United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
a 28 U.S.C. § 2254 habeas corpus action. In a prior
Opinion and Order (Doc. 20), the Court denied
Respondent's motion to dismiss for failure to exhaust
state remedies, finding that although Petitioner's claims
raised in Ground 3 of the petition have not been presented to
the state courts, it would be futile to require Petitioner to
return to state court because the claims would be denied as
procedurally barred. Thereafter, the parties filed response
briefs in compliance with the Court's directives.
See Docs. 21, 26, 29. Respondent also provided the
state court record (Docs. 26, 27, 28). For the reasons
discussed below, the petition shall be denied.
7:30 and 8:00 a.m., on January 31, 2008, Antonio Nears was
shot and killed while sleeping in the same bed with his
girlfriend, Kiona Woodson (Kiona), and one of the
couple's three-week-old twins. Nears was shot at least
twelve times at very close range. The shooting occurred at
the home of Kiona's grandmother, Ruthie Jones, located at
4063 East 22nd Place, Tulsa, Oklahoma, a few blocks south of
the Tulsa Fairgrounds. During a 911 call placed moments after
the shooting, Kiona identified the shooter as her uncle,
Travis Wilson. The shooter fled the scene on foot. A police
canine unit followed a track leading to the Pavilion, a
building located on the north side of the fairgrounds. Within
days of the shooting, Petitioner Travis Wilson was taken into
custody in Hutchinson, Kansas, where he had gone to visit a
relative. On March 2, 2008, more than a month after the
shooting, Tulsa Police recovered a handgun found in the
bushes outside the Pavilion. The recovered handgun was used
in the shooting of Antonio Nears.
October 16, 2009, a jury convicted Petitioner of First Degree
Murder in Tulsa County District Court, Case No. CF-2008-518.
On November 2, 2009, the trial judge sentenced Petitioner, in
accordance with the jury's recommendation, to life
imprisonment. Attorney Kevin D. Adams represented Petitioner
perfected a direct appeal at the Oklahoma Court of Criminal
by attorney Laura M. Arledge, Petitioner raised eight (8)
propositions of error as follows:
Proposition 1: There was insufficient evidence to convict Mr.
Wilson of First Degree Murder.
Proposition 2: The discriminatory use of peremptory
challenges against minority jurors violated Mr. Wilson's
Sixth and Fourteenth Amendment constitutional rights to equal
protection and to an impartial jury drawn from a
cross-section of the community.
Proposition 3: The trial court abused its discretion in
admitting hearsay evidence which irreparably prejudiced Mr.
Proposition 4: Even if the court finds that admission of the
911 call was admissible, that the State played it three times
during trial constituted needless presentation of cumulative
evidence, which prejudiced Mr. Wilson.
Proposition 5: Mr. Wilson was prejudiced due to prosecutorial
misconduct in violation of his right to a fair trial.
Proposition 6: Trial court committed error by allowing
evidence to be admitted with insufficient chain of custody in
violation of Mr. Wilson's right to due process and
fundamentally fair trial.
Proposition 7: Mr. Wilson received ineffective assistance of
trial counsel in violation of his constitutional right to
Proposition 8: The cumulative effect of all the errors
addressed above deprived Mr. Wilson of a fair trial.
(Doc. 26-1). In an unpublished summary opinion, filed October
19, 2011, in Case No. F-2009-1014 (Doc. 26-5), the OCCA
affirmed the trial court's Judgment and Sentence.
23, 2012, Petitioner filed a pro se application for
post-conviction relief in the state district court.
See Doc. 16-3 at 2 ¶ 6. However, the
application was dismissed without prejudice because it was
not verified. Id. On September 10, 2012, Petitioner
filed a pro se amended application for
post-conviction relief. Id. at ¶ 7. Thereafter,
Petitioner retained attorney Donn F. Baker to represent him
in the post-conviction proceeding. Id. at ¶ 8.
The state district court held a hearing on the amended
application and, by Order filed August 6, 2013, denied the
amended application for post-conviction relief. Id.
at ¶¶ 9, 10. On August 27, 2013, Petitioner filed a
post-conviction petition in error (Doc. 16-3). Petitioner
claimed that “the District Court erred in finding that
Kiona Woodson's testimony at the preliminary hearing and
her trial testimony was not false and was not inconsistent
with her affidavit attached to the Amended Application for
Post-Conviction Relief, as well as her testimony at the
hearing on post-conviction relief.” Id. at
2-3, ¶ 12. By Order filed April 17, 2014, in Case No.
PC-2013-809 (Doc. 16-5), the OCCA affirmed the denial of
1, 2014, Petitioner, represented by attorney Baker, filed his
federal petition for writ of habeas corpus (Doc. 1), along
with a supporting brief (Doc. 3). In the petition, Petitioner
identified three (3) grounds of error, as follows:
Ground 1: The evidence presented at trial was insufficient to
support Petitioner's convictions [sic] for Murder in the
First Degree. Supporting facts: The only witness to connect
Petitioner to the offense recanted her allegations prior to
trial and at trial. Further, there was no evidence connecting
Petitioner to the murder weapon.
Ground 2: Admitting the 911 tape into evidence violated Rule
803(2), Due Process Clause, and was prejudicial and
cumulative. Supporting facts: Admitting the 911 tape into
evidence violated Rule 803(2) because it was not as [sic] an
excited utterance. Admitting the 911 tape at trial was
prejudicial and violated Due Process, and playing it multiple
times during trial was prejudicial and cumulative.
Ground 3: Ineffective assistance of trial and appellate
counsel. Supporting facts: Trail [sic] counsel improperly
interfered with Petitioner's right to testify at trial
and appellate counsel did not raise the issue in direct
appeal, despite Petitioner's request to do so.
1). Petitioner states that he raised grounds 1 and 2 on
direct appeal, but admits that his ground 3 claims were not
raised on either direct or post-conviction appeal.
Id. at 6, 7, 9. In response to the petition, Respondent
filed a motion to dismiss (Doc. 15), arguing that the
petition should be dismissed without prejudice as a mixed
petition containing both exhausted and unexhausted claims. As
stated above, the Court denied the motion to dismiss.
See Doc. 20. Thereafter, Petitioner filed a
“brief regarding procedural default” (Doc. 21).
Respondent filed a response (Doc. 26) addressing
Petitioner's exhausted claims and the argument set forth
by Petitioner with regard to the anticipatory procedural bar.
Respondent also provided the state court record (Docs. 26,
27, 28). Petitioner filed a reply (Doc. 29).