HARTZ, Circuit Judge.
Defendant Micheal Lee Wilson
We affirm the denial of Defendant's habeas application. In light of the evidence presented at the hearing before the district court, he has not shown that he was prejudiced by the alleged deficiencies in his counsel's performance at trial.
In 1995 Defendant worked at a QuikTrip convenience store in Tulsa, Oklahoma. He, along with accomplices Billy Alverson, Darwin Brown, and Richard Harjo, planned to rob the store. In the early morning hours of February 26, 1995 (two days before Defendant's 20th birthday), the four men entered the QuikTrip, loitering for about an hour while Defendant conversed with the victim, Richard Yost, the employee on duty. In one chilling exchange, Defendant, just 14 minutes before the assault began, asked Yost how long he planned to work at QuikTrip. When Yost answered that he hoped to become store manager someday, Defendant responded "For real?" R., Vol. 3 Tr. Feb. 20, 1997, at 29-30. The conversation and other events in the store were captured on the store's surveillance-camera
While Yost was cleaning the store's coolers, the four men attacked him and dragged him into a back room. Alverson and Harjo briefly left the store while Yost screamed for help. The two men returned with a black aluminum baseball bat and went to the back room, where the robbers beat Yost to death with the bat. Yost was handcuffed during the beating: a piece of handcuff later recovered from his skull indicated that he was conscious and attempting to ward off blows for at least part of the fatal attack.
During the beating Defendant left the back room, donned a QuikTrip jacket, and began attempting to remove the store's safe from its position under the counter. As customers entered the store, Defendant greeted them, rang up their transactions, and wished them a good day. After dislodging the safe, Defendant and his three accomplices fled the store with the safe, the contents of the cash drawer, and the surveillance video. Yost's body, lying in a pool of blood, milk, and beer, was discovered by a customer within a few hours.
All four culprits were arrested later that day. Under police interrogation Defendant confessed to participating in the crime. He stated that the robbery and Yost's killing had been planned for two weeks. Corroborating this admission was evidence that the body alarm typically worn by QuikTrip employees on overnight shifts had been found missing from the store the week before the murder. The safe, the surveillance tape, and several other items from the QuikTrip were recovered from Alverson's home.
Evidence was presented during the guilt phase of Defendant's trial on February 11, 12, and 13, 1997. He did not present any evidence other than the tape-recorded statement of codefendant Brown. Given the irrefutable evidence of guilt, the penalty phase, which began on February 18, was the true contest.
The State alleged three aggravating factors to justify the death penalty: (1) that the murder was committed for the purpose of avoiding or preventing arrest or prosecution, (2) that the murder was especially heinous, atrocious, or cruel, and (3) that Defendant was a continuing threat to society because of the probability that he would commit future crimes of violence. See Okla. Stat. tit. 21, § 701.12 (2011). The first aggravator — murder to avoid arrest or prosecution — was obvious from the evidence at the guilt stage of trial. For the other aggravators, the State offered additional evidence.
To support the second aggravator, a forensic pathologist testified that in his opinion Yost would have suffered during the attack unless he had been rendered immediately unconscious, and he described Yost's injuries, including wounds to Yost's hand and scalp, that indicated his efforts to defend himself. See Willingham v. State, 947 P.2d 1074, 1084 (Okla.Crim.App. 1997) (For a jury to find that the murder was heinous, atrocious, or cruel, "the State must prove conscious serious physical abuse or torture prior to death.").
To prove the continuing-threat aggravator, the State called police witnesses who testified about two recent offenses. First, Defendant had been convicted as an accessory after the fact to the murder of a woman in September 1994 (five months before the Yost murder). The conviction was based on his taking possession of a gun at the principal's request, although, as noted by the OCCA, "the facts revealed that he may have been more involved in this drive-by shooting by providing ammunition
The State also presented victim-impact statements from Yost's wife and mother, both of whom testified to how their lives had been tragically affected by Yost's murder.
In the mitigation case the defense put on five lay witnesses and one expert. Two of Defendant's former teachers and two fellow church members offered similar testimony: that they had known Defendant as a polite, respectful, well-behaved, and intelligent young man and that the murder for which he had been convicted did not represent "the Mike Wilson [they] knew." R., Vol. 3 Tr. Feb. 19, 1997, at 11. On cross-examination the prosecutor elicited that three of the witnesses had last seen Defendant between two and five years earlier and that his criminal conduct suggested that his behavior and character might have changed in the interim.
The other lay witness was Defendant's mother, Patricia Taylor. She testified that his father frequently used crack cocaine, was often absent, and was not a positive influence on Defendant's life; that she had cultivated a loving relationship with Defendant and had attempted to inculcate positive values in him; and that she had visited Defendant in jail almost every week. She also testified that she turned over to police some physical evidence of the murder, including the murder weapon, explaining that she had acted to follow "the rules," and that she expected that doing so would help her son in the long run. Id. at 99. She further testified that immediately after the murder (but before his apprehension), Defendant had returned home in a disturbed emotional state. He said that a man had been killed in a robbery at the QuikTrip, although he did not know how it happened. They then prayed together about the crime. Ms. Taylor concluded with a plea for her son's life.
