Wilkins v. Ludwick et al

Filing 52

MEMORANDUM OPINION AND ORDER Accepting 45 Report and Recommendation On Petition For Writ Of Habeas Corpus Pursuant to 28 U.S.C. section 2254 to deny Wilkins petition pursuant to 28 U.S.C. section 2254; granting 51 Motion to Strike to the extent that I have not considered Wilkin's pro se Objections. See order text for details. The Clerk of Court shall enter judgment accordingly. Signed by Judge Mark W Bennett on 10/06/2014. Order/NEF mailed to plaintiff. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
OMAR R. WILKINS,
No. C 13-4024-MWB
Petitioner,
vs.
NICK LUDWICK,
Respondent.

MEMORANDUM OPