Wilkins v. Ludwick et al

Filing 45

ORDER ON PENDING MOTIONS AND REPORT AND RECOMMENDATIONS - Wilkins's 19 MOTION to Expand Record and 20 MOTION to to Add Supplemental Claim are denied. Respondent's 40 MOTION to Strike 39 Pro Se Petitioners Reply Brief is granted in part and denied in part. That brief is hereby deemed stricken to the extent it addresses issues not raised in the briefs filed by Wilkins's counsel. I respectfully recommend that Wilkins's 1 Petition for Writ of Habeas Corpus be denied. Signed by Magistrate Judge Leonard T Strand on 7/21/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
OMAR WILKINS,

No. C13-4024-MWB

Petitioner,

ORDER ON PENDING MOTIONS;

vs.
NICK LUDWICK,
Respondent.

and
REPORT AND RECOMMENDATION
ON PETITION FOR WRIT OF
HABEAS CORPUS PURSUANT TO
28 U.S.C. § 2254

____________________________
TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 2 
A. 
Factual Background ............................................................... 3 
B. 
Procedural Background ........................................................... 5 
1. 
State Court Proceedings ................................................... 5 
a. 
Direct Appeal ....................................................... 5 
b. 
Post-conviction Relief Proceedings ............................. 5 
2. 
Federal Proceedings ..................................................... 10 

II. 

STANDARD OF REVIEW .............................................................. 11 

III. 

DISCUSSION.............................................................................. 14 
A. 
Motion to Expand the Record and Motion to Add Supplemental
Claim ................................................................................ 14 
B. 
Motion to Strike Petitioner’s Pro Se Reply Brief ........................... 19 
C. 
Ineffective Assistance of Counsel Claims .................................... 20 
1. 
Failure to Object to Prosecutor’s Use of “O.J.” Nickname
at Trial ..................................................................... 20 
2. 
Failure to Investigate Information from Johnson and Call
Him as a Witness ......................................................... 26 

IV. 

ORDER AND RECOMMENDATION ................................................ 29

I.

INTRODUCTION

An Iowa District Court jury convicted Omar Wilkins (Wilkins) of first-degree
felony murder on January 31, 2003. He was sentenced to a life term of imprisonment
without the possibility of parole. The Iowa Supreme Court affirmed his conviction on
direct appeal. State v. Wilkins, 693 N.W.2d 348 (Iowa 2005).
Wilkins then filed a state action for post-conviction relief (PCR), which was
denied. The Iowa Court of Appeals affirmed that denial, Wilkins v. State, 820 N.W.2d
769 (Iowa Ct. App. July 11, 2012) (unpublished table decision), and the Iowa Supreme
Court denied further review.

The Clerk of the Iowa Court of Appeals issued the

procedendo, signifying the conclusion of the PCR appeal, on September 6, 2012. Doc.
No. 12-24.
On February 25, 2013, Wilkins filed a pro se petition (Doc. No. 1) for writ of
habeas corpus in this court pursuant to 28 U.S.C. § 2254. Attorney Shelley Goff was
appointed to represent him after a previous attorney withdrew from the case. Wilkins
filed a merits brief (Doc. No. 21) on November 29, 2013, along with a motion to expand
the record (Doc. No. 19) and a motion to add a supplemental claim (Doc. No. 20). I
reserved ruling on the motions and stated they would be taken up with the merits of the
petition. Doc. No. 28. I directed the respondent to proceed as if the proposed additional
evidence and supplemental claim were part of the record and petition. Id. Respondent
filed his merits brief (Doc. No. 38) on April 3, 2014. Wilkins filed a pro se reply (Doc.
No. 39) on May 15, 2014. Respondent filed a motion to strike the pro se reply (Doc.
No. 40) and Wilkins filed a pro se resistance (Doc. No. 43). Wilkins also submitted a
reply brief through his attorney. (Doc. No. 41). I reserved ruling on the respondent’s
motion and indicated it would be taken up with the merits of the petition as well. Doc.
No. 44. All matters are now fully submitted. The Honorable Mark W. Bennett, United
States District Judge, has referred the habeas petition to me for preparation of a report
and recommended disposition.
2

A.

Factual Background
The Iowa Court of Appeals summarized the factual background of Wilkins’s trial

in its opinion on Wilkins’s PCR appeal.

Absent rebuttal by clear and convincing

evidence, I must presume that any factual determinations made by the Iowa courts were
correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586 F.3d 624, 630 (8th Cir. 2009)
(a federal court must deem factual findings by the state court to be presumptively correct,
subject to disturbance only if proven incorrect by clear and convincing evidence). As no
such rebuttal has been made, I adopt the following facts as determined by the Iowa Court
of Appeals:
On July 3, 2002, Myree Coleman Jr. drove his friend David
Hayes to 1510 Jones Street, Sioux City, so Hayes could
purchase crack cocaine from Omar Wilkins.
Within hours, early in the morning of July 4, 2002, Hayes
again asked for a ride so he could purchase more crack
cocaine from Wilkins. Coleman again drove Hayes to Jones
Street. During this outdoor transaction, Hayes flashed a wad
of bills, a fight occurred, and Hayes was shot and killed.
Coleman fled. At 2:24 a.m., the police were dispatched to a
report of shots fired in the 1500 block of Jones Street. The
officers found the murder weapon and Wilkins, Ezzard
Woods, and Wayne Richard Edwards in Shirley Smith's
house, 1507 Jones Street. Woods had a white cast on one arm.
Alton Burden, Shirley Smith's son, was located nearby.
Subsequently, Wilkins, Woods, Edwards, and Burden were
arrested as material witnesses to the murder. Wilkins told the
police he was not out of the house at the time of the shooting.
Wilkins was charged with the murder of Hayes and in January
2003, his trial to a jury commenced. The testimony of
Coleman, Woods, Edwards, Burden, and Smith supported the
State's theory that Wilkins was the person who shot and killed
Hayes. Michael Daniels, the upstairs tenant of 1510 Jones
Street, testified he looked out his window when he heard a
commotion, he didn't see the gun, but he saw the flash and
the “flash came from where that white cast was.”
3