Defendant's expert witness was Dr. Allan Eugene Reynolds, a clinical psychologist. On direct examination Dr. Reynolds testified to some aspects of his pretrial preparation, stating that he had reviewed information about Defendant's background, including his school, medical, and criminal records; that he had interviewed Defendant's mother; and that he had reviewed statements by lay witnesses. In addition, he had met with Defendant on three occasions at the Tulsa County Jail, and had administered several psychological tests to Defendant: the Slossen Intelligence test; two tests designed to screen for organic brain damage, the Bender Gestalt test and the Memory for Designs test; and two personality tests, the MMPI-2 and the MCMI-III. Defendant also completed a psychosocial questionnaire, and Dr. Reynolds observed and interviewed Defendant in addition to the formal testing.
Dr. Reynolds was not asked about a failure in the testing. He had administered the MMPI-2 on February 6, 1997, and sent the responses to be scored by computer. The PhD psychologist who scored the test reported that the test was probably invalid, and Dr. Reynolds informed Defendant's counsel of the invalidity by February 10, the day before trial
Dr. Reynolds testified to the results of the valid tests. He reported Defendant's IQ as 126, placing him in the "superior" range of intelligence. Id. at 55. He said that there was no indication of organic brain dysfunction but that the personality tests showed that Defendant suffered from a "severe personality disturbance." Id. at 57. He explained:
Id. Dr. Reynolds also said that in reviewing the statements of those who knew Defendant and in observing Defendant himself, he found it "remarkable" that
Id. at 58.
When asked if his psychological analysis could explain "the two Michael Wilsons," Dr. Reynolds spoke of the differences between Defendant's two parents. Id. at 59. He said:
Id. at 59-61.
Dr. Reynolds testified about the gang violence to which Defendant had been exposed from a young age. He identified several particularly traumatic experiences: Defendant's being shot in a drive-by attack
Dr. Reynolds also suggested that Defendant could be rehabilitated because of his superior intelligence. He explained:
Id. at 63.
The prosecutor's cross-examination of Dr. Reynolds elicited a much more disturbing picture of Defendant. It began with the suggestion that Defendant's personality disturbance was that of a psychopath:
Id. at 65. Later, Dr. Reynolds agreed that "a 19-year-old with superior intelligence know[s] right from wrong." Id. at 66.
The prosecutor used published studies to attack the validity of the intelligence and personality tests employed by Dr. Reynolds. But he also elicited some of their conclusions. Dr. Reynolds conceded that the MCMI-III interpretive report stated that "[t]he guiding principle of [Defendant] is to outwit others, exerting power over them before they can exploit him," id. at 69 (internal quotation marks omitted), and that Defendant was "easily provoked" and "may express sudden and unanticipated brutality," id. at 70 (internal quotation marks omitted). He also acknowledged that Defendant had responded "True" to the following statements on the test questionnaire: "Lately, I have begun to feel like smashing things"; "I often get angry with people who do things slowly"; "I have had to be really rough with some people to keep them in line"; and "I sometimes feel crazy-like or unreal when things start to go badly in my life." Id. at 70-71 (internal quotation marks omitted).
Later in the cross-examination the prosecutor returned to the psychopath theme, referring to Dr. Reynolds's prior testimony about the sharp contrast between Defendant's behavior before family and friends and his violent criminal conduct:
Id. at 76.
Dr. Reynolds acknowledged that he did not know what mental-health treatment options would be available to Defendant in prison, and he agreed that without treatment, Defendant would represent a continuing threat to others. Dr. Reynolds also conceded that past violent behavior is the best predictor of future violence.
On redirect examination Dr. Reynolds defended his use of the psychological instruments challenged by the prosecutor. He also expanded on the significance of Defendant's answer on the MCMI-III that he felt "crazy-like":
Id. at 82. Dr. Reynolds went on to note that "[u]sually, unless someone's pretty disturbed, they're not going to answer that true, they're going to answer that false." Id.
Dr. Reynolds further testified that the tests were mere components of his overall evaluation of Defendant, to be interpreted in light of clinical experience, interviews, observations, and Defendant's social history. He stated that Defendant's mental disorders were treatable, reiterated his opinion that Defendant's high intelligence made him a good prospect for rehabilitation, and agreed that in light of Defendant's upstanding behavior in school and church, a structured setting such as prison might have a positive influence on Defendant's conduct and mental state.
During closing argument the prosecutor repeatedly referred to the cross-examination of Dr. Reynolds, describing Defendant as a "psychopath" and a "psychopathic killer." Id., Tr. Feb. 20, 1997, at 46. The defense attorneys had little to counter the argument. They did not discuss Defendant's mental disorder during closing, except to suggest that the "psychopath" label obscured Defendant's humanity and positive characteristics. Their main themes in closing were that there was no evidence proving that Defendant personally participated in the beating of Yost, and that Defendant could reform his life and be of benefit to others if allowed to live.
The jury found all three aggravating circumstances beyond a reasonable doubt and sentenced Defendant to death.
