Marion Wilson, Jr. v. Warden, Georgia Diagnostic Prison , 774 F.3d 671 ( 2014 )

Case: 14-10681 Date Filed: 12/15/2014 Page: 1 of 24
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10681
________________________
D.C. Docket No. 5:10-cv-00489-MTT
MARION WILSON, JR.,
Petitioner–Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC PRISON,
Respondent–Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(December 15, 2014)
Before ED CARNES, Chief Judge, and WILLIAM PRYOR and JORDAN, Circuit
Judges.
WILLIAM PRYOR, Circuit Judge:
Marion Wilson, Jr., a Georgia prisoner sentenced to death for the murder of
Donovan Corey Parks, appeals the denial of his petition for a writ of habeas
corpus. Wilson argues that he was deprived of a fair trial because his counsel
Case: 14-10681 Date Filed: 12/15/2014 Page: 2 of 24
provided ineffective assistance during the penalty phase of his trial. In state
postconviction proceedings, Wilson argued that his trial counsel were
constitutionally ineffective because they failed to discover and introduce mitigating
evidence. The state trial court ruled that Wilson’s claim of ineffective assistance of
counsel failed, and the Supreme Court of Georgia declined to review that decision.
Because the Supreme Court of Georgia could have reasonably concluded that
counsel provided Wilson effective assistance, we affirm the denial of Wilson’s
petition for a writ of habeas corpus.
I. BACKGROUND
We divide our discussion of the background in two parts. First, we discuss
the facts of Parks’s murder and the evidence presented at Wilson’s trial. Second,
we discuss the additional evidence presented during Wilson’s state habeas
proceeding.
A. Wilson is Convicted of Malice Murder and Sentenced to Death.
In 1996, Marion Wilson, Jr. and Robert Earl Butts killed Donovan Parks in
Milledgeville, Georgia. Wilson v. State, 525 S.E.2d 339, 343 (Ga. 1999). Wilson
and Butts approached Parks in a Wal-Mart parking lot to ask for a ride. Id. Wilson,
Butts, and Parks then entered Parks’s automobile. Id. A few minutes later, Parks’s
dead body was found nearby on a residential street. Id. Parks’s clothing was
saturated with blood, and he had a “gaping” hole in the back of his head. His skull
2
Case: 14-10681 Date Filed: 12/15/2014 Page: 3 of 24
was filled with metal shotgun pellets and a spent shotgun shell, which suggested
that he was shot at close range.
After officers arrested Wilson, he told the officers that after Parks got in the
automobile, Butts pulled out a sawed-off shotgun and ordered Parks to drive
around. Id. According to Wilson, Butts later told Parks to exit the automobile and
lie on the ground, after which Butts shot Parks in the back of the head. Id. Wilson
and Butts drove Parks’s automobile to Atlanta in an attempt to locate a “chop
shop” to dispose of the automobile. Id. They were unable to find a “chop shop” so
they purchased gasoline cans, drove to Macon, and burned the automobile. Id.Police later searched Wilson’s residence and found a “sawed-off shotgun loaded
with the type of ammunition used to kill Parks” and notebooks filled with
handwritten gang creeds and symbols. Id.At trial, Wilson was represented by two appointed attorneys, Thomas
O’Donnell Jr., who served as lead counsel, and Jon Philip Carr. Wilson v.
Humphrey, No. 5:10-CV-489 (MTT), 2013 WL 6795024, at *10 (M.D. Ga. Dec.
19, 2013). They argued that Wilson was “mere[ly] presen[t]” during Butts’s
crimes, id. at *34, but the jury convicted Wilson “of malice murder, felony murder,
armed robbery, hijacking a motor vehicle, possession of a firearm during the
commission of a crime, and possession of a sawed-off shotgun,” id. at *2.
3
Case: 14-10681 Date Filed: 12/15/2014 Page: 4 of 24
During the penalty phase, defense counsel argued that the jury should not
sentence Wilson to death because there was residual doubt about his guilt. Id. at
*16. They presented evidence that Butts gave inconsistent statements to the police
and that Butts confessed to three other inmates that he was the triggerman. Trial
counsel again tried to convince the jury that Wilson was “mere[ly] presen[t]”
during the crimes.
