are that expert “ thorough investiga- a must ‘conduct sel in specifically 11.8.3 Guideline ” background’ for defendant’s tion of the investigate to counsel defense structs evi- mitigating reasonably “all available fami the victim’s from drawn “[witnesses 522, 524, 2527 123 S.Ct. Id. at speak dence.” willing to are who ly intimates 396, 120 Williams, at Id.; also (quoting see client.” the killing against 1) 11.4. (reversing Guideline ABA Anderson, at 1143-44 S.Ct. F.3d 476 added). im- (first not did emphasis counsel where Mr. of habeas denial wit history). girlfriend Such were family family and investigate mediate reasons commonly they for valuable that are all swore readily nesses available mental to from assistance entirely aside at trial. testified would have that holds Rompilla And experts. health many that in situa recognize We readily available investigate failure to the better than tions, expert will know the even assistance ineffective can be' sources pertinent to men evidence is counsel what be investigation would of that if fruits the be more diagnoses will tal health could counsel than what something other of what avenues to determine equipped Rom to expected find. reasonably have likely fruitful to result investigation are 2456. We S.Ct. at pilla, 545 U.S. should degree, To counsel information. the lack that to hold be remiss would expert to determine rely on that able to be record, Reynolds Dr. that evidence, in the an necessary to effective is what to inter counsel defense asked specifically evaluation, additional evidence and what counsel’s excuses family members view See, testing. complete expert needs to the to do so. failure Calderon, 70 F.3d e.g., Hendricks “reasonably that it is true course Of Cir.1995). However, 1038-39 (9th counsel they a line when may draw counsel diligent and then expert simply not hire may investi- think further good reason have an As responsibility. all further abandon Rompilla, a waste.” be gation would attorney ha[s] “an has stated: court other a But there U.S. bring to investigate and responsibility counsel investigation threshold certain who experts health attention mental strate- making that prior conduct must client, .facts examining his are words, must counsel other gic decision—in v. Stew not Wallace request.” do experts to de- to be able diligent” “reasonably be Cir.1999) (9th art, Id.; see line.” [the] “draw where to cide role, J.). managerial (Kozinski, inAs Wiggins, also continue at minimum must of com- (the deprived defendant the ex authority over supervisory exercise “counsel when his representation petent examines expert ensuring that pert, back- [his] investigation their abandoned ABA of information those sources only rudi- having acquired after ground necessary adequate for are indicated has from a history of his knowledge mentary sentencing phase. preparation sources.”). con- Without narrow set of counsel has expert or Only either once coun- investigation, ducting a reasonable can sources readily available all consulted arbitrary, as strategy choice of will sel’s counsel’s reliance on the expert’s opinion death-penalty appeals in which counsel be reasonable. confesses his performance was deficient.” Id. at n. 1132 7.

Finally, we note that the State does not pre-trial defend counsel’s investigation on There support is no propo for the ground expert did not ask sition that the absence of an affidavit from provide counsel to family interviews. trial counsel is fatal to a petition habeas Generally speaking, rely we do not on a er’s claim of ineffective assistance. See ground put forward party. See Crouse, Barkell v. 468 F.3d 684 Cir. Scott, Webber v. 1179 n. 6 2006) (remanding for an evidentiary hear (10th Cir.2004); State Fire & Farm Cas. ing without counsel); an affidavit from Mhoon, Co. v. 31 F.3d 984 n. 7 Gibson, Sallahdin v. 1240 & Cir.1994); Mullin, see but Richie v. (10th Cir.2002) n. 11 (remanding for an (Hartz, J., F.3d at 1128 n. 3 concurring). evidentiary hearing so that counsel could government If the had argued that Dr. testify “reasons, as to thereof, his or lack Reynolds’ affidavit was insufficient because for not presenting” the expert, as the affi provide it failed to the expert’s recommen- davit submitted was “extremely vague.”). dations to counsel regarding necessary There is often conflict of interest be background information, might Petitioner tween client and counsel on question. this well have able to been cure the deficiency If trial with a counsel confesses to supplemental per deficient affidavit reciting what formance, Reynolds Dr. may he to face recommended counsel. court sanctions not, Because the State did such day to this as fees or and removal from the court not, still has contended that Reynolds’ Dr. appointed attorney list. Even if counsel affidavit was insufficient on account of its does not receive some court-induced pun failure to report his recommendations to ishment, reputation his will certainly be counsel, we cannot affirm ground. on that impugned, may which in turn affect his It would be unfair to government allow the practice. A requirement that the defen to sit back and decline object to to the dant receive a full confession deficiency, of sufficiency of proffered affidavits, the and in writing, from trial counsel puts the de then penalize the defendant when it is fendant at mercy the of lawyer. If too late for him to supplement any alleged more information from trial counsel is nec If, gaps. remand, on this proves issue ma- essary to particular issues, resolve which terial, the may district court wish to obtain the State here contend, does not the court additional testimony, or hold an evidentia- may subpoena him the evidentiary hear ry hearing, to resolve it. ing. event, In any an c. Lack an affidavit from trial Counsel of Affidavit from counsel is unnecessary here. While the In dissent, Judge Tymkovich argues record lacks a statement from Wilson’s it impossible to determine that counsel “that he did not enough have time counsel or “knew should have known fur- to obtain a further diagnosis,” diss. op. ther investigation necessary,” or that Reynolds’ Dr. provides affidavit us counsel’s late hiring of the expert preju- with that Moreover, information. diced the un- the investigation, we lack because discovered witnesses in affidavit from counsel case were Mr. any light sheds Wilson’s family these immediate Op. issues. Diss. 1132. members —the Accord- ing to the most dissent obvious of “[t]he absence of resources. We do not admissions in counsel’s need an affidavit errors affidavit from trial in- at trial in stark stands contrast to other forming us that he was he aware had in- abnormali- between jury the difference the in- the most information, as even complete disor- actual mental and personality that an ties knows trial counsel experienced explanation, such absence ders. without complete cannot investigation per- defendant’s may jurors perceive family. immediate to the talking antisocial “as ‘meanness’ sonality traits At Diagnoses to Present Failure expert evaluation behavior, but with Trial explained [they] properly are explanation impair- disruption and from deriving counsel’s as are troubled Finally, we system.” nervous that Dr. ments diagnoses present failure counsel’s nature trial, 1144. Given At Dr. made. already had Reynolds distinc- Reynolds, this of Dr. in gen- examination briefly only Reynolds testified Reynolds Dr. come across. mental tion did Mr. terms about eral experienced Mr. Dr. asked testified never Counsel problems. health many disorder mental diagnosis, “severe bipolar about Reynolds would This disorder, elevated. scales personality personality PTSD, paranoid personality severe has a he suggest that schizotypal per- passive-aggressive 2/19/97, at 57. Tr. trans. anxi- disturbance.” features, generalized the or sonality devastating response a triggered ABA the This fact that disorder, the despite ety cross-examination, during prosecution present the should “[c]ounsel that state rules that closing argument: during repeated all rea- entity or entities sentencing the to Mr. Wilson of description Reynolds’ mitigation in Dr. available sonably When psychopath. a like him made sound strategic reasons strong are there unless to no opportunity given Reynolds evidence.” Dr. of such portion forego some to the or tell charge (1989). Among “psychopath” refute Guidelines 11.8.6 ABA diagnoses, psychological actual are consider should counsel topics those characterization pejorative highly so- family and that as history, as well medical affidavit, Reyn- Dr. stuck. Id. In his history. cial in deficiencies additional explained

olds apparent defi- Notwithstanding these examination: counsel’s a present to ciencies, failure counsel’s opportuni- given have on mitigation I been based should for case detailed more is testing how explain psychological regarded toty still be might mental health to hypothesis under- a merely guide a or a strate- of result it were the if reasonable That behavior. in standing an individual’s explained the Court As choice. gic conjunc- be used must after results made the test choices Strickland, “strategic history, and other facts patient’s tion with of law investigation thorough op- given virtually been I should have options data. are plausible relevant prosecu- that explain strategic choices portunity unchallengeable; a was not psychopath on emphasis complete investiga- tor’s. than after less made ques- that diagnosis the extent DSM-IV precisely are reasonable tion diagno- this support he used to judgments tionnaire professional reasonable but sim- test psychological was not investigation.” sis the limitations support validity with no questionnaire ply How- 690-91, 2052. at in psychological reliability factor found argue State does ever, in this case strategic tests. made a defense ¶ did Nor Br. 77-80. Resp. 14. at See Addendum choice. Pet. ineffective OCCA, denying Mr. Wilson’s Sirmons, em- Court this In Anderson claim, suggest of counsel assistance explaining importance phasized counsel was making strategic Further, choice. Reynolds’ Dr. mental health I, 983 P.2d at 472. diagnoses Because the are not necessarily inconsistent State has failed to suggest grounds this as defense counsel’s argument that Mr. affirmance, for the argument “potential, is had waived. under the structure Webber, 390 penal system,” 1179 n. 6. to do well. Tr. 2/20/97, trans. at 43. specific mental We briefly nonetheless will address the disorders to which Reynolds Dr. could strategic argument, choice because it are, have testified cases, least in some forms the basis for so much Judge generalized unlike “personality disorders,” Tymkovich’s analysis in dissent. Counsel’s amenable to medication. If it is true that strategy, argues, he present was to Mr. Mr. Wilson could given succeed structure Wilson to the jury as a person very high despite suffering from a “personality disor- intelligence, with capacity to benefit soci- der,” there is no reason to think it ety. Evidence of Mr. Wilson’s mental ill- less true if Mr. Wilson were incarcerated ness, he argues, might have undercut this and medicated for something bipolar like approach. “Once counsel decided to focus disorder. his mitigation strategy on high intelligence and capacity reform, it was 3. Conclusion reasonable for counsel not to pursue fur- Trial counsel’s preparation for the sen- ther leads of mental illness.” Diss. Op. tencing phase, sum, fell accept- below able standards on First, numerous levels. We find argument unpersuasive, he did not hire an until expert just a few certainly and short of the “strong strategic trial, weeks before and he waited until the reasons” that ABA Guideline 11. 8.6 re- sentencing phase began to meet with that quires before counsel forego pres- should expert. This time prevented crunch trial entation of available mitigating evidence. counsel from providing expert the relevant First, counsel put did on limited evidence information that could have corrected that Mr. Wilson suffered from mental flaws in testing the and from conducting problems, health albeit without diag- the further investigation based on the leads nostic detail or explanation would that the expert developed. We that, know now have jury, enabled the in Reynolds’ Dr. with time for retesting and with additional words, to “better understand Micheal’s collateral information, the expert would [sic] emotional illness and how he could have arrived at a of diagnosis schizophre- have participated in crime.” the Pet. Ad- Second, nia. he failed to conduct even the ¶ dendum 2, at 15. If evidence of mental most basic investigation: meeting with illness would conflict with defense coun- family members. These interviews would sel’s strategy chosen of emphasizing Mr. provided have significant information re- intelligence Wilson’s capacity for re- lated to Mr. background Wilson’s form, the damage already done. Once mental health. Finally, he did not even this information was presented to the jury, present the mental diagnoses health that there plausible is no strategic reason to the expert was able to develop prior to refrain from presenting the powerful more testifying. Neither the delay nor the fail- and vivid mental evidence, health including ure to investigate could have been strate- bipolar disorder, the generalized the anxi- gic, and the State not does claim they ety disorder, PTSD, the as well as the were. The failure to present the expert’s paranoid personality disorder and schizo- full mental health diagnoses to the jury typal personality features. does not appear to strategic, be and the (2d. ed.1989); see Dictionary English This it was. not claim does State ford (9th 1247, 1257 Woodford, 280 Caro whole, short falls as a taken performance, testimony painted defen Cir.2002) (expert Court Supreme by the set standard and was psychopath” “violent dant as a Rompilla. Williams, Wiggins, and testimony Reynolds’ Dr. mitigating). Prejudice dis E. personality “severe about Mr. strong enough hardly claim, turbance” the his Strickland on prevail To invocation constant prosecutor’s the rebut “a reasonable also show must defendant counsel, very at the Had “psychopath.” of unpro- that, counsel’s for but probability Reynolds on re-direct Dr. least, asked the errors, proceed- result fessional jury diagnoses, additional reason- about A different. have been ing would alternative, and more had an would have sufficient probability ais probability able Mr. Wilson’s understand way to palatable, outcome.” confidence to undermine provid have It would conduct. gruesome Strickland, S.Ct. “psy being a besides during explanation, ed some occurred If ineffectiveness pictures Mike.” must the “two for chopath,” defendant sentencing phase, 2/19/97, at 60. probability Tr. trans. “a reasonable demonstrate ... errors, sentencer that, absent skepti grounds be may well There the balance have concluded would of case type this would cism that circumstances mitigating aggravating Reyn Dr. by hearing swayed have been Saffle, death.” warrant did not Stafford But diagnoses. specific present olds Cir.1994) (citing slate. Courts a blank write do not on we Strickland, evi type of this found repeatedly have 2052). mitigation. “[Evi powerful dence to findings background no court made the defendant’s district dence about we Accordingly, because of prejudice. is relevant the issue and character an alternative society, that issue as defen belief, held this long can reach is if the record are only acts that for affirmance criminal ground commit who dants facts to all respect with or mental sufficiently clear ... emotional to attributable v. United States issue. than defen bearing culpable on the may be less problems, 1142, 1149 Carrizales-Toledo, F.3d Penry 454 v. excuse.” no such have dants who Cir.2006). (10th 319, 302, 492 U.S. Lynaugh, (1989) Cal (quoting 256 2934, L.Ed.2d 106 record, to difficult, It would 545, 107 538, Brown, 479 U.S. confidence that with ifornia conclude' (O’Con- (1987) 934 L.Ed.2d 93 S.Ct. affected been not have would verdict jury’s Rompilla, also concurring)); see nor, J., mental of presentation by proper (highlight 2456 125 history. family and related health evidence health mental one as schizophrenia ing present- was mitigation The ef mitigating a potentially with problem that Mr. Wilson of statements ed consisted Oklahoma, 455 U.S. fect); Eddings v. boy churchgoing good, generally was (1982) 1 869, 71 L.Ed.2d 115, 102 S.Ct. personality and a “severe high IQ awith disturbance (“Evidence ... emotional of 2/19/97, at 57. trans. Tr. disturbance.” miti by defendants introduced typically testi- to use this able was prosecutor The (juries Smith, at 942 F.3d 379 gation.”); “psycho- aas Mr. Wilson mony to label illness); Sil mental of to evidence respond as Psychopath, defined Id. at path.” Woodford, va carries deranged person,” “mentally present Cir.2002) that failure (holding Ox- connotation. extremely negative it an abuse, evidence of illness, childhood mental duct to the law. This cry is a far from the organic brain disorder, and substance limited testimony actually given where Mr. abuse, PTSD, which included fetal alcohol Wilson was described having as a “severe syndrome, and disorder, attention deficit mental disorder” and a “severe personality extremely prejudicial); Middleton v. disturbance.” Tr. 2/19/97, trans. at 57. Dugger, (11th Cir.1988) The description of the effects of Mr. Wil (“[P]sychiatric evidence ... poten- has the mix son’s of mental might illnesses well tial totally change the evidentiary pic- have made a difference jury’s to the ability ture altering the causal relationship to evaluate his culpability. Compare with that can exist between mental illness and Mitchell, Clark v. 285-86 behavior.”). homicidal (6th Cir.2005) (counsel deficient Diagnoses of specific mental illnesses for failing to give specific diagnoses be such as schizophrenia bipolar, which are cause the experts described the of effects associated with of abnormalities the brain disorder); see Penry, also and can be treated with appropriate medi- 319, 109 S.Ct. 2934. cation, likely are regarded by a jury as Additionally, Mr. Wilson’s family, ig- more mitigating generalized than personal- by counsel, nored could provided have per- ity disorders, which are diagnosed on the sonal narratives Mr. problems reported basis of behavior, are generally and experiences from his childhood inseparable personal from identity, and are through adulthood, which both led to and often untreatable through medical or neu- revealed his mental problems. health rological means. See Christos et Pantelis There is evidence that expert testimony on ah, Structural Brain Imaging Evidence mental illness is most powerful when com- Multiple Pathological Processes at Dif- bined with lay narratives from witnesses Stages Brain Development ferent such family and friends. See Scott E. Schizophrenia Schizophrenia, 31 Bull. Sundby, Jury as Critic: An Empiri- studies); (reviewing Steven R. cal Look at Capital How Juries Perceive Sohizophre- Hirsch & Daniel Weinberger, Expert and Lay Testimony, 83 Va. L.Rev. (1995); Nick Manning, Psychiatric Di- nia (1997). 1109,1135 agnosis Under Conditions Uncertainty: Personality Disorder, Science and Far from presenting full picture “a Profes- sional Legitimacy, Soc. Health & jury,” to the op. diss. Ill- (2000). ness We thus cannot regard present failed even the most rudimenta- inability the of Reynolds Dr. ry conduct facts about his family circumstances, the retesting necessary to establish a diag- such as that Mr. Wilson ais father. Mr. nosis schizophrenia, of and the of failure family could have testified about counsel to elicit Reynolds’ Dr. psychologi- Mr. Wilson’s struggles with his drug-ad- cal diagnoses during the mitigation phase father, dicted subject a upon which Ms. trial, of as having no effect probable on the Taylor only briefly touched, his immersion outcome. in gang life brother, because of his and his assume, delusions,

We nightmares, Dr. Reynolds had been hallucinations, and giv- en the opportunity all of which testify may about these have evoked empathy diagnoses, he just from jury. would not the have Though used the counsel called Ms. terms “schizophrenia” “bipolar Taylor to testify, disor- he had not interviewed der,” but would also have testified her about before she was stand; called to the the in ways which these prevent- illnesses of this, because he did not know to ask ed Mr. Wilson from conforming his questions con- might that elicit this information. Mullin, at F.3d but see Anderson, Smith all, as in All in of ineffective by grounds on on defense habeas put (granting mitigation evidence the incom- “pitifully mental health jury gave presentation the in of assistance Wilson. of Mr. picture despite the state’s plete” evidence mitigation The mur- aggravation). for “strong” case prong, the Strickland As with first Mr. was convicted for which der defi- that the argument little offers State true, It also how- they brutal. is especially if performance, in counsel’s ciencies deficiencies, non-prejudicial. co-perpetra- ever, were Mr. Wilson’s that one of were prejudice argument jury, The State’s entire from the a life sentence tors received paragraph: in contained is youth, even because of his presumably addition, cannot demon- Appellant In the victim the one who beat though he was Appellant has as any prejudice strate Mr. bat while with baseball to death proba- a reasonable filed to demonstrate It is register. at the guard Wilson stood ev- mental health bility any that further that, if it possibility reasonable beyond jury’s affected have idence would informed, jury properly had been See penalty. of the death imposition in a similar regarded him would have Mullin, F.3d Malicoat v. to his mental culpable due light less—as Cir.2005). over- light defendant is on the illness. The burden aggra- three of the whelming evidence a “reasonable that there is simply show no jury, there is by the found vators would have that the probability” outcome addition- probability reasonable requires only a result been different —such have evidence would mental health al Though some differently. juror to vote one minds. jurors’ changed to em- may have been jurors disinclined nothing bulk of this Br. The Resp. 80. likely that at equally mercy, it is ploy legal test more than a statement empathized juror would have least one any argu- by unaccompanied prejudice, Wilson, in- additional given the Mr. not been satisfied. why ment it has Smith, 379 mental state. See sight into it is argument is that sole The State’s F.3d moved would have been unlikely jury put forth arguments Going beyond health mental evidence powerful more argues State, Tymkovich Judge by the evidence, overwhelming of the light evidence the mental health dissent credited, statutory of three which the may necessarily mitigating was not recognize We aggravating- factors. effect.4 sword” “double-edged have had v. Gib- See McCracken point. force true, if true the but (10th Cir.2001); possibly This could son, 970, 978-80 (1997); William J. Making Capital Cases demon- empirical studies majority 4. The Rationale, Bowers, Project: Capital Jury a miti- health has strate mental Early Findings, 70 Ind. Design, Preview acknowledge, juries. We gating effect on (providing overview of however, conflicting L.J. 1043 stud- are some that there Garvey, The Stephen P. Jury Project); Capital ies; are additionally, the studies almost all of Sentencing, 75 Economy Capital set, over Emotional is the data which now based on same (2000) (citing al., 27 n. N.Y.U. L.Rev. et. H. Blume years old. John ten See Jury Capital Pro- analyses quantitative of the Representation: The Neces- Competent Capital data). rely these not on State does ject The Knowing Heeding What Tell sity Jurors and impact of prejudicial to rebut studies Mitigation, Hofstra L.Rev. Us About deficiencies, we need not so on counsel’s empirical research (describing the comment than to farther them delve into mitigation); Justice Research what is effective important issue investigation Univ., of this Ctr., In- more Juror Interview Northeastern useful. would be Study of Juror Decision National strument: point apply just case, would not neously applied to this but AEDPA deference to the Williams, also to Wiggins, Rompilla, analysis OCCA’s of the Strickland claim Anderson, Smith, as well as many and the request evidentiary for an hearing. more country holding decisions across the We therefore find that the district court that the present failure of counsel to men- its abused discretion. See United States tal health evidence preju- of this sort was Seals, (7th Cir.2005) dicial. precedents permit These do us (“By standard, applying wrong legal regard the failure of counsel to effec- discretion”). the district court abused its tively present mitigating evidence based We remand to the district court to hold an on mental health inconsequential. In- evidentiary hearing on this matter. Mil- deed, this Court has labeled such informa- ler, 1253; 161 F.3d at see R. also Govern- “exactly tion the sort of gar- evidence that 8(a). Cases, § ing R. ners sympathy jurors.” the most from Smith, 379 F.3d at 942. IV. Claims of Pre-Trial Error Judge Tymkovich argues also that the Although we have determined that re- jury may negative have “drawn a picture mand to the district appropriate, court is about gang Wilson’s involvement and the we must consider the remainder of Mr. murder itself’ hearing after family’s claims, as he presented has sever- testimony. Op. Diss. thinkWe arguments which, meritorious, al if would unlikely. is Far from demonstrating that require reversal of either his conviction or loyal member, Mr. Wilson gang sentence. proceed We therefore to those family’s testimony would have shown that claims. Mr. jeopardized safety by his own helping police in their investigations of A. Voir Dire gang. He despite did this having been 1. Voir Dire Questioning pulled gang into the early scene as as the Mr. Wilson contends he was ninth denied grade. gang While may involvement his right impartial to “an jury drawn normally be from aggravating, Mr. Wilson’s co- a venire that has not operation been tilted in favor police, with the great risk to himself, capital likely punishment....” Brown, Uttecht v. neutralized its harmful ef- - -, 2218, 2224, fects. (2007). L.Ed.2d 1014 The trial court be- event, In any whatever doubts there gan its examination of by inquir- the issue might be regarding impact of counsel’s ing juror whether each was “opposed to or verdict, deficiencies on the the district in favor of the penalty.” death Tr. trans. court did not address the issue. We there- 2/3/97, Only at 38. question after this did fore cannot affirm ground. on that whether, the court ask if the case should State is argue free to prejudice lack of penalty reach the phase, juror would remand. “automatically against vote pen- death F. Proceedings Further alty, regardless of the evidence and the law.” Id. at jurors 48. Three Because Mr. informed alleged has facts that, true, if the court that they opposed were relief, would entitle him to the we penalty; conclude that an death evidentiary upon hearing questioning, further appropriate. they normally While we told the court they defer to a would “auto- district court’s matically it, decision on against whether to vote regardless hold an evidentiary Coronado, hearing, I, 517 evidence and the law.” Wilson 983 P.2d 1217, here, F.3d at the district court erro- at jurors 459. Two they stated that were