Wilkins's attorney argued Woods, who had a white cast, shot
Hayes. Wilkins's attorney attacked the credibility of Woods
and Edwards, pointing out their favorable plea agreements.
Further, Wilkins's attorney argued Smith's and Burden's
testimony was suspect because Smith was admittedly
intoxicated and Burden testified he had been high for two days
at the time of the shooting. The attorney argued Coleman's
testimony was unreliable because he drove away and was not
interviewed by the police until the next day, July 5.
In February 2003, the jury, by special interrogatory answer,
found Wilkins guilty of first-degree felony murder—
underlying felony of second-degree robbery.
Wilkins appealed his conviction. On March 8, 2004, the
appellate defender's office received the handwritten affidavit
of Kevin Demale Johnson, stating:
In August of 2002, I was being held in the
Woodbury County Courthouse Jail in E.
Block.... Alton Burton ... was also in E. Block
being held as a material witness to a murder.
After me and Alton first met each other, we
became real close and shared a lot of personal
information.
Johnson's affidavit “purports to have heard some of the
witnesses against the defendant concoct a conspiracy to
convict him.” State v. Wilkins, 693 N.W.2d 348, 352 (Iowa
2005). Additionally, this affidavit states Alton told Johnson
that Edwards was the killer.
Wilkins v. State, 820 N.W.2d 769, at *1 (Iowa Ct. App. July 11, 2012) (unpublished
table decision) [footnotes omitted].

4

B.

Procedural Background
1.

State Court Proceedings

Wilkins was charged with first-degree murder under the alternative theories of
having killed Hayes willfully, deliberately and with premeditation or while participating
in a forcible felony. Wilkins went to trial where he was represented by Michael Williams
of the Public Defender’s Office. The jury returned a special verdict on January 31, 2003,
finding Wilkins guilty of murder in the first degree under the felony murder theory.
a.

Direct Appeal

Wilkins appealed his conviction to the Iowa Supreme Court. He argued he was
deprived of the right to fair trial and prejudiced by the court’s denial of a challenge to a
prospective juror and prosecutorial misconduct. State v. Wilkins, 693 N.W.2d 348 (Iowa
2005). Wilkins also presented the newly discovered evidence from Johnson. The court
found that neither of Wilkins’s claims warranted reversal of his conviction. It did not
consider the claim based on the newly discovered evidence, but preserved the claim for
PCR proceedings.
b.

Post-conviction Relief Proceedings
i.

Iowa District Court Decision

Wilkins filed his PCR petition on May 4, 2005. He argued ineffective assistance
of counsel based on his trial counsel’s (a) waiver of his right to a speedy trial without
consulting him, (b) failure to properly investigate the case, (c) failure to properly crossexamine Zachary Chwirka, an expert witness, and (d) failure to either object or file a
motion to prevent the use of his nickname, “O.J.” at trial. Doc. No. 12-19 at 87-92. He
also argued the newly discovered evidence from Johnson required his conviction and
sentence to be reversed and vacated. Id.

5

The state filed a motion for summary judgment, which was granted on Wilkins’s
claims of ineffective assistance of counsel based on his trial counsel’s (1) failure to
properly investigate the case, (2) waiver of the speedy trial and (3) failure to prevent the
use of the nickname “O.J.” Doc. No. 12-19 at 112-15. Wilkins amended his petition
and the district court held the PCR trial on July 22, 2009. The court considered the
following ineffective assistance of counsel claims: (1) failure to investigate potential
testimony of Johnson and call Johnson to testify at trial, (2) failure to adequately crossexamine expert witness Chwirka and (3) failure to request and/or object to several jury
instructions. The court also considered a claim based on newly discovered evidence from
Johnson. Because Wilkins appealed only from the district court’s ruling as it related to
Johnson, I will limit my discussion of that ruling accordingly.
The court noted that Johnson had provided two written statements. The first
statement was prepared and signed after trial and was the basis of Wilkins’s newly
discovered evidence claim. The second statement appeared to have been prepared before
Wilkins’s trial, but it was unclear whether it had been provided to Williams before trial.
Williams could not recall whether Wilkins had told him about the information from
Johnson prior to trial. Johnson had apparently overheard conversations between Woods,
Edwards and Burden in jail which suggested they agreed to tell the authorities that Wilkins
was the shooter. At trial, Williams admitted this was information that he would normally
follow up on. He testified that in evaluating whether to call a witness at trial, he considers
the same factors a jury would consider in assessing that witness’s credibility. Williams
recalled there were some factors making Johnson a less-than-credible witness and in his
experience, jailhouse conversations did not have significant weight and were generally
unhelpful.
One snag in Williams’s assessment was that the Kevin Johnson who provided the
information was not the same “Kevin Johnson” Williams had in mind when he made his
assessment. However, the court noted that many of the same factors would apply to the
6

Kevin Johnson who actually provided the information because he was a convicted felon
in prison. The court also reasoned that Woods, Edwards and Burden had made statements
to police prior to the jailhouse conversations identifying Wilkins as the shooter. These
prior consistent statements could have been used to rebut Johnson’s testimony and bolster
the testimony of Woods, Edwards and Burden. The court concluded Wilkins had not
demonstrated that a reasonably competent attorney would have or should have called
Johnson to testify even after conducting a more thorough investigation.
The court also found Wilkins had failed to demonstrate prejudice. Again, it
reasoned that Woods, Edwards and Burden had all identified Wilkins as the shooter prior
to the “jailhouse” conversations. In addition, Coleman had also identified Wilkins as the
shooter and he was not a part of the “jailhouse” group. Smith had also testified about
Wilkins’s admission following the shooting. Even without Johnson’s testimony, Williams
attacked the credibility of Woods, Edwards and Burden. For these reasons, the court
concluded Wilkins had not demonstrated the verdict would have been different had
Johnson testified.
As for Wilkins’s claim regarding newly discovered evidence, the court first noted
that it was questionable whether the information in Johnson’s post-trial statement was
really “newly discovered” evidence.

Wilkins testified he had told Williams about

Johnson’s information. The court concluded Wilkins had not shown that the evidence
could not have been discovered earlier in exercising due diligence. The court also found
that the evidence was not material to the substantive factual issues, but was only
impeachment evidence against Woods, Edwards and Burden. Again, the court concluded
that Wilkins had not demonstrated prejudice because the evidence would not likely change
the result if a new trial was granted. The court concluded that Wilkins had received a
fair trial and that substantial evidence supported the verdict.