Trial counsel introduced testimony from Wilson’s mother, Charlene Cox.
She testified that Wilson had a difficult childhood and did not deserve to die even
though he had a history of criminality. She explained that Wilson’s father played
no role in Wilson’s upbringing, that she supported Wilson by working low-wage
jobs, and that Wilson had an 18-month-old daughter.
Trial counsel also introduced testimony from Dr. Renee Kohanski, a forensic
psychiatrist. Id. at *20. Kohanski relied on the records defense counsel requested
from agencies, schools, and medical facilities, and interviewed Wilson to create a
“cursory” social history, but she did not conduct an independent investigation of
Wilson’s background. Id. at *20–21. Kohanski testified that Wilson had a difficult,
sickly, and violent childhood. She explained that Wilson was so aggressive as a
child that his elementary school performed a psychological assessment of him. Id.
at *25. The assessment found that Wilson had difficulty staying on task, a poor
self-image, and an “excessive maternal dependence.” Id. Kohanski told the jury
4
Case: 14-10681 Date Filed: 12/15/2014 Page: 5 of 24
that school officials also requested a medical evaluation because they suspected
that Wilson suffered from an attention deficit disorder, but testing was never
performed. Id. She testified that Wilson had no parental support or male role
model, and that, by age 9 or 10, he fended for himself on the streets and joined a
gang as a substitute for a family. Id. Kohanski told the jury that Cox’s boyfriends
“came and went” and frequently used drugs. Id. Kohanski testified about one “not
. . . uncommon event” in which six- or seven-year-old Wilson witnessed Cox’s
“common law” husband hold a gun to Cox’s head. Id.
On cross-examination, both Cox and Kohanski testified about unfavorable
background evidence. Cox admitted that Wilson was incarcerated for every day of
his daughter’s life, id. at *26, and that Cox had difficulty raising Wilson and
sometimes needed police assistance to control Wilson. Kohanski told the jury that
Wilson is of average intelligence and suffers from no known brain damage, but
that he was in two car accidents as a child and she “would have been interested to
see [brain imaging scans from] that time” to look for brain damage. She also
testified that, regardless of any possible brain damage, Wilson knew right from
wrong at the time of the murder.
The prosecution then presented evidence of Wilson’s extensive criminal
history. The jury heard that, from the age of 12 years, Wilson was “either out
committing crimes or . . . incarcerated somewhere.” Id. at *22. The jury heard that
5
Case: 14-10681 Date Filed: 12/15/2014 Page: 6 of 24
Wilson had been charged with first degree arson, criminal trespass, and possession
of crack cocaine with intent to distribute, and that in a period of eleven weeks
Wilson was charged with ten misdemeanor offenses. Id. at *22–24. The jury heard
that, as a 15-year-old, Wilson shot a stranger, Jose Valle, in the buttocks because
he “wanted to see what it felt like to shoot somebody,” and that Wilson sold crack
cocaine to Robert Underwood and then shot him five times and “casually walked
off.” Id. at *22–23. The jury also heard testimony that Wilson was charged with
cruelty to animals after he “shot and killed a small dog for no apparent reason.” Id.
at *23.
The prosecution also presented evidence of Wilson’s violence and gang
activity. The jury heard that Wilson threatened a neighbor, saying “I’ll blow . . .
that old bitch’s head off”; Wilson committed unprovoked attacks on his
schoolmates; and Wilson attacked one of the employees during his incarceration at
Claxton Regional Youth Development Center. Id. at *22–23. The jury heard details
of an incident in which a “belligerent” Wilson and five others were shouting at
students in a parking lot at Georgia College. Id. at *23. When police arrived,
Wilson rushed one of the officers and had to be subdued with pepper spray when
he attempted to grab the officer’s gun. Id. The jury heard portions of Wilson’s
post-arrest interrogation in which he confessed that he was the “God damn chief
6
Case: 14-10681 Date Filed: 12/15/2014 Page: 7 of 24
enforcer” of the Milledgeville FOLKS gang, a rank he achieved by “fighting and
stuff like that.” Id. at *24.