1097 obey his court’s instructions follow the that but penalty, of the death favor in oath, capital his on notwithstanding views convic- religious or their conscience either ” v. Chantha United States punishment.’ it. impose them allow to not tions would (10th Cir.2000) 1237, dara, 1270 is less argument Though Mr. Wilson’s Id. Brown, 669, Dutton v. (quoting of his clear, interpretation best our than Cir.1986)). (10th The trial court’s 675 information eliciting is that complaint finding factual enti bias is a evaluation of capital punishment, jurors’ on the views by reviewing deference information tled to substantial irrelevant considered the court 2224; Uttecht, at 127 S.Ct. Moore courts. removed jurors and to strike in its decision 1152, Gibson, Cir. 1168 v. 195 forth set of the standard in violation jurors omitted). 1999) (internal citations 412, Witt, 105 469 v. Wainwright U.S. in (1985). 844, 841 83 L.Ed.2d S.Ct. ruling. with the agree We OCCA’s trial that while the found The OCCA flexibility in great trial court retains in manner improved the could have court Virginia, dire. Mu’Min conducting voir dire, no there was voir it conducted 1899, which 415, 427, 111 114 S.Ct. 500 U.S. follow-up trial court’s “[t]he error because (1991). indicates The record L.Ed.2d 493 to determine designed were questions cause stated jurors removed for that all on the views jurors’ personal whether pen death impose they that could ability to impair their would penalty death present what the evidence alty, no matter I, verdict.” impartial an render jurors who points no ed. Mr. Wilson simi- The district court at P.2d 459. 983 general simply of removed because were on this basis. relief larly denied Nor the death penalty. disagreement with III, at *37-38. 2006 WL some other highlighted has Mr. Wilson an providing such as prejudice, of form right defendant’s capital A might questions initial example how exclusion jury prohibits the impartial about jurors’ answers have skewed they “simply because members venire penalty. apply the ability to death their pen death objections to the general voiced record has thorough review of the Our own religious or conscientious alty expressed that this to believe reason not shown its infliction.” Wither against scruples the district affirm therefore occurred. We Illinois, U.S. spoon relief. denial court’s (1968). Howev 20 L.Ed.2d S.Ct. interest “a er, strong has the state Voir Individual To Conduct 2. Refusal pun apply capital able jurors who are Dire state law framework within the ishment his both argues also Mr. Wilson Uttecht, at 127 S.Ct. prescribes.” impartial right to an Amendment Sixth Witt, (citing were vio- rights process his jury and due 844). right the defendant’s To balance to conduct by the court’s refusal lated trial interest jury and the state’s an unbiased He voir dire. individual, sequestered penalty, the death apply jury can educated group voir dire that the claims has instructed Supreme Court auto- would what answers jurors on only when appropriate for cause removal from in their removal matically result or sub prevent would juror’s views “the “no The OCCA found his service. performance stantially impair anything but jurors were potential that the his juror accordance duties court’s trial to the in their answers Witt, candid oath.” instructions and no error. there and so questioning,” must The trial court “ The district I, P.2d at 459. could Wilson the venireman ‘whether determine 1098 III, agreed.

court Wilson 2006 group WL record that questioning potential 2289777, jurors at *39. insufficient, or that compo sition jury would have been differ A right defendant’s to an impar ent....”); Rezaq, United States v. 134 jury tial right adequate includes the to an (D.C.Cir.1998) 1121, F.3d 1140 (“Although identify unqualified jurors. voir dire to the collective ordinarily voir dire is not Illinois, Morgan 719, 729, See v. instrument discerning of choice for im (1992). 2222, 119 L.Ed.2d 492 sometimes, partiality jurors,” general There is no right absolute constitutional questions jury to the are an appropriate capital cases, individual voir dire in Trujil bias.). way to root out Lacking such evi Sullivan, (10th 597, v. lo 815 F.2d 606-07 dence prejudice, we find that the deci Cir.1987); Balkcom, McCorquodale v. 721 to, sion of the contrary OCCA was not or 1493, (11th Cir.1983) (en banc), F.2d of, application unreasonable clearly es but the comport method of voir dire must tablished law. process with due requirements, Trujillo, 815 F.2d at 607. “An exercise of discre V. Claims of Error in the Guilt Phase deny sequestered tion to voir ... may dire Jury A. Dual Procedure comport quite easily process with due un specific circumstances, der the whereas Mr. Wilson claims that the use of that may same exercise of discretion of juries dual during his trial with code- fend notions of fairness” another set fendant Darwin Brown rights violated his ting. may Id. “There be a case where en Sixth, under the Eighth, and Fourteenth death-qualifying masse may voir dire be so Amendment. argues He that the use of egregious may taint jury so jury the dual procedure error; is structural process denies the defendant his con alternative, in the he contends that right stitutional to an impartial jury.” Id. procedure prejudiced his defense and that concerned, We might be example, if a prejudice was not harmless. Before juror stated in front of other venire mem we determine jury whether a dual proce bers that he was aware that the defendant dure is amenable to analy harmless error had been arrested in another state for sis, however, we must if determine there crime; Armontrout, some heinous Byrd v. any error at all. See Bland v. Sir (8th Cir.1989) 880 F.2d (finding, how mons, (10th 459 F.3d 1009-10 Cir. ever, that this questioning was harmless 2006); Mullin, Turrentine error); juror if expressed or opinion (10th Cir.2004). The OCCA innocence, guilt formed because of found that there was no error in the use of pre-trial publicity, thereby tainting the en jury procedure, I, the dual venire, tire Tegzes, United States v. 456-58, P.2d at and the district court (11th Cir.1983) (same). III, agreed. 2006 WL *6-7. Mr. Wilson has failed to show

that his voir dire was “egregious” so Because a great deal of the evidence it violated his process rights. due Trujil pertained to both Mr. Wilson and Mr. lo, 815 F.2d at 607. Though Brown, the trial the two were tried jointly with two court conducted an en masse voir in separate juries dire assigned each to one defen- front sixty jurors, of a venire of Mr. Wil dant. represented Each was by separate son has not shown preju evidence of juries counsel. Both sat in the box resulting dice from process. together See Kil and the state presented the evi- Bowersox, gore against dence both defendants simulta- Cir.1997) (“[T]here is no indication in the neously. When evidence only admissible

1099 jointly. are tried the was where defendants one defendant of or favor against juries, dual de joint “In trials without the other introduced, court removed the and defendants often fense counsel wind Tr. trans. courtroom. See the jury from table.” Lam State, up at the counsel 211, same v. 3-6; 942 P.2d Cohee 2/3/97, Stewart, 1181, bright v. 191 F.3d 1185 Beam see also (Okla.Crim.App.1997); 213 Cir.1999) (en banc). (9th Though jury the Cir.1993) (9th Paskett, 1301, 1302 3 F.3d v. they may that at times have is instructed (describing (reversed grounds) on other against evidence one defen to consider to In order jury procedure). the dual other, against “there dant but not this, counsel Mr. Wilson’s facilitate Id. Yet'the Su might be some rub off.” he the court whenever required to inform preference a preme expressed Court has or evidence a defense present was about States, v. United joinder. 506 that the court Zafiro Brown so antagonistic 539, 933, 534, 122 L.Ed.2d jury. Brown’s could remove (1993). jury sys The of a dual 317 use is not without jury procedure dual a re may very tem well be reasonable jury require trials Dual problems. joinder, recog as it sponse prejudicial that against prejudicial guard efficiency nizes the court’s interest defen against another entered might be inherent mitigating prejudice while away dant, lawyer’s attention drawing diminishing the of joint by trials amount client. This increases from his own hears. See jury evidence a inadmissible capital defense job of the difficult already 1186; Smith v. Lambright, 191 F.3d at removing constantly Additionally, lawyer. DeRobertis, (7th Cir. 758 F.2d the flow of interrupts the room jury a from 1985) (“[T]he may double-jury procedure man jury. Jury can confuse the trial and being prejudice from tried reduce increase two-fold. difficulties agement prejudice form of jointly with another —a State, 276, 437 Scarborough v. Md.App. 50 by the usually outweighed held economies also (Spec.App.1981); see A.2d 674-75 trials.”). Supreme joint Given of Rimar, 558 v. States F.2d United joinder, of we continuing approval Court’s Corsi, (6th v. Cir.1977); N.J. State 86 1273 generally scarcely conclude can (1981) (“[T]he multi 213 A.2d 430 juries of dual alternative problematic less ... can sub jury procedure involve ple Indeed, every categorically is forbidden. to a prejudice risks of defendant’s stantial court that has consid appellate federal trial.”). as an Our role right to a fair upheld the jury system has ered a dual however, court, to deter is not appellate Lambright, See 191 F.3d procedure. optimal have been the mine would what process of due no violation (finding wheth rather, to determine but procedure, in the use of dual right trial other violation. has been constitutional er there case); Smith, capital in a juries dual argument Mr. Wilson’s Lewis, States v. (same); United precluded is unconstitutional procedure (“We (D.C.Cir.1983) ac F.2d Brown recent decision in by Comb’s it long as jury procedure so cept the dual (10th Sirmons, 1072, 1078-79 Cir. process of due the ethos comports with 2008) in the use of (finding no error stringent our rules commanded jury procedure). dual justice.”); United States criminal Cir. Hayes, Moreover, harms many potential 1982) challenge to the including (rejecting use jury procedure, dual from a noting “neither multiple juries evi- prejudicial introduction inadvertent any more than defendant, alleged has are also [defendant] against dence one harm”). generalized possibility in a trial possibly magnified present and why Mr. Wilson cites several reasons We note that Mr. Wilson has not identified jury procedure any the dual specific violated his consti- information that might have First, been, rights. not, tutional he contends that but was proper elicited from a jury procedure the dual cross-examination any created a conflict witnesses. Addi- tionally, by requiring slightly puzzled by of interest we are notify why counsel to in counsel would elect not judge potential prejudi- advance of to cross-examine witnesses, important given cial testimony. He cites the trial specific no inci- court gave “careful ... dents where a conflict and meticulous occurred. Mack v. instructions,” Brown, Peters, (7th Cir.1996) 515 F.3d at (“For informing juries they would at jury] dual trial [á‘ to be unconstitu- courtroom, tional, times leave the they and that a defendant in tried such a trial attempt inference, could “not to draw must show some specific, preju- undue dice”). any conclusions, or come to guess Mr. duty Wilson’s counsel’s sole may what evidence presented or is the court was to inform be- questions it of ing presented at the time against they when were potentially Brown that were preju- I, outside of the courtroom.” though dicial. And Wilson important this was an P.2d end, at 457. We are duty, it, if aware that caution- he failed to fulfill ary instructions entirely cannot object Brown’s counsel eliminate any preju- could juror suspicion, but we cannot imagine dicial information against introduced his why a Brown, reasonable counsel client. See would have re- 515 F.3d at 1079. frained cross-examining key from While Mr. wit- Wilson’s counsel had to inform nesses under those the court in circumstances. potential prejudi- advance of questions, cial duty his additional to the Mr. Wilson also jury claims the dual court did not diminish presence his system resulted in improperly admitted trial, during stages table all evidence about theory Yost’s death on the prevent nor did it him acting from that because he was not in the back room counsel, as he was free to ask all questions occurred, while beating details of the and present all evidence. Whatever mini- event were not relevant to his case. This obligation mal he materially had did not argument borders on the absurd. The ability limit zealously to represent Mr. government tried Mr. felony Wilson for Wilson. The defendant Holloway invokes murder degree and for first malice mur- Arkansas, 98 S.Ct. der; government’s theory was that Mr. (1978), 55 L.Ed.2d 426 but that was a far helped plan Yost’s murder two different case. In Holloway, single at- prior weeks robbery to the and that the torney represented three co-defendants murder occurred furtherance of the rob- despite having confidential information bery of which Mr. integral was an others, from one adverse to the which part. Details of the victim’s death were limited his representation; the Court natu- relevant. rally presumed prejudice from that egre- error, Because we find no we do not gious situation. Nothing jury the dual reach Mr. Wilson’s claim that jury the dual

procedure rises to that level. procedure error, is structural though we

Second specifically, and more Mr. Wil- note recently that this Court rejected this argues son that defense counsel was loathe argument when made Mr. Wilson’s co- remove the and cause a spectacle, Brown, defendant. 515 F.3d at 1078-79. and therefore refrained from cross-exam- We would be bound to reach the same ining some of government’s witnesses. conclusion here.5 argues Mr. Wilson also that because at the time of his trial the Oklahoma Constitution (1993). Evidence L.Ed.2d of DNA Introduction

B. Hearing lay argues that the State did He also Daubert Lack of admit this evi- proper foundation the state guilt phase, During dence, properly lay did it the founda- nor Polymerase of a the results introduced expert its witness. Defense qualify tion to (PCR) performed test Reaction Chain objections at make these counsel did not pieces on various found blood stains found that the use of the trial. OCCA evidence, the black aluminum including plain amount error. test did not PCR shoes, QuikTrip a bat, sweatpants, baseball I, P.2d at 460-61. The district 983 bag, a latex paper a jacket, Nike jacket, a III, 2006 WL court affirmed. Wilson Tr. trans. steering wheel. a glove, and 2289777, *16. Cindy expert, the state’s at 257. As 2/12/97 the Brown, Oklahoma a criminalist matter, ha- general a federal “As (“OSBI”), Investigation, Bureau of State to review relief does not lie corpus beas a method used the PCR test explained, admissibility questions about state law the ” then be which replicate DNA can Marr, F.3d Moore v. 254 of evidence.... Beasley, F.3d v. 102 States typed.6 United Cir.2001) (10th (internal 1235, cita 1246 (8th Kaye Cir.1996); David 1440, H. 1445 omitted). showing that the Absent a tions Jr., Sensabaugh, F. George & specif a Reference the evidence violated admission of Evidence, in Reference on DNA Guide federal court guarantee, a ic constitutional n. Evidence 498 Scientific Manual on the state will not disturb on review habeas 2/12/97, (2d ed.2000); trans. also Tr. see 32 it was “so evidentiary ruling unless court’s demonstrated tests PCR at 263-270. The fatally it infected grossly prejudicial all of items. those Yost’s blood was fair denied the fundamental the trial and 2/12/97, at 260. trans. Tr. process.” due the essence of ness that is (10th Ward, 200 F.3d Fox v. argues that admission Mr. Wilson Ward, Cir.2000) v. (quoting Williamson a Dau- results without DNA test the PCR (10th Cir.1997)); Mi 1522 Four Eighth hearing violated bert (7th 22 702 Cir. Camp, v. F.3d v. lone Daubert rights. teenth Amendment 1994). not set Daubert Pharm., Inc., Because does 509 U.S. Dow Merrell Constitution the Oklahoma jury system cedure permit a dual because explicitly did not Wilson, P.2d at 456. yet authorized it. 983 prohibit OCCA had did not and the process deprived Estelle, of his due procedure, ruling. he was disturb this we do not Under State, jury. See Cohee right by to a trial one (authoriz- (Okla.Crim.App.1997) 211 942 P.2d heating process to re- analysis uses a 6. PCR 1997). procedure State statutes ing the which strands plicate percent one of DNA liberty are entitled "may interests that create popula- genetic variation within exhibit the Due Pro- protections of procedural join hydrogen bonds tion. When Amendment,” Clause of Fourteenth cess heated, are strands of DNA complementary inde- rights would not exist when even those A denatured separate, "denature.” they or Jones, 445 Vitek v. pendent of the statute. template that allows the DNA "forms strand 480, 488, 552 S.Ct. 63 L.Ed.2d 100 that is identical a new strand manufacture However, (1980). province of a “it is not the complementary strand.” Beas- to the former to reexamine state-court habeas court federal Through process ley, F.3d at 1445-46. questions.” Es- on state-law determinations added to each are free nucleotides which 62, 67-68, McGuire, telle 475, strand, new, strands of identical denatured (1991). A court’s state 116 L.Ed.2d Eventually, a suf- created. are DNA-sequence governs. The interpretation its own statute and the inves- ficiently large sample is created OCCA, "Extraordinary Writ” action in an type. gene sample’s tigator determine the can Brown, court brought by held that trial jury pro- Id. implement a dual had discretion to specific constitutional floor on the admissi- C. Introduction of DNA Evidence evidence, In Violation of Oklahoma’s bility only of scientific rele- Discovery Code question vant is whether test PCR fundamentally trial rendered the unfair. 22, § Ann. tit. provides Okla. Stat. Milone, 702; see also Norris v. that, upon request counsel, from defense Schotten, Cir.1998). disclose, the state shall days at least ten trial, prior to the start of “the names and The introduction of this evidence did not addresses of witnesses which in- the state violate traditional notions of process. due call tends to at trial” with their statements Numerous federal and state courts as well thereof, along summaries with results of investigators as scientific have found that experiments scientific tests or tangible See, analysis DNA e.g., PCR is reliable. objects prosecution which the intends to 1020, Wright, United States v. 215 F.3d use at trial. Mr. Wilson contends that the (9th Cir.2000); Shea, 1027 United v. States trial court violated his rights constitutional (1st 37, Cir.1998); 159 F.3d 41 United evidence, when it admitted specifically, the (1st Lowe, 45, v. States 145 F.3d 51 Cir. results, PCR DNA in violation of the Okla- 1998); Beasley, 1448; 102 code, F.3d at discovery United homa because the district Hicks, 837, attorney did days States v. 103 F.3d 844-45 not inform him ten Cir.1996); Hill, presence advance of the 774, the DNA evi- State v. 257 Kan. 895 dence. 1238, (1995); P.2d 1246-47 Commonwealth Rosier, 807, 739, 425 Mass. 685 N.E.2d “Because federal corpus habeas relief (1997); George Bundy & Smith Janet law,” does not lie for errors of state Lewis Gordon,

A. The Admission DNA Evi 764, v. Jeffers, 780, 497 U.S. 110 S.Ct. Courts, 3092, dence in (1990), State and Federal L.Ed.2d 606 we construe 2465, Mr. Fordham L.Rev. Wilson’s claim to (noting allege that the late deprived notice him of analysis ability pro- that PCR “has received over proper vide a Though defense. not entire- whelming acceptance in the scientific com clear, ly he also argue seems to that the courts.”). munity and the Mr. Wilson has admission of the DNA evidence contra- offered no reason to believe these holdings vention of the Discovery Oklahoma Code were in error. specific, protected violated a liberty inter- Mr. claim Cindy Brown est created state law. See Vitek v. unqualified testify expert as DNA Jones, 480, 488, 1254, 100 S.Ct. similarly meritless. She had worked as (1980). L.Ed.2d 552 rejected The OCCA a criminalist with OSBI seven and a claim, finding that the defendant had years. half She holds a Bachelor of Sci- been given the required notice under the in chemistry ence training and received in discovery I, code. Wilson 983 P.2d at 461. DNA testing from OSBI and from the affirmed, III, The district court * trial, FBI. Before 2289777, Mr. Wilson’s 17-18, she had 2006 WL and we trials, agree. testified in about a dozen other six analyst.