7

ii.

Appellate Court Decision

On appeal, the court considered Wilkins’s claims of ineffective assistance of
counsel for failure to request certain jury instructions and failure to investigate and
present evidence based on Johnson’s statement. The court agreed with the district court’s
analysis regarding the failure to request certain jury instructions and affirmed without
further discussion. Wilkins v. State, 820 N.W.2d 769, at *1 n.1 (Iowa Ct. App. July 11,
2012) (unpublished table decision).
As for his counsel’s alleged failure to further investigate the jailhouse
conversations, the court found Wilkins had not demonstrated prejudice. It noted that
Wilkins’s defense at trial was that he was not the shooter. He attempted to prove this by
discrediting the witnesses identifying him as the shooter and crediting the observations of
Daniels, who identified Woods as the shooter. Johnson’s testimony could have helped
discredit the witnesses identifying Wilkins as the shooter. Id. at *2. The court considered
Williams’s testimony from the PCR trial in which he stated:
[I]f it were brought to my attention that there was this alleged
conspiracy, and I tend to believe it was brought to my
attention, I would also have been fully cognizant of the
relative times of other allegations against [Wilkins]; I would
take that into account. But what I would have looked at as
well is whether or not these three guys [Burden, Woods,
Edwards] had a chance prior to the time of their statements to
the police to cook up a story. But given that they would be
talking about that in the jail sort of belies the conspiracy that
would have been in existence prior to the time of their
statements. So it was a bit of a fishy analysis as to trying to
establish any particular reason why this [Johnson] allegation
would carry enough weight that would be persuasive enough
to the jury so it didn't look like we were just throwing stuff
against the wall.
Wilkins, 820 N.W.2d at *3. The court then considered evidence that was presented at
the criminal trial concerning the identity of the shooter. First, it considered the timing
of witnesses’ statements to the police compared to Johnson’s affidavit. His affidavit was
8

allegedly based on conversations he overheard in jail in August 2002.1 The murder
occurred on July 4, and police took statements from Woods, Edwards, Burden and Smith
that day. Burden identified Wilkins as the shooter and stated Woods was trying to break
Wilkins away from Coleman and Hayes. Coleman provided a statement on July 5 and
also identified Wilkins as the shooter, which he confirmed in a sworn statement on July
11. In his sworn statement, Coleman also stated he heard Wilkins tell Woods, “I shot
the hell out of him.” Smith provided a sworn statement on July 8, stating Wilkins
admitted “I just killed somebody,” or “I just shot somebody.” Burden provided his
sworn statement on July 19, which was consistent with his earlier statement that Wilkins
was the shooter. Edwards provided his sworn statement on July 29. He stated he was
talking to Coleman when he heard the first shot. When he looked over, Wilkins had the
gun in his hand. He went on to state, “The second shot I actually saw the gun in
[Wilkins’s] hand.” Id. at 5. Woods provided his sworn statement on November 4. He
admitted he had retrieved the gun, but stated that Wilkins had taken it from him and
pointed it at Hayes, shot it in the air once after Hayes tried to grab it and then shot Hayes.
Woods stated Wilkins then handed the gun over to Edwards, which is consistent with
Edwards’s statement on July 4.
The court then considered how Williams dealt with this evidence at the trial. It
noted that Williams attacked the credibility of Woods, Edwards and Burden during crossexamination and in closing argument. The court then reasoned:
While we conclude Johnson's testimony has the potential to
impeach the testimony of Woods, Edwards, and Burden, we
do not conclude Wilkins has proven he was prejudiced by
defense counsel's breach of a duty to investigate. We are
unable to conclude Johnson's potential testimony would likely
change the result if a new trial were granted. The issue is
whether Wilkins received a fair trial or was prejudiced.
Importantly, Edwards and Burden each gave two consistent
Johnson was in the Woodbury County Jail from roughly July 6-8, 2002 and July 22-October 9,
2002. Id. at *3, n.5.
1

9

statements to the police that Wilkins fired the gun prior to any
of the alleged August 2002 and later jailhouse conspiracy
conversations. Additionally, Coleman was the victim's driver
and is essentially a neutral witness not associated with Woods,
Edwards, or Burden, and not identified as a part of the alleged
jailhouse conspiracy. Coleman identified Wilkins as the
shooter on July 5, the day after the shooting, and again on
July 11, seven days after the shooting. Four days after the
shooting, on July 8, Shirley Smith told the police Wilkins
admitted shooting Hayes immediately after the event.
Id. at *5 [footnote omitted] [emphasis in original]. The court also noted that Johnson’s
testimony would not have corroborated Daniels’s testimony that he saw the gun flash near
the person with the cast (Woods). Johnson stated that Burden told him Edwards, not
Woods, shot the gun, so Johnson’s potential testimony would not have helped Wilkins’s
defense in this regard. The court concluded that based on the timing and consistency of
the statements identifying Wilkins as the shooter prior to August 2002, the result of a
new trial would likely not have been different had Johnson testified. Id. at *6.
2.

Federal Proceedings

In his petition before this court, Wilkins asserted nine grounds for relief. Doc.
No. 1 at 4-5. In his merits brief, Wilkins concedes that five of his claims have been
procedurally defaulted or are not a basis for federal habeas relief. He has condensed
some of the claims and also seeks to add a claim of ineffective assistance of counsel for
failure to interview and call key witnesses for the defense. The claims addressed in his
brief include: (1) ineffective assistance of counsel for failure to interview and call
favorable witnesses at trial and (2) ineffective assistance of counsel for failure to object
to the prosecution’s use of Wilkins’s nickname “O.J.”

10

II.