At the close of testimony, the trial court instructed the jury to consider all of
the evidence from both the guilt and penalty phases of trial. After deliberating for
less than two hours, the jury sentenced Wilson to death for the crime of malice
murder. Id. at *26. The Supreme Court of Georgia affirmed Wilson’s conviction
and sentence on direct appeal. Id. at *2.
B. Wilson Petitions for a Writ of Habeas Corpus and Introduces Mitigation
Evidence that His Trial Counsel Failed to Present.
Wilson filed a petition for a writ of habeas corpus in a state court, in which
he argued that his trial counsel had been ineffective because they failed to
investigate his background thoroughly and to present adequate mitigation evidence
at his sentencing. Id. at *13; see Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052 (1984). Wilson argued that effective counsel would have interviewed
teachers, social workers, and relatives to find mitigation evidence from Wilson’s
childhood. Wilson, 2013 WL 6795024, at *13. He argued that sufficient counsel
would have discovered the names of potential witnesses in the records that his trial
counsel possessed but never read. Id. at *15.
At an evidentiary hearing, Wilson’s trial counsel testified that they were
“confus[ed]” about who was responsible for investigating Wilson’s background.
Id. at *12. Lead counsel O’Donnell testified that he told Carr and an investigator,
7
Case: 14-10681 Date Filed: 12/15/2014 Page: 8 of 24
William Thrasher, to “go out and investigate [Wilson’s] background.” Id. at *17.
But Carr testified that he “was not involved in as much of the mitigation stage”
because he believed O’Donnell was responsible for the investigation. Id. at *11.
Thrasher testified that he was not “directed to conduct [an] investigation into . . .
Wilson’s life history for mitigating information.” Id. at *12.
Wilson introduced evidence that the social services, school, and medical
records in the possession of Wilson’s trial counsel contained mitigating
information about Wilson’s childhood homes and physical abuse by parental
figures, and names of potential mitigation witnesses. Id. at *17–18. Trial counsel
failed to explore any of the potential leads or witnesses found in the records. Id. at
*17. Trial counsel testified that they relied on Kohanski to read the records and
construct a social history of Wilson’s life. They also testified that they were aware
of the information in Wilson’s records, but they made the strategic decision to
focus on residual doubt instead of bringing in that evidence because it “would
basically convince the jury that [Wilson] probably was the trigger man.”
Wilson introduced 127 exhibits and 9 witnesses that were either directly
from or referenced in the records, or could have been discovered through
investigation of references in the records. Id. at *26. Wilson introduced lay
testimony from his former teachers, family members, friends, and social workers.
8
Case: 14-10681 Date Filed: 12/15/2014 Page: 9 of 24
Id. at *26–29. He also introduced expert testimony from neuropsychologist Dr.
Jorge Herrera and Kohanski. Id. at *29–30.
Wilson argued that the lay testimony could have been used to explain
Wilson’s disruptive childhood behavior and portray Wilson as someone who never
stood a chance. Teachers testified that Wilson was a “tender and good” boy who
“had a lot of potential” and “loved being hugged,” and that if Wilson had “been
afforded appropriate treatment, attention, guidance, supervision[,] and discipline in
his early years, there is a good chance” he would not be on death row. Family
members and friends testified that some of Wilson’s childhood homes lacked
running water and electricity and were littered with containers full of urine. Id. at
*26. They also testified that Cox’s live-in boyfriends “slapp[ed],” “punch[ed],” and
“once pulled a knife on” Wilson and that, for a period of a few months, Wilson and
Cox lived with Cox’s father, who beat Wilson with a belt. Id. at *29. Social
workers testified that Wilson’s young life included every “risk factor” they could
think of, id. at *28, and that Wilson responded well to structure but his childhood
was entirely unstructured, id. at *27.
Wilson argued that the expert testimony could have been used to explain
Wilson’s poor judgment skills and lack of impulse control. Herrera testified that
his neuropsychological testing found that Wilson had “mild to severe impairments
in brain function[], with severe impairment localized in the frontal lobes.” Id. at
9
Case: 14-10681 Date Filed: 12/15/2014 Page: 10 of 24
*30. Herrera opined that “Wilson’s association with [Butts] on the night of the
crime and his failure to intervene at the time is consistent with the concrete
thinking and judgment problems associated” with Wilson’s brain injuries.