times as a DNA Mr. Wilson has First, Mr. Wilson has not shown that the demonstrated error in the admis- Oklahoma Discovery pro- Code creates a sion of Ms. testimony, Brown’s “much less interest, liberty Vitek, tected compare with the admission of the ... 445 U.S. at if even rendered the proceeding fundamentally did, it agree we with the OCCA’s assess- Fox, unfair.” 200 F.3d at 1297. ment that proper notice given. On Alabama, “a Beck v. sentence a mo- Under 16, 1996, counsel filed defense July constitutionally im [may requesting physical not] all death discovery tion for 24, 1997, days guilt ten of a January jury after a verdict posed evidence. On Attorney in- trial, offense, jury District was not capital when the prior the entire file was guilt of a formed counsel to consider a verdict of permitted the office. Defense offense, for him at available non-capital included lesser however, up the file counsel, pick failed to supported the evidence would have when Defense January Monday, until 625, 627, 100 verdict.” 447 U.S. such a fact that the of the was unaware (1980). Mr. 65 L.Ed.2d 392 only of his existed because DNA evidence pre that “he Wilson must demonstrate no we therefore find negligence, and own sufficient evidence to warrant” sented obligations prosecution’s violation Hogan v. lesser included instruction. Gib under Code. (10th Cir.1999). son, pre that “the evidence He must also show Second, defendant’s “[a] while permit at trial a rational sented would charges against to notice of right guilty him of the lesser included to find established,” is well he must defend which mur acquit degree him of first offense clearly established constitution there is no Sirmons, Young der.” discovery. non-exculpatory right al (10th Ward, Cir.2007); Hooks v. 184 670 Netherland, 152, 167-68, 518 U.S. Gray v. (10th Cir.1999). 1206, 1223-29 F.3d (1996). 2074,135 L.Ed.2d 457 So meaningful “op had a long as Mr. Wilson pre Mr. claims that he Wilson explain,” portunity deny or Gardner at trial to war sufficient evidence sented 1197, Florida, 349, 361, 97 S.Ct. degree a instruction on second rant (1977), clearly there is no L.Ed.2d 393 first felony person murder. A commits Gray, due violation. process established when he degree felony murder “takes 169-70, 116 S.Ct. 2074. 518 U.S. at if the being during, a human or life of prohibits § us from find 2254 thus U.S.C. from, the being of a human results death knew about error here. Mr. Wilson ing commission of attempted commission or before trial and heard the DNA evidence felonies, ... including] rob listed [certain trial, during court open about it ” weapon.... Okla. bery dangerous awith it; additionally, contest so he was free to 701.7(B). mur § Homicide is tit. Stat. prejudice— he has shown no evidence “perpe when it is degree in the second der tried to example, that defense counsel engaged in the commis by person trated a to do so expert an but was unable hire unlawful felony other than the sion Mr. the short notice. Because because of tit. §in 701.7. 21 Okla. Stat. acts” set out that the admis has failed to show 701.8(2). felony mur degree § Second fatally that it infect prejudicial sion was so dur committed encompasses murder der trial, deny this claim. we must ed fear, not or which is robbery by force ing Fox, 200 F.3d at 1296. felony degree in the first an enumerated Brown, 515 F.3d statute. See murder Degree Murder Instruction D. Second that the trial argues Mr. Wilson next what weapon is The use of erred when it refused to instruct court fear robbery by force or distinguishes de- included offense of second the lesser weapon: robbery dangerous from recently felony murder. We denied gree that a de state has established Brown, “once the at 1085- claim in 515 F.3d similar in the weapon dangerous used a fendant and we do the same here. death, kill robbery group planned part course of a that results in Yost as degree the offense of second murder no robbery. The OCCA’s decision was not longer option under Oklahoma law.” law, contrary to federal nor was it an (10th Ward, Fowler v. 200 F.3d application unreasonable of the facts to Cir.2000) grounds by overruled on other Brown, that law. See 515 F.3d at 1086. Marr, Moore v. Brown, Cir.2001); see also 515 F.3d at of Error in the VI. Claims Oklahoma, 1086; Hatch v. Sentencing Phase (10th Cir.1995) overruled on other regard Mr. Wilson raises several issues States, grounds by Daniels v. United ing evidence introduced the state at the (10th Cir.2001). 1180, 1188 1 n. sentencing stage support aggravating Nonetheless, argues Mr. Wilson that a factors. Before a death im sentence is degree appropriate second instruction was Oklahoma, posed in the sentencer must perpetrators brought because the a dan- find, doubt, beyond a reasonable the exis gerous weapon baseball bat—into the —the statutorily tence of at least one defined Yost, QuikTrip only they after subdued factor, and aggravating then must further and thus it was not used to effectuate the that applicable aggravating find factors robbery. Mr. also asserts he outweigh any mitigating circumstances. requisite did not have the intent to kill 21, § penalty Okla. Stat. tit. 701.11. At the with a dangerous weapon because he was phase proceedings, of Mr. Wilson’s present in the back room when Yost prosecution attempted prove ag three rejected was beaten to death. The OCCA gravating circumstances: the mur argument, stating both versions of the heinous, atrocious, especially der was case, clearly “[i]n this the evidence showed (2) cruel; that the murder was committed that the victim beaten to death with a purpose avoiding preventing the of or a bat, dangerous baseball a weapon which lawful prosecution; arrest or that complete robbery.... was used to the probable it was that the defendant would There was no evidence other than the evi- commit criminal of acts violence the dence that a dangerous weapon was used future that continuing would constitute a to robbery. Accordingly, commit the we society. threat In response, to Mr. Wilson I, 463; find no error.” Wilson 983 P.2d at presented evidence, mitigating to seeking III, 2289777, see also Wilson 2006 WL avoid a sentence of death. The found *21 (affirming). the aggravators existence of all three be evidence, OCCA, by The as found the yond a reasonable doubt and recom during demonstrates that the bat was used mended a sentence of death. judge The robbery. the course the We afford this gen sentenced Mr. to death. Wilson See

finding a presumption of correctness un- Mullin, erally Turrentine v. 390 F.3d by less it convincing is rebutted “clear and (10th Cir.2004). 1181, 1195 evidence,” 2254(e)(1), § high 28 U.S.C. burden which Mr. Wilson has not met. It Heinous, Atrocious, A. impossible is to disaggregate robbery the Aggravator Cruel from the murder. Mr. Wilson stood be- claim, In his sentencing stage first Mr. hind QuikTrip, attempt- the counter at the ing safe, argues Wilson that the state offered insuf- pull out the as the other co- Yost, support jury’s defendants murdered ficient evidence to find- the sole wit- robbery, ing ness to the that especially with the bat. Addi- the murder was hei- tionally, nous, atrocious, (“HAC”), Mr. Wilson confessed that or cruel

1105 We look to Oklahoma law de in the infliction major participant he was challenges He also suffering. the substantive elements of the of such termine Mr. aggravator. constitutionality of “heinous, atrocious, aggravating or cruel” claims to the these presented Bravo, F.3d circumstance. Valdez 373 court and was the district and to OCCA (10th Cir.2004). 1093, aggrava 1097 This I, 465; P.2d at relief. Wilson denied “requires proof tor the death was III, at *25-30. 2006 WL by physical torture or serious preceded State, abuse.” Lott v. 98 P.3d Evidence that the Sufficiency (Okla.Crim.App.2004). Torture or serious Heinous, Especially Was Murder “may take several physical abuse Atrocious, or Cruel forms”: that there was argues Mr. Wilson may Torture include the infliction of ei- prove evidence at trial insufficient great physical anguish or extreme ther atrocious, “heinous, aggravator. or cruel” cruelty ... must be the re- [it] mental claim on sufficiency of the evidence of intentional acts the defendant sult question is corpus, “the relevant habeas produce anguish ... mental must [and] whether, evidence in the viewing after necessity to that which of addition prosecution, favorable to light most underlying killing. accompanies fact could have found any rational trier of Analysis on the acts of the must focus beyond of the crime elements the essential the victim and the lev- defendant toward Virginia, doubt.” Jackson a reasonable length tension created. The el of 307, 319, victim suffers mental time which the (1979). “This standard re L.Ed.2d 560 anguish is irrelevant. longstanding principle system’s flects our weigh jury’s province it is the (Okla. State, Berget v. 824 P.2d reasonable infer and to draw requires Crim.App.1991). Physical abuse testimony presented at trial.” ences from physical suffering.” evidence of “conscious Mullin, Turrentine v. Gibson, Romano v. Cir.2004). “sharply Our review Ward, (10th Cir.2001); Medlock v. limited,” conflicting there are and when (10th Cir.2000). disparate permit in the record that facts that there are no has also stated OCCA inferences, presume— the Court “must criteria, to all applicable uniform “specific, affirmatively appear even if it does not cases, appli make the murder which would fact the trier of resolved the record —that ‘heinous, atrocious, or cruel’ cation of the prosecu any such conflicts favor of procedure.” Rob a mechanical aggravator tion, defer to that resolution.” and must (Okla. 389, State, 401 900 P.2d inson v. Roberts, 74 (quoting at Messer v. Id. 1197 “Rather, the examination Crim.App.1995). (10th Cir.1996)). F.3d every case is facts of each and argues that there specifically Mr. Wilson determining ag- whether the necessary in that the evidence to show was insufficient in a engage Id. We gravator proved.” was by torture or serious preceded murder was Turrentine, 390 by inquiry. case case abuse, is at least one of which physical at 1197-98. atrocious, heinous, required prove that: The OCCA held State, v. See aggravator. cruel Stouffer that the examiner testified The medical (Okla.Crim.App.1987). P.2d 563 bat could have by the baseball first blow was emphasizes that there particularly He However, unconscious. rendered Yost physical of conscious insufficient evidence ever intro- bat was before the baseball suffering. attacked, attack, tionally, dragged dueed into the Yost was attacked Yost was into room, bound, dragged by into the back room his and the back and handcuffed. help four Yost screamed for fact assailants. The that Yost’s killers “bound his being while the bat was retrieved from legs arms and in this that is evidence case Obviously being the car. he was re- he was during part conscious at least by attack; strained at time and Wilson there no would be need to bind ” inju- Romano, another defendant. Yost suffered person.... a dead at 239 F.3d hands, arguably coming from ries to his 1176-77. There were defensive wounds bat, indicating the blow from the defen- hands, wrists, fingers, Yost’s and the piece There was a of met- sive wounds. autopsy hinge revealed a from the hand- al from the handcuff imbedded in Yost’s scalp, embedded in suggesting cuffs indicating head he had his hands Yost had raised in a his hands defensive between his head and the bat. 2/13/1997, posture. Tr. Trans. at surveillance noises can be heard tape supports This too an inference that Mr. the attack bat during after baseball Yost did not lose consciousness immediate- taken to the cooler where Yost was Brown, ly upon the attack. See 515 F.3d arrived, being it held. Once the bat State, 1090; at v. 846 P.2d Woodruff possible that Yost was struck and ren- (Okla.Ct.Crim.App.1993). But even dered unconscious with one blow. How- assuming that Yost was rendered uncon- ever, the bat we find before bat, by scious the first blow of the he was attack, brought into the Yost had suf- physical a victim of abuse before the bat anguish the extreme fered mental struck his head. being captive, knowing held that his ulti- Likewise, there is evidence of extreme mate fate rested the hands of his anguish. mental “Evidence that the victim identify attackers whom he could if left was conscious and aware of the attack to live. supports a finding of torture.” [mental] Gibson, Jones 206 F.3d ample There is evidence of the extreme Cir.2000); Mullin, see also Hamilton v. anguish by mental prior suffered Yost (10th Cir.2006). “ his death. This evidence illustrates the ‘[ajnalysis must focus on the acts of the by realization going Yost that he was defendant toward the victim and the level ” be harmed and the gang even killed Hamilton, of tension created.’ overpowered had him robbers who State, (quoting Cheney 909 P.2d him dragged into back room. (Okla.Crim.App.1995)). This is not I, 464-65; 983 P.2d see also where perpetrators case entered the III, 2289777,at 2006 WL *28. QuikTrip immediately killed Yost. The Yost, him, four surrounded attacked essentially This Court addressed backroom, him dragged into the and bound argument same in the case of Mr. Wilson’s him. Two exited co-defendant, that, while the other two re- and concluded viewed mained, bat, retrieved a state, baseball and re- light in the most favorable to the turned to the room with the bat. there was We sufficient evidence that Mr. Yost agree with suffered the OCCA that before the bat physical anguish both and ex- attack, brought treme was even into the mental abuse while “Yost conscious. Brown, had anguish 515 F.3d at 1090. do not suffered the extreme We reach mental being captive, knowing different conclusion. Yost’s of held that his screams from the back room are ultimate fate in audible rested the hands of his videotape proof of identify consciousness. Addi- attackers whom he could if left to — Hamilton, I, 465; sentencing judgment when that conduct live.” Wilson P.2d natural, this evidence though at 1196. While causes its also not inevit- of mental compel 157-58, an inference able, not does lethal result.” 481 U.S. at with the torture, agree it. We permits it 107 S.Ct. 1676. the OCCA’s determina court that district claim, rejected Mr. OCCA of application not an unreasonable

tion was stating: law. clearly Supreme Court established portion proposition, In the second of this especially claims that hei- Wilson that Mr. Sufficiency the Evidence nous, atrocious, aggravator or cruel does Participant Major Wilson Was to him he did not apply because that, also contends Mr. Wilson abuse, physical nor did inflict the serious that the if there is sufficient evidence even abuse be inflicted. he intend such heinous, atrocious, aggravator or cruel Arizona, Wilson, citing Tison v. 481 U.S. murder, there Yost’s is apply should 95 L.Ed.2d 127 that he evidence to indicate insufficient (1987), that, correctly felony claims in a beating, in the that he participated himself prosecution, murder the State must Yost, kill or that he intended attempted to substantially that the show accused least Yost, re Supreme Court to kill as the in participated killing. capital punishment. quires applying before Florida, Enmund v. 458 U.S. (1982). L.Ed.2d 1140 substantially

S.Ct. The evidence Wilson Therefore, aggravator argues, he killing in the is clear. Wil- participated him. inapplicable to subduing in initial son was involved that he knew that of Yost. He admitted Enmund and its when progeny, Under sup- killed. even Yost would be Wilson did not himself strike the the defendant the bat used to beat Yost to death. plied victim, in order be blows that killed in room when present ei He was the back penalty death he must eligible for the by Harjo. kill have been a in brought have intended to He ther the bat felony who acted major participant sounds of the first present when to human life. with a reckless indifference can heard on the blow audio/video- Arizona, 137, 158, 107 Tison beating that a He had to know tape. (1987). “The 95 L.Ed.2d 127 would cause serious with a baseball bat line central concern of Enmund/Tison suffering and death. physical conscious a con cases is Supreme Court whether I, The district 983 P.2d at 465. felony murder contains an ade viction for Tison, affirmed, holding that “[a]s court culpa of defendants’ quate determination least, was, actively in at the Petitioner the death bility imposition such robbery. underlying felony volved Eighth does not violate the penalty Yost, physically and was helped He subdue against cruel and prohibition Amendment’s sequence of during the entire present Mul Workman punishment.” unusual in the murder activity culminating criminal Cir.2003). lin, flight by Peti subsequent and the of Yost the Tison court hand, made the other On III, and his co-defendants.” tioner hu disregard that reckless clear “the 2289777, at *29. 2006 WL knowingly engaging in in implicit man life sufficiency the evi- a Because this is carry grave a activities known to criminal claim, must determine whether dence we culpable highly a represents risk of death found of fact could have any rational trier state, may that a mental state mental requisite culpabili- Mr. had the capital in a that Wilson making taken into account 1108 atrocious, Jackson, 319, aggravator long so as it at 99 cruel

ty. 443 U.S. S.Ct. physical demon- includes the “torture or serious ample 2781. There is Workman, See, e.g., intended for le- abuse” limitation. 342 strating that Mr. Wilson 1176; 1115; Romano, 239 F.3d at employed. thal See Fox v. F.3d force to be (10th Cir.2000). Thomas, Medlock, Ward, 1226; 1286, 218 F.3d at F.3d 1319; Moore, 1175-76; at trial that Mr. F.3d at 195 F.3d at Detective Folks testified Smallwood, at 1274. group the made the deci- Nonethe- Wilson admitted less, argues that because the to kill Yost about two weeks before Mr. Wilson sion jury did not include the “con- robbery Additionally, the occurred. Mr. instruction “look-out,” imposed by just suffering” requirement not serve as a scious Wilson did Enmund; courts, “major partici- aggravator in he was a the Oklahoma the was robbery’s plan- unconstitutionally vague. pant,” as he assisted the Yost, ning, subdued and was active argument His is foreclosed Work- robbery. throughout the entire He was approved man. The Workman Court Harjo even in the back room when and jury stating phrase instruction ‘es- “[t]he bat, and, brought Alverson the accord- heinous, atrocious, pecially or cruel’ is di- video, ing parties began when the the rected to those crimes where the death of Tison, hitting Yost with the bat. See preceded by the victim was torture of the 158, Continuing U.S. at 107 S.Ct. 1676. physical victim or serious abuse.” 342 robbery despite knowledge with the the language at 1116. This is same likely that Yost would be killed evidences in Mr. used Wilson’s case. See also Wal- required by the reckless behavior Tison. Arizona, 639, 654-55, ton v. Id. The OCCA’s determination was not L.Ed.2d 511 over- application clearly unreasonable estab- grounds by Ring ruled on other v. Ari- lished law. zona, 584, 2428, 536 U.S. 122 S.Ct. (2002); Oklahoma, L.Ed.2d 556 Hatch v. Heinous, Constitutionality S. (10th Cir.1995) 1447, 1468-69 over- n Atrocious, Aggravator or Cruel Marr, grounds by ruled on other Moore v. Finally, Mr. claims that the hei- (10th Cir.2001). 254 F.3d 1235 nous, atrocious, aggravator or cruel jury Even if the instruction did not suffi- applied unconstitutional as because the discretion, ciently jury’s narrow the jury require finding instruction did not perform state court can also this narrow- “consciousness,” though require it did Walton, ing function on review. 497 U.S. jury conclude there was “tor- 654, Here, 110 S.Ct. 3047. the OCCA II, physical ture or abuse.” R. Box Vol. found that there was torture in the form of Jury 4-73, Instruction CR at 370. anguish, extreme mental which ensured Therefore, sufficiently it did not narrow aggravator unconstitu- eligible the class of defendants for the tionally vague. argues Mr. penalty. death Ring, 536 U.S. at 122 S.Ct. requires perform narrowing. this acceptable

To be under argument Whatever the merits of Amendment, Eighth aggravating cir future, Ring apply does not retroac- cumstance must furnish a sentencer with a tively inapplicable and so is to his case. principled guiding means of its discretion. Maynard Cartwright, See Continuing Aggravator B. Threat 361-64, 100 L.Ed.2d 372 (1988). The Tenth routinely Circuit has Mr. Wilson makes several claims related upheld heinous, constitutionality continuing aggravator. threat To Wilson, along Mr. with co- pulled a of over pattern had that Mr. Wilson establish Brown, in the likely-to continue for speeding. defendant McCul- criminal conduct threat,” the “continuing a future and was lough asked Mr. to exit the car and Wilson February that on offered evidence state identification; because he had no provide murder, 1995, Yost’s 16, days prior to ten identification, McCullough ordered him to .25 caliber auto- a loaded discovered police patrol sit the car. The officer asked car he in Mr. when pistol matic Mr. who he was and if he had an Wilson Additional- speeding. over for pulled was him- arrest record. Wilson identified Mr. of Mr. Wil- offered evidence ly, the state Sergeant McCullough self and told that he accessory after conviction for prior son’s had been arrested in a double homicide In Mr. Wilson fact to murder. awaiting of 1994 and was sentenc- October pled guilty with and to assist- charged ing charge accessory on a lesser shooting when he held drive-by in a ing McCullough if there murder. When asked occurred; after the crime gun any drugs guns present were pro- that he produced state also vehicle, “[n]o, you Mr. offered can Wilson day of used on the the ammunition vided you if to.” Tr. Trans. look want 2/18/97 I, P.2d at 466. the murder. During the consensual search of the 55. vehicle, McCullough noticed a black alumi- Continuing Constitutionality 1. laying num baseball bat between the seats Aggravator Threat pistol automatic and a loaded .25 caliber challenges the constitu first Mr. Wilson Id. at Mr. passenger under the seat. continuing aggrava threat tionality of the transporting a Wilson was arrested law, aggravator this tor. Oklahoma Under At point firearm. no did Mr. Wil- loaded a probability existence of requires “[t]he Miranda Miranda warnings. son receive criminal would commit that the defendant Arizona, would constitute of violence that acts (1966). The state offered this L.Ed.2d 694 society.” Stat. continuing Okla. threat that Mr. exhibited evidence to show 701.12(7). § He claims Ann. tit. activity of violent and would be pattern it vague and overbroad because this is continuing threat in the future. appropriate narrow perform does by claim is foreclosed ing function. This argues that he did Mr. Wilson because have re precedent. We our Circuit’s Miranda warnings, not receive constitutionality upheld peatedly McCullough Sergeant were statements to See, e.g., Sallahdin v. aggravator. argues that McCul- inadmissible. He also Gibson, (10th 275 F.3d Cir. and base- testimony gun about the lough’s Medlock, 1319-20; 2002); inadmissible, his con- ball bat was because 1340, 1353- Reynolds, Nguyen given during car was sent to search the Cir.1997). no Mr. Wilson offers therefore not illegal interrogation prior us to deviate from our reasons for have been voluntary; weapons should today. to do so and we decline precedent, illegal interroga- excluded as fruits of this tion. Incrimi- 2.. Admission of Defendant’s

nating Statements trial, objected At defense he these statements because admission of continuing ag- threat support to the con- they were irrelevant believed testimony the State offered gravator, not because tinuing aggravator, threat McCullough. Sergeant Sergeant Samuel lack of the Miranda warning. Accord- February McCullough testified that the Miranda- murder, ingly, the OCCA reviewed Yost’s he days prior ten 1110 Hunnicutt, (10th 1345, 1349 Cir. plain claim for error and found 135 F.3d

based 1998). custody in purposes was not for therefore find that the “Wilson We OCCA’s Miranda and that the consent to search ap an unreasonable determination was not I, Wilson voluntary.” 983 P.2d at 464. was of Miranda and progeny. plication its The district court affirmed this decision. suggesting There no that Mr. III, 2289777, at Wilson 2006 WL *22-23. involuntary, was and Wilson’s consent so testimony about the “fruits” of that ‘po “It is well established gun consent—the and the baseball bat— required lice officers are not to administer was not admitted in error. Miranda warnings everyone they to whom ” L., Erving States v. United question.’ 147 3. Admission Prior Conviction Cir.1998) (10th 1240, (quoting 1246 Mathiason, Oregon v. 492, 495, Mr. also claims that the admis- 429 97 (1977)). 711, Rather, prior accessory sion of his conviction for S.Ct. 50 L.Ed.2d police only officers must advise individuals after the fact in to murder was error. of their Miranda rights they when are During sentencing phase, prosecu- Mi subject interrogation.” to “custodial presented support tor evidence in randa, 444-45, 384 U.S. continuing aggravator threat that Mr. Wil- “nonthreatening Because of the character” charged son had been and convicted anas detentions, stop “persons tempo of traffic accessory drive-by after the fact a 1994 rarily pursuant stops detained such are to shooting. argues Mr. this con- custody’ purposes ‘in for the of Mi viction involved no act of violence and McCarty, randa.” Berkemer v. “logical relationship therefore had no to 420, 440, 104 S.Ct. 82 L.Ed.2d 317 predictions dangerousness.” of future Pet. (1984). Br. at 80. subject Mr. to a Wilson was routine prove continuing To threat stop. nothing traffic find in the rec- We aggravator, the state must show that a ord, Mr. pointed nothing and Wilson has particular defendant a pattern has of crim record, indicating in the that “at time likely inal conduct to continue in fu arrest, stop between the initial and the he State, Douglas ture. 951 P.2d subjected comparable restraints (Okla.Crim.App.1997). Under Oklahoma arrest,” those associated with formal law, a standing nonviolent crime alone can triggering the need for Miranda warnings. not be the for finding continuing basis Berkemer, 468 U.S. at 104 S.Ct. 3138. State, Torres aggravator. threat brief; questioning Sergeant P.2d (Okla.Crim.App.1998). Howev McCullough asked Mr. Wilson’s license er, is free to consider “the defen identification, placed Mr. Wilson conjunction dant’s nonviolent offenses only car patrol after Mr. Wilson with other determining factors when produce could not these documents. He whether the poses defendant a future risk then asked about Mr. Wilson’s criminal Mullin, Boltz v. society.” 415 F.3d history; once he discovered that Mr. Wil- (10th Cir.2005). 1215, 1231 may The state homicide, investigation son was under for a adjudicated, introduce evidence of both he asked any drugs whether there were Id. unadjudicated, 1230; conduct. guns questions in the car. All of these are Oklahoma, Hatch v. 58 F.3d appropriate for a traffic stop routine so (10th Cir.1995) grounds overruled on other they it long prolong excessively. do not Stewart, States, United States v. Daniels v. United (10th Cir.2001). Cir.2007); United States v. n. 1

mi that The OCCA held while The Confrontation Clause bars for Mr. conviction was that basis “admission of testimonial statements of a in a gun drive-by used possessed he who did appear witness at trial unless shooting, may “the facts revealed that he he testify, was unavailable to and the de drive-by more in this have been involved prior fendant had had a opportunity for ammunition for the shooting by providing cross-examination.” v. Wash Crawford I, day gun on the of the murder.” Wilson 36, 53-54, ington, 1354, 541 U.S. 124 S.Ct. 466; 2/18/97, at Tr. 983 P.2d see also trans. (2004). 158 L.Ed.2d 177 protec While its argue 47. Mr. does not that this at tions are strong, “[t]he [Confrontation] interpretation of the unreasonable ... Clause does not bar the use of testimo facts, and we assume that it is cor must nial purposes statements for than other 2254(e)(1). § rect. 28 U.S.C. Because the establishing the truth of the matter assert jury’s finding OCCA affirmed the based on 9, ed.” Id. at n. 124 (citing 59 S.Ct. 1354 simply accessory facts other than after Street, 409, 414, Tennessee v. 471 U.S. 105 namely, pro that Mr. Wilson had the fact— 2078, (1985)); S.Ct. 85 L.Ed.2d 425 see shooting ammunition for the vided —the 813, Washington, also Davis v. contrary act to OCCA did not federal law 826-27, 2266, 165 L.Ed.2d 224 when it accounted for the conviction its (2006); Williams, United States v. 506 analysis continuing aggrava threat 151, 156 (2d Cir.2007). F.3d Boltz, tor. 415 F.3d at 1231. First, Huffs statements were most like Jp. Hearsay Prejudicial Testimony ly hearsay not “testimonial evidence.” “ hearsay Mr. contends that testi- statement, ‘Hearsay’ is a other than one mony during sentencing introduced made the declarant testifying while at phase violated his Amendment con- Sixth hearing, the trial or offered evidence to rights. support frontation of the con- prove the truth of the matter asserted.” tinuing aggravator, pro- threat the state 801(c); 12, Fed.R.Evid. Okla. Stat. tit. testimony Sergeant duced the Mike (same). 2801(A)(3) § Huffs statement that, 11, Huff September Huff. testified prove was not offered to the truth of the 1994, Gary Detective Meek Huff informed asserted, instead, matter but was offered “driving Wilson was a vehicle which to show Huffs motivation for stopping Mr. description matched the of the vehicle used Accordingly, Wilson. there is no Confron night.” in that homicide the Tr. previous problem. Crawford, tation Clause 541 2/18/97, result, trans. at As a Huff 9, 1354; 124 59 n. United stopped spotted Wilson when he him driv- (7th James, States v. 487 F.3d 525 ing. Mr. repeti- Wilson claims Huffs Trala, Cir.2007); United States v. him tion of what Meek told was testimonial (3d Cir.2004). F.3d hearsay which violated his confrontation Second, if quali- even Huffs statement rights. hearsay, fied as testimonial we have re- error, Reviewing plain the OCCA cently it stated is “far from clear” rejected claim, stating that “the an- ap- whether the Confrontation Clause even response questioning swer was in about plies capital sentencing proceedings. why contacting Huff was Wilson. The an- Barrett, United States v. 496 F.3d given, swer was not for the truth of the (10th Cir.2007) (quoting United asserted, explain why matter he but Higgs, States v. I, contacting Wilson.” Wilson 983 P.2d at Brown, Cir.2003)); United States 465. The district court affirmed. Wilson (11th Cir.2006) III, (declining 2006 WL at *24. testimony, Ms. defense Following Yost’s were non- because statements to decide Walls, approach the bench and testimonial); counsel asked Szabo v. (7th Cir.2002) (the objected, prejudicial, to a member of Confrontation capital sentenc- apply presence does not Center’s Clause Victim Witness review, courtroom, that this is habeas we ing). crying. Given as she had been clearly estab- only based on can reverse The court removed the audi- Id. at 168. by the Supreme articulated lished law as object to did not ence member. Counsel for deny request Mr. Court. We testimony itself. ground.