From the time of his original appeal to the OCCA to the present, Defendant has contended that he was denied effective assistance of counsel during the penalty phase of his trial. Adopting the language of a member of this court, Defendant has referred to the cross-examination of Dr. Reynolds as a "`train wreck.'" E.g., Aplt. Br. at 11 (quoting Wilson III, 536 F.3d at 1076 (McConnell, J.)). He attributes Dr. Reynolds's poor performance to tardy and inadequate preparation by defense counsel. He emphasizes that counsel did not retain Dr. Reynolds until shortly before trial and failed to arrange for Defendant to retake the MMPI-2 personality test when the initial results turned out to be invalid. He contends that trial counsel also failed to conduct adequate interviews of family
To give Defendant an opportunity to show the inadequacy of his counsel's performance and what could have been accomplished through the additional steps that he believes counsel should have taken, this court ordered the district court to conduct an evidentiary hearing. See Wilson III, 536 F.3d at 1096. The hearing was held on July 28, 2010. Testifying were Dr. Reynolds; Defendant's lead trial counsel, Joe Paul Robertson, who was director of the Oklahoma Indigent Defense System at the time of the hearing; and Defendant's second-chair trial counsel, Kent Hudson. For our purposes, we need focus only on Dr. Reynolds's testimony.
The thrust of Dr. Reynolds's direct examination was to show that if defense counsel had asked him to do before trial what he did only after the jury had sentenced Defendant to death, he could have arrived at a diagnosis of mental disease that would have explained Defendant's evil misconduct in a way that would generate sympathy from the jury. Dr. Reynolds was purportedly able to arrive at that diagnosis — schizophrenic paranoid personality disorder or paranoid schizophrenic disorder — because he now had a valid MMPI test and had interviews (of Defendant's family and girlfriend) establishing the delusions and hallucinations necessary for the diagnosis. The new diagnosis would also have enabled him to fend off suggestions by the prosecutor that Defendant is a psychopath.
Defense counsel began by marching Dr. Reynolds through his pretrial preparation and his meetings with Defendant. In answer to a question by the court, he then explained the meaning of the invalidity of the MMPI-2 test:
R., Vol. 2 at 62. Even though the test was invalid, Dr. Reynolds thought that the results "indicated that there was a severe disturbance," id. at 63, and he felt that he needed more information to determine what was going on. (The computer-scored report on the test said, "Many individuals with this profile are considered to have severe Personality Disorders; however, the possibility of Schizophrenia, Paranoid type, or of a Bipolar Affective Disorder should also be considered." Id., Vol. 1 pt. 5 at 912. And the report's section on "Symptomatic Patterns" said that Defendant "endorsed a number of extreme and bizarre thoughts, suggesting the presence of delusions and/or hallucinations." Id. at
Id. He said that if he had had more time he "would have redone the MMPI again and probably given him instructions in terms of how, if he didn't understand a question, or if he was unable to comprehend what it was asking, to make a note of it and I would assist him with it so that he would be able to give a more valid result." Id. at 67. He added that he had now done those things.
Dr. Reynolds then testified about the valid pretrial MCMI-III test. The results indicated "that there was a severe personality disturbance, and that the test gave a variety of diagnoses that could be considered." Id. at 68. These included narcissistic personality disorder with passive-aggressive personality traits, schizotypal personality features, generalized anxiety disorder, bipolar disorder, posttraumatic stress disorder, and paranoid personality disorder.
As for the disorder he now diagnosed Defendant as having — schizophrenic paranoid personality disorder — Dr. Reynolds explained that "it would have to have with it auditory hallucinations, and that's where they're hearing things, they're hearing things to be told to do, or they're hearing things, for example, that they're a special person, or maybe there's evil spirits." Id. at 78-79. He said that people with the disorder "have the paranoid ideas that people are out to get them, that they don't really trust people, that they're suspicious of others, and he met that diagnosis." Id. at 79. But, he added, people with the disorder can function in society:
Id. (emphasis added).
Explaining how he arrived at his diagnosis, Dr. Reynolds testified that the statements by lay persons were critical:
Id. at 71-72.
In response to the court's question about how the diagnosis would have affected the jury, Dr. Reynolds said that the mental illness could explain Defendant's motivations:
Id. at 72. Defense counsel later pursued the matter further, asking what was "the most crucial information" about Defendant that Dr. Reynolds could have given the jury but did not. Id. at 89. Dr. Reynolds replied, "I think the discussion of his mental disorders," and went on to assert that this information "was crucial in allowing the jury to know every aspect of Mr. Wilson in this part of the trial, to be able to understand him, possibly understand some of his motivations, understand his behavior, and that his behavior may have had something to do with his mental illness." Id. Dr. Reynolds said that the schizophrenia diagnosis would have presented "a different picture" of Defendant had it been available at trial. Id. at 109. He explained that "my part of the trial, it was basically his intelligence and that he was disturbed. And the picture that we have now is someone who is very seriously disturbed with a psychiatric diagnostic disorder that is very, very severe." Id. He stated that the posttrial diagnosis "superseded the antisocial diagnosis," id. at 96, "simply because of the delusions, the auditory hallucinations, and the test data." Id.
Dr. Reynolds also testified that he could have corrected the prosecutor's use of the term psychopath if he had been properly questioned on redirect examination:
Id. at 91-92.
The prosecutor's cross-examination of Dr. Reynolds at the evidentiary hearing was, if anything, more devastating to Defendant's case than the trial cross-examination of Dr. Reynolds had been. Rather than reporting the cross-examination in chronological order, we organize it by subject matter.