Kohanski confirmed Herrera’s assessment and testified that Herrera’s testing
should have been performed before Wilson’s trial. Id. at *30. Kohanski testified
that Wilson’s frontal lobe injuries “indicate[] that [he] . . . is a highly suggestible
individual, easily led by others in certain situations.”
The state trial court ruled that Wilson did not receive ineffective assistance
of counsel. The state trial court ruled that trial counsel’s performance was not
deficient and, alternatively, that Wilson suffered no prejudice. Wilson, 2013 WL
6795024, at *31. Wilson filed an application for certificate of probable cause to
appeal the denial of his petition, which the Supreme Court of Georgia summarily
denied.
Wilson petitioned for a writ of habeas corpus in the district court, which
denied him relief. The district court ruled that the decision of the state trial court as
to prejudice did not involve an unreasonable application of clearly established
federal law and that the material findings of fact were reasonable. Id. at *38. The
district court granted Wilson a certificate of appealability.
10
Case: 14-10681 Date Filed: 12/15/2014 Page: 11 of 24
II. STANDARD OF REVIEW
We review de novo the denial of a petition for a writ of habeas corpus.
Fotopoulos v. Sec’y, Dep’t of Corr., 516 F.3d 1229, 1232 (11th Cir. 2008). “Under
[the Antiterrorism and Effective Death Penalty Act of 1996], a federal court may
not grant a habeas corpus application ‘with respect to any claim that was
adjudicated on the merits in State court proceedings,’ 28 U.S.C. § 2254(d), unless
the state court’s decision ‘was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States,’ § 2254(d)(1).” Johnson v. Upton, 615 F.3d 1318, 1329 (11th Cir.
2010) (quoting Berghuis v. Thompkins, 560 U.S. , 130 S. Ct. 2250, 2259 (2010)).
“[T]his standard [is] ‘a highly deferential’ one that ‘demands that state-court
decisions be given the benefit of the doubt.’” Id. (quoting Renico v. Lett, 559 U.S.
766, 130 S. Ct. 1855, 1862 (2010)). The decision of a state court is “contrary to”
federal law only if it “contradicts the United States Supreme Court on a settled
question of law or holds differently than did that Court on a set of materially
indistinguishable facts.” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331,
1355 (11th Cir. 2009) (internal quotation marks and citation omitted). The decision
of a state is an “unreasonable application” of federal law if it “identifies the correct
governing legal principle as articulated by the United States Supreme Court, but
unreasonably applies that principle to the facts of the petitioner’s case,
11
Case: 14-10681 Date Filed: 12/15/2014 Page: 12 of 24
unreasonably extends the principle to a new context where it should not apply, or
unreasonably refuses to extend it to a new context where it should apply.” Id. “The
question under [the Act] is not whether a federal court believes the state court’s
determination was correct but whether that determination was unreasonable—a
substantially higher threshold.” Id. (internal quotation marks and citation omitted).
“[A]n unreasonable application of federal law is different from an incorrect
application of federal law.” Harrington v. Richter, 562 U.S. 86, __, 131 S. Ct. 770,
785 (2011) (internal quotation marks and citation omitted) (emphasis omitted). “To
obtain habeas relief ‘a state prisoner must show that the state court’s ruling on the
claim being presented in the federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.’” Reese v. Sec’y, Fla. Dep’t of Corr., 675
F.3d 1277, 1286 (11th Cir. 2012) (quoting Harrington, 131 S. Ct. at 786–87).
When we evaluate a petition of a state prisoner, we “‘must determine what
arguments or theories supported or, [if none were stated], could have supported[]
the state court’s decision; and then [we] must ask whether it is possible that
fairminded jurists could disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the Supreme Court].’” Evans v. Sec’y,
Dep’t of Corr., 703 F.3d 1316, 1326 (11th Cir. 2013) (en banc) (alterations in
original) (quoting Reese, 675 F.3d at 1286–87).
12
Case: 14-10681 Date Filed: 12/15/2014 Page: 13 of 24
III. DISCUSSION
As an initial matter, the one-line decision of the Supreme Court of Georgia
denying Wilson’s certificate of probable cause is the relevant state-court decision
for our review because it is the final decision “on the merits.” Newland v. Hall, 527
F.3d 1162, 1199 (11th Cir. 2008); see also Jones v. GDPC Warden, 753 F.3d 1171,
1182 (11th Cir. 2014). Instead of deferring to the reasoning of the state trial court,
we ask whether there was any “reasonable basis for the [Supreme Court of
Georgia] to deny relief.” Harrington, 131 S. Ct. at 784.