relief on this Dorn. The final witness was Ms. state’s adult, testified, child, young a a “[a]s She Improper C. Admission Victim He give problems. Richard didn’t me Impact Evidence adult, responsible and maturing was into that the tes Mr. Wilson contends family community. He an asset to our and Yost, wife, victim’s timony Angela being better edu- long-range plans had mother, Dorn, Alma the victim’s which and years. gone cated. He had to TJC for two testimony impact offered as victim was license, just gotten He had his real estate trial, during sentencing phase taking and dreams of care plans, hopes set under the right process violated his to due family.” of his Id. at 170. She also dis- de Fourteenth Amendment. OCCA plans to take care of her cussed her son’s appeal, claim of error on nied this age. in her old I, 466-67, P.2d at and the district court 983 completed After Ms. Dorn her state- claim. denied habeas relief ment, colloquy transpired: following III, at *39-40. WL de- Mr. SMALLWOOD: Brown’s [Mr. required by 22 Ann. tit. As is Okla. Stat. attorney] May fense we make brief 984.1(C), 22, § impact the victim state- record, provided ments in written form were Your Honor? in sentencing. the defendant advance of State, Yes, See also Ledbetter v. 933 P.2d THE sir. COURT: (Okla.Crim.App.1997). Defense coun- Judge, MR. comes now SMALLWOOD: sentence, objected sel to one which was objects Defendant Brown and to the vic- court, removed. In Yost read her Ms. impact testimony being tim as far more impact victim statement to the toward than prejudicial relevant. state’s in the sentenc- the end of the case your objection, THE COURT: Overrule began by ing phase. describing She how opportuni- Mr. You had an Smallwood. changed her life had since Yost’s death ty object state- impact to these victim enjoyed cooking ironing she how ments. The Court eliminated one of the explaining for her After the ef- husband. you didn’t like of Ms. sentences fect Yost’s death had on herself and her your I’ll overrule it Yost’s. and overrule sons, young she stated “Richard was two for a motion mistrial. recognize in a religion raised which did not Id. at 171. holidays birthdays, so those times were testimony Mr. that this Wilson asserts very special to us. Christmas used to be highly unduly preju- so emotional and very special, got because Richard so excit- dicial that- it rendered the trial fundamen- 25-year ed. Here was this old man who tally process unfair in violation of the due Christmas, toys wanted because he 2/18/97, clause of the Fourteenth Amendment. got never them.” Tr. trans. Tennessee, 808, 825, 111 Payne 167-68. 501 U.S. (1991). 2597, 115 L.Ed.2d 720 victim would take care of her financially S.Ct. portions of its Payne, the Court overruled in the future. Maryland, decisions Booth v. U.S. The victim’s wife testified that the victim L.Ed.2d 440 especially fond of Christmas holi- Gathers, Carolina v. South days because he family was raised 805, 109 S.Ct. 104 L.Ed.2d 876 that did not celebrate Christmas. The (1989), Eighth and held that the Amend- mother victim’s testified that she didn’t per impact ment no se bar to victim erects any problems have with the victim as a evidence. child. Statements about a victim’s child- conclude,” may legitimately “A State hood have no impact relevance victim done, has tit. 21 Oklahoma Okla. Stat. evidence. We find that these comments 701.10(C), § “that the vic- evidence about error, they amounted but do not rise impact tim the of the murder on and about error, plain to the level of they because family jury’s relevant victim’s is to the go case, did not to the foundation of the decision as whether or not the death right take from Wilson a essential to However, penalty imposed.” should be Id. his defense. there will be some cases in which victim I, (internal 983 P.2d at 467 citation impact unduly “so prejudicial omitted). Accepting the OCCA’s conclu fundamentally that it trial un- renders the testimony sion that the about the victim’s fair” in of the Due violation Process Clause highly replete childhood was emotional and of the Fourteenth Amendment. Id. at information, with irrelevant agree we that S.Ct. it did not rise to the level of plain error. Because Mr. Wilson’s counsel did not outset, At the “we note that [Mr. Wilson’s] object statements, impact to the victim prejudice assertions of are undermined correctly OCCA reviewed claim for this delay his counsel’s in challenging vic [the

plain It error. found that: impact] tim statement[s].” Short Sir case, complains this about mons, (10th Cir.2006). 472 F.3d stating statements from the victim’s wife Counsel had version of the statements enjoyed cooking she and ironing for the trial, prior yet challenge and he failed to victim. This evidence is to show relevant their admission until after the statements psychological, emotional physi- were presented jury. to the Id. The re impact cal of the victim’s death. Wilson timely objection quirement applies with complains about the victim’s mother’s context, particular force when just that statements he had received his defendant knows the content of the testi real plans estate license and had for the mony in prevent any advance and could future. The victim’s mother also stated objection error from taking place; even an that the victim told her that he would would, taken, testimony the oral if well age take care of her in old and for her Additionally, elicit a curative instruction. worry not to about the future. These we that inflammatory have found far more statements were relevant to show the proceeding statements did not render the impact financial and emotional “fundamentally example, unfair.” For crime itself on the victim’s survivors. Chanthadara, United States v. 230 F.3d Wilson claims that the mother’s state- (10th Cir.2000), the victim’s hearsay. ment Arguably the state- tears, testimony children ended their (cid:127)ment was not offered for truth of jury supplied and the husband asserted, hearsay. matter thus not photos numerous color of the victim while only statement was offered to show that . room, jury the victim’s mother Id. In the believed she was alive. evidence, mulative, includ- prejudicial children had jury the letters the viewed mother and one written to their dead videos of the ing gruesome photographs, describing his loss. daily journal child’s scene, weapons. crime emotional ef- Despite Id. the tremendous is not available “Federal habeas review evidence, this Court held that fects of the errors; evidentiary to correct state law unduly prejudicial as to it was “not so rather, of consti it is limited to violations fundamentally trial the defendant’s render Gibson, rights.” tutional Smallwood Turrentine, 1273; see also unfair.” Id. Cir.1999) (10th (citing (victim’s at 1201 husband’s state- McGuire, 67-68, 112 Estelle v. “brutal,” and the murder was ment (1991)). 475, 116 L.Ed.2d 385 When justice “let request argues that evidence petitioner the habeas done,” fun- proceeding not render the did Constitution, we consider violated the Mullin, unfair); damentally Cargle v. ... the admission of evidence so “whether Cir.2003) 1223-24 sentencing proceeding with infected the vic- (lengthy and emotional statement from jury’s imposi as to render the unfairness of the victims photographs tim’s sister and penalty tion of the death a denial of due unduly they prejudi- were alive not while cial). Oklahoma, process.” Romano v. 512 U.S. impact The victim statements here (1994). only 1, 12, 2004, a few short references to 1 contained 114 129 L.Ed.2d Overall, the state- the victim’s childhood. of the Four The “Due Process Clause brief, very person and while a ments were provides teenth Amendment mechanism in the courtroom broke down into sitting introduced for relief’ when “evidence is tears, no evidence that either wit- there is that it unduly prejudicial that is so renders emotionally an ness exhibited such fundamentally Payne unfair.” v. the trial unduly charged display might preju- Tennessee, 825, 808, 111 S.Ct. Chanthadara, Compare dicial. 230 (citing 115 L.Ed.2d 720 Dar F.3d at 1274. cannot conclude We 168, 179-83, Wainwright, den v. testimony regarding irrelevant Mrs. “[t]he (1986)). L.Ed.2d 144 enjoyment ironing cooking Yost’s of and involving for the victim and Mr. Yost’s Stage 1. First Evidence ... childhood could have influenced the photographs first address the We jury’s finding” aggravating as to the fac- during guilt phase. the trial’s admitted Brown, tors, nor it could argues photo Specifically, Mr. Wilson prevented jury considering have the from and head in a graphs of the victim’s back evidence, Short, 472 mitigating the see blood, of the victim’s pool photograph application F.3d at 1195. The OCCA’s was floor, body the entire face down on to, contrary nor an neither unreasonable head, of the victim’s shaved and back of, deny application Payne, so we habeas “grotesque” picture, additional were more relief on issue. Br. at prejudicial probative. than Pet. 48. Stages Relevant to Both VII. Claims photographs found that these OCCA Irrelevant, A. Introduction of expla “aided the medical examiner Prejudicial Cumulative nation to the victim and wounds Evidence manner of death” and were “relevant show the cause of death and the intent of alleges that his constitution- Mr. Wilson P.2d, I, the attacker.” 468. rights guaranteed Eighth al III, The district court affirmed. Wilson Fourteenth Amendments were violated be- irrelevant, cu- 2006 WL at *34. cause of introduction cumstance, is a limited and that photos’ role on habeas review none of the Our gruesome, while photographs, one. The prejudice outweighed by proba- their They case. allowed the are relevant to the I, tive value. Wilson 983 P.2d at 468. examiner to show where baseball bat Mr. Wilson relies on Spears injuries. Additionally, caused various (10th Mullin, Cir.2003), 343 F.3d 1215 photographs, depicting these the extent of argue that the admission of the photo injuries, probative are of the attacker’s graphs in the sentencing phase unfairly Mullin, Willingham intent to kill. See persuaded to sentence him to (10th Cir.2002) (pho 928-29 Spears death. inapposite to this case. tographs relevant to the “critical element” In Spears, gruesome photographs were penalty phase). intent to kill at the prove physical offered to conscious suffer Though analyzed slightly different however, ing; the evidence that the victim context, the Brown Court also found that early died or lost consciousness photographs these were relevant. See beating was uncontroverted. Id. at 1227- Brown, (analyzed 515 F.3d at 1084 under no misconduct). logical “[T]here was connection Finally, the ev prosecutorial between the photographs proposi and the guilt phase particularly at the idence strong. carefully they have reviewed the tion prove.” We were offered to Thorn- arguments and conclude record burg, F.3d at 1129 (discussing pro that the did not make the admission Spears). contrast, By most of the photo fundamentally unfair. Thorn ceeding See graphs offered at the sentencing phase Mullin, burg v. here showed the defensive wounds on Cir.2005) (“Reviewing the record under body, suggested Yost’s all which that he constraints, in light AEDPA’s and of the experienced suffering conscious before his probative pictures, grue value of the the logical death. There was a connection be crime, some nature of the and the other photographs tween these and the aggrava defendant],” incriminating evidence [the tor. the Court affirmed the OCCA’s denial of photographs right The of the and left relief.). face, however, of side Yost’s cannot be Mr. also that evidence Wilson contends justified grounds, they on these same do money of the found on his co-defendants depict Regardless not defensive wounds. irrelevant, police was as the found no mon- admitted, they improperly of whether were ey him. agree. We cannot Mr. Wilson however, say they cannot that we rendered charged robbery, is with and the state’s fundamentally Mr. Wilson’s trial unfair. theory in was that he acted tandem with there little Spears, Unlike where was money the other three defendants. The physical suffering, evidence of conscious joint robbery. was relevant evidence of the here, ample support there was for the heinous, atrocious, to find or cruel the Sentencing 2. The Phase (“Because aggravator. 343 F.3d at 1228 argues photographs Mr. that in- photographs primary aggra- the were the un- sentencing phase troduced the were at vating specifically presented evidence duly prejudicial, particularly photos of the major stage, they the second constitute a victim’s bruised knuckles and lacerated case.”). second-stage part of the State’s ring finger, photos right and and left photographs The two of Yost’s face were sides of the victim’s face. The OCCA likely jury” into find- “misle[a]d that probative found these were con- ing aggravator, they and did not ren- sciousness and were relevant to the hei- nous, atrocious, fundamentally unfair. Id. aggravating or cruel cir- der the trial

1H6 Stages 3. Both

Additionally, argues Mr. Wilson guns at the of two that the introduction argues also that Mr. Wilson preju irrelevant and sentencing phase was video and the crime scene photographs during a traffic gun was found dicial. One guilt sentencing and offered both and the driver in 1995. Wilson was stop cumulative and irrelevant. He phase were found gun passenger; Brown the argues photographic that the first The second seat. passenger under the was irrelevant be depicting Yost’s death they when by police discovered gun was the wounds on he did not inflict cause with the in connection stopped Mr. Wilson meritless; if even argument Yost. This held The OCCA drive-by-shooting. himself, charged hit he was he did not Yost weapons introduction of felony argues He also murder. the con they supported proper because scene, the crime photographs the still I, 983 tinuing aggravator. threat scene, the color diagrams crime find no error agree P.2d 469. We aisles, of the of the store photographs here. floor, glass on the broken handcuff in- sentencing, government During victim, all cumulative of the near the were photograph of the post-autopsy troduced a that: video. The OCCA found crime scene victim’s skull. The OCCA interior of the from photographs still taken [the] [t]he error, stating that the admission was found witnesses to made it easier for video of this that “we fail to find the relevance identify at the time cer- the defendants stage. Post-autop- photograph for second Therefore, taking place. are tain events generally are found to be sy photographs they pur- introduced for different were inadmissible, they any probative value poses and are not cumulative. substantially outweighed by preju- have is diagrams photo- He claims that the However, given Id. at dicial effect.” also cumula- graphs of the scene were photographs nature of the other gory video introduced tive of the crime scene trial, properly were introduced which diagrams during stage. the second admitted, error the court found photographs and the of the scene were Id. at was harmless. 469. give jury an idea of introduced to the layout of the store and different the that the agree with the OCCA We crime angles of the crime scene. The irrelevant, photograph was post-autopsy jury a walk gives scene video the only it the medical examin demonstrated through perspective of the crime scene. work, any injuries from the er’s and not prove This information was relevant to However, attack. we also defendant’s aggravating alleged circumstances the erroneously photo that admitted agree the espe- that murder was by the State: the inju graph did not have a “substantial and heinous, cially atrocious or cruel and determining effect or influence in the rious that would commit future acts of Wilson Abrahamson, jury’s verdict.” Brecht v. a con- violence which would constitute 619, 637, 123 society. The introduc- tinuing threat (1993) (internal quotation L.Ed.2d 353 not result in separately tion of these did omitted). photograph marks This was one cumulative the needless admission of ev- replete gruesome in a trial with evidence. idence. role, “very cannot Given our limited” we (footnote I, omit- the error was harmful. 983 P.2d at 468 conclude that Wilson ted). evidence, 1129; reviewing all the we Thornburg, 422 at see also After Brown, photographs, the crime scene agree F.3d at 1085. jury question all is whether the diagrams provided jury and was able to video the crime perspectives different fairly judge light the evidence in of the by were used witnesses illus- scene and prosecutors’ conduct.” Id. aspects testimony. of their

trate different not cumulative. The evidence was 1. Prosecutor’s Misstatement Facts Mr. complains Wilson first B. Prosecutorial Misconduct prosecutor argued facts not in evidence argues Mr. several instances of during guilt phase closing argument points He to six prosecutorial misconduct. money when he stated that rolls of were (1) episodes: misstatements of facts made in Mr. Wilson’s car. The vehicle found (2) statement; closing demeaning stopped by police was not Mr. Wil by calling “psycho- him him a ridiculing only son’s—he a passenger, (3) attacks on defense path;” improper though money rolls of (4) were found counsel; sympathy for the invocation (5) pockets of the three family; telling occupants, other none victim and the victim’s duty moral I, it had a civic and were discovered on Mr. Wilson. Wilson him; convict and misstatements P.2d at 469. Because defense counsel only that law. Mr. Wilson contends not trial, lodge timely objection failed to a misconduct sufficient to each instance of unpreserved OCCA reviewed the claim right to due but that process, violate his plain agreed error. The OCCA harmless, if the cumulative even each is fact, this was a misstatement of but held effect of the errors warrants relief. that, reviewing “[i]n this misstatement of in light totality facts of the every improper or un “[N]ot evidence, we determine that this misstate by prosecutor fair made a will remark ment of prosecutor fact does not depriva amount to a federal constitutional Cook, plain tion.” Tillman v. 215 F.3d rise to the level of error.” Id. The (10th Cir.2000). prosecutorial III, Unless agreed. district court implicates specific misconduct constitu 2289777,at WL *34. right, prosecutor’s improper tional re agree with the We OCCA’s assessment. reversal of a convic require marks state a minor This was misstatement a trial “ only tion if the remarks ‘so infected the overwhelming where there was evidence of trial with to make the result unfairness as robbery guilt Mr. Wilson’s on both the ” ing Le process.’ conviction denial of due Bland, degree charge. murder first Mullin, Cir. Le, 1024; 459 F.3d at 2002) (quoting Donnelly DeChristoforo, The a prosecution videotape introduced 637, 643, Wilson, showing along Mr. the other (1974)). L.Ed.2d 431 To determine wheth co-defendants, attacking Yost and three unfair, fundamentally aer trial is rendered him dragging into the back room. Mr. proceeding, the entire “includ

we examine did not exit that room until after Wilson ing against strength the of the evidence Harjo and Alverson the bat from retrieved petitioner, guilt stage the both as to at that Additionally, eye the car. several wit- culpability of the trial and as to moral at running regis- nesses Mr. Wilson the saw sentencing phase the cau as well as QuikTrip period the time during ter the tionary steps as to the instructions —such robbery in which the and murder occurred. jury by the court to counteract —offered Mr. prosecution The also introduced Wil- Sirmons, improper remarks.” Bland v. (10th Cir.2006) (internal statement, unrecorded, albeit that son’s omitted). quotation group always planned killing “The ultimate the had marks I, evidence, plain error. Wilson to the level finally, much of the And Yost. bat, to the P.2d at 470. given including the baseball This is mother. by Mr. Wilson’s police it the OCCA that agree with We on which ample than evidence more “psycho call Mr. was not error to Wilson verdict, notwith- guilty jury could base the defense mental Reynolds, Dr. path.” the minor error. standing at the sentenc expert who testified health prosecu- that the also claims Mr. Wilson acknowledged that Mr. Wilson ing phase, Mr., own misrepresented tor psycho of a some characteristics exhibited planning about statements not believe that Mr. though he did path, Mr. prosecutor quoted The Wilson crime. diagnosis. The precisely met this Wilson “ going to kill saying ‘[y]eah, we were as acceptable comments were prosecutor’s ” 2/14/97, him,’ and told the tr. trans. Reynolds’ Dr. conces characterizations of that that Mr. confessed Wilson sions. two weeks to kill Yost was made decision prosecutor’s to the use of the terms As crime, Mr. id. at 18. Wilson prior to evil” to de- “animal” and “unadulterated during his re- point that at no contends Wilson, pejoratives find the Mr. we scribe at trial did he presented confession corded unwor- inappropriate, and unprofessional, however, trial, At make these statements. court. Nonethe- thy of an officer of the that Mr. Detective Folks testified less, introduced ample there was evidence during an unre- statements made these aggrava- three by support the state to of the interview. segment corded stage all incorporated The state first tors. prosecutor’s that the state- OCCA found phase. Tr. sentencing into the evidence an “accurate review Folks’ ments were 2/18/97, It also introduced trans. at 102. testimony” and therefore not error. Wil- prior had convic- evidence Mr. Wilson I, agree at 469. with the son 983 P.2d We gun a loaded and an transporting tions for properly de- prosecutor OCCA accessory after the fact to the 1994 mur- testimony. Detective Folks’ scribed der, allegedly provided in which he also Finally, the ammunition for the homicide. Disparaging 2. Prosecutor’s Use of introduced, through photographs the state Terms and video of the at- of defensive wounds closing ar- During sentencing phase tack, physical evidence of the conscious prosecutor referred to Mr. gument, by suffering experienced and mental Mr. “psychopath,” tr. trans. juxtaposed Yost. this evidence is When “animal,” 2/20/97, id. at at 46^17 and an against mitigating the minimal “put suggested that he needed to be defense, with the agree offered we prosecutor sleep.” ... down to Id. The calling, im- OCCA the name however “unadulter- also referred to Mr. Wilson as plain level of proper, did not rise “psychopathic ated evil” and a killer.” Id error. defense counsel failed to at 46. Because this claim for object, the OCCA reviewed Attack on 3. Prosecutor’s Defense that use of

plain error. The OCCA held Counsel error, was not as it “psychopath” the term alleges prosecu- also that the Mr. Wilson summary an accurate of trial testimo- improperly tor attacked defense counsel ny; arguments, of the it held as to the rest by asking prospective juror during a voir should refrain though State “[t]he if he would “let a smoke screen” fool criticism or dire personal from unwarranted him, it implying the comments did not that was defense counsel’s calling,” name rise 2/5/97, job jury. thy to trick the Tr. trans. at. for the victim family and the victim’s lodged timely 135. Defense counsel sentencing phase closing argument. objection requested and mistrial. The prosecutor jury asked the to mistrial, court denied the motion for a put in the [themselves] victim’s shoes. objection sustained the and admonished Each every day you and get up, you put jury disregard the to the statement as your clothes, you go to work. improper. Id. at 135. The OCCA found shoes, your you You tie get you get off— no and held that prosecutor error “[t]he work, off to you your kiss wife your merely asking jury to use common kids, you if any, goodbye. have you And sense to evaluate evidence and not be don’t know what day might bring. information.” fooled irrelevant only You hope. have And he left that I, 983 P.2d at 470. particular 25th, night, on the hoping it to Attacks on defense counsel can at just be like an ordinary day in terms of prosecutorial times constitute misconduct. what he would do. He didn’t have the See, e.g., Young, United States v. Angela chance to tell goodbye. He 1, 9, 1038,- 84 L.Ed.2dT didn’t have the chance to tell his two (counsel permitted “must to make goodbye.... sons if you And find this and inflammatory unfounded attacks on guilty, man I you submit to he’ll have advocate.”); the opposing United States v. more 2 minutes and 11 than seconds to (1st Cir.1996) Bennett, death, ponder his much more than Rich- (“The prosecutor expected to refrain ard Yost. from impugning, directly through impli 2/20/97, on, Tr. trans. at 30. Later in his cation, integrity or institutional role of counsel.”). closing argument, rebuttal prosecutor defense the prosecutor While sorry stated “I’m moth- may [Mr. Wilson’s] implore jury have intended to er has to wait sense,” jail. 20 minutes to see him in use “common the comments were But you know what? Dorn arguably disparaging suggested right Ms. over there, guess defense counsel long gets intended be untruthful. how she to wait to Procopio, United States v. 32 see her son ... [Mr. Yost] rest of her [t]he (1st Cir.1996) (prosecutor jury life, told the gets she to wait to see Richard.” Id. arguments that defense were “illusions ... argues at 49. Mr. Wilson that these state- creating smoke screen aimed at ... an ments encouraged jury to sentence illusion,” which arguably were excessive him to death based on sympathy for the belittlement). if prosecutor’s Even victim. however, improper, comments were object Defense counsel failed to these

trial court’s admonition jury to the cured statements, and so the OCCA reviewed for And, given error. overwhelming plain error. The OCCA held that above, guilt evidence of discussed we do encourage [t]he State should not single not believe that this comment “seri impose penalty the death out of ously jury’s affected the deliberations.” sympathy Id. at for the victims. This Court specifically many has condemned Prosecutor’s Invocation Sympa- 4- stage, comments made in stating second thy the Victim and the Victim’s is no reason for them and coun- ‘[t]here Family go sel knows better and does not need to argues Mr. next prose- that the so far the future.’ No amount of cutor went far sympa- too when he invoked mitigating evidence can counter this ar-