STANDARD OF REVIEW

Wilkins brings this petition pursuant to 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2254(a)
provides that “a district court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a).
Under AEDPA, federal courts apply a “deferential standard of review” to the state
court’s determinations of law and fact if the state court adjudicated the claim on the
merits. Taylor v. Bowersox, 329 F.3d 963, 967-68 (8th Cir. 2003). Section 2254(d)
provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d). Wilkins brings his petition under section 2254(d)(1). There are
two categories of cases under this section that may provide a state prisoner with grounds
for federal habeas relief: (1) if the relevant state-court decision was “contrary to . . .
clearly established Federal law, as determined by the Supreme Court of the United
States,” or (2) if the relevant state-court decision “involved an unreasonable application
of . . . clearly established Federal law, as determined by the Supreme Court of the United
States.” Williams v. Taylor, 529 U.S. 362, 404-05, 120 S. Ct. 1495, 146 L. Ed. 2d 389
(2000) (quoting 28 U.S.C. § 2254(d)(1)) [emphasis added].
11

A

state

court

can

violate

the

“unreasonable

application”

clause

of

section 2254(d)(1) in two ways: (a) where “the state court identifies the correct governing
legal rule from the [Supreme] Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case”; or (b) where “the State court either unreasonably extends
a legal principle from [Supreme] Court precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context where it should
apply.” Williams, 529 U.S. at 407.
The state court reviews a post-conviction relief petition based on ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Under Strickland, the person challenging a conviction must
show that (1) counsel provided deficient assistance to the extent that “counsel’s
representation fell below an objective standard of reasonableness” and (2) there was
prejudice as a result. Id. at 688. The errors must be “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and the
defendant was deprived of a fair trial.

Id. at 687.

The court applies a “strong

presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689.
Federal habeas courts must then find that a state court’s application of Strickland
was unreasonable under section 2254(d) to grant habeas relief. This is also a highly
deferential inquiry because “[a] state court must be granted a deference and latitude that
are not in operation when the case involves review under the Strickland standard itself.”
Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785-86, 178 L. Ed. 2d 624 (2011).
“Federal habeas courts must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question
is not whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. at 788.
Therefore, “even a strong case for relief does not mean the state court’s contrary
12

conclusion was unreasonable.” Id. at 786 (citing Lockyer v. Andrade, 538 U.S. 63, 71,
123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003)).
For a claim to be successful under section 2254(d)(1), “[i]t is not enough that the
state court applied clearly established federal law erroneously or incorrectly—the
application must additionally be unreasonable.”

Jones v. Wilder-Tomlinson, 577

F. Supp. 2d 1064, 1073 (N.D. Iowa 2008) (citing Williams, 529 U.S. at 411; Bell v.
Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (“an unreasonable
application is different from an incorrect one.”)). See Ringo v. Roper, 472 F.3d 1001,
1003 (8th Cir. 2007) (same). “[A] federal court may not grant the petition unless the
state court decision, viewed objectively and on the merits, cannot be justified under
existing Supreme Court precedent.” Jones, 577 F. Supp. 2d at 74 (citing James v.
Bowersox, 187 F.3d 866, 869 (8th Cir. 1999)); see Collier v. Norris, 485 F.3d 415, 421
(8th Cir. 2007) (to be overturned, the state court’s application of federal law must have
been “objectively unreasonable”) (citing Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.
2005)).
The petitioner bears the burden of showing that the state court’s ruling on the claim
presented was “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Richter, 131 S. Ct. at 786-87. “Section 2254(d) reflects the view that habeas corpus is
a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a
substitute for ordinary error correction through appeal.”

Id. (quoting Jackson v.

Virginia, 443 U.S. 307, 332, n.5, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (Stevens, J.,
concurring in judgment)).

13

III.
A.

DISCUSSION

Motion to Expand the Record and Motion to Add Supplemental Claim
On the same day he filed his merits brief, Wilkins also filed motions (Doc. Nos.

19 and 20) to expand the record pursuant to Rule 7 of the Rules Governing Section 2254
Cases and to add a supplemental claim.

Wilkins seeks to introduce the following

documents:
(1)

A Judgment and Order from the Iowa District Court
for Woodbury County dated April 13, 2001, in State
v. Myree Coleman

(2)

Portion of a transcript from a videotaped interview of
Wayne Edwards

(3)

Letters from Ezzard Woods to Terrance Broughton
dated September 9, 2002 and December 17, 2002

(4)

Redacted police reports

Because this evidence all relates to Wilkins’s proposed supplemental claim, I will first
discuss whether the court can consider this claim before deciding whether the record can
be expanded to include evidence in support of the supplemental claim. Wilkins’s motion
to add a supplemental claim consists of five points covering approximately one page. He
did not submit a supporting brief or cite any law in support of his motion. He simply
argues the evidence was available to trial counsel in the police reports and that “[a]ny
procedural default should be excused because, while the claim is obvious from a thorough
review of the police reports and other evidence, post conviction counsel did not raise it.”
Doc. No. 20 at 2. He uses the majority of his merits brief to address this claim and the
evidence in support of it.
Respondent argues the supplemental claim should not be allowed based on the
statute of limitations and procedural default.

He contends the one-year statute of

limitations for habeas petitions began to run on September 5, 2012, and that the motion
14

to supplement filed on November 29, 2013, is untimely and does not relate back to the
original petition. He argues the additional proposed claim is procedurally defaulted
because it was not presented in state court and Wilkins has not demonstrated cause and
prejudice or asserted that failure to consider the claim will result in a fundamental
miscarriage of justice.
Wilkins addresses these arguments in his reply brief. Doc. No. 41. He contends
the claim is not barred by the statute of limitations because respondent failed to calculate
in the additional 90-day period from which Wilkins could have sought a writ of certiorari
from the United States Supreme Court following the Iowa Supreme Court’s order denying
further review on September 4, 2012. Therefore, he concludes his additional claim would
be timely because the statute of limitations actually expired on December 3, 2013.
The AEDPA statute of limitations provision states:
(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court. The limitation
period shall run from the latest of-(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
15