Wilson argues that his trial counsel were ineffective because they failed to
investigate his background and present mitigation evidence at his sentencing. To
obtain relief, Wilson must establish both that his trial counsel’s “performance was
deficient, and that the deficiency prejudiced [his] defense.” Wiggins v. Smith, 539
U.S. 510, 521, 123 S. Ct. 2527, 2529 (2003). Unless he establishes both
requirements, “it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.”
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. And “[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that
course should be followed.” Id. at 697, 104 S. Ct. at 2069.
To establish prejudice, Wilson had to prove “that [his] counsel’s errors were
so serious as to deprive [him] of a fair trial.” Id. at 687, 104 S. Ct. at 2064. Wilson
13
Case: 14-10681 Date Filed: 12/15/2014 Page: 14 of 24
challenged his trial counsel’s performance during the penalty phase of his trial, so
he had to establish that “there is a reasonable probability that, absent the errors, the
sentencer—including an appellate court, to the extent it independently reweighs the
evidence—would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695, 104 S. Ct. at 2069. To decide
whether there is a reasonable probability of a different result, “we consider ‘the
totality of the available mitigation evidence—both that adduced at trial, and the
evidence adduced in the habeas proceeding’—and ‘reweig[h] it against the
evidence in aggravation.’” Porter v. McCollum, 558 U.S. 30, 41, 130 S. Ct. 447,
453–54 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 397–98, 120 S. Ct.
1495, 1515 (2000)) (alteration in original).
The Supreme Court of Georgia could have reasonably concluded that
Wilson failed to establish that he was prejudiced. The Supreme Court of Georgia
could have reasonably concluded that Wilson’s new evidence would not have
changed the overall mix of evidence at his trial. His new evidence presented a
“double-edged sword,” Evans, 703 F.3d at 1324, and was “largely cumulative” of
evidence trial counsel presented to the jury, Holsey v. Warden, Ga. Diag. Prison,
694 F.3d 1230, 1260–61 (11th Cir. 2012).
The Supreme Court of Georgia could have reasonably concluded that the
balance of the evidence at Wilson’s trial would have been unaffected by the new
14
Case: 14-10681 Date Filed: 12/15/2014 Page: 15 of 24
lay testimony. The teachers’ testimony might have “humanized” Wilson, and other
lay witnesses’ testimony might have offered more detailed accounts of Wilson’s
home life, but that testimony was a “double-edged sword.” Evans, 703 F.3d at
1324. The teachers’ “mitigation” testimony would have also revealed that Wilson
was “disruptive” in school, and the social service workers’ “mitigation” testimony
would have added that one of the investigations into Wilson’s home life was
terminated prematurely because Wilson was incarcerated.
The lay witness’ testimony would have been undermined by other new
evidence that “almost certainly would have come in with [the new lay testimony].”
Wong v. Belmontes, 558 U.S. 15, 20, 130 S. Ct. 383, 386 (2009). Reports in
Wilson’s school records stated that Wilson had an “‘I don’t care’ attitude,” and that
he was physically and verbally aggressive to teachers and students, lacked self-
control, and blamed others for his misconduct. A report from the Department of
Family and Children Services recommended that Wilson remain in his mother’s
care, and a representative from the Department testified that the Department would
“certainly not” have made that recommendation if the home had been unsafe or
Wilson had been deprived of food or necessities. And the lay witnesses’ testimony
that Wilson was physically abused and neglected would have been undermined by
the witnesses’ uncertainty, Wilson’s repeated denials that he was physically abused
15
Case: 14-10681 Date Filed: 12/15/2014 Page: 16 of 24
as a child and school and medical records that described Wilson as “healthy,”
“clean,” “well dressed,” “well developed,” and “well nourished.”