1120 of the province on the may ment encroached they jury agrees if the

gument, and duty to mitigating they evidence. had a jury by telling consider them not even The stated prosecutor convict Mr. Wilson. 470, v. I, (quoting Le P.2d at Wilson (Okla.Crim. that 535, State, 554-55 947 P.2d omitted)). (alterations Howev-

App.1997) Yost, day of Febru- the 26th Richard on that the com- er, found while the OCCA 1995, fight confronted with the ary, error, not rise they did ments were true, Sad, he life, and he lost. but of his has not shown “Wilson plain error because He had a have a choice. lost. He didn’t miti- weighed the jury improperly that all in one. jury, and executioner judge, a at" 471. case.” Id. gating and a form of four individuals In the re- prosecutorial do “not condone We Now, your turn and bat. it’s baseball sym- jury to allow encouraging marks You can deal with you have a choice. Moore v. to influence its decision.” pathy guilty Find him on accordingly. him Gibson, 1152, 1172 & n. Degree in the 1st Murder Count Cir.1999) jury to implored the (prosecutor 2, Robbery on guilty find him Count verdict out of love “bring back death Weapon. Dangerous with a parents] of the world [victims 2/14/97, prosecu- The Tr. Trans. 19-20. past [petition- victims of the future and is argued jury process that the tor later omitted)). (internal marks quotation er].” This is great equalizer. where [t]he jury make decisions based The should evidence, night and not on unfair that is now strength what was so emotion, that though recognize we raw great And he has to face the equalized. influence is inevitable. emotional some system is. Because equalizer that However, determination the OCCA’s now, plus a bat on one. it’s not four the level did not rise to these statements Now, justice 12 of one versus the it’s unreasonable plain error was your him in verdict of you can deliver to clearly established law. application of great equalizer. The guilty to murder. I, jury P.2d at 470. The timely lodged Id. at 37. Defense evidence, only the to consider instructed objections to both statements. preju- sentiment or “sympathy, and not comments held that “[t]hese The OCCA II, R. reaching its verdict. Vol. dice” telling jury the' were tantamount assume, 360, Jury Instruction 35. We job avenge the murder of their was to more, jury that the followed this without Miller, jury’s duty to determine the 483 U.S. Yost. The instruction. See Greer law, 97 L.Ed.2d evidence, 766 n. to follow the facts from the see also (plurality opinion); upon a verdict based and to reach Moore, Additionally, 195 F.3d at 1173. duty is not to jury’s evidence.... proffered nature of the given the weak of ven- a verdict out of a sense render ” evidence, say that we cannot mitigating equalizer.’ geance great or as ‘the different had the outcome would have been I, Though the OCCA 983 P.2d at in- refrained from these prosecutor error, they that the comments were found flammatory Reynolds, remarks. Duvall such a nature flagrant were not “so and of (10th Cir.1998). F.3d Id. prejudicial to be defendant.” Statement 5. Prosecutor’s prosecutor to improper “It is for a Duty to Convict Jury Had duty civic that a has a suggest Mullin, 422 Thornburg v. convict.” alleges prosecutor’s that the Mr. Wilson (10th Cir.2005); Mali see also phase closing argu- guilt remarks in his

1121 (10th 1241, Mullin, personally going are to kill him. They’ll 426 F.3d 1256 v. coat Mullin, Cir.2005); v. Spears recommending be a sentence. If we reach Cir.2003). Further, 1215, “[i]t 1247 punishment they’ll the phase, be recom to the defendant and importance of vital 2/4/97, mending a sentence.” Tr. Tran. at that decision to im community to the argues 85. Mr. that this statement be, appear pose the death sentence gravity jury’s diminished the of the role in be, caprice rather than based on reason sentencing violation of Caldwell v. Mis Bland, (quot at emotion.” 1028 320, sissippi, 2633, 472 U.S. 105 S.Ct. 86 Florida, 349, 358, ing v. Gardner (1985). L.Ed.2d 231 The OCCA held that 1197, (plu 51 L.Ed.2d 393 type of comment was not error. Wil jury’s to the rality opinion)). Appeals I, son 983 P.2d at 471. into vengeance emotion or sense of “call[ ] A death sentence is unconstitu jus question integrity the of the criminal if jury tional the believes “that the respon system” by encouraging jury the tice sibility deciding appropriateness for the outrage, based on and not on the convict penalty] the lies elsewhere.” [death Cald Id. evidence. well, 472 at U.S. S.Ct. 2633. “[T]o that Though emphasize we these re- violation, establish Caldwell a defendant improper, marks we cannot find that were necessarily must show that the remarks to Mr. Wilson of a deprived the remarks jury improperly the described the role as because, fundamentally previ- fair trial signed jury by local law.” Romano the discussed, guilt the evidence of ously Oklahoma, 1, 9, v. 512 114 U.S. S.Ct. However, overwhelming. this case was we (1994) (internal 1 quotation 129 L.Ed.2d government “[pjrosecutors remind the that omitted). arguments be aware that of this marks The OCCA has held that should sort, unnecessary proper while to obtain a requires state law the to “recom verdict, grave upsetting create risk of an Humphreys mend” a death sentence. See unobjectionable on ap- otherwise verdict State, (Okla.Crim.App. 947 P.2d 570 peal or on collateral review. It is time to State, 1997); Romano 847 P.2d 390 stop.” Id. Had this error occurred at the aff'd, 512 (Okla.Crim.App.1993) U.S. example, sentencing phase, for where the (1994). S.Ct. 129 L.Ed.2d 1 There aggravators in support fore, im prosecutor’s remarks did not overwhelming, might the result less properly assigned the role “describe[] different. But we cannot find that because Romano, jury by local law.” U.S. the comments affected outcome of the (internal quotation S.Ct. guilt phase, judg- we find that the OCCA’s omitted); Caldwell, compare marks ment of harmless error was not unrea- 330-33, 335-36, clearly application sonable established that (prosecutor suggested responsibil law. federal ity determining appropriateness appellate a death sentence rested with the 6. Prosecutor’s Misstatements case; court that later reviewed the “[that] Law argument ... cannot be said to be either complaint alleges Mr. Wilson’s final peno- accurate or relevant to a valid state prosecutor during misstated law voir interest.”). logical closing During argument. dire and voir argues prose- Mr. Wilson next dire, prosecutor, jury, front of the regarding the law who cutor misstated objected ques- to defense counsel’s line of principal could be considered a to a crime. tioning, stating that counsel’s “[defense dire, jurors prosecutor question implied] they During to the voir asked potential errors has the vidually harmless present that’s dur- “an individual whether ex- crime where an a defendant to the same prejudice of a ing the commission murder.” Duckett guilty single killed ... is of a reversible error.” individual is tent as (10th 2/4/1997, Mullin, ques- at 54. He later Tr. Tran. Cir. 2002) Rivera, an instance where two you tioned have (quoting “[i]f United States v. crime, Cir.1990) (en banc)). in a and one are involved people that hits the actually person the person analysis merely ag- “A cumulative-error head, victim, say in the while the let’s individually that gregates all the errors Is the by one stands and watches. other harmless, and there- have been found watches, your that and person stands reversible, analyzes and it wheth- fore not mind, that just guilty person as the cumulative effect on the outcome er their Id. at 164-65. actually person?” hits the collectively they that can no of trial is such of these state- found that some OCCA to be harmless.” Id. longer be determined cured when the court sus- ments were 1470). Rivera, 900 F.2d at (quoting objections; counsel’s the tained defense cases, penalty we review whether death give plain rise to error. others did not un- “so infected the trial with the errors resulting fairness as to make the convic- contrary decision The OCCA’s was process, tion a denial of due or rendered federal law. The clearly established fundamentally unfair in sentencing the instructed, at jury properly the close reliability of light heightened degree trial, requisite as to the involvement Thornburg, capital demanded in a case.” responsible have to be for felo- party must (internal 422 F.3d at 1137 citations II, 2, Jury Box In- ny murder. R. Vol. omitted). The 2-6, quotation marks OCCA 25, 26, 2-4, CR CR at 350-51 struction errors, that none of the considered by found (“Merely standing by, standing even if I, cumulatively, required reversal. Wilson the knowledge concerning with commission 472-73; III, crime, P.2d at 2006 WL person not make a does crime.”). 2289777, at *46. defer to this Assuming, arguen- to a We must principal do, erroneous, applica- were it is an unreasonable ruling these remarks unless they did not infect Mr. trial cumulative-error doctrine. so Wilson’s tion of the prejudice as to render it fundamental- trial, perfect far from a and we This was ly unfair. errors, have found several as did the guilt phase, OCCA. At the we found three C. Cumulative Error (1) examples prosecutorial misconduct: has two cumulative error Mr. Wilson prosecutor the misstated facts about the first, arguments: prose- he claims that the (2) car; money found in Mr. Wilson’s the errors, aggre- cutorial misconduct the prosecutor argued jury should him of a fair trial at either gate, deprived “great equalizer;” as the convict second, guilt sentencing phase; he disparaged defense prosecutor counsel. during guilt that all errors argues found no additional errors. As we We sentencing phase deprived him of a fair stated, already prosecution’s have evi- analyze together, trial. We them and hold guilt phase quite strong. dence at the claims, prosecutorial misconduct confession, the videotape, There was errors, remaining other combined with eyewitnesses, and the evidence left for prejudicial were not so as to warrant re- by Mr. mother. De- police lief. prosecutorial com- spite impermissible ments, it was not unreasonable for the present Cumulative error is when “to conclude that the had sub- the “cumulative effect of two or more indi- OCCA Mr. are willing evidence to convict” Wilson to take such risks. encour- stantial We felony murder and that “the first-degree age gamble those who take this to recon- did not result in a denial of due errors sider. Bland, 459 F.3d at 1029.

process.” See VIII. Conclusion found several errors at the sentenc- We For above, the reasons set forth (1) we ing phase, including: ridiculing Mr. VACATE opinion the district court’s on as an “animal” who needed to be Wilson the ineffective assistance of sleep” ... down to and “unadulterat- counsel claim “put (2) evil”; to and REMAND for encouraging proceedings ed sen- further out sympathy tence Mr. Wilson to death accordance opinion. with this On all other (3) victim’s family; claims, for the victim and the we AFFIRM the district court’s post-autopsy photo; introduction of the denial of habeas relief. unduly prejudicial

and introduction of HARTZ, Judge, Circuit concurring: impact evidence. These are the victim by same errors found For the OCCA. join I Judge opinion McConnell’s except purposes analysis, of cumulative error we III, for Part III. join only As for Part I assume, that it arguendo, will also III(C) Part and concur in the I result. to admit photographs error of Yost’s agree we must remand for further bloody not consider face. We do Mr. Wil- proceedings on Mr. claim that Wilson’s he ineffective of trial counsel son’s assistance received ineffective assistance of counsel here, as, on depending claim the outcome with respect investigation to the and pres- below, it proceedings of the will either entation of Mr. mental Wilson’s condition require reversal of Mr. sentence Wilson’s Judge Tymkovich raises important or, if anyway government strong offers questions regarding Mr. Wilson’s claim of against rebuttal evidence affidavits ineffective respect assistance with to miti- drawing credibility into doubt their I gation. many thoughts share of his re- requiring evidentiary hearing, an there garding perils putting on mental- may not be at all. This might error health evidence and the to give need sub- put closer case had defense counsel stantial deference to trial counsel’s deci- stronger mitigation sentencing. mitigating sions on what sort of to case However, given mitigating the lack of evi- present jury. I also am troubled dence, strength and the of the evidence by Reynolds’s the omissions Dr. affida- supporting aggravators, discussed ear- vit of what mention of he told counsel lier, we must determine that the OCCA all, responded. and how counsel in- After “reasonably clearly applied established effectiveness of counsel must be deter- finding federal law” there was not by attorney mined what the knew when he cumulative Id. at 1029. error. Habeas decision, by may made a not have what ground relief on this is therefore denied. in Dr. Reynolds’s been mind. think, however, that it We is worth not- Nevertheless, in light procedural ing opinion. what the stated in its OCCA case, posture of this I think that we must assessing claim, the cumulative error evidentiary hearing remand for an on this the OCCA are commented “we con- required matter. Mr. was not experienced pros- founded the fact that prove ineffectiveness of counsel to be enti- cases, jeopardize ecutors in which the evi- evidentiary hearing. tled Under overwhelming, questionable dence is it, I, only argument....” P.2d at 471. law as I understand he needed puzzled why prosecutors allegations application We too are as to make in his under inter- family to have members that, true, and failed if would sus- § 2254 U.S.C. mental health. This he has about Mr. Wilson’s for habeas relief. viewed tain a claim Wilson, result, defense alleges Mr. As a done. Mr. the full extent of did not learn with, McConnell ex Judge begin To illness, including para- his mental III(C) opinion, we in Part plains delusions, and did schizophrenia noid claim of Mr. Wilson’s review de novo must to refrain make an informed decision the investi respect to ineffectiveness with jury. such evidence to the presenting from mitigating men gation presentation that to Mr. is alleged prejudice The apply then tal-health evidence. We presented counsel would have competent granting an evi- standard for pre-AEDPA jury penalty at the full to the picture hearing “[T]o on this claim. dentiary juror would evidentiary hearing, peti of trial and at least one stage an entitled to which, if allegations penalty. impose tioner make refused to the death [must] have Mil entitle him to relief.” proved, would view, allegations of Mr. Wil- my In (internal ler, quotation at 1252 would, proved, § if application son’s omitted). course, allega those Of marks the two him to relief. Under entitle record,” against the tions must be “viewed for ineffec- of the Strickland test prongs necessary if evidentiary hearing is and no counsel, alleged has he tive assistance ... “palpably are incredible allegations was consti- performance that his counsel’s Blackledge or false.” patently frivolous preju- and that he was tutionally deficient 63, 76, Allison, 431 97 S.Ct. thereby. Strickland v. Wash- diced See (internal (1977) quotation 52 L.Ed.2d 136 668, 687, 104 S.Ct. ington, 466 U.S. omitted) (deciding right to eviden- marks (1984). record does L.Ed.2d 674 The in case under 28 U.S.C. tiary hearing per- the claim of deficient not undermine , —- 2255); Landrigan § see Schriro formance, presented and the has not State 1933, 1940, U.S.-,-, 127 S.Ct. (such testimony any additional evidence (2007). Aso, can the State L.Ed.2d 836 counsel knew and regarding what defense if it un- hearing such a submits foreclose Perhaps the claim. thought) to rebut that the establishing contradicted prejudice, the claim of record undermines not entitled to relief. See applicant is by the but that issue was not addressed 80-81, Blackledge, 431 U.S. court and should not be resolved district 1621; Governing see also Rules Section by the first instance this court. Cases, (evidentiary hearing), Rule 8 of federal rules of out in dis- (applicability Judge Tymkovich points Rule As procedure). sent, totally civil claim not con- Mr. Wilson’s is particular, defense counsel—in vincing. in Mr. allegation The critical guilt, particularly of the evidence of light § is that defense counsel application con- recording of Mr. Wilson’s video investigation of Mr. conducted deficient may decided during duct have and did not crime— Wilson’s mental condition get would not that a claim of mental illness competent strategic make informed very far with the or would even be thorough to conduct a investi- decision not investigation counterproductive, so further gation. investigation was deficient be- (after Reynolds’s receiving of the claim Dr. Wilson, cause, according to Mr. his counsel would be a wasted effort. report) initial minute to conduct an waited until the last But the record does not reveal such Reynolds Dr. that investigation, rushed so Moreover, Judge counsel. decision adequate testing he could not conduct information, necessary opinion establishes background obtain McConnell’s high has set a standard for I Supreme Court would therefore affirm the district capital cases with re- defense counsel court’s denial of relief habeas to Wilson in spect investigating mitigation thorough- all respects. on a

ly settling strategy. before There may have sound reasons for defense been I. Introduction did, proceed as he but in the he absence evidence what knew Wilson’s ineffective assistance of counsel why strategy pursued, he chose the he I claim presents two issues for our review: say it implausible cannot to claim (1) whether Wilson is entitled to habeas investigation counsel’s defense claim, relief on the and whether Wilson inadequate proper and that the results of a is entitled to an evidentiary hearing on the investigation would have caused constitu- claim. tionally adopt effective counsel to a differ- ent strategy penalty phase. presents the trial’s While Wilson these issues as — Corp. Twombly, See Bell Atlantic v. distinct, analytically they not; are in decid U.S.-, 1955, 127 S.Ct. 167 L.Ed.2d 929 ing issue, the first necessarily we decide (2007) (allegations complaint of must be the second. The decision grant whether to plausible to avoid dismissal for failure to an evidentiary hearing turns on whether claim). state a I should add that the affi- petitioner alleged has facts which are, davits Mr. submitted at would him entitle to habeas relief on the in part, herring. least a red To be entitled underlying claim. Landrigan, Schriro v. evidentiary to an hearing, he was not re- — -, 1933, 1940, U.S. 127 S.Ct. quired prove to his claim of ineffective (2007); L.Ed.2d 836 see Mayes also v. Therefore, assistance. it is not our to role Gibson, (10th 1284, 210 F.3d 1287-88 Cir. consider whether there in gaps are 2000). deciding “In grant whether to an presented evidence that he has support to evidentiary hearing, a federal court must allegations. his If the State decides to consider whether such a hearing could en present counteraffidavits and seek a “sum- able an applicant prove petition’s mary judgment” that would foreclose an which, true, factual allegations, if would evidentiary hearing, see Blackledge, 431 entitle applicant to federal habeas re 80-81, U.S. 97 S.Ct. Mr. Wilson’s Schriro, lief.” 127 S.Ct. at 1940. Because significant. affidavits would become But convergence between the standard yet. we are not there evidentiary for hearings and the standard TYMKOVICH, Judge, Circuit relief, for in explain habeas the course of concurring part and dissenting part. ing why not entitled to habeas

I majority’s concur with the opinion claim, ex- relief on his I ineffectiveness will III, cept for Part which reverses the dis- explain why also he is not entitled to an trict court’s denial of habeas relief to Wil- evidentiary hearing. son on his ineffective assistance of counsel I opinion, will first discuss the claim grants evidentiary him an hear- applicable standards of review to Wilson’s conclude,

ing. taking I even all of Wilsons appeal. why I will then show Wilson is not allegations regarding ineffective assistance entitled to habeas relief on claim of true, performance as counsel’s was not Finally, ineffective assistance. I will ex- constitutionally inadequate and the district plain why properly the district court de- consequently court did not abuse its dis- evidentiary nied Wilson an hearing cretion in on his denying evidentiary Wilson an hearing on that claim. claim. (2000). 1479, 146 L.Ed.2d 435 120 S.Ct. Review

