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Wilson v. Dowling

United States District Court, N.D. Oklahoma

July 7, 2017

JANET DOWLING, Warden, [1] Respondent.



         This is 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.


         Between 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.

         On 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 at trial.

         Petitioner perfected a direct appeal at the Oklahoma Court of Criminal Appeals (“OCCA”).

         Represented 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. Wilson.
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 counsel
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.

         On July 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 post-conviction relief.

         On July 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.

         (Doc. 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.[2] 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).[3]


         A. ...

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