The prosecutor began by pointing out that the term psychopath was not as clinically inappropriate or outdated as Dr. Reynolds had suggested. He noted that the American Psychiatric Association's widely used and authoritative Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000) (DSM-IV-TR), itself says that the term has been used as another name for antisocial personality disorder. Indeed, Dr. Reynolds himself had used the term shortly after the trial. The affidavit that he drafted for Defendant's state-court appeal stated that "psychopath is a term associated with antisocial personality disorder." Id., Vol. 1 pt. 5 at 1011. (The statement was deleted from the affidavit filed with the OCCA.) Dr. Reynolds responded that it would nevertheless be incorrect to use the term because "it's not a DSM-IV diagnosis any longer," id., Vol. 2 at 114, and, in any event, as his affidavit quoted the DSM-IV, "`Antisocial behavior that occurs exclusively during the course of schizophrenia or a manic episode should not be diagnosed as antisocial personality disorder' or psychopathic personality." Id., Vol. 1 pt. 5 at 1011.
The prosecutor challenged whether Dr. Reynolds's diagnosis of Defendant, even if correct, could help explain his behavior at the QuikTrip:
Id., Vol. 2 at 127-29.
The prosecutor also challenged Dr. Reynolds's posttrial diagnosis. He first questioned whether it was consistent with the pretrial MCMI-III, which was valid:
Id. at 123.
The prosecutor then asked about the consistency of the diagnosis with the valid posttrial MMPI-2:
Id. at 126-127 (emphasis added). (The record shows that the computer-scored report of the initial but invalid MMPI-2 had
More dramatically, the prosecutor pointed out that the posttrial MMPI-2 emphatically supported a picture of Defendant that correlated closely with the psychopath image elicited at trial. He asked about a section of the interpretive report for the test that described Defendant as posing a continuing threat to society:
Id., Vol. 2 at 129-131 (emphasis added).
As previously discussed, the basis of Dr. Reynolds's rejection of the diagnosis of
First, the prosecutor asked whether Dr. Reynolds had spoken with any of the witnesses other than Defendant's mother. Although Dr. Reynolds had testified on direct examination that he had conducted interviews with at least two others, he retreated from that assertion on cross-examination, saying that he may have just relied on their affidavits. The exchange continued:
Id. at 118.
Later the prosecutor asked about the specifics of the statements by the various witnesses. He began by questioning Dr. Reynolds about his reliance on three statements by Defendant's girlfriend, Tonya Holt. The first was her statement that he had told her that his father was dead:
Id. at 131-32.
The second Holt statement about which the prosecutor questioned Dr. Reynolds was her statement that Defendant had said his name was Tom, not Micheal:
Id., Vol. 2 at 132-33. The prosecutor did not refer to Holt's statement in her affidavit that when Defendant used the name "Tom," she thought "he was just playing." Id., Vol. 1 pt. 5 at 855.
Third, the prosecutor asked Dr. Reynolds about Holt's suggestion that Defendant had auditory hallucinations:
Id., Vol. 2 at 133-34. Dr. Reynolds's recollection was faulty. The affidavit of Holt in the record states that Defendant told her: "I hear voices & its OK. You just
Next, the prosecutor asked Dr. Reynolds whether his diagnosis was supported by the statement of Defendant's sister that he had told school officials that his mother was white. Dr. Reynolds said that he did not recall how old Defendant was when he made the statements. The prosecutor reminded Dr. Reynolds that the sister said that it was when they were in school together. (The sister's affidavit states that Defendant was "just a kid" at the time. Id. at 864.) He then continued:
Id., Vol. 2 at 134-35. Dr. Reynolds could not recall when Defendant had been seen at the center, but he was given records showing that Defendant was 16. Dr. Reynolds then acknowledged that the doctors at the center had found no indication of psychotic behavior, specifically reporting the absence of delusions or hallucinations.
Similarly, the prosecutor suggested that another supposed delusion cited by Dr. Reynolds was not indicative of mental illness:
Id., at 136.
Later the prosecutor inquired whether Defendant's alleged paranoia might be rational, rather than delusional:
Id. at 138-39.
We also note a matter not explored during the hearing. Present in the record submitted to the district court was a telling discrepancy between Defendant's responses on the pretrial invalid MMPI-2 and the posttrial valid MMPI-2. In the pretrial MMPI-2, under the "Critical Items" section for "Mental Confusion," the interpretive report indicated that Defendant had answered "True" when asked to respond to the statement "I often hear voices without knowing where they come from." Id., Vol. 1 pt. 5 at 922. (Dr. Reynolds's handwritten notes on the pretrial report reflect that Defendant told him that when he was in jail he heard two voices telling him to hang himself. Dr. Reynolds did not recall when he wrote the notes.) But on the posttrial MMPI-2 under the same Critical Items section, no such response is noted, meaning that Defendant apparently did not answer this item "True" during the re-test. When administering the re-test, Dr. Reynolds had instructed Defendant to ask for clarification or assistance if he had difficulty understanding any of the questions.
This discrepancy may partly account for the fact that while the invalid MMPI-2 suggested that "Schizophrenia, Paranoid type" should be considered as a possible diagnosis, id. at 912, the valid MMPI-2
On redirect examination Dr. Reynolds reiterated his belief that he reasonably relied on the witness affidavits in forming his clinical opinion, and that he had not needed to interview the witnesses to obtain adequate information. He clarified that although the valid MMPI-2 had contained indications of antisocial behavior, he thought that those patterns were "part of a paranoid schizophrenic process." Id., Vol. 2 at 146. He testified that the actions of Type C offenders can be controlled in a prison. And he stated that the absence of delusions and hallucinations reported in Defendant's medical records from age 16 did not negate the schizophrenia diagnosis, because the onset of the disorder is typically later in life.