II. Standard Second, reviewing a appeals court of as a review in apply two standards We decision, main role is our lower court’s claim. considering ineffectiveness of law abuses correcting errors deny habe- court’s decision The district See, Anderson v. judicial e.g., discretion. question we legal claim is a relief on the 564, 574-75, N.C., 470 City, Bessemer Sec’y Fricke v. de novo. review (1985). We 84 L.Ed.2d (10th Cir.2007); Navy, 509 F.3d resort, but one of not a court of first are (10th Boone, v. Maynard (nearly) last resort. Cir.2006). decision not But the court’s according proper majority, without The hearing is reviewed evidentiary an grant or district to either the state deference Coronado only an abuse of discretion. for a de novo re- judgments, conducts court’s Ward, Cir. — before us. The the entire record view of 2008), filed, U.S.L.W. petition cert. (1) 2008) (No. it 07-11293); wrong for two reasons: (U.S. majority is -, Apr. Kan., correctly apply the abuse of discre- fails to Att’y Anderson Gen. of deci- (10th Cir.2005). to the district court’s tion standard appellate These evidentiary hearing, denying sion employed con of review are standards it to accord AEDPA deference fails all federal junction with the standards the merits. judgment on collaterally the state court’s review must use when courts Following judgments. ing state court reaffirmed that Supreme Court has commands, a federal court clear AEDPA’s court’s decision to we review a district relief petitioner habeas may grant state evidentiary hearing for an abuse deny an judgment court’s involved only if the state held, “In only. The of discretion Court of federal law application an unreasonable for federal habe- applicant cases where an of the facts or unreasonable determination obtaining an as relief is not barred from Dretke, 545 Miller-El v. of his case. hearing 28 U.S.C. evidentiary 2317, 231, 240, L.Ed.2d 196 125 162 S.Ct. 2254(e)(2), grant § such a the decision Andrade, 63, (2005); Lockyer v. 538 U.S. in the of the dis- hearing rests discretion 1166, L.Ed.2d 144 70-73, 155 123 S.Ct. Schriro, 127 at 1937.1 trict court.” S.Ct. (2003). AEDPA, enactment of Prior to the evidentiary hearing an grant of re- decision to layers of our standard The twin left to the sound discretion generally “was considering this court’s view make sense First, Id. at 1939. “That of district courts.” judicial hierarchy. as position (citing Id. 28 changed.” rule has not reviewing a state court’s basic a federal court 8(a)). Therefore, 2254, it § Rule is role is to U.S.C. judgment, criminal our sole final Constitution; today, always, review the er- clear that we States uphold the United grant deny pur- district court’s decision to law are not within our rors of state federalism, request for an eviden- comity, petitioner’s habeas Principles of view. Id.; of discretion. tiary hearing for abuse compel proper us to accord defer- finality Coronado, 1217; See, 517 F.3d at judgment. see also to the state court’s ence Anderson, 420, 436, 425 F.3d 858. Taylor, e.g., Williams denied, opportunity quested, majority and was agree with the 28 U.S.C. I record, 2254(e)(2) § 2254(e)(2) develop court request for the state § does not bar Wilson’s evidentiary request for an evidentiary hearing dili- does not bar an because Wilson Williams, hearing 529 in federal court. See gently sought develop the factual basis for Crouse, 432, 1479; Barkell v. U.S. at 120 S.Ct. assistance of counsel claim his ineffective (10th Cir.2006). diligently re- 468 F.3d 695-96 Because Wilson state court. — equally It is clear that when denied, we review a cert. U.S.-, 128 S.Ct. merits, state court decision on the (2008). AED- 170 L.Ed.2d 525 held, The court PA’s deferential apply. standards allege “[Petitioner] must more than that [petitioner’s] “Whether if allegations, prov he received inadequate assistance; he en, would entitle him to habeas relief is a must allege facts sufficient to overcome question governed by Mayes, [AEDPA].” AEDPA deference to the state court’s fact- 1287-88; Schriro, 210 F.3d at 127 S.Ct. at findings legal conclusion to the con 1940 (noting “the deferential trary.” standards Id. The Sixth and Ninth Circuits prescribed by § control whether to have also noted the deferential standards relief’). grant habeas 2254(d) This § deference is must be taken into account appropriate whether or not the state court when determining whether petitioner has granted petitioner an evidentiary hearing. made out a claim for habeas relief. See 2254(d) § See 28 U.S.C. (mandating a def Scribner, Estrada v. 512 F.3d — erential (9th standard of review respect “-with Cir.2008), denied, cert. U.S.-, — adjudicated claim that was L.Ed.2d- (2008); merits in court proceedings,” State without Ivory Jackson, — regard to whether evidentiary an hearing Cir.2007), denied, cert. U.S.-, held); Schriro, see also S.Ct. at (2008). L.Ed.2d 765 1938-39; Ward, Hammon v. The majority suggests that because Wil- 7, 928, (10th Cir.2006). 926 n. son diligent in his efforts to obtain Schriro, example, although the state evidentiary hearing in state court, but was court grant refused to an evidentiary hear denied that hearing, de novo review is ing considering before peti merits appropriate. This is not so. Diligence claims, tioner’s the Court ap nevertheless does not control our standard of review. 2254(d)’s plied § deferential standard of Rather, requirement that a petitioner 194(M4. review. 127 S.Ct. at show diligence merely one of proce- two Schriro, Relying upon several other cir- dural petitioner hurdles must cross be- cuits recently have acknowledged defer- fore receiving an evidentiary hearing in ence must be accorded state judg- court federal court. After the enactment of ments where even the state AEDPA, court did not federal a petitioner habeas must hold an evidentiary hearing. The First show he diligent was in developing the Circuit, in a case like dealing this one factual basis his claim in state court assistance, (hurdle ineffective noted federal courts one), number and that allega- must accord tions, AEDPA to true, deference state if would entitle him to habeas judgments when deciding (hurdle two).2 whether an evi- relief number In a case like dentiary hearing is appropriate. this, See Teti where the court state has decided (1st v. Bender, 507 F.3d Cir.2007), petitioner’s merits, claim on the this sec- 2254(e)(2) ("If § See 28 U.S.C. applicant the by sufficienl to establish clear convincing has develop failed to the factual basis of a error, evidence that but for constitutional no claim in State proceedings, court the court reasonable factfinder would have found the shall not hold evidentiary an hearing on the applicant guilty offense.”); of the underlying (A) claim applicant unless shows that — Schriro, ("In 127 S.Ct. deciding at 1940 (i) claim relies a rule new of constitution- on— grant whether evidentiary hearing, to an a law, al made retroactive to cases on collateral federal must court consider whether such a Court, Supreme review the previ- that was hearing applicant could prove enable an to unavailable; (ii) ously or a predicate factual petition’s which, allegations, factual if that could not have previously been discover- true, applicant would entitle the to federal ed through the of due diligence; exercise relief.”) habeas (B) the underlying facts would claim assistance ineffective claim of petition- higher because is even hurdle ond in Oklahoma on the merits adjudicated was adjudication court’s the state must show er on the mer adjudication “An court. state de- unreasonable an involved his claim of resolves court the state when occurs its unreasonable facts or termination rather grounds, substantive case on federal clearly established application v. Valdez grounds.” procedural than law.3 (5th Cir. Cockrell, 946-47 our heavily upon relies majority omitted); 2001) (internal marks quotation Mullin, F.3d v. Bryan precedents Poppell, v. Harris see also Cir.2003) (en banc), and (10th 1207, 1215 “[wjhere Cir.2005) (10th (noting 1195-96 F.3d Champion, Miller v. court ... the state no indication there Wil Cir.1998), we review to conclude claim, we merits of not reach did claim assistance ineffective son’s reaches court a state held that have judg court’s ” to the state deference without omit (quotation the merits’ ‘on decision rely cases those the extent ment. But of Criminal ted)). Court The Oklahoma to deter 2254(e)(2)’s inquiry diligence §on (OCCA) could concluded Wilson Appeals review, they no are standard mine our performance his trial counsel’s show not Bryan, 335 Compare law. good longer the Su under prejudicial was deficient peti that because (concluding at 1215 in Strickland precedent Court’s preme ques diligent, appropriate “the tioner Washington, was entitled [petitioner] is whether tion State, (1984). 80 L.Ed.2d law”), with pre-AEDPA hearing under (Okla.Crim.App. 448, 471-72 P.2d (concluding Schriro, at 1940 based on 1998). decision was The OCCA’s diligent, “[b]e- though petitioner was even procedural, substantive, than rather prescribed standards cause the deferential this clear Despite at 472. Id. grounds. grant habeas whether by § 2254 control our Tenth applies holding, majority ac take into relief, court must a federal does the decision cases to conclude Circuit deciding whether those standards mer count on the adjudication an constitute appropriate”). hearing is evidentiary consider did not the OCCA its because peti adjudicated state court submitted Whether non-record additional whether merits —not Supreme on the nothing tioner’s claim But by Wilson. sup our stan text diligent guides or AEDPA’s precedents petitioner Court’s — 2254(d); § ceases U.S.C. a decision See 28 position ports dard review. 1; simply Tur n. the merits Schriro, adjudication & on 1939-44 be an addi has submitted Mullin, petitioner 1188-89 v. 390 F.3d because rentine habeas to the federal Cir.2004) 28 (10th U.S.C. tional (quoting above, § deference 2254 As noted (d)(2)). court.4 2254(d)(1)and § the facts in determination of 2254(d) (“An for unreasonable application § See 28 U.S.C. 3. the State presented person light of a of the evidence corpus behalf on writ of a habeas judgment of a pursuant proceeding.”). to the custody court respect granted with not be shall State court adjudicated on that was claim split a circuit acknowledge has been there I proceedings unless court in State merits review in of standard the correct regarding (1) ain resulted adjudication of the claim— a federal presents petitioner where the cases to, an contrary or involved decision that by the considered with material court of, clearly estab- application unreasonable Secy Dep't LeCroy Fla. See court. state law, by Su- as determined lished Federal (11th Corrs., & n. 30 1262-63 421 F.3d States; (2) or preme United Court opinion. my Cir.2005) (describing split). In on an was based a decision that resulted in applies hearing whether or not the state court held on this claim should be denied.” evidentiary hearing petitioner Wilson, an to allow 983 P.2d at 472 n. 8. The OCCA supplement the state court record. thus requirements concluded the of Rule 3.11 had not Looking been met. to the by This conclusion is bolstered our cases result, OCCA’s we must conclude the holding that the OCCA’s denial of an evi- OCCA determined an evidentiary hearing dentiary hearing under that court’s Rule changed would not have court’s deter- 3.11 bears the substantive Strickland Sirmons, mination that analysis. performance In both Bland v. counsel’s (10th Cir.2006), adequate F.3d 999 and Welch v. under Strickland. See id. at Sirmons, (10th Cir.2006), 451 F.3d 675 we 471-72. This is a state court decision on adjudicated concluded the had OCCA the merits to which we owe AEDPA defer- claim on the merits because the court de 2254(d). § ence. See 28 U.S.C. petitioner cided failed to meet the substan sum, petitioner’s claim may have obtaining tive standard for an evidentiary adjudicated been merits, on the and there- Bland, hearing under Rule 3.11. See subject fore deference, to AEDPA even if F.3d at (conducting a deferential re petitioner makes allegations in federal ha- view where “the OCCA considered the (1) beas court based on new evidence pre- light claim in [petitioner’s] request (as sented in here), the form of affidavits Welch, evidentiary hearing”); an arising out of a federal evidentiary (conducting a deferential review See, hearing. Schriro, e.g., 127 S.Ct. at where the OCCA determined an evidentia- 1938-39; Anderson, Matheney v. ry hearing was not warranted under Rule Cir.2004). The new evidence 3.11); Mayes, see also 210 F.3d at 1287-88. can be by considered the federal habeas obtaining Because the standard for an evi- court to determine whether the state court dentiary hearing under Rule 3.11 is lower reached an unreasonable determination of than the standard set forth in Strickland— clearly established federal law or the facts petitioner only “strong need show a possi petitioner’s case—but not to eliminate bility” of ineffective assistance5 —when the AEDPA’s deferential standard of review. an evidentiary hearing OCCA denies un 3.11, der Rule it necessarily makes mer Because adjudicated Wilson’s claim was petitioner its determination cannot meet court, on the merits in Oklahoma state the substantive Strickland standard. The 2254(d) § AEDPA’s applies to Wilson’s any special OCCA need not use words appeal. federal prevail habeas To under conclusion; reaching this our cases look to standard, this deferential Wilson must decision, the result of a state court’s not to show the state court’s decision “was con- See, reasoning. its e.g., Aycox Lytle, to, trary or involved an ap- unreasonable (10th Cir.1999). of, plication clearly established Federal Here, law, although Supreme as determined the OCCA did not ex- Court plain why States,” it denied evidentiary United or “was on an based hearing, it evidentiary did conclude “an unreasonable determination of the facts in light Schriro sheds considerable application, on the cor- ord: ... [T]he and affidavits must rect standard. contain sufficient information to show this by convincing Court clear and evidence there Stat., 22, 5. See Okla. tit. ch. Rule strong possibility is a trial counsel was inef- l(B)(3)(b)(i) (1997) ("This 3.1 Court will utilize failing identify fective for to utilize or the following procedure adjudicating appli- in evidence.”); State, complained-of Dewberry v. regarding cations ineffective assistance of tri- 954 P.2d (Okla.Crim.App.1998). 775-77 al counsel based on evidence not in the rec- facts,” id. of determination sonable in the State presented the evidence light of 2254(d). 2254(d)(2). Further, review of our § § 28 U.S.C. proceeding.” court deny an eviden- to court’s decision district emphasized, has Court Supreme As the (1) to a deferential equates tiary hearing of federal application unreasonable “an (2) court’s decision district review applica- an incorrect from different law is the district (3) whether we ask in which Taylor, law.” Williams of federal tion concluding in its discretion court abused 1495, 146 120 S.Ct. true, if would not allegations, petitioner’s Schriro, 127 (2000); also see L.Ed.2d 389 relief. habeas him to federal entitle the unreasonableness (noting at 1939 S.Ct. “substantially higher presents standard of Counsel Assistance III. Ineffective incorrectness). “[0]nly threshold” than Su- of misapplications most serious is court Wilson the district agree I with be a basis will precedent preme Court his ineffec- relief on to habeas not entitled Maynard, § 2254.” under relief eval- claim. We of counsel tive assistance must court decision state at 671. “[T]he the now-famil- under counsel’s efforts uate governing U.S. ‘at such tension be announced two-part standard iar inade- or so precedents, Supreme Court Washington, 466 U.S. Strickland record, or so by the supported quately (1984), and 2052, L.Ed.2d 674 ” Id. to unreasonable.’ arbitrary as only if counsel ineffective may deem omitted). (quotation so undermined “counsel’s conduct whether Wilson without novo factual conclusions. we ment was standard discretion if whether the ry hearing. ing sion. account our role so, appeals relief because apply twin a state court review of majority deference reviewing a lower review, some denying Wilson layers of the state court’s answering these is entitled to incorrectly conducts as a federal judgment and :|c way district court the state to the this court ^[*] Applying ^[*] unreasonable; and, review, taking into court’s federal habe- court’s court review- an evidentia- court’s deci- the correct should abused its as a court questions, judgment legal judg- a de ask or proper part test that the deficient cess that the the defense.” Id. having produced a standard for land, show cient (emphasis sentation [Wilson] reasonableness.” reasonably effective .... that counsel’s must functioning of the adversarial must fell below added). Second, prevail: meet both attorney trial cannot show at performance performance just result.” an Because [Wilson] “First, Id. performance prongs of objective counsel’s be relied assistance [Wilson] “the 687-88, must show S.Ct. prejudiced S.Ct. standard Strick- proper repre- 2052. must defi- two- pro- ... as performance The OCCA concluded parame- important these Bounded was reasonable trial counsel of Wilson’s court’s deci- ters, of the district our review “put because under Strickland (1) an deny equates relief sion to habeas expert health rebut a mental forth (2) of state court’s independent review and continuing threat contention State’s we whether in which ask judgment expert had mitigate punishment,” to, contrary involved decision “was mother, medi- Wilson’s access to Wilson’s of, clearly estab- application unreasonable records, records, and statements cal school law,” Federal U.S.C. lished Wil- who knew Wilson. from other people an unrea- 2254(d)(1), based on § “was or H31 son, affidavits, 983 P.2d at 472. The conclud- in OCCA I cannot conclude Wilson ed, “The mere fact more evidence could prejudiced by any deficiency. if Even not, itself, presented have been is suffi- counsel knew a more specific diagnosis cient to show counsel was deficient.” Id. possible were with additional testing, coun- The court also determined Wilson had enough sel knew about Wilson’s mental to prejudice. failed show profile health reasonably to pursue a miti- gation strategy de-emphasized mental The court district concluded the OCCA’s health in favor of what he considered a adjudication of claim on the mer promising more approach. Reviewing ad- 2254(d). § its did not run afoul of The ditional evidence would not have substan- held, court rejection OCCA’s “[T]he this tially portrait altered the of Wilson counsel claim appeal on direct [ineffectiveness] presented jury. to the application not an unreasonable of the le gal principle by announced Supreme Supreme Court has “declined to Court Strickland to the facts of Peti specific guidelines articulate for appropri- tioner’s case. Petitioner has failed to sat attorney ate conduct and instead ha[s] 2254(d) isfy § standard on portion emphasized that proper ‘[t]he measure of of his ineffective assistance of counsel attorney performance simply remains rea- Sirmons, 00-147, claim.” Wilson No. sonableness under prevailing professional ” (N.D.Okla. 2289777, 2006 WL at *43 Aug.8, Smith, Wiggins 510, norms.’ 2006). 521, 2527, 123 S.Ct. 156 L.Ed.2d 471 Strickland, (quoting

I U.S. at agree with the district court that the 2052). There a strong OCCA’s determination of Wilson’s claim presumption “an attorney acted in an ob- was neither “an application unreasonable jectively reasonable manner and that an clearly law,” of[] established Federal or attorney’s challenged might conduct have “based an unreasonable determination part been of a sound trial strategy.” in light the facts pre- Carver, Bullock v. sented in the proceeding.” State court (10th Cir.2002) omitted). 2254(d). (emphasis § U.S.C. The district court thus “There are ways provide countless ef- correctly determined Wilson was not enti- any given fective assistance in case. Even tled to habeas relief on his ineffectiveness the best criminal attorneys defense would claim. particular not defend a client in the same After reviewing all the evidence before Strickland, way.” us, including the additional affidavits sub- S.Ct. 2052. conjunction mitted with his To the extent counsel conducts a petition,6 habeas it is less- clear Wilson is not than-complete First, investigation entitled to relief. uncover exercising “a evidence, heavy potentially mitigating measure of counsel’s deference to counsel’s Strickland, judgments,” investigation constitutionally remains ac- 466 U.S. at ceptable “precisely I cannot to the extent that conclude counsel’s rea- representation professional sonable pro- judgments failed to meet minimal support Second, fessional standards. the limitations on accepting investigation.” Strick- land, Wilson’s counsel should have known—but 466 U.S. at 104 S.Ct. 2052. apparently words, did not—about “In supplemen- other a duty counsel has tal mental health evidence presents make investigations reasonable presents (sixth) 6. Wilson six affidavits to this court. to the OCCA.The new affidavit is from However, appears only presented it five were Wilson's state trial counsel. non-specula- and an informed tion to make makes decision a reasonable make per- trial counsel’s about unnecessary.” tive conclusion investigations particular 521, 123 2527. at S.Ct. formance.7 539 U.S. Wiggins, to counsel’s course defer Although we of infor- Second, obtained sufficient counsel Strickland, 466 U.S. judgments, strategic health mation about Wilson’s mental judg strategic 104 S.Ct. at trial about decision make reasonable a unless backed not reasonable are ments mitiga- at the he acted on strategy, which Fisher investigation. by a reasonable to focus Once counsel decided phase. tion (10th Cir. Gibson, F.3d high strategy on Wilson’s mitigation his Strickland, 2002) at (citing reform, it was capacity and for intelligence 2052). fur- pursue counsel not for reasonable mind, turn in I principles Keeping these mental illness. ther leads of at performance trial counsel’s to whether to believe on have no reason Finally, we was deficient mitigation phase amount of time counsel that the this record Strickland. prejudicial under unreasonably investigation for the allotted was able information counsel limited the A. Deficient theory developed Trial counsel discover. investiga- counsel’s his contends knowledge Wil- based on mitigation counsel did because was unreasonable tion below, I history. As discuss personal son’s schizophrenia, diagnosis of obtain a counsel the conclusion supports the record possible had have been which would on a defense based put forward adequately Reynolds, Dr. addi- done expert, defense the case. theory his and interviewed additional testing tional of a death phase During penalty rea- disagree, I three witnesses. case, requires assistance effective penalty counsel exercised reasonable sons conclude de efforts to make reasonable counsel to case. judgment in this professional mental a defendant’s termine whether First, not indicate coun- does record argument plausible presents health further have known knew or should sel penalty. See the death against imposing counsel necessary. If investigation was Mullin, F.3d Smith v. he the information reason to think had no Cir.2004) health evi (describing mental and that additional incomplete had jury’s to the importance “of vital dence as counsel reason- possible, diagnoses were “In phase”). punishment at the decision strategy trial based ably developed his of an attor assessing the reasonableness expert examination the information “the we consider ney’s investigation,” Glaringly absent already produced. had already known to quantum of evidence any from Wilson’s statement the record the known evi counsel, also whether [and] enough time did not have counsel that he attorney to a reasonable dence lead would diagnosis. Wilson’s to obtain further Wiggins, 539 U.S. investigate further.” did, fact, submit affidavit— only the dual issue. but about constitutionally suf- conducted a Counsel most single lacks the us record before health, mental inquiry ficient into Wilson’s of informa- helpful source accessible and to, among admitted he failed (noting counsel counsel’s admissions in 7. The absence of evidence, inter- things, con- at trial stands stark discover crucial affidavit to errors other witnesses, death-penalty appeals in which investigate his important to other trast view performance was defi- alibi). counsel confesses client’s Fisher, See, e.g., 1293-98 cient.