The Supreme Court of Georgia could have reasonably concluded that the
balance of the evidence at Wilson’s trial also would have been unaffected by the
new expert testimony. Herrera assessed Wilson using his own interpretive
standards for the neuropsychological tests he administered on Wilson, instead of
accepted, authoritative standards. Herrera testified that Wilson’s test scores for
attention, ability to focus, distractability, and impulsiveness were considered
“normal” under the accepted, authoritative standards. Because Herrera
recommended against neurological imaging, his conclusion that Wilson had frontal
lobe damage was based on only Herrera’s unique interpretation of the tests. And
the state court could have ruled that Kohanski’s new conclusions were unreliable
because they were based on Herrera’s unreliable results.
Herrera’s and Kohanski’s expert testimony conflicted with other evidence.
They testified that a person with Wilson’s test results would be susceptible to
suggestion and more of a follower than a leader. But other evidence established
that Wilson had risen to the rank of “God damn chief enforcer” of the
Milledgeville FOLKS gang and was the “clear leader of the group” during the
incident at Georgia College.
16
Case: 14-10681 Date Filed: 12/15/2014 Page: 17 of 24
The Supreme Court of Georgia could have also reasonably concluded that
Wilson’s new evidence was “largely cumulative” of the evidence trial counsel
presented to the jury. Holsey, 694 F.3d at 1260–61. The evidence presented at trial
and the new evidence “tell the same story,” id. at 1267, of an unhealthy child, who
came from an unstable home and received no parental supervision. The jury heard
that, from the age of 9 or 10, Wilson lived on the streets in a difficult
neighborhood. His father figures “came and went” and frequently used drugs. One
such father figure held a gun to Wilson’s mother’s head in view of Wilson. Wilson
struggled with his identity and joined a gang as a substitute for family. The jury
also heard humanizing characteristics, such as Cox’s plea to spare Wilson’s life for
the sake of his 18-month-old daughter, and that Wilson’s biological father had no
role in Wilson’s life. And Kohanski testified that she would have liked to see
images of Wilson’s brain to confirm that he did not have a brain injury.
The Supreme Court of Georgia could have reasonably concluded that the
new evidence “tells a more detailed version of the same story told at trial,” id. at
1260–61. Wilson’s new evidence revealed more details of his difficult background
and included additional humanizing stories and speculation about brain damage.
The only new revelation at Wilson’s evidentiary hearing was that the men in
Wilson’s life abused him. But the evidence of this abuse “was relatively limited in
scope and . . . [not] descripti[ve].” Id. at 1282; cf. Cooper v. Sec’y of Dep’t of
17
Case: 14-10681 Date Filed: 12/15/2014 Page: 18 of 24
Corr., 646 F.3d 1328, 1337, 1349 (11th Cir. 2011). Reasonable jurists could rule
that this evidence was “largely cumulative” of the other evidence of Wilson’s
neglectful childhood. Holsey, 694 F.3d at 1260–61.
The Supreme Court of Georgia could have looked at the overall mix of
evidence, aggravating and mitigating, old and new, and reasonably determined that
a jury would have still sentenced Wilson to death. The jury at Wilson’s trial heard a
large amount of graphic, aggravating evidence, and it would be reasonable to
conclude that Wilson’s new evidence was as hurtful as it was helpful, and largely
cumulative of the evidence presented at trial. We cannot say that the decision of
the Supreme Court of Georgia to deny Wilson’s petition was “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1).
IV. CONCLUSION
We AFFIRM the denial of Wilson’s petition for a writ of habeas corpus.
18
Case: 14-10681 Date Filed: 12/15/2014 Page: 19 of 24
ED CARNES, Chief Judge, concurring:
I join all of the Court’s opinion but write separately to emphasize how
heavily Wilson’s criminal history weighs on the aggravating side of the sentencing
scale. The weight on that side of the scale is an important factor that must be taken
into account in determining whether the failure to present all available mitigating
circumstance evidence was prejudicial. See Bobby v. Van Hook, 558 U.S. 4, 11–
13, 130 S. Ct. 13, 19–20 (2009); Reed v. Sec’y, Fla. Dep’t. of Corr., 593 F.3d
1217, 1240–41 (11th Cir. 2010); Hall v. Head, 310 F.3d 683, 705–06 (11th Cir.
2002).