Generally, when an applicant seeks relief from a state court conviction or sentence under 28 U.S.C. § 2254, we must apply the deferential standard of review established by the Antiterrorism and Effective Death Penalty Act (AEDPA). If the state court adjudicated the federal claim that the applicant now presses on the merits,
Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir.2004) (quoting 28 U.S.C. § 2254(d)(1)).
On direct appeal from his conviction and sentence, Defendant pressed his ineffective-assistance claim before the OCCA, supported by affidavits from Dr. Reynolds and his family and girlfriend. Defendant requested an evidentiary hearing on the claim under Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1995). The OCCA denied relief on the claim and Defendant's request for an evidentiary hearing. See Wilson I, 983 P.2d at 471-72. Although noting Defendant's "attempt to supplement the record with material not found in the record," id. at 472, the OCCA held that on the basis of its "review of the trial record," Defendant had failed to demonstrate either deficient performance or prejudice on the mental-health issue, id.
On Defendant's prior appeal we held that AEDPA deference was not required because the OCCA's denial of Defendant's request for an evidentiary hearing was not an adjudication "on the merits" within the meaning of 28 U.S.C. § 2254(d). We noted (1) the OCCA's apparent failure to consider Defendant's nonrecord evidence in denying his request for an evidentiary hearing, and (2) the higher threshold for triggering an evidentiary hearing under the OCCA's Rule 3.11 than permitted under the federal standard stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Wilson IV, 577 F.3d at 1290-1300.
The State argues that we should "restore" AEDPA deference to the OCCA's
In evaluating Defendant's claim that his Sixth Amendment rights were violated by ineffective assistance of counsel at the sentencing proceedings, we apply the standard laid out in Strickland, 466 U.S. at 687, 104 S.Ct. 2052:
In conducting this two-part inquiry, we need not address the performance and prejudice prongs in that order. See id. at 697, 104 S.Ct. 2052 (Because defendants must establish both components to prevail, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies."). Here, we need address only prejudice.
"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S.Ct. 2052. In a challenge to a capital sentence, "the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695, 104 S.Ct. 2052. We "must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." Id. at 696, 104 S.Ct. 2052.
To resolve whether there was prejudice, we do not consider omitted mitigation evidence in a vacuum. In Wong v. Belmontes, 558 U.S. 15, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009), the defendant was sentenced to death after his counsel presented evidence of his difficult family background during the sentencing hearing but declined to introduce certain additional mitigating evidence (including expert testimony to explain his behavior, see id. at 388-89, and evidence of a serious illness that caused "emotional instability, impulsivity, and impairment of the neurophysiological mechanisms for planning and reasoning," id. at 389 (internal quotation marks omitted)) out of concern that it would open the door for the prosecution to introduce evidence of a prior murder committed by the defendant, see id. at 385-86. Counsel's concern that this extremely harmful evidence would be admitted if he introduced certain mitigating evidence was supported by the trial court's warning that it would allow the prosecution to put on the evidence if the defense presented substantial evidence of the defendant's nonviolent character. See id. at 386. Rejecting the defendant's ineffective-assistance-of-counsel claim for failure to demonstrate prejudice, the Supreme
In reviewing the district court's conclusion that Defendant was not prejudiced by his counsel's alleged deficiencies, "we accept the district court's underlying factual findings unless clearly erroneous, and we review de novo ... whether any deficiencies prejudiced the defendant." United States v. Rodriguez-Rivera, 518 F.3d 1208, 1216 (10th Cir.2008) (internal quotation marks omitted). The court ruled that introduction of the additional mental-health evidence submitted by Defendant at the court's hearing on remand might well have been a double-edged sword, "support[ing] the prosecution's portrayal of [Defendant] as a dangerous and continuing threat to society." Wilson V, 2011 WL 744661, at *26. Because of the "distinct possibility that additional mental health evidence might have been counterproductive and harmed Defendant's mitigation case," the district court could not "conclude that additional evidence of [Defendant's] mental health problems would have affected the jury's imposition of the death penalty." Id. We agree with the district court that Defendant has not shown that trial counsel's alleged deficiencies prejudiced him.
We first address Defendant's argument that the witnesses who provided affidavits for his appeal, including his sister, brother, and girlfriend, should have been called during the mitigation case and that their testimony may have convinced jurors to vote against death.
We look to the posttrial affidavits as proffers of how these witnesses would have testified. These affidavits assert that Defendant was affected by gang violence from his youth, stating that he sustained a gunshot injury in a drive-by shooting; that he was frequently targeted by rival gang members, who shot at him, vandalized his car, and burned the house he shared with his mother; and that he was attacked by gang members, including members of his own gang, while incarcerated. But the jury heard about the drive-by shooting and arson incident during Dr. Reynolds's testimony on Defendant's social history. Although Dr. Reynolds did not speak from first-hand knowledge about either incident, neither, so far as the record shows, could any of the omitted witnesses. The additional matter would not have qualitatively altered the picture of Defendant's exposure to violence and could have merely emphasized his gang involvement.