1133 and the record does not reveal that counsel will use is a sure bet.” Id. at 125 had additional information that should Smith, S.Ct. 2456. In Wiggins v. more- testing have led to further or further wit- over, counsel was deficient for failing to ness interviews. expand investigation beyond readily available materials. Counsel’s knowledge Adequate 1. Counsel Conducted Test- history defendant’s life rested exclu- ing and Interviews sively on the presentence court-created re- argues trial by counsel faltered port and foster care supplied records by failing to order further mental health test- city Baltimore. 539 U.S. at 123 ing by failing personally interview S.Ct. 2527. Although funds were made several family members. Neither claim available for counsel to retain a forensic has constitutional merit. social worker to investigate the defen- Testing Further background dant’s and prepare report, a counsel chose not to commission such a a investigating When defendant’s mental report. 524., Id. at health, 123 S.Ct. 2527 by counsel This necessity often relies on paltry See, investigation expert assistance. stood in e.g., American Bar stark contrast Association, to the practice American Bar “standard in Maryland Association Appointment capital Guidelines and Per- cases at the time.” Id. for Counsel in Death Penalty formance of Our Tenth Circuit cases have also fault- (1989) Cases 11.4.1 ABA [hereinafter ed See, counsel for doing far e.g., less. (“Counsel Guidelines ] should secure the Sirmons, Anderson v. experts assistance of necessary where it is (10th Cir.2007) (finding ineffective assis- defense.). appropriate” for the Wilson tance when defendant was never evaluated concedes engaged qualified counsel clini- by Smith, an expert); 379 F.3d at 939 cal psychologist, Reynolds, Dr. to evaluate (finding ineffective assistance when coun- him. Reynolds Dr. met with Wilson on sel was unaware “mental state or mental occasions, separate three during which illness could be mitigation”). introduced as time multiple he administered psychologi- In determining what would lead a rea- cal Reynolds tests. also met with Wilson’s sonable attorney to order additional mother and had access to Wilson’s medical tests, rounds of mental health may we records, records, school and statements expect rely counsel to opinion on the of a people well, from who knew Wilson includ- mental health teacher, expert. See Bell v. ing Thomp- member, a fellow church son, 794, 809-10, long-time family friend. Counsel and Dr. Reynolds 162 L.Ed.2d 693 (suggesting discussed these findings be- defen- fore trial. dant “would uphill have faced an battle” to convince a court the mental health investi- Supreme Court upon cases relied gation should have despite continued majority, trial per- counsel did not expert opinion mentally defendant was not form nearly as well. In Rompilla v. ill); Mitchell, Clark v. Beard, example, counsel failed to inves- (6th Cir.2005) (“It was not unreasonable tigate the defendant’s prior convictions for counsel, for ... untrained in the field of rape assault, despite knowing the health, rely mental opinions on the state intended to introduce those convic- professionals.”). these tions Even Strickland aggravating sentencing. factors at 374, 383-87, counseled that determining when ap- (2005). L.Ed.2d noted, propriate As scope investigation, the Court of an “looking at a file prosecution says it rely should on the already information ob- possibilities do generalized Id. at 2. 466 These and others. the defendant from tained show, way, that if Wilson’s any not in 691,104 2052. time Reynolds Dr. more given had counsel relied appropriately counsel Wilson’s picture tests counsel’s to conduct more many rounds how Reynolds to decide Dr. in changed the least. have would Wilson be conduct- testing should health of mental that further test- insistence The majority’s Dr. reveal that does not The record ed. speculation. necessary pure ing was further counsel ever advised Reynolds “ is not was neces- or silent record ambiguous the initial round ‘An testing beyond Reynolds strong Dr. and Nor did con- disprove or advisable. to sary sufficient might yield investigation per- that counsel’s further tinuing presumption’ advise Only after trial and that counsel any diagnoses. definitive reasonable formance was he addi- indicate needed Reynolds Dr. the exer- did all decisions significant made schizophre- support to a professional judgment.” information tional cise reasonable of an Mullin, 1242, because 1251- diagnosis apparently nia F.3d v. 380 Sallahdin — post- Cir.2004) Even in his (10th test. v. MMPI-2 Chandler (quoting invalid 52 however, Reynolds does affidavit, 1305, Dr. States, n. 15 trial F.3d 1314 218 United the invalid Cir.2000)). counsel about say (11th any he told not Without testing counsel further or advised expert’s pro- test disregarded that counsel helpful. Counsel investigation would or I conclude counsel rea- judgment, fessional he re- not indicate affidavit does fulfilled his sonably he had obli- believed advice, we do not have and ceived such mental investigate Wilson’s gation Reynolds prepared for report Dr. considering and by hiring expert an health testimony.8 giving his prior to Burger Compare expert’s conclusions. 3114, 776, 793, 107 S.Ct. Kemp, v. Reynolds conducted if Dr. had Even (1987) (finding no ineffec- L.Ed.2d 638 97 to think there is no testing, reason more ambiguity left when record tive assistance would have of Wilson picture counsel’s of counsel’s deci- about reasonableness affidavit, written Reynolds’s Dr. changed. Mullin, sion), v. Hooper with battery a new of tests performed after he Cir.2002) (10th (finding ineffec- 1171 trial, says only it was after on Wilson ” disregarded when counsel tive assistance delu- been Wilson “could have “possible recommending fur- explicitly expert report Aplt. the time of the crime.” sional investigation).9 Under added). diagnostic ther Reynolds Dr. (emphasis 2Add. here, because of circumstances coun- “possibility” Wilson there was also noted strategic choices discussed sel’s reasonable “delusions hallucinations.” suffered from decision-making concerning in mental health argue Reynolds per Dr. does not Quarterman, 481 incompetently psychologist. vestigations. as a I v. See formed note, however, Martinez Fourth, Seventh, Cir.2007) (5th (finding no 257 inef F.3d explicitly rejected a con have Ninth Circuits nothing expert re when fective assistance right effective assistance stitutional suggested between the defendant's port a link witness, except the extent such expert behavior); epilepsy violent Hedrick and his implicates of coun effective assistance claim (4th Cir.2006) True, 443 F.3d 350-51 See hiring preparing the witness. sel in expert when (finding ineffective assistance no Greene, (4th investigation further of defen did not indicate 1998); Vasquez, F.2d Harris v. Cir. help experiences would be dant's childhood Peters, Cir.1990); Silagy v. Clark, ful); (finding no F.3d at 282 inef (7th Cir.1990). expert review did fective when assistance necessary). investigation was indicate further impor- recognized the have 9. Other circuits in counsel's expert tance of recommendations below, pursue witnesses, failure to further From all counsel’s of these counsel ob- diagnosis was not unreasonable. significant mitigating tained information about Wilson’s life demonstrating consti- Further Interviews tutionally adequate investigation. That disagree I also conclusion coun- counsel used present this information to failing probe sel was unreasonable for constitutionally adequate mitigation de- deeper history into mental health by fense following points. is shown two through additional witness interviews. investigation argues counsel’s First, presented picture counsel a full insufficient counsel failed to un- because jury. Wilson to the proffered Counsel in cover the information contained (1) following evidence: Wilson’s friends post-conviction affidavits of Wilson’s moth- family kind, and knew him as a caring, er, brother, girlfriend, and sister. Dr. (2) church-going father, person; a Wilson’s Reynolds’s post-conviction affidavit addi- alcoholic, drug addict and abandoned the tionally suggests this information would (3) family when young; Wilson was Wil- have helpful diagnosis been to a of schizo- strong son’s mother was a positive influ- phrenia. (4) ence; Sunday a school teacher close to imposes only Strickland obligation cancer, Wilson died of extremely which to a investigation conduct reasonable (5) —not Wilson; upset exposed Wilson was to perfect a one. 466 U.S. at 104 S.Ct. significant gang activity growing up, and in gath- 2052. The record indicates counsel one incident Wilson was leg; shot ered a people information from number of (6) home, Wilson’s living where he was example, who knew Wilson. For counsel mother, with his was torched a rival provided Reynolds Dr. with statements gang; jail; Wilson’s brother was from a family, close friend of Wilson’s (8) Wilson lived with his sister North church-member, fellow and two of Wilson’s very Carolina for some time and did well former teachers. All testified on Wilson’s when removed from the environment of his behalf at trial. neighborhood. violent The bulk of the af- provided Reynolds Counsel also Dr. testimony fidavit Wilson offers in his habe- with statements from two additional indi- petition simply repackages the informa- Wilson, viduals who knew but the record actually presented jury. tion counsel does not reveal the substance of in- their repetition suggests This did a rea- formation. And counsel had in- access to sonably job thorough uncovering formation from mother through Wilson’s major family contours of and so- Wilson’s Reynolds, Dr. personally who interviewed history. certainly cial This is not a case her. mother at Wilson’s testified trial and idly by, thinking where counsel sat investi- apparently provided counsel with names of gation would futile. might testify individuals who on his behalf. Second, all of provid- the witnesses who The record does not reveal that counsel mitigation ed evidence at trial were also in pursue any failed to of these leads. Com- position strange the kind observe pare Burger, 483 at behavior now asserts his counsel (finding no ineffective assistance should have through uncovered additional potential where counsel interviewed “all interviews. Yet the record does not show witnesses who had been called to at- anyone during investigation counsel’s tention”), Mayes, with 210 F.3d at 1290 mentioned extreme conduct or Wilson’s (finding ineffective assistance when coun- any mitigation provided sel “never contacted otherwise information to counsel wit- nesses”). inquiries. should have led such counsel at the time. mation available to from a had information

Because counsel Strickland, S.Ct. 2052. knowledge of range people wide history, none family personal Wilson’s affidavit post-trial mother’s mental mentioned serious of whom inter- personally claims counsel never by Dr. diagnosed beyond that health issue Failure to inter- prior her to trial. viewed reasonable for counsel Reynolds, it was testimony at to her prior view a witness witnesses. Counsel interview additional constitute can in circumstances trial some to think additional witnesses had no reason See Hoo- assistance of counsel. ineffective testi- helpful non-cumulative would offer case, In this howev- F.3d at 1171. per, 314 mony. Rompilla, 545 U.S. See er, interview personally failure to counsel’s family (“Questioning a few more not unreasonable. Coun- the mother was searching for old records members testimony through had access to her sel a looking than for needle promise can less reasonably relied on Reynolds and Dr. lawyer truly has haystack, a when a in It is well-settled Reynolds’s interviews. any is needle to doubt there reason co- may rely on the efforts of counsel there.”). counsel, experts pre- investigators, obligated was the extent counsel To Clark, trial, at e.g., 425 F.3d paring for of mental any seek out behavioral person- failure to conduct and that the illness, by obligation fulfilled his necessarily deficient al interviews is not providing him Reynolds Dr. engaging 11.4.1(3) ABA performance, Guidelines mother, other wit- access to Wilson’s witnesses). fact, In (interviewing potential nesses, records. Counsel and Wilson’s 11.4.1(3) capital instructs ABA Guideline expected Reyn- Dr. reasonably have could interviews of counsel to “conduct defense needed any information he olds obtain presence in the potential witnesses from Wilson’s about Wilson’s behavior or person” rely investigator or on “an third mother, and was who lived with Wilson there is someone mitigation specialist” so Reynolds If very close to him. Dr. at trial.” call witness This “as defense help- thought further interviews would be the course Wilson’s trial coun- precisely ful, coun- suggested have them to he could followed.10 sel sel, information that Dr. but we have no cautious of counsel Perhaps the most Reynolds Reynolds That Dr. later did so. always interview each member would provided by additional found information family other defendant’s as well as corroborating family helpful members contacts, Supreme has but the Court close make the his own conclusions does not the measure of prudence declined to make unreasonable; reason- investigation initial constitutionally effective counsel. “[I]n on the infor- ableness is evaluated based event, psychological testing al was to bolster the has shown he was prejudiced by failure to interview ready counsel's has not shown conducted. Wilson Counsel's examination of the his mother. have discovered this informa counsel would sym- effectively portrayed mother at trial by conducting himself. tion another interview pathetic side of Wilson’s life and the effect his showing Accordingly, Wilson made no has family. the ex- death would have on his To testimony would have the mother’s infor- tent her affidavit contains mental health prejudice. changed and therefore no See trial, no presented mation not at there is Hedrick, (finding prejudice 443 F.3d at 354 no have reason to believe trial counsel would did not show witness’s testi where defendant I find it instructive elicited it in an interview. differed); Crisp mony v. Duck would have Reynolds apparently Dr. did not discover this worth, Cir.1984) spoke when he with Wilson’s information (same). during purpose mother an interview whose considering claims of ineffective assistance out the front door” and talked of Wilson counsel, prudent not what is we address being by targeted gangs.” “rival Aplt. only what is constitu- appropriate, but Add. 5. The brother also said Wilson compelled.” Burger, 483 tionally gang “knew that him considered (internal quotations 107 S.Ct. 3114 police rat reputation perma- and his omitted). need not interview “[CJounsel nently I ruined. never heard anything to have every possible performed witness specific, but I am sure teasing there was Sirmons, proficiently.” Young v. pressure and serious to do this crime.” (10th Cir.2007). Id. only need conduct a Counsel reasonable Wilson’s sister said she believed Wilson investigation. say I cannot counsel’s “was being pulled gang into the scene investigative efforts this case—which grade year least his ninth of high school. collecting included information from Wil- I remember got suspicious real [Wilson] mother, teachers, son’s and others close to paranoid joined after gang.... he unreasonable, family particular- —were I present know [Wilson] when ly investigation evidently because counsel’s some of gang his fellow members were mitigating uncovered the bulk of the infor- killed.” Aplt. Add. 6. She also corroborat- mation Wilson’s new affidavits offer. On gang thought ed the idea the Wilson awas record, counsel had no reason to think rat: provide additional interviews would helpful I evidence, knew had been [Wilson] arrested noncumulative and counsel’s fail- prior ure to conduct additional interviews was another offense to his trial.... constitutionally ineffective. [Wilson] fumbled with the decision of say police what to gang because the Finally, major- the affidavit evidence the saw it ratting out one of their ity helpful claims would have been own.... told me that the [Wilson] [sic ] is, best, mitigation two-edged case at a danger gang. he was in with the The at n. Bryan, sword.11 See 1216 & gang threatened him it Gibson, and made clear 21; Cannon v. (10th Cir.2001). he prove had to he was with them. I majority 1277-78 claims the affidavit evidence could have believe pressured [Wilson] was supported finding a of schizophrenia, Quick into the Trip coerced crime. might which have sympathy elicited from Id. hand, jury. Perhaps. On the other Finally, girlfriend refers to Wil- though, nega- could have drawn a having son in prison trouble because of a picture gang tive about Wilson’s involve- rumor he “snitched” on two Bloods until ment and the murder itself. Wilson’s “word was out on the [Wilson] was back brother describes his own gang involve- Aplt. same side.” Add. 4. ment and how Wilson became involved present disturbing pic- The affidavits

along with him. He said he and Wilson put gang “both on our face when we went ture of the murder this case—Wilson child, substantively trying 11. What Wilson asserts is new he awas to convince his school (1) testimony following: white; (5) involves the Wilson acting para- his mother was Wilson dead, telling girlfriend his his father was (6) suspicious; having noid and Wilson fre- his father alive when but had abandoned dreams; (7) quent experienc- violent earlier; (2) family years Wilson introduc- detachment, ing periodic depression, ing using himself as Tom and a different voice (8) memory gaps; speaking and Wilson in a expressions; telling and facial his Aplt. disconnected Add. 2-6. manner. voices; (4) Wilson, girlfriend he heard when with the rest inextricably intertwined gang his because in trouble with including the prior analysis, in a he had “snitched” the Strickland perception in the crime case, got involved and witness investigation and Wilson scope of proper counsel loyalty. If Wilson’s prove at 539 U.S. Wiggins, See choices. he had background, of this were aware ... choices are (“[Sjtrategic S.Ct. prosecutor give not to reason good that rea- to the extent precisely reasonable allowing byit Wil- to confirm opportunity judgments support professional sonable sister, to tes- and brother girlfriend, son’s (quoting investigation.” limitations on information is negative affidavit tify. This Strickland, 690-91, 104 S.Ct. 466 U.S. at preju- was not indication Wilson further 2052)); Williams, 529 U.S. to interview failure by counsel’s diced failure to (concluding “counsel’s their testi- present witnesses or these character persuasive potentially contact a at trial. mony stra- not a conscious was likewise witness who knew Wilson mental health pursue the olds, In it was sum, interviewed mental health unreasonable for I cannot diagnosis * * and obtained conclude ^[*] number investigation fur- from Dr. counsel not to that after an initial people Reyn- vestigation of tegic plausible “strategic choices sentation able”). choice,” options are under but law and facts Strickland); made after rather deficient virtually unchallenge- thorough in- relevant Strickland, (holding repre- reasonably ex- conducted event, may ther. Counsel affirm the this court background. inquiry into Wilson’s tensive any ground adequately court “on district reasonably indicates Nothing in the record Elkins v. Com- by the record.” supported have conclud- counsel could not competent (10th Cir.2004); fort, 392 F.3d information all the relevant ed he had Mullin, 417 see also Richie with the dis- agree I therefore available. (10th Cir.2005) (Hartz, J., concur- n. 1128 3 the conclusion that OCCA’s trict court’s a courts is (“Comity with the state ring) ineffectiveness adjudication of Wilson’s reason to consider compelling particularly reasonable. claim was argued ap- for affirmance not grounds peal.”). Strategic Decision Not 2. Counsel’s Emphasize Mental Illness Made record counsel

to conclude on this I would Investigation Unneces- Further strategic judgment a reasonable made sary by investigation. a reasonable backed reflects that counsel The trial record Strategic Judgment Reasonable de-emphasize to strategic a decision made emphasis during mitigation Counsel’s and instead to fo- mental illness Wilson’s classically of trial is a penalty phase the intelli- mitigation case on Wilson’s cus his See, Bell, e.g., strategic decision. productive a capacity and to become gence (characterizing as requires society. Strickland member decision, a mental after strategic the judg- strategic to counsel’s that we defer evaluation, mitiga- pursue “not to health range of that fall within the “wide ments illness”); mental strategy based on tion assistance.” 466 competent professionally (noting counsel Young, 486 F.3d at 682 Although the 104 S.Ct. 2052. theory alternative pursue [of to “chose majority my focus on counsel’s criticizes exactly type mitigation], making scope strategic judgments as outside and Supreme Court strategy strategic decision briefing, the issue of parties’ two-edged have held is not ineffective assis- health issues was a this court sword. As counsel”). tance of majority believes, jury may have sympathy felt some for Wilson based on a in- emphasize chose to Wilson’s Counsel But, diagnosis schizophrenia. equally telligence potential and rehabilitative likely, as diagnosis may sup- have (1) following Reynolds manner: Dr. ported prosecution’s portrait of Wilson in- high testified that because of Wilson’s a dangerous continuing and threat to telligence positive and the excellent influ- See, mother, society. e.g., Bryan, ence of his Wilson’s mental disor- 335 F.3d at probably successfully (recognizing ders could treated legitimate counsel’s concern likely and Wilson would mature into testimony about defendant’s mental (2) contributing society; member of Dr. “might play health prosecution’s into the in struc- Reynolds testified Wilson excelled case that was a continuing [defendant] and in- tured environments because of his Cannon, society”); threat 259 F.3d at telligence particularly could be beneficial (noting 1277-78 certain neuropsychological (3) others; other character witnesses evidence defendant’s counsel did pres- not an intelligent, helpful, testified Wilson was ent to the was “far less beneficial than caring person could turn his life who asserted ... [defendant] and could (4) around; argued closing: counsel strengthened have prosecution’s argu- “There is some reason for him to live.... ment”). case, In this counsel could rea- you I that an intelligent person submit sonably conclude that additional mental capacity good who has the to do can be of health evidence would help not Wilson’s (5) society.”; sug- benefit to might actually case and harm it. gested closing serving that even a life majority The presents dichotomy a false could, prison term because of his with regard Reynolds’s to Dr. more recent influences, intelligence positive high mental health evaluation. majority young prison help mentor men in other (1) argues trial counsel had to either all go productive them become members of soci- way in basing mitigation defense aon (Feb. 20, ety Trial Tr. when released. schizophrenia diagnosis, or present 1997), at 42-44. Wilson has failed to dem- any evidence of mental health at strategic un- onstrate counsel’s focus was Although majority presents all. an all- reasonable. choice, or-nothing trial counsel could have argues counsel should have dis- quite reasonably a chosen middle path: covered a diagnosis and used of schizo- presenting enough mental health evidence phrenia convey jury to to the that Wilson sympathy to obtain the of some members mentally a ill deserving sympa- was man of jury having persuade without to thy pity. emphasizing But Wilson’s skeptical more members Wilson’s mental mental health could have undercut coun- Supreme illness was severe. Neither of strategy focusing sel’s chosen on Wil- precedent Court nor the ABA Guidelines ability grow son’s into a useful role ground. foreclose such a middle young model for other men trouble. A in schizophrenia diagnosis could have made recognized mitiga- Commentators have a problems appear Wilson’s mental health purely tion defense based on the defen- unbeatable, more intractable and and add- risky. dant’s mental health can be One prosecution’s ed ammunition to the case commentator, example, noted counsel dangerously person. that Wilson was a ill may mitigation decide to limit it “purportedly because undermines resid- gang As with the evidence of Wilson’s doubt, involvement, emphasizing double-edged mental ual because it has a [Wilson] to ridicule fears, closing argument it because inspiring effect criminal his- psychopath. unrevealed as a the door to opens Jochnowitz, Missed Miti- D. tory.” Leona Aplt. Br. 71-72. Duty to Assess Evolving Counsel’s gation: all, question- counsel’s faulting First Penalty at Death Mitigation and Present particu- during witness examination ing (2007). Bull. 1 L. Sentencing, 43 Crim. hindsight the kind of larly vulnerable to trial suggested Another commentator that Strickland warned second-guessing “juror cynicism a faced barrier counsel 2052. 104 S.Ct. against. 466 U.S. in issues criminal mental health toward fall Undoubtedly, all examinations witness Stetler, Mental Disabili- Russell cases.” not mean but this does perfection, short of (rev.3/13/01), http:// Mitigation ties and objec- “fell below an examination counsel’s (follow www.nynd-fpd.org/articles.htm Id. at of reasonableness.” tive standard Health”; “Mental then follow “Mental failure to ask 2052. The E. also Scott Mitigation”). See Health might have another counsel questions Empiri- An Sundby, Jury as Critic: ineffective assis- prove does not asked Capital Juries Perceive Look at How cal tance. Lay Testimony, 83 Va. L.Rev. Expert and (1997) jurors were (finding capital reasonable for counsel Secondly, it was experts supplied health skeptical of mental to avoid. to revisit a he wished point defense); Doyle, The James M. by the Sirmons, See, Bland v. e.g., Capital in Lawyers’ ‘Representation’ Art: Cir.2006) (holding counsel Cases, & Human. 417 8 Yale J.L. question failing [the “for not deficient ill- presenting mental (noting difficulties full way a to reveal the expert] such evidence). end, In the mitigation ness as mental and sub- extent of [defendant’s] Sundby found: “Severe men- as Professor problems” expert’s when tes- stance-abuse although appearing in particular, tal illness reasonably well-developed). timony was circum- compelling mitigating to be already testified on Reynolds Dr. had stance, of collateral issues raises number was not a cross-examination jury to vote for a sen- may lead the to de-em- Counsel’s decision psychopath. rather than life.” 83 Va. tence of death supports illness phasize Wilson’s mental L.Rev. Reynolds Dr. for a his decision not to ask suggests his trial Wilson also specific diagnosis, describe Wil- more asking Reynolds Dr. ineffective for not detail, or to greater illness de- son’s diag- about his testify completely more the characteristics of more detail scribe claims, nosis. Wilson psychopath. testimony was left com- Reynolds’s] [Dr. argu- mitigation decided a Once counsel context, cross- out of and on pletely mental illness on Wilson’s ment based to prosecutor was able examination case, he had no strengthen not his would sounding a board for the turn him into diagnosis to obtain a definitive reason as a diagnosis of prosecutor’s [Wilson] Reynolds. Dr. Wil- schizophrenia from the fact that Dr. Despite psychopath. life, family coupled with his son’s chaotic a was not Reynolds [Wilson] had said meant he did not problems, mental health counsel never psychopath, on redirect the Tulsa streets. But do well on to Reynolds opportunity gave Dr. prison with structured environment psycho- meaning of the term explain the —as home in North Carolina—Wil- his sister’s why diagnosis his explain or to path, high IQ, reli- could succeed. Wilson’s son psy- not a that was [Wilson] indicated faith, behavior gious and well-mannered prosecutor free chopath. This left