There is nothing inaccurate in the Court’s two-paragraph summary of the
evidence that the jury heard about Wilson’s history of criminal behavior. Still, the
district court’s more detailed and chronological recounting of that history, drawn
from the evidence presented to the jury at sentencing, is worth quoting. It shows
how continuously and relentlessly anti-social and violent Wilson was, beginning
with his commission of arson when he was 12 years old and culminating in capital
murder seven years later:
The State’s 22 witnesses in the sentencing phase of Wilson’s
trial testified regarding Wilson’s lengthy criminal history and gang
affiliation. The jury heard Wilson [D.O.B. July 29, 1976] started
committing serious felonies when he was twelve and since then was
“either out committing crimes or . . . incarcerated somewhere.”
19
Case: 14-10681 Date Filed: 12/15/2014 Page: 20 of 24
On January 31, 1989, twelve-year-old Wilson and two other
boys started a fire in a vacant duplex apartment in Glynn County. The
residents of the attached unit were home at the time. All three boys
were charged with first degree arson and criminal trespass.
John J. Schrier testified he and his mother lived next door to
Wilson in Glynn County in 1989. After Schrier’s mother, an elderly
heart patient, complained that [twelve- or thirteen-year-old] Wilson
was harassing her and her dogs, Schrier asked Wilson to leave his
mother and her dogs alone. Wilson responded, “I’ll blow you and that
old bitch’s head off.”
Former McIntosh County Sheriff’s Deputy Robert Wayne Hoyt
testified that on December 16, 1991, fifteen-year-old Wilson shot Jose
Luis Valle, a Mexican migrant worker. Brian Keith Glover testified
he and his two cousins were with Wilson the night he shot Valle.
According to Glover, they were standing in the parking lot of a
convenience store when Valle, a stranger to them all, walked past and
into the store. Wilson announced he was going to rob Valle and that
he “wanted to see what it felt like to shoot somebody.” Wilson, who
had a pistol, approached Valle as he left the store. When Valle raised
his arms in the air and turned to run, Wilson shot him in the buttocks.
Glover testified that approximately one week after the incident,
Wilson, who was again carrying a gun, threatened him because of the
statement Glover gave law enforcement about Valle’s shooting.
Glover’s cousin, Oscar Woods, corroborated Glover’s story. The
charges against Wilson were dead-docketed because the authorities
were unable to locate Valle after he was discharged from the hospital.
20
Case: 14-10681 Date Filed: 12/15/2014 Page: 21 of 24
After Wilson was charged with shooting Valle, he was
incarcerated at the Claxton Regional Youth Development Center
(“Claxton RYDC”), where he attacked Steve Nesmith, a youth
development worker. Nesmith testified Wilson assaulted him, kneed
him in the groin, grabbed his legs, and shoved him into a steel door.
After a struggle, another worker and a detainee helped Nesmith
subdue Wilson. Nesmith testified that during the two years he worked
at the Claxton RYDC, Wilson was the only detainee who ever
attacked him.
Daniel Rowe testified he attended school with Wilson. In
January 1993, [sixteen-year-old] Wilson and another boy attacked him
at school as he was drinking from a water fountain. Later the same
day, the two again attacked him.
Corporal Craig Brown of the Glynn County Police Department
testified that on June 9, 1993 [sixteen-year-old] Wilson shot and killed
a small dog for no apparent reason. Juvenile Court Administrator
Phillip Corbitt testified Wilson was charged with cruelty to animals
and, at a June 25, 1993 arraignment, admitted shooting the dog.
On June 10, 1993, the day after he was charged with shooting
the dog, Wilson was charged with possession of crack cocaine with
intent to distribute.
A little more than one month later [and three days shy of his
seventeenth birthday], Wilson shot Robert Loy Underwood.
Underwood testified that on July 26, 1993 he drove into a
neighborhood to look for day labor. While there, he purchased crack
cocaine from two boys. As he drove away, something struck him in
the head. When he turned to see what had hit him, he saw Wilson,
21
Case: 14-10681 Date Filed: 12/15/2014 Page: 22 of 24
who was pointing a pistol at him. Wilson then shot five times into the
cab of Underwood’s truck. One bullet struck Underwood in the head;
another traveled through his arm and lung before lodging in his spine.