The omitted witnesses might also have testified to some of Defendant's unusual behaviors and thought processes, which Dr. Reynolds thought indicative of a mental disorder. The value of this evidence, however, depends on the value of Dr. Reynolds's use of it, a matter we address in the next section of this opinion. Suffice it to say now that Defendant gives no reason to suppose that the evidence would have been more effective if presented by the witnesses in person (and subject to cross-examination), rather than through Dr. Reynolds's testimony.
Defendant's chief argument regarding prejudice relates to Dr. Reynolds's testimony. According to Defendant, had Dr. Reynolds been given sufficient time and information to conduct all necessary interviews and psychological tests properly, he would have arrived at his diagnosis of schizophrenic paranoid personality disorder before trial and, if properly prepared by counsel, could have presented that diagnosis to the jury and explained how Defendant's background contributed to his mental illness, demonstrated that Defendant's mental illness affected his behavior and caused him to have difficulty conforming his conduct to the law, and helped the jury understand the motivation for Defendant's actions, thereby calling into question Defendant's moral culpability. Defendant contends that conveying this information would have caused at least one juror to believe that Defendant was not deserving of capital punishment. And he asserts that had counsel performed properly, the prosecutor would not have been able to elicit testimony from Dr. Reynolds that supported the prosecutor's repeated characterizations of Defendant as a psychopath.
In evaluating these claims of prejudice, we look to the testimony at the evidentiary hearing, together with the exhibits offered in evidence at that hearing, to see what likely would been presented at trial if Defendant's counsel had done what he contends they should have. Our review indicates that Defendant would have been no better off with the evidence presented at the hearing, and in significant ways would have been worse off.
We start with the MMPI-2. Since his direct appeal, Defendant has laid great stress upon the failure to obtain a valid MMPI-2 before trial. Dr. Reynolds's affidavit submitted to the OCCA in support of an evidentiary hearing states: "There was some evidence for a diagnosis of schizophrenia but because his first MMPI-2 was invalid, I needed additional testing, and further collateral data to support this diagnosis. Unfortunately, there wasn't enough time to obtain this information before the trial." R., Vol. 1 pt. 5 at 845.
But the evidence from the hearing demonstrates that having Defendant retake the test did not help his case. The valid test contradicted more than it supported Dr. Reynolds's transition to a diagnosis of paranoid schizophrenic disorder. The interpretive report for the invalid test stated: "Many individuals with this profile are considered to have severe Personality Disorders; however, the possibility of Schizophrenia, Paranoid type, or of a Bipolar Affective Disorder should also be considered." Id. at 912 (emphasis added). But the valid test's interpretive report said: "Individuals with this MMPI-2 clinical profile are usually diagnosed as having a Personality Disorder, Antisocial type." Id. at 1017. It did not suggest that schizophrenia be considered as a possible diagnosis.
Worse for Defendant, the interpretive report of the valid MMPI-2 emphatically bolstered the prosecution's position that Defendant was a continuing threat to society. The invalid test's interpretive report said that Defendant "fits equally well into more than one classification according to the Megargee classification," which was described as a "system for classifying male criminal offenders." Id. at 912. The report did not say which classifications Defendant fit within, nor did it describe the characteristics of those classifications. The valid test's interpretive report, however, painted Defendant as being the most despicable type of criminal. It said:
Id. at 1017 (emphasis added). This is a roadmap for one seeking to portray Defendant as a dangerous criminal who could not safely be allowed to live.
When confronted at the evidentiary hearing with these statements contradicting his diagnosis of Defendant, Dr. Reynolds stated that the test's suggested diagnoses merely provided "a hypothesis that you then correlate with collateral data." Id., Vol. 2 at 126. But the value of the collateral data on which he relied — the statements by members of Defendant's family and his girlfriend that Dr. Reynolds found to be evidence of Defendant's delusions and hallucinations — was undermined by the cross-examination of Dr. Reynolds at the § 2254 evidentiary hearing. Indeed, Dr. Reynolds's insistence that the statements provided clear support for the diagnosis suggested sloppy analysis and bias, raising serious question about his credibility.
We note a few examples. First, as evidence of Defendant's delusions, Dr. Reynolds referred to the statement by Defendant's sister that years earlier, when she and Defendant had attended the same school, Defendant had told school officials that the two of them had different mothers and that his mother was white. But the statement was made when Defendant was "just a kid," id., Vol. 1 pt. 5 at 864, and a later mental-health evaluation of Defendant administered by Children's Medical Center when he was 16 reported no delusions or hallucinations. After being confronted by this information on cross-examination, Dr. Reynolds tried to explain away the mental-health evaluation during his redirect examination by noting that "usually the onset [of paranoid schizophrenia] is late teens to the early forties." Id., Vol. 2 at 146. The explanation, however, merely emphasizes the irrelevance of the "white mother" incident during Defendant's childhood.