1141 effort made to distorting make Mm an asset to other troubled eliminate the could youths. hindsight, effects of to reconstruct the cir- challenged cumstances of counsel’s con- has coun Supreme Court concluded duct, and to evaluate the conduct from limiting for the in sel was not ineffective perspective counsel’s at the time.” Strick- under vestigation mitigating into land, 466 U.S. at 104 S.Ct. 2052. If I Bell, 545 circumstances. See U.S. similar consider counsel’s decision without (suggesting at 125 S.Ct. 2825 reason hindsight, benefit of I cannot conclude the in might able counsel end mental health argument suggests based on his initial vestigation after evaluations were allegations schizophrenia vastly was so mitigation completed and counsel selected superior argument to the actually illness); strategy emphasizing mental not made that counsel’s choice was not “within Burger, 483 at 107 S.Ct. 3114 U.S. range the wide of reasonable professional (holding limiting counsel not ineffective for assistance.” reasonably See id. investigation when counsel de of a termined additional evidence Supported by Investigation Reasonable “tragic childhood” would not “minimize[] An investigation support is sufficient to penalty”); the risk of the death Darden v. strategic a if it decision uncovers for coun 168, 186, 477 106 Wainwright, U.S. S.Ct. sel all options presenting available for (holding 144 coun 91 L.Ed.2d arguing mitigating evidence. See Strick limiting mitigation not for sel ineffective land, (ex 466 at 104 S.Ct. 2052 strategy “simple plea mercy” when plaining “strategic choices made after harmful). character evidence could be thorough investigation of and facts law This court has reached similar conclusions. relevant to plausible options virtually are Compare at 1222 & n. Bryan, F.3d unchallengeable”); Wiggins, 539 U.S. cf. (holding failing counsel not ineffective for 524-25, (finding at S.Ct. ineffec present mental health evidence that tive assistance where counsel did not know just nearly “would more accentuate the potential mitigating the extent of evi State, position of the [defendant] Anderson, (find dence); at prone danger to- be and could be a ing ineffective assistance where counsel society”), Hooper, 314 F.3d at 1170- investigated family never the defendant’s (counsel obligation fully develop had health). background mental mental health evidence once he decided to In Wiggins, counsel was ineffective for trial). rely on it at Counsel’s determina uncovering evidence of the extensive tion that additional mental health evidence sexual, and physical, emotional abuse suf- strengthen would not case fered the defendant. 524- could be rehabilitated was thus “reason 2527. Although counsel knew able decision that particular makes investi something about the defendant’s troubled unnecessary.” gations Wiggins, 539 U.S. childhood and alluded to a difficult child- statements, in opening hood counsel failed focusing entirely Instead of on serious history complete to obtain social problems, mental health counsel reason- defendant, though easily it even ob- ably pursued strategy Reyn- Dr. where 525-26, tainable. Id. at 2527. testimony olds’s limited mental health Wiggins, Unlike Wilson’s is not a case would bolster a rehabilitation defense. Al- investigation where touched on counsel’s though strategy counsel’s chosen was ulti- unsuccessful, mately mitigating a “fair of evidence but failed to unearth assessment attorney performance requires every the full of it. unearthed extent Counsel to make an informed decision about edge mental information about Wilson’s enough strategy on mitigation whether to focus his reasonably formulate a trial health to health. had evi- Wilson’s mental Counsel the new information Wilson strategy, and argument make dence available to Wil- changed not have now offers would have—that because suggests son he should at 123 S.Ct. 2527. strategy. id. Cf. ill mentally he did not deserve suffered Wilson was if had known Wilson Even counsel Instead, counsel chose a different rath- to die. paranoid type,” “schizophrenia, from focus, strategy. essence personality “a severe dis- which simply er than spe- or not counsel knew a more turbance,” has not shown this Whether Wilson further changed diagnosis possible counsel’s cific was knowledge have would ill- certainly knew mental strategic de-emphasize testing, decision to counsel argument mitiga- problems. mental health ness was available de-emphasize tion and was entitled case, enough had infor- In this counsel argument in favor of what he considered options all reasonable mation to consider promising emphasis. the more Reynolds’s evaluation to trial. Dr. prior great deal about Wilson’s men- revealed trial, Reynolds Before Dr. told

tal health. sum, counsel’s because decision (1) IQ supe- had an in the counsel: Wilson potential focus on Wilson’s rehabilitative (2) organic had no range; rior supported by investigation reasonable (3) some damage; exhibited brain strategic judgment, his decision not to including several disorders indications of pursue diagnosis further of mental illness (i) (ii) disorder, anxiety bipolar generalized similarly reasonable. I therefore find (iii) disorder, stress disor- post-traumatic nothing wrong with the OCCA’s view of (iv) der, disorder, personality paranoid matter under Strickland. (v) personality disorder with narcissistic schizotypal person- passive-aggressive and 3. Allowed Sufficient Time Counsel features; sometimes ality and Wilson Prepare reality and exhibited a lack of contact with Wilson contends counsel’s mental health paranoid suspicious behaviors. Counsel because enough during Reyn- investigation Dr. was unreasonable knew to establish Reynolds did not contact Dr. until Wilson had “a olds’s direct examination three weeks before trial and did not meet testing mental disorder” and indi- severe Reynolds days Dr. until two before he personality cated “a severe disturbance.” with (Feb. 19, 1997), Reyn- particular Dr. “No set of detailed Trial Tr. testified. rules for counsel’s conduct can satisfactori- olds also told the Wilson “has some unusual, ly variety take account of the of circum- very types thinking. bizarre faced counsel or the suggest That would that at times he’s not stances defense legitimate regarding periodically range or has not been touch with decisions reality. basically represent That he does not neces- how best to criminal defen- Strickland, 688-89, in a normal state dant.” 466 U.S. at sarily function times appeals, 2052. As a court of we are great that he has a deal of emotional S.Ct. but position micromanage in no defense pathology.” Id. Counsel therefore knew in- representation by establishing counsel’s significant prob- Wilson had mental health vestigation deadlines. lems. sure, preparation of mental illness in To be insufficient

Given the indications initial analysis, mitigation I cannot case can constitute ineffec- Reynolds’s Dr. Williams, of counsel. See conclude counsel had insufficient knowl- tive assistance Anderson, 1999) 1495; (finding that experts “had [medical] if only family But this is so known the details of [defendant’s] 476 F.3d at 1143-44. background, actually uncover the substance and tone of the investigation fails to limitations, sentencing hearings would have been sig- to time not sim- evidence due different”). nificantly allotted. Counsel cannot be ply because of the amount of time Williams, timing deemed deficient based on the of Supreme In Court noted investigation counsel’s alone. began only a week mitigation investigation Anderson, trial, and in this court before in The record this case does not indicate investigation un- mitigation noted the was counsel allowed insufficient time to con- trial. only dertaken the month before duct investigation. majority his The sug- Timing only part problem, gests three weeks is insufficient to com- though. investigations in those cases plete adequate expert investigation.12 simply were unreasonable not because very case, Yet in Reynolds this Dr. had late, they had undertaken but be- been sufficient time to meet with Wilson multi- they significant cause failed to uncover times, ple files, history review life conduct mitigating evidence. id. See tests, multiple and interview Wilson’s why mother. Nor do I see a reason meet-

The cases from the Ninth relied Circuit ing an expert days two before his by majority upon also reveal testimony should in all cases unreason- inadequate timing counsel’s must result in able. See Rompilla, 545 U.S. detriment to the client to constitute inef- (“A S.Ct. 2456 standard of reasonableness fective assistance. See Bloom v. Calder- if applied as one stood in counsel’s shoes (9th Cir.1997) on, 132 F.3d ”). spawns hard-edged few rules.... Calderon, (quoting Hendricks v. case, if Reynolds’s findings this Dr. re- (9th Cir.1995)). complete “The quired part, days action on counsel’s two by lack of trial effort counsel [defendant’s] provided adjust counsel sufficient time to psychiatric expert days to obtain a until continuance, strategy, ask for a or other- trial, before combined with counsel’s fail- respond accordingly. wise adequately prepare expert ure to witness, present then him a trial gives The record no indication that the constitutionally performance.” deficient investigating time counsel allowed for Wil added). (emphasis Although Id. the ma- any way son’s mental health limited the jority causality implied would read out the development mitigating or presentation with,” phrase “combined this caus- argues evidence. Wilson if counsel ality is essential to the anal- constitutional investiga had allowed more time for the (“Because ysis. See id. counsel did not tion, Reynolds, by conducting Dr. addition acquire key interviews, services witness al tests and could have ob trial, days until before a hurried and inac- diagnosis schizophrenia top tained a resulted.”); report curate problems see also Wallace of the other mental health he Stewart, already Reyn Cir. had identified.13 But Dr. course, Reynolds showing 12. Of in an ideal world defense coun- with information counsel begin mitigation begun developing mitigation sel would in all cases in- had defense vestigation representation begins, as soon as a even earlier. not mere weeks in advance. See ABA Guide- tests, lines 11.4.1. The record in this case does not Reynolds 13. After the initial Dr. had investigate reflect when counsel’s functioning efforts concluded: "Mr. Wilson was IQ mitigating began. Although Superior Range intelligence counsel with an engaged Reynolds expert Dr. as an witness score of 126. There was no evidence of neu- trial, provided rological organic damage impair- three weeks before Dr. brain case, circum aggravating advised State’s not state he affidavit does olds’s found, mitigating does evi needed. Nor more time was stances counsel rebuffed present, affidavit state and the counsel did dence defense conduct addition for more time to request mitigating evidence the defense additional data from collect additional al tests or Gibson, Neill v. might presented.” have surpris Not family or friends. Cir.2001). addi did not consider ingly, trial counsel of mental may interpret evidence Juries necessary. If and interviews tional tests ways. They mitigation several illness investiga further counsel had considered penal- the death may impose not to decide sought a necessary, could have he tion helps explain ty mental illness because in what further or conducted continuance way he did why the defendant behaved possible in the time re vestigation was culpable the defendant less and makes maining. they may decide not his crimes. Or demonstrates, As the above discussion penalty because mental impose the death investigation revealed Reynolds’s Dr. hu- the defendant a more illness makes a reason- enough information to convince Smith, manized, sympathetic figure. See was ade- investigation able counsel (“We previously have em- F.3d at 943 strategic and to ensure counsel’s quate mitigation evidence affords phasized that in- reasonably at trial were decisions explain.” to humanize and opportunity noth- requires formed. Constitution omitted)). (internal has not marks ing more. probability that shown a reasonable Prejudice B. have he offers would additional evidence jury’s aggravating changed defi- balance performance if counsel’s were Even prong, Wil- mitigating cient under Strickland’s first circumstances under either and any deficiency son must also establish approach. Strickland, 466 his defense. prejudiced Notably, none of the evidence Wilson (“An error at 104 S.Ct. 2052 to a habeas review would add offers on counsel, if unreason- professionally even understanding of how Wilson’s men- jury’s able, setting aside the does not warrant in the murder. explains tal illness role proceeding a criminal if the

judgment of Smith, when coun- prejudice we found judgment.”). effect on the error had no mental health evidence sel failed to offer must therefore determine “whether We childhood explaining how the defendant’s that, probability there is a reasonable ab- injury caused a loss of emotional brain errors, ... have [jury] would sent control, in mur- which could have resulted aggravating concluded that the balance unable to der when the defendant was war- mitigating circumstances did not Williams, Id.; anger. control his see also Strickland, rant 466 U.S. death.” (finding 120 S.Ct. 1495 Mullin, 2052; accord Boltz v. omitted evidence would (10th Cir.2005) prejudice when (citing Strickland). “the view that in each have corroborated making “In this determina- behavior was a tion, case violent strength [defendant’s] we consider the Personality and Narcissistic Person- an Axis I Disorder ment. The MCMI-III indicated Disorder, diagnosis Anxiety Bi- ality Passive-Aggressive of Generalized Disorder with features) (severe polar psychotic Disorder Schizotypal Personality Aplt. Add. w/o Features.” Posttraumatic Stress Disorder. It further diagnosis Paranoid indicated an Axis II evidence). (1) prod- ing reaction rather than the compulsive This evidence included: premeditation”). history, uct of cold-blooded medical including signs of mental illness; (2) family history, and social in- plausible explanation Wilson offers no of - cluding substance abuse and abandonment the role his mental health could have by Wilson’s father and life in a violent played diag- the murder. Even after neighborhood by violence; gang affected nosing possibly schizophrenic, Wilson (3) events, traumatic such as the sudden Reynolds suggests only Dr. an inconclusive teacher, Sunday death of Wilson’s school “possibility]” that “could have Wilson being leg, shot in the having and his house been delusional at the time of the crime.” (4) down; influences, burned religious in- delusion, Aplt. of Add. As evidence cluding the faith of Wilson’s mother and Reynolds suggests Dr. “must activities; his church and educational have been delusional to believe that he history, including academic achievement easily would not identified” when he and well-mannered behavior in the struc- robbed the store where he worked. Id. Of tured school environment. course, explanation the better Wilson’s that night regard health, behavior is Wilson and his three With to Wilson’s mental accomplices planned only jury to kill the wit- heard evidence that Wilson had “a identify ness who could him. of per- None severe mental disorder” and a “severe (Feb. sonality additional affidavit evidence Wilson offers disturbance.” Trial Tr. 1997), idea from jurors corroborates the Wilson suffered at 57. The knew Wilson “has night any very delusions the of the murder or some unusual types bizarre of think- jury other help ing” time would a under- and “has not periodically been in why way reality.” They stand Wilson behaved the he touch with Id. also heard did.14 This is not the kind of additional Wilson not a psychopath, though even explanatory information that could have he had some characteristics that could in- case, particu- altered the outcome in this psychopathy. dicate larly jury already where the knew the jury alongside Had the heard all of this basic details about mental health. specific diagnosis paranoid schizophre- nia, prosecution’s aggrava-

To counteract the I cannot conclude to a reasonable factors, ting presented jury probability weighed constitu- would have tionally adequate mitigation aggravating mitigating case of on the and dif- factors ferently. Wilson’s behalf. The heard the vari- Further diagnosis and discus- categories mitigating only ous evidence the sion of Wilson’s condition would have appropriate given ABA has identified as capi- prosecutor opportunity more 11.4.1(2) tal dangerous cases. See ABA Guidelines focus on the characteristics as- (identifying categories potential mitigat- sociated with Wilson’s mental illness. Dr. turned, contrary, points 14. To attempt- all the evidence served customers and thinking planning. particular, lucid ed to remove the store’s safe when the store empty. Wilson coordinated his actions with three co- Wilson’s words and actions defendants, tape robbery night thinking. and the video offer no evidence of delusional Furthermore, chatting purported shows Wilson first with the victim as none of the perused post-convic- he and his co-defendants the store. of delusions Wilson offers in the mother, sister, Wilson and his co-defendants waited until the tion affidavits from his broth- er, attacking girlfriend temporally store was free of customers before to the tied are. forcing night victim him into a back room. of the murder. Nor does the record Wilson restrained the victim while his co- reveal other indication Wilson had been behaving strangely defendants left the store to retrieve the mur- the time he com- around weapon. der When his co-defendants re- mitted this crime. reasonably at trial en- Reynolds gave Dr. deny that Wilson was Reynolds was able Reynolds says Dr. diagnosis not have denied compasses but he could psychopath, trial, if Dr. aspects schizophrenia trial. At dangerous he arrived after prosecutor. “very un- Reynolds asked about them had testified Wilson usual, thinking. That types bizarre of cry v. case a far from Anderson This is not or has suggest that at times he’s would Sirmons, 1148,where the miti- 476 F.3d at reality.” in touch with periodically been jury “piti- with a gation evidence left (Feb. 19, 1997), at 57. That Trial Tr. defendant, fully incomplete” picture of of description diagnosis is similar to Smith, 537, at 123 Wiggins or v. 539 U.S. Psychiatric schizophrenia. The American present where counsel failed to S.Ct. the characteristic Association describes re- history mitigation, evidence in life including, symptoms schizophrenia of no on the fact defendant had lying instead delusions,” among things, other “bizarre evidence prior convictions. The additional behavior,” thinking and and “disorganized barely al- now offers “would have Psychiatric American As- hallucinations. sentencing profile presented to” tered the sociation, Diagnostic and Statistical Man- Strickland, at jury. Disorders ual Mental DSM-IV-TR Clark, 2052; see also 425 F.3d at 286 of (4th ed.2000); 299-300, see also id. (“[T]o the new evi- prejudice, establish (“The essential feature of the Paranoid ... must differ in a substantial dence Schizophrenia presence of Type of subject way strength and matter— —in auditory or hallucina- prominent delusions actually presented from the evidence preserva- tions in the context of a relative sentencing.”). affect.”). cognitive functioning tion testimony Reynolds’s Based on Dr. alone, jury Having Reynolds change Dr. his testi was able to consider Wil- determining mony diagnoses or additional to it son’s mental disabilities when add Reynolds’s descriptions likely changed jury’s sentence. Dr. have would not thing meant the present of Wilson’s behavior same decision. The failure to additional jury lay diagnosis, jury to a as a clinical diagnoses prejudice to a will not may actually more useful to jury already have been defendant when the has heard Clark, (finding them. See 425 F.3d at 286 some evidence about the defendant’s men when, although failed prejudice expert Mullin, no tal health. See Malicoat v. (10th Cir.2005) name the cause of defen- specifically (finding deficiencies, mental he described dant’s regarding history diagnosis additional effects). Although their counsel could out seizures would not have influenced presented have succession of witnesses jury come when heard evidence of abuse Dr. thinking to corroborate the bizarre child); Knighton defendant suffered as described, Reynolds testimo- additional (10th Mullin, 1165, 1178-79 293 F.3d Cir. only jury ny repeated would have what the 2002) (finding diagnosis “sig additional Bland, through Reynolds. heard Dr. See organic damage present, nificant brain (finding prejudice 459 F.3d at 1031 no likely psychotic with a condition with audi additional, present when counsel failed to tory and visual hallucinations” would not testimony redundant about defendant’s jury when have influenced outcome heard use). drug abuse, depression, evidence of substance loss); attempts, memory Hum suicide It is not even clear from the record that Gibson, phreys v. 261 F.3d Reynolds’s testimony trial Dr. would Cir.2001) (10th (finding diag additional changed have had he additional performed addiction, organic damage, brain testing. description of Wilson’s illness noses of have influ- of the record reveals Wilson is not entitled seizures would not and brain jury claim, when heard to relief on his court enced outcome the district abuse, person- and a alcohol depression, denying within its discretion in disorder). ality evidentiary hearing. circumstances less- Multiple aggravating A district court abuses its discretion further. prejudice likelihood of even en the only “arbitrary, if capricious, its decision is Gibson,

See McCracken whimsical, manifestly unreasonable.” (10th Cir.2001) (finding additional 978-80 Atencio, United States v. diagnoses would not have mental health Cir.2006) omitted). (quotation when found six influenced outcome deciding grant “In whether to an eviden- may diagnoses factors and aggravating tiary hearing, a federal court must consid- aggravating factor of con- supported have a hearing er whether such could an enable threat). jury found three tinuing Wilson’s applicant prove petition’s factual (1) the murder was aggravating factors: which, true, allegations, if entitle would cruel; heinous, atrocious or especially applicant to federal habeas relief.” Schriro purpose committed for the the murder was — -, Landrigan, a lawful arrest or avoiding preventing of or (2007); 1933, 1940, 167 L.Ed.2d 836 accord (3) probability a existed prosecution; Gibson, Mayes v. criminal that the would commit defendant (10th Cir.2000). constitute a acts of violence would Wilson, society. continuing threat Where, here, adju- as the state court has jury at Because the heard *3. WL merits, petitioner’s dicated a claim on the mental health and evidence about Wilson’s petitioner pass high must a bar to aggravating three circum- still found these to federal re- show his entitlement habeas stances, probability there is no reasonable Schriro, 1940; lief. See S.Ct. diagnosis indicating possible that a further Mayes, Taking peti- 210 F.3d at 1287-88. schizophrenia would have influenced true, petitioner must allegations tioner’s sentencing outcome. show the state court’s decision “was con- sum, miti- jury heard extensive to, ap- involved an unreasonable trary evidence, newly prof- gating and Wilson’s of, clearly Federal plication established fered evidence adds little to calculus. law, Supreme as determined Court I cannot conclude there is reasonable or “was based on an of the United States” Reynolds Dr. ex- probability had in unreasonable determination of facts plained diagnosis more detail Wilson’s light presented of the evidence the State effects, simply describing rather than its 2254(d). § proceeding.” court 28 U.S.C. “would have struck different case, concluded, In this the district court mitigating aggra- balance between disposition of Petitioner’s habeas “As the Anderson, vating factors.” require does not reference corpus petition decision was not an 1148. OCCA’s beyond those that are materials clearly application unreasonable estab- Court, currently before the available and lished federal law. that there is no need for the Court finds Evidentiary Hearing IV. hearing in this case. There evidentiary an questions factual remain- disputed are no The district court did not abuse its dis- Petitioner ing possibly that could entitle denying evidentiary an cretion Wilson, corpus relief.” 2006 WL habeas on his claim of ineffective assis- hearing 2289777,at *47. my of trial counsel. Because review tance trial court the state Considering both America, sup- UNITED STATES affidavits

records and the additional Plaintiff-Appellee, cor- petition for habeas plied with Wilson’s say the district court abused I cannot pus, concluding evidentiary an its discretion in BEDFORD, Defendant- Robert N. habeas help not hearing could Appellant. Rather, district agree I with the case. evidentiary hearing would be court that an No. 07-1236. Schriro, 127 no use to See Wilson. Appeals, United States Court (“[I]f refutes the at 1940 the record Tenth Circuit. allegations or otherwise applicant’s factual relief, a district court is precludes habeas Aug. evidentiary an hear- required to hold ing.”).

I also note has not identified requiring evidentiary dispute

factual ac-

hearing. and Wilson’s Oklahoma’s for trial preparation

counts of counsel’s identical, and the state does

appear to be the information Wilson dispute

not Accordingly,

offers his affidavits.

only dispute in this case is a matter of law Because

based on the record before us. only need determine whether the facts

we in the record amount to ineffec-

contained under

tive assistance of counsel Strick-

land, evidentiary required. hearing no Kan.,

See, e.g., Att’y Anderson v. Gen. of Cir.2005) (“The evidentiary hearing of an is to

purpose evidence.”). conflicting

resolve correctly

The district court therefore re-

jected request evidentiary for an

hearing.

V. Conclusion correctly I

Because conclude the OCCA trial counsel was not

determined Wilson’s

constitutionally ineffective under Strick-

land, and because the district court did in denying its discretion an eviden-

abuse

tiary hearing, respectfully I dissent from majority’s opinion.

Part III of the

Case Details

Case Name: Wilson v. Sirmons

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 8, 2008

Citation: 536 F.3d 1064

Docket Number: 06-5179

Court Abbreviation: 10th Cir.