to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1)-(2). Wilkins’s direct appeal was decided by the Iowa Supreme
Court on March 11, 2005. The Eighth Circuit has described the calculation of the oneyear statute of limitations as follows:
The relevant triggering date for the statute of limitations is
‘the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.’ Id. § 2244(d)(1)(A). This provision
permits prisoners time to seek direct review in the U.S.
Supreme Court. Smith v. Bowersox, 159 F.3d 345, 347–48
(8th Cir. 1998). If a prisoner files a petition for certiorari,
then his conviction becomes final upon ‘the completion or
denial of certiorari proceedings before the United States
Supreme Court.’ Id. at 348. If a prisoner does not petition
the U.S. Supreme Court for review, then his conviction
becomes final when the time for filing that petition expires,
so long as the Supreme Court could have reviewed his direct
appeal. Riddle v. Kemna, 523 F.3d 850, 855 (8th Cir. 2008).
The time for filing a writ of certiorari in the U.S. Supreme
Court is 90 days. Sup.Ct. R. 13.1. Therefore, the statute of
limitations on a habeas petition begins running 90 days after
a prisoner reaches the end of ‘all direct criminal appeals in
the state system.’ Bowersox, 159 F.3d at 348. If, however,
the Supreme Court lacked jurisdiction to review the direct
appeal, then the statute of limitations begins to run
immediately following the conclusion of the prisoner's direct
appeal. Riddle, 523 F.3d at 855.
Parmley v. Norris, 586 F.3d 1066, 1069 (8th Cir. 2009). Wilkins did not file a petition
for certiorari with the United States Supreme Court, so his conviction became final when
the time for filing a petition expired – June 9, 2005. Wilkins filed his PCR application
before that date though, on May 4, 2005, which tolled the statute of limitations. See
Walker v. Norris, 436 F.3d 1026, 1029-30 (8th Cir. 2006) (“The statute of limitations is
tolled . . . while a ‘properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.’”) (quoting 28 U.S.C.
16

§ 2244(d)(2)). The statute is tolled during the entire time that PCR proceedings are
pending in any state court, including the state appellate courts. Mills v. Norris, 187 F.3d
881, 883-84 (8th Cir. 1999). Therefore, when the Iowa Supreme Court denied further
review of Wilkins’s PCR application on September 4, 2012, and issued its procedendo
two days later, the full one-year statute of limitations was then available for Wilkins to
file his habeas petition in this court. However, contrary to Wilkins’s assertion, he is not
allowed an additional 90-day period following the highest state court’s decision on his
post-conviction relief application. See Lawrence v. Florida, 549 U.S. 327, 332 (2007)
(“The application for state postconviction review is therefore not ‘pending’ after the state
court’s postconviction review is complete, and § 2244(d)(2) does not toll the 1-year
limitations period during the pendency of a petition for certiorari.”); see also Snow v.
Ault, 238 F.3d 1033, 1035-36 (8th Cir. 2001) (holding § 2244(d)(2) does not toll the
limitations period for the 90 days during which a petitioner could seek certiorari from a
state court's denial of post-conviction relief).
The statute of limitations therefore expired on September 7, 2013 – one year after
Wilkins’s PCR proceedings concluded. Wilkins filed his federal habeas petition well
before that, on February 25, 2013. This filing did not toll the statute of limitations period.
See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (“We hold that an application for
federal habeas corpus review is not an ‘application for State post-conviction or other
collateral review’ within the meaning of 28 U.S.C § 2244(d)(2). Section 2244(d)(2)
therefore did not toll the limitation period during the pendency of respondent’s first
federal habeas petition.”). Thus, because Wilkins’s supplemental claim was not filed
until November 29, 2013, it is untimely.
The statute of limitations may be equitably tolled if a petitioner can show that “(1)
he has been diligently pursuing his rights and (2) an extraordinary circumstance stood in
his way.” White v. Dingle, 616 F.3d 844, 847 (8th Cir. 2010) (citing Holland v. Florida,
560 U.S. 631 (2010)). Wilkins does not assert any extraordinary circumstances that
prevented him from raising this claim earlier. Indeed, he asserts that the claim is
17

“obvious from a thorough review of the police reports and other evidence.” Doc. No.
20 at 2.
The court may also hear an untimely claim if it “relates back to the date of the
original pleading” under Federal Rule of Civil Procedure 15(c)(1)(B).

That rule

provides: “An amendment of a pleading relates back to the date of the original pleading
when . . . the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out – or attempted to be set out – in the original pleading.”
Fed. R. Civ. P. 15(c)(1)(B). The United States Supreme Court has clarified that “[s]o
long as the original and amended petitions state claims that are tied to a common core of
operative facts, relation back will be in order.” Mayle v. Felix, 545 U.S. 644, 664
(2005).
Wilkins does not contend that his proposed additional claim arises out of the same
conduct, transaction or occurrence described in his original petition. Respondent argues
the proposed claim does not relate back to Wilkins’s other ineffective assistance of
counsel claims because none of his other claims are based on failure to investigate
potential witnesses who might have helped his defense by identifying someone else as the
shooter. I agree. Wilkins’s proposed additional claim is unrelated to his other ineffective
assistance of counsel claims, which attack his trial counsel’s conduct regarding how he
handled the evidence from Johnson and the prosecutor’s use of Wilkins’s nickname
“O.J.” at trial. These claims do not relate to pre-trial investigation of police reports for
eyewitnesses who could have provided substantive evidence for Wilkins’s defense.
Wilkins’s failure-to-investigate claim based on the information from Johnson is further
distinguishable, as that information could only be used to discredit some of the state’s
witnesses. Because Wilkins’s proposed additional claim is unrelated to his original
pleading and was submitted outside the one-year statute of limitations, it is time-barred
and his motions to add a supplemental claim and expand the record will be denied. This
makes it unnecessary to address Wilkins’s additional argument that any procedural default
of his supplemental claim should be excused. See Arthur v. Thomas, 739 F.3d 611, 630
18

(11th Cir. 2014) (“[T]he Martinez rule explicitly relates to excusing a procedural default
of ineffective-trial-counsel claims and does not apply to AEDPA’s statute of limitations
or the tolling of that period.”).
B.

Motion to Strike Petitioner’s Pro Se Reply Brief
Before addressing the merits of Wilkins’s timely claims, I will consider

respondent’s motion (Doc. No. 40) to strike Wilkins’s pro se reply (Doc. No. 39).
Respondent argues Wilkins’s pro se reply brief addresses issues outside his merits brief
and he is not entitled to both self-representation and representation by counsel. Wilkins
filed a pro se response (Doc. No. 43) in which he explained that he has been held to
mistakes made by his previous attorneys and he submitted the pro se reply brief in an
attempt to show his understanding of the proceedings. Wilkins is represented by counsel
who filed a merits brief on November 29, 2013. Doc. Nos. 3, 21. Counsel also filed a
reply brief on May 17, 2014. Doc. No. 41.
“Generally, it is Eighth Circuit policy to refuse to consider pro se filings when a
party is represented by counsel.” Hoggard v. Purkett, 29 F.3d 469, 472 (8th Cir. 1994)
(citing United States v. Hale, 978 F.2d 1016, 1018 n.2 (8th Cir. 1992), cert. denied, 507
U.S. 887 (1993)). Defendants do not have a constitutional right to hybrid representation
or the right to act as “co-counsel.” See United States v. Swinney, 970 F.2d 494, 498
(8th Cir. 1992) (“[T]he district court may properly require the defendant to choose either
to proceed pro se, with or without the help of standby counsel, or to utilize the full
assistance of counsel.”).