Second, Dr. Reynolds said that the presence of delusions and hallucinations was supported by the untrue statement of Defendant to his girlfriend, Tonya Holt, that his father was dead. Dr. Reynolds testified on cross-examination that he had no "possible nonpsychotic explanation" for Defendant's statement, id. at 132, even after he had conceded that Defendant's father was a man with drug and alcohol issues who was "pretty much" a non-entity in Defendant's life, id. at 131, and the prosecutor had suggested that Defendant was simply embarrassed by his father. Most remarkably, the very statement by Holt relied on by Dr. Reynolds continued: "[Defendant] never explained to me why he said his father was dead. I thought [Defendant] meant his father Oscar was not being a father." Id., Vol. 1 pt. 5 at 854.
The best of this evidence of hallucinations was Holt's statement that Defendant had told her that he heard voices. But even on this point Dr. Reynolds misremembered facts that may have been relevant to his diagnosis. At the evidentiary hearing the prosecutor asked whether "[Defendant] state[d] you can pray [the voices] away if you just pray hard enough, fight hard enough." Id., Vol. 2 at 133. Dr. Reynolds responded: "Well, no, that's not what he said. I don't think he said that you can pray them away or if you pray hard enough, but that was an attempt which is very common for people with this disorder to make these voice goes [sic] away." Id. at 133-34. The prosecutor was not wrong. According to Holt, "[Defendant] told me, `I've heard them too, I hear voices & its OK. You just have to fight them, you just have to pray them away and they will go away.'" Id., Vol. 1 pt. 5 at 856.
Another point on which Dr. Reynolds looked foolish was his finding that Defendant suffered from paranoia. He said in his affidavit: "[Defendant's] delusions appear to be of a grandiose and paranoid type. He believes ... that he is being plotted against." Id. at 848. But Defendant was a gang member, and a rival gang had shot him and set his mother's home ablaze. Dr. Reynolds's struggle to construct a finding of delusional paranoia can be illustrated by the statement in his affidavit that Defendant's sister "described him as very suspicious and paranoid," id. at 847, when her full statement was:
Id. at 865 (emphasis added).
In sum, Defendant has utterly failed to show that additional testing and interviews would have produced a plausible diagnosis of paranoid schizophrenic disorder. Nor has Defendant shown that better preparation of Dr. Reynolds could have eliminated or weakened the prosecutor's success at trial in characterizing Defendant as a psychopath. The term is used in the DSM-IV. It was even used by Dr. Reynolds in his draft affidavit for use in the appeal to the OCCA, before it was deleted in the editing process. And little would have been gained by prohibiting use of the term because the description in the valid MMPI-2 of the Defendant's profile — a Type C offender in the Megargee typology — explicitly describes the vision of evil evoked by the word psychopath.
Defendant's evidence from the hearing also failed to establish any connection between Dr. Reynolds's diagnosis of Defendant and his commission of the murder. Although Dr. Reynolds testified that
Finally, insofar as Defendant contends that his counsel were ineffective in not even presenting adequately what Dr. Reynolds had determined from the information obtained before his trial testimony, Defendant has not satisfied his burden of showing what more Dr. Reynolds could usefully have said. He argues that the jury should have been presented "a complete picture of [Defendant's] mental health," Aplt. Br. at 40; but he does not describe what that picture was. At most, from what we can tell from the record, Dr. Reynolds had several possible diagnoses stated in the interpretive report on the valid MCMI-III test; but we have no way of assessing how that would have played out at trial, particularly when Dr. Reynolds has never stated that he had adopted one of those diagnoses at the time of his trial testimony. Defendant also states that Dr. Reynolds could have testified at trial that those with mental disease "have less capability of controlling their behavior in regards to the law." Id. at 38 (quoting R. Vol. 2 at 88). Such a vague, generalized statement, however, is not the sort of mental-health evidence that courts rely on to show prejudice; indeed, this statement seems as probative of future dangerousness as of diminished moral culpability.
We are not denigrating the value of mental-health evidence to support mitigation in a capital case, nor are we departing from our precedent addressing such evidence. We do not dispute that mental retardation and organic brain damage are well-recognized grounds for mitigation. See Hooks v. Workman, 689 F.3d 1148, 1205 (10th Cir.2012) (organic brain damage); Anderson v. Sirmons, 476 F.3d 1131, 1144 (10th Cir.2007) (brain damage) Smith v. Mullin, 379 F.3d 919, 941-42 (10th Cir. 2004) (mental retardation and brain damage); see also Atkins v. Virginia, 536 U.S. 304, 306, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (prohibiting execution of the mentally retarded, partly because they "do not act with the level of moral culpability that characterizes the most serious adult criminal conduct"). And if (1) the record had supported a plausible diagnosis of paranoid schizophrenia and (2) Defendant's behavior during the crime could have been tied to that disorder, this would be a different case.
We conclude that Defendant has not satisfied his burden of showing that the jury's sentence of death "would reasonably likely have been different absent the errors" of his counsel. Strickland, 466 U.S. at 696, 104 S.Ct. 2052. Accordingly, we must deny relief.
We AFFIRM the district court's denial of Defendant's claims under § 2254.
GORSUCH, Circuit Judge, concurring.
The court convincingly explains why, even viewed de novo, the evidence that emerged during the district court's evidentiary
That, of course, was what the district court thought from the start. When the case originally came to it, the district court held that the OCCA's ruling on Mr. Wilson's state court Rule 3.11 motion amounted to an adjudication on the merits of his Sixth Amendment claim, applied AEDPA deference, and held the OCCA's decision neither an unreasonable adjudication of federal law nor based on an unreasonable determination of the facts. See Wilson v. Sirmons, No. 00-CV147CVEFHM, 2006 WL 2289777, at *41-43 (N.D.Okla. Aug. 8, 2006).
