United States District Court, N.D. Iowa, Western Division
OMAR R. WILKINS, Petitioner,
NICK LUDWICK, Respondent.
MEMORANDUM OPINION AND ORDER REGARDING REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
MARK W. BENNETT, District Judge.
A. Procedural Background
In this action, petitioner Omar Wilkins seeks federal habeas corpus relief, pursuant to 28 U.S.C. § 2254, from his January 31, 2003, conviction and life sentence in Iowa court for first-degree felony murder for the shooting of David Hayes during a drug transaction on July 3, 2002. Wilkins's claims for relief, as condensed, clarified, and briefed by appointed counsel and considered by the magistrate judge to whom I referred the case, are the following: (1) ineffective assistance of counsel for failure to object to the prosecution's use of Wilkins's nickname "O.J."; and (2) ineffective assistance of counsel for failure to investigate information from and to call as a witness Kevin Johnson, whom Wilkins contends would have testified that, while Johnson was in jail, Johnson overheard persons present at Hayes's shooting who were in jail with him conspire to identify Wilkins as the shooter. By Order (docket no. 16), filed October 28, 2013, I referred this entire action, including all pending motions, to United States Magistrate Judge Leonard T. Strand for review of the record and the pleadings, the conduct of any necessary evidentiary hearing, the hearing of any oral argument that might be necessary, and the submission to me of a report and recommended disposition of the case.
On July 21, 2014, Judge Strand filed his Order On Pending Motions And Report And Recommendation On Petition For Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 (docket no. 45). After an extension of time to do so, Wilkins's appointed counsel filed "Objections To Magistrates [sic] Report And Recommendations" (docket no. 48) on August 15, 2014. On August 25, 2014, the respondent filed a Response To Petitioner's Objections To Report And Recommendation (docket no. 49). On August 27, 2014, the Clerk of Court received and filed Wilkins's "Pro-se Objections To Magistrates [sic] Report And Recommendations" (docket no. 50), which were postmarked August 25, 2014. On August 27, 2014, the respondent filed a Motion To Strike Petitioner's Pro Se Brief (docket no. 51), relating to Wilkins's pro se Objections. Wilkins filed no timely response to the respondent's Motion To Strike. Thus, the time is ripe for my review of Judge Strand's Report And Recommendation pursuant to 28 U.S.C. § 636.
B. The Report And Recommendation
In his Report And Recommendation, Judge Strand first considered Wilkins's claim of ineffective assistance of trial counsel concerning the prosecution's use of Wilkins's nickname "O.J." Judge Strand concluded that, on direct appeal of Wilkins's conviction, the Iowa Supreme Court had applied a standard applicable to misconduct of a prosecutor to this claim, not the standard for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), which was contrary to clearly established federal law. Report And Recommendation at 21-22. Thus, Judge Strand reviewed this claim de novo under the Strickland standard, by conducting his own review of the transcript. Id. Judge Strand noted that the prosecutor used "O.J." to identify Wilkins well over 100 times in his examination or cross-examination of numerous witnesses. Id. at 22-24. He then concluded that, even if the failure of trial counsel to object to these uses of "O.J." could be considered deficient performance, Wilkins had failed to demonstrate prejudice, as required to obtain relief under Strickland. Id. at 24. Judge Strand took note of various decisions finding that use of references to O.J. Simpson, to "getting away with it" like O.J. Simpson, or to other comparisons of criminal defendants to O.J. Simpson were prejudicial. He distinguished these cases, however, on the ground that, in Wilkins's case, "the trial transcript indicates that use of the name O.J.' was primarily guided by witness testimony and used to identify the defendant, " for example, when a witness stated that he or she knew Wilkins as "O.J., " so use of the nickname was "to avoid confusion." Judge Strand also noted that there were no attempts by the prosecutor to compare Wilkins or his defense to O.J. Simpson or O.J. Simpson's defense. Id. at 24-25.
Furthermore, Judge Strand recognized that there was no specific jury instruction on this issue, but he observed that the jury was instructed on what it could and could not consider, including instructions that the jury must base its verdict only on the evidence and the instructions that were given, not on statements, arguments, questions, or comments by the lawyers. Id. at 25. Judge Strand also noted that the evidence included multiple witnesses' testimony and sworn statements to police that Wilkins was the one who shot Hayes. Id.
On this claim, Judge Strand ultimately concluded,
For these reasons, I find Wilkins has not demonstrated a reasonable probability that the result of his trial would have been different had his counsel objected to use of the nickname "O.J." at trial. Therefore, counsel's failure to object to the use of "O.J." does not amount to ineffective assistance of counsel under Strickland.
Report And Recommendation at 25-26.
Judge Strand next considered Wilkins's claim of ineffective assistance of trial counsel based on his failure to investigate information from and to call as a witness Kevin Johnson, whom Wilkins contends would have testified that, while Johnson was in jail, he overheard persons who were present at Hayes's shooting, who were in jail with him, conspire to identify Wilkins as the shooter. Judge Strand concluded that, because the Iowa Court of Appeals had identified Strickland as the standard applicable to this claim, on Wilkins's appeal of denial of his petition for state post-conviction relief, the state court had used the correct governing standard. Thus, he concluded that the question was whether the state court's application of Strickland was unreasonable under § 2254. Report And Recommendation at 28. Judge Strand concluded,
I find that the Iowa Court of Appeals reasonably applied Strickland in concluding Wilkins had not demonstrated prejudice from his counsel's failure to investigate information from Johnson and call him as a witness at trial. The court acknowledged that Johnson's testimony would have only provided an additional basis to discredit three of the state's witnesses. It also suggested that it would have been difficult for the jury to credit Johnson's testimony because Edwards and Burden [two other witnesses present at the time of the shooting] had each provided prior consistent statements to police that Wilkins was the shooter before any of the jailhouse conversations Johnson overheard in August 2002. Moreover, Coleman and Smith (who were not parties to the jailhouse conversations) [but were also present at the time of the shooting] identified Wilkins as the shooter shortly after the event. Finally, the court also reasoned that Johnson's testimony would have been inconsistent with Wilkins's defense theory ...