Despite this general rule, I find no harm in considering

Wilkins’s pro se reply brief to the extent it addresses issues raised by his counsel in his
merits brief and the reply brief filed by counsel. The other issues addressed in the pro
se reply will not be considered. Therefore, respondent’s motion (Doc. No. 40) will be
granted in part and denied in part.

19

C.

Ineffective Assistance of Counsel Claims
Wilkins claims his trial counsel was ineffective based on (1) his failure to object

to the prosecutor referring to Wilkins by his nickname “O.J.” at trial and (2) his failure
to investigate the information from Johnson and call him as a witness at trial.2 I will
address each of these claims separately below.
1.

Failure to Object to Prosecutor’s Use of “O.J.” Nickname at Trial

Wilkins does not specifically address why the state court’s decision on this claim
resulted in an unreasonable application of federal law. He states:
Disbaraging [sic] remarks by the prosecution should not have
been allowed to continued [sic] by defense counsel. In this
case, not only did the prosecution use the nickname “O.J.”
repeatedly, but defense counsel started using it also. The state
court’s denial of relief was based on the strong evidence
against Wilkins as a basis for finding the misconduct did not
make a difference. However, as shown above, there was
plenty of evidence to undermine the state’s case which was
not presented. Viewing the failure to present favorable
witnesses along side the disparaging remarks by the
prosecution show that defense counsel was not acting as
zealous counsel, something Wilkins was constitutionally
entitled to.
Doc. No. 21 at 26.
Respondent argues to the extent this claim is framed as a “prosecutorial
misconduct” claim as asserted in the petition as Ground 2, it is procedurally defaulted
and must be dismissed.

However, he acknowledges that the Iowa Supreme Court

In his merits brief, Wilkins only addresses the ineffective assistance of counsel claim concerning
the prosecutor’s use of his nickname at trial, along with his proposed supplemental claim.
Respondent argues that petitioner has therefore abandoned his claim concerning Johnson.
However, Wilkins raised that claim in his petition and did not explicitly abandon it in his merits
brief. To the extent Wilkins argues the Johnson claim and proposed supplemental claim are the
same, I disagree for the reasons discussed supra, pp. 18-19.

2

20

addressed this argument as an ineffective assistance of counsel claim on direct appeal,
which this court can review. Respondent also argues that Wilkins only asserts that the
Iowa Supreme Court’s decision was unreasonable when viewed in combination with
evidence that was not presented. This evidence was the basis of Wilkins’s motion to
expand the record and add a supplemental claim, which I have denied. Moreover, as
respondent correctly points out, I cannot consider the cumulative effect of claimed errors.
See Middleton v. Roper, 455 F.3d 838, 851 (8th Cir. 2006) (rejecting petitioner’s
argument that district court erred by individually analyzing prejudice for each claim and
citing cases for proposition that a habeas petitioner “cannot build a showing of prejudice
on a series of errors.”). I will consider the Iowa Supreme Court’s decision on this claim
alone without consideration of the effects of other alleged errors to determine if the
decision resulted in an unreasonable application of federal law.
In analyzing this claim, the Iowa Supreme Court found that while the prosecutor’s
references to “O.J.” were “unnecessary and unprofessional,” it did not result in prejudice
that would warrant reversal of Wilkins’s conviction. The court stated:
We are unwilling to conclude that the jurors either
individually or collectively would have been so neglectful of
their responsibility that the prosecutor’s references to
defendant’s nickname would sway their verdict in favor of the
prosecution. We are confident that the jurors decided the case
in keeping with the instructions of the court and based on the
rather substantial testimony presented concerning the shooting
of David Hayes.
State v. Wilkins, 693 N.W.2d 348, 352 (Iowa 2005). The court noted that to determine
prejudice it had to consider “not only the severity and pervasiveness of the misconduct
but also the significance of the misconduct with respect to the central issues in the case.”3
Id. (citing State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003)). It did not apply
Strickland.

3

This is the prejudice inquiry for a claim of prosecutorial misconduct.

21

A state court decision is “contrary to” clearly established federal law “if the state
court ‘applies a rule that contradicts the governing law set forth in [Supreme Court]
cases.’” Lafler v. Cooper, 132 S. Ct. 1376, 1390 (2012). When a state court fails to
apply the correct rule, its decision is contrary to clearly established federal law. See id.
(finding that state appellate court correctly identified ineffective assistance of counsel
claim, but failed to apply Strickland.). In this circumstance, the petitioner is entitled to
“de novo consideration by the federal court of his or her underlying constitutional claim
for post-conviction or habeas relief.” See Velazquez-Ramirez v. Fayram, No. C12-4065MWB, 2014 WL 523810, at *11 (N.D. Iowa Feb. 7, 2014) (citing cases for the
proposition that when a state court’s adjudication was contrary to federal law, the federal
court should decide the claim directly under Strickland without AEDPA deference).
Because the Iowa Supreme Court did not apply Strickland to Wilkins’s ineffective
assistance of counsel claim, its decision was contrary to clearly established federal law.
Lafler, 132 S. Ct. at 1390. Therefore, I will consider this claim de novo under Strickland.
Under Strickland, the person challenging a conviction must show that (1) counsel
provided deficient assistance to the extent that “counsel’s representation fell below an
objective standard of reasonableness” and (2) there was prejudice as a result. 466 U.S.
at 688. The errors must be “so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment” and the defendant was deprived of a
fair trial. Id. at 687. The court applies a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 689. To
establish Strickland prejudice, a defendant must “show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. This requires a “substantial,”
not just “conceivable,” likelihood of a different result. Richter, 131 S. Ct. at 791.
The Iowa Supreme Court summarized the evidence related to this issue as follows:
22

It was established through the testimony of witnesses that O.J.
was defendant's nickname. His own counsel even succumbed
to referring to him in that manner on one occasion during the
trial. . . . The prosecutor made it a point to tell the jury in
his opening statement that defendant's nickname was “O.J.,”
although that fact was in no way material to any issue in the
case. Throughout the trial, he referred to defendant as O.J.
more than a dozen times and continued to call him by that
name in making his closing argument to the jury.
State v. Wilkins, 693 N.W.2d 348, 351-52 (Iowa 2005). In his pro se reply brief, Wilkins
contends the prosecutor referred to him as “O.J.” over 150 times throughout trial and
the jury was not given curative instructions. Doc. No. 39 at 10-14.
I have conducted my own review of the transcript and note the following references
to defendant’s nickname.