Then things took a turn. Years of wrangling on appeal intervened and at the end of it all this court reversed, instructing the district court to hold an evidentiary hearing and conduct a de novo review of Mr. Wilson's claim. This court reasoned that the OCCA's Rule 3.11 decision failed to constitute an "adjudication on the merits" of Mr. Wilson's Sixth Amendment claim so the district court could afford it no deference. Wilson v. Workman, 577 F.3d 1284, 1290-93, 1299-1300 (10th Cir. 2009) (en banc). On remand, the district court proceeded to do as instructed, and did the job thoroughly and well. But this whole process has turned out to be as needless as it was protracted. As our recent decision in Lott v. Trammell, 705 F.3d 1167, 1211-13 (10th Cir.2013), explains, Wilson no longer controls: intervening events have undone the essential premises on which it rested.
Rule 3.11 requires the OCCA to decide whether a petitioner has shown a "strong possibility" his counsel was constitutionally ineffective. From this it seems plain enough that an adjudication of a Rule 3.11 motion necessarily adjudicates a Strickland claim on the merits entitled to deference under 28 U.S.C. § 2254(d). If anything, Oklahoma's standard appears less demanding than Strickland, requiring the petitioner to show only a strong possibility of a constitutional violation, not an actual constitutional violation. That, of course, is exactly what the district court held.
Wilson, however, decided otherwise. It ruled that the OCCA's Rule 3.11 decisions don't constitute "adjudications on the merits" of Strickland claims entitled to deference under AEDPA. They don't, Wilson said, because — as a matter of state law — the OCCA doesn't have to consider evidence outside the trial and direct appeal record developed collaterally by the petitioner. Put simply, this court held that a ruling on such an "incomplete record" is not "an adjudication on the merits to which we owe any deference." Wilson, 577 F.3d at 1291.
Since then, however, the OCCA has explained that Wilson was mistaken in its understanding of Oklahoma law. In fact, Rule 3.11 "obligates" the OCCA in every case to "thoroughly review and consider a defendant's Rule 3.11 application and affidavits along with other attached non-record evidence." Lott, 705 F.3d at 1213 (alterations omitted) (quoting Simpson v. State, 230 P.3d 888, 905 (Okla.Crim.App. 2010)). Thus, the essential premise on which Wilson stood has now evaporated. It turns out the OCCA does review all of a petitioner's evidence, even evidence outside the trial and direct appeal record. Neither may we ignore the OCCA's interpretation of its own rule. After all, state courts, not we, have the final say when it comes to explaining the meaning of state law. See Lott, 705 F.3d at 1213.
Of course, while the petitioner in a state Rule 3.11 motion enjoys a lower standard of proof than in a federal Strickland claim, he also faces what appears to be a higher evidentiary burden. See Wilson, 577 F.3d at 1297. To win a Rule 3.11 motion in
Once again, however, the OCCA has since intervened. And once again it has assured us that its evidentiary standard is "intended to be less demanding than the test imposed by Strickland." Lott, 705 F.3d at 1213 (quoting Simpson, 230 P.3d at 906) (emphasis added). It has clarified that "when [it] review[s] and den[ies] a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, [it] necessarily make[s] the adjudication that Appellant has not shown defense counsel to be ineffective under the more rigorous federal standard set forth in Strickland." Id. (alterations in original) (quoting Simpson, 230 P.3d at 906). And, once again, the OCCA's views of state law are controlling. Even if its interpretation doesn't seem obvious to us, a state court is free to interpret its evidentiary rules as it wishes and free to interpret a state "clear and convincing" standard as requiring no more proof than the federal "preponderance of the evidence" standard. Certainly the State of Oklahoma in Wilson understood Rule 3.11's evidentiary standard to require no more and after the OCCA's ruling in Simpson that understanding seems to stand confirmed. As Lott has recognized, we must now accept "as a matter of federal law" that a Rule 3.11 ruling "operates as an adjudication on the merits of the Strickland claim and is therefore entitled to deference under § 2254(d)(1)." Id.
Of course, if the OCCA should later rule in a way that suggests it is using a higher evidentiary standard than Strickland employs we would have renewed questions. In those circumstances, it seems to me the use of a higher evidentiary standard than federal law prescribes could very well render the OCCA's adjudication of a particular federal claim unreasonable — and so reversible — under § 2254(d)(1). But while the OCCA's choice of a different but conventional rule of evidence than federal courts use when ruling on a federal claim might expose it to a greater chance of reversal when the case comes to federal court, it is less clear to me whether that might render the state court's final decision on the claim something entirely alien, something other than an adjudication on the merits of the claim entitled to deference in the first instance.
Happily, though, none of these potential problems appears to be live ones today. For now, the essential state law premises on which Wilson rested no longer appear operative, having been superseded by the
Mr. Hudson testified that he did not recall any coordination of strategy between the lay witnesses (whom he handled) and the expert testimony. He also testified that during his many interactions with Defendant, he had never noticed any signs or symptoms of mental illness.
R., Vol. 1 pt. 5 at 1017.
R., Vol. 1 pt. 5 at 856.