Underwood said Wilson then “turned around and just casually walked
off.” Underwood was hospitalized for six days. Wilson was charged
with the shooting, and Underwood identified Wilson as the shooter
during the juvenile proceedings.
Detective Ted McDonald with the Glynn County Police
Department testified Wilson gave a statement in which he claimed he
acted in self-defense when he shot Underwood. However, according
to McDonald, Underwood’s wounds were not consistent with
Wilson’s claims of self-defense. Juvenile Court Administrator Corbitt
testified Wilson admitted shooting Underwood during a juvenile court
hearing.
Sergeant Brandon Lee, an officer with the Georgia College
Department of Public Safety in Milledgeville, testified that on May
25, 1995, not quite two months after Wilson’s release from the
Milledgeville YDC, he found [eighteen-year-old] Wilson and five
others in a Georgia College parking lot shouting at college students.
When Lee asked them to leave the campus, Wilson, whom Lee
described as the obvious leader of the group, became belligerent. The
group then moved to another parking lot two blocks away where they
got involved in another verbal confrontation with students. When
campus police arrived and again asked the group to leave the campus,
Wilson began shouting “gang language” in Lee’s face and refused to
leave. As Lee tried to place Wilson under arrest, Wilson charged
another officer and attempted to grab the officer’s handgun. A
22
Case: 14-10681 Date Filed: 12/15/2014 Page: 23 of 24
struggle ensued, and Wilson ultimately had to be pepper sprayed.
After the confrontation, Wilson was arrested and charged with failure
to leave campus as directed by an officer and felony obstruction of an
officer. Wilson pled guilty to the charges and was banned from the
campus.
Steven Roberts, formerly a law enforcement officer with the
Georgia College Department of Public Safety, testified that on August
1, 1995, Wilson [who had just turned nineteen] was charged with
driving the wrong way on a one-way street and, because he ran when
officers approached his car, obstruction of an officer. Roberts also
testified he saw Wilson on the Georgia College campus on September
28, 1995. Knowing he had been banned from the campus, Roberts
approached [nineteen-year-old] Wilson to arrest him for trespassing.
When instructed to place his hands on the car, Wilson ran.
Maxine Blackwell, Solicitor of Baldwin County State Court,
testified Wilson had been charged with approximately ten
misdemeanor offenses during an eleven week period in 1995 and was
sentenced to serve 60 to 120 days in a detention center.
(Bracketed material added; citations to record and footnotes omitted.)
Wilson’s wholehearted commitment to antisocial and violent conduct from
the age of 12 on not only serves as a heavy weight on the aggravating side of the
scale, it also renders essentially worthless some of the newly proffered mitigating
circumstance evidence. For example, a number of Wilson’s teachers signed
affidavits, carefully crafted by his present counsel, claiming that Wilson was “a
23
Case: 14-10681 Date Filed: 12/15/2014 Page: 24 of 24
sweet, sweet boy with so much potential,” a “very likeable child,” who was
“creative and intelligent,” and had a “tender and good side.” One even said that
Wilson “loved being hugged.” A sweet, sensitive, tender, and hug-seeking youth
does not commit arson, kill a helpless dog, respond to a son’s plea to quit harassing
his elderly mother with a threat “to blow . . . that old bitch’s head off,” shoot a
migrant worker just because he “wanted to see what it felt like to shoot someone,”
assault a youth detention official, shoot another man in the head and just casually
walk off — all before he was old enough to vote.
Without provocation Wilson shot a human being when he was fifteen, shot a
second one when he was sixteen, and robbed and shot to death a third one when he
was nineteen. Those shootings and his other crimes belie the story that his present
counsel put forward in the affidavits from his former teachers, which are part of the
new mitigating circumstance evidence. See Bobby v. Van Hook, 558 U.S. 4, 12,
130 S.Ct. 13, 19 (2009) (“[T]he affidavits submitted by the witnesses not
interviewed shows their testimony would have added nothing of value.’).
Given Wilson’s lifelong commitment to violent crime, and his utter
indifference to human life, reasonable jurists could easily conclude, as the Florida
Supreme Court did, that there is no reasonable probability of a different result if his
trial counsel had discovered and presented the additional mitigating circumstance
evidence that he claims they should have.
24