On the first day of trial, the prosecutor read the trial

information, which named Omar Rasheen Wilkins, a/k/a Michael Lamar Carter, a/k/a
O.J. as the defendant. Doc. No. 12-1 at 30. In his opening statement, the prosecutor
stated Wilkins went by “O.J.” as a nickname and used an alias of Michael Carter, but
otherwise referred to him as “the defendant.” Id. at 31-38. He also provided the
nicknames of other people involved in the case. Id. at 31-32. Coleman was the first
witness to testify and he referred to the defendant as “Mike,” “Michael” or “Omar” as
did the prosecutor. Doc. No. 12-1 at 50-179, 12-2 at 8-46. The name “O.J.” was not
used during the testimony of the next two witnesses. Doc. No. 12-2 at 47-91. Shirley
Smith was the next witness and she referred to the defendant as “O.J.” and “Michael
Williams.” Doc. No. 12-2 at 92-98. She stated she did not know him by any other
name. Id. at 98. Throughout her testimony, the prosecutor and defense counsel referred
to the defendant as “O.J.” Id. at 98-130. Edwards testified next and referred to the
defendant as “O.J. Wilkins,” and “O.J.” Id. at 130-132, 140-41. The defendant was
referred to primarily as “O.J.” during his testimony but sometimes as Omar Wilkins or
Mr. Wilkins. Doc. No. 12-2 at 141-72, 12-3 at 3-75. Defense counsel referred to the
defendant as Mr. Wilkins during cross-examination. Id.
23

Several officers and a crime scene analyst were then called as witnesses and the
name “O.J.” did not come up during their testimony. Doc. No. 12-3 at 75-184. Alton
Burden testified next using the names “O” and “O.J.” and stating he had only recently
learned the defendant’s real name. Doc. No. 12-4 at 3-8. The prosecutor and defense
counsel also referred to the defendant as “O” or “O.J.” during Burden’s testimony. Doc.
No. 12-4 at 9-62. Woods was the final witness for the prosecution and he indicated he
knew the defendant by the names “Omar Wilkins”, “O.J.” and “Michael Carter.” Doc.
No. 12-4 at 64-66. Throughout his testimony, the defendant was primarily referred to
as “O.J.” by the witness, prosecutor and defense counsel. Id. at 67-139, 141-44. The
name “O.J.” was not used in the testimony of any of the defense witnesses. Id. at 15074, 177-214. In closing arguments, the prosecutor primarily referred to the defendant as
“O.J.” Doc. No. 12-5 at 11-28, 62-67. Defense counsel primarily referred to the
defendant as Mr. Wilkins, except when discussing certain witnesses’ testimony. Doc.
No. 12-5 at 29-61.
The question I must consider is whether Wilkins’s counsel’s failure to object to
use of the nickname “O.J.” during trial amounted to ineffective assistance of counsel.
Under Strickland, Wilkins must show that his counsel’s performance was deficient and
that it caused prejudice. 466 U.S. at 688. I find that even if the failure to object could
be considered deficient performance, Wilkins is unable to demonstrate prejudice. See id.
at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.”).
Courts considering this issue in other circuits have considered “the relevance of the
defendant’s nickname and the frequency of its use by the prosecution in deciding whether
a defendant was prejudiced.” United States v. Farmer, 583 F.3d 131, 145 (2d Cir. 2009)
(citing cases). They also consider “whether the name was ‘necessarily suggestive of a
criminal disposition.’” Id. (quoting United States v. Dean, 59 F.3d 1479, 1492 (5th Cir.
1995)). “[T]he suggestiveness of the nickname has not required exclusion, especially
when it helped to identify the defendants, connect him to the crime, or prove other
24

relevant matter, or when coherent presentation of the evidence entailed passing reference
to it.” Id. at 146.
Courts have found that reference to the O.J. Simpson trial can give rise to certain
concerns of prejudice. See United States v. Lentz, 58 F. App’x 961 (4th Cir. 2003)
(upholding district court’s ruling to exclude defendant’s statements such as, “if O.J. can
get away with it, so can I,” under Rule 403 because the probative value was substantially
outweighed by danger of unfair prejudice.); State v. Thompson, 578 N.W.2d 734, 743
(Minn. 1998) (noting that prosecutor’s statements comparing defendant to O.J. served no
purpose other than to attempt to impassion the jury). But see United States v. Papajohn,
212 F.3d 1112, 1121 (8th Cir. 2000) (finding prosecutor’s fleeting comments comparing
the defense to that used in the O.J. Simpson case were not “inflammatory to a degree
that would require a mistrial”), abrogated on other grounds by Crawford v. Washington,
541 U.S. 36, 64-69 (2004).
Here, the trial transcript indicates that use of the name “O.J.” was primarily
guided by witness testimony and used to identify the defendant. When a witness stated
he or she knew the defendant as “O.J.” the prosecutor and defense counsel also referred
to the defendant as “O.J.” to avoid confusion. Courts have failed to find prejudice under
similar circumstances. See United States v. Price, 443 F. App’x 576, 579 (2d Cir. 2011)
(finding that trial counsel’s failure to object to defendant’s nickname of “Crime” at trial
did not result in prejudice under Strickland where witnesses knew defendant as “Crime”
making it inevitable the nickname would be revealed to the jury). There was no reference
to “O.J. Simpson” or an attempt by the prosecutor to compare Wilkins or his defense to
Simpson’s. While there was no specific jury instruction on this issue, the jury was
instructed on what it could and could not consider. Doc. No. 12-19 at 26. The jury was
instructed that it must base its verdict only on the evidence and the instructions that it had
been given and that statements, arguments, questions and comments by the lawyers were
not evidence. Id. The evidence included multiple witnesses’ testimony and sworn
statements to police that the defendant was the one who shot Hayes. For these reasons,
25

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.
2.

Failure to Investigate Information from Johnson and Call Him as a
Witness

Wilkins does not argue why the Iowa Court of Appeals decision resulted in an
unreasonable application of federal law on this claim. In his petition, Wilkins alleges the
following:
Trial counsel failed to investigate witness Kevin Johnson, who
according to his own sworn affidavit had evidence which
would have shown the state’s star witnesses were conspiring
to fabricate testimony against Wilkins (see sworn affidavit by
Kevin Damale Johnson also trial counsel deposition).
Doc. No. 1 at 5. The Iowa Court of Appeals noted that Wilkins’s defense at trial was to
discredit the witnesses identifying him as the shooter while crediting the observations of
Daniels. The evidence from Johnson indicated that while he was in jail, he heard Woods,
Edwards and Burden concoct a conspiracy to identify Wilkins as the shooter. Wilkins
argued his counsel breached a duty by failing to investigate the evidence (which he
contends was provided to counsel in an affidavit) and he was prejudiced by the absence
of Johnson’s testimony at trial. Wilkins v. State, 820 N.W.2d 769 (Iowa Ct. App. 2012).
In considering this issue, the Iowa Court of Appeals first noted that Williams
testified at the PCR trial that he had no specific recollection of conversations with Wilkins
about Johnson or Wilkins requesting that Johnson be called as a witness. Id. Williams
had also stated:
[I]f it were brought to my attention that there was this alleged
conspiracy, and I tend to believe it was brought to my
attention, I would also have been fully cognizant of the
relative times of other allegations against [Wilkins]; I would
26

take that into account. But what I would have looked at as
well is whether or not these three guys [Burden, Woods,
Edwards] had a chance prior to the time of their statements to
the police to cook up a story. But given that they would be
talking about that in the jail sort of belies the conspiracy that
would have been in existence prior to the time of their
statements. So it was a bit of a fishy analysis as to trying to
establish any particular reason why this [Johnson] allegation
would carry enough weight that would be persuasive enough
to the jury so it didn't look like we were just throwing stuff
against the wall.
Id. at *3. The court applied Strickland and considered whether Wilkins had demonstrated
prejudice from counsel’s alleged failure to investigate and call Johnson as a witness. It
first considered the timing of the statements the state witnesses and alleged conspirators
had made to police. Id.

It noted that “[a]ll but one of the pretrial witness statements

implicating Wilkins as the killer were made before the August 2002 timeframe specified
in the Johnson affidavit’s first paragraph.” Id. The court reasoned:
During trial, attorney Williams attacked the credibility of
Woods, Edwards, and Burden, the alleged jailhouse
conspirators, during cross-examination and during closing
argument. While we conclude Johnson's testimony has the
potential to impeach the testimony of Woods, Edwards, and
Burden, we do not conclude Wilkins has proven he was
prejudiced by defense counsel's breach of a duty to
investigate. We are unable to conclude Johnson's potential
testimony would likely change the result if a new trial were
granted. The issue is whether Wilkins received a fair trial or
was prejudiced. Importantly, Edwards and Burden each gave
two consistent statements to the police that Wilkins fired the
gun prior to any of the alleged August 2002 and later jailhouse
conspiracy conversations. Additionally, Coleman was the
victim's driver and is essentially a neutral witness not
associated with Woods, Edwards, or Burden, and not
identified as a part of the alleged jailhouse conspiracy.6
Coleman identified Wilkins as the shooter on July 5, the day
after the shooting, and again on July 11, seven days after the
shooting. Four days after the shooting, on July 8, Shirley
27

Smith told the police Wilkins admitted shooting Hayes
immediately after the event.
We also note the upstairs-apartment witness's testimony is the
gun's flash was near the person with the white cast, i.e.,
Woods. Therefore, Johnson's potential testimony would not
support this defense theory because Johnson states Alton
Burden told him Edwards, not Woods, shot the gun.
Given the timing and consistency of the numerous statements
to the police identifying Wilkins as the shooter prior to August
2002, we conclude granting Wilkins a new trial to include the
testimony of Kevin Johnson would not likely produce a
different result. Wilkins has failed to prove the prejudice
prong of his ineffective-assistance claim.
Id. at *5-6.
Because the Iowa Court of Appeals identified Strickland as the correct governing
law, I must decide whether the application of Strickland was unreasonable under section
2254. “When § 2254(d) applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Richter, 131 S. Ct. at 788. “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id.
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
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 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
28

were not parties to the jailhouse conversations) 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 because Burden allegedly told him
Edwards, not Woods, shot the gun. I find it was reasonable for the court to conclude
under Strickland that Johnson’s testimony likely would not have changed the jury’s
verdict and therefore, that Wilkins suffered no prejudice.
IV.

ORDER AND RECOMMENDATION

Based on the foregoing:
1.

Wilkins’s motion to expand the record (Doc. No. 19) and motion (Doc.

No. 20) to add a supplemental claim are denied.
2.

Respondent’s motion (Doc. No. 40) to strike petitioner’s pro se reply brief

is granted in part and denied in part. That brief is hereby deemed stricken to the
extent it addresses issues not raised in the briefs filed by Wilkins’s counsel.
3.

I respectfully recommend that Wilkins’s petition pursuant to 28 U.S.C. §

2254 (Doc. No. 1) be denied. Objections to this recommendation in accordance with 28
U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b) must be filed within fourteen (14) days of
the service of a copy of this Report and Recommendation. Objections must specify the
parts of the Report and Recommendation to which objections are made, as well as the
parts of the record forming the basis for the objections. See Fed. R. Civ. P. 72. Failure
to object to the Report and Recommendation waives the right to de novo review by the
district court of any portion of the Report and Recommendation as well as the right to
appeal from the findings of fact contained therein. United States v. Wise, 588 F.3d 531,
537 (8th Cir. 2009).

29

IT IS SO ORDERED.
DATED this 21st day of July, 2014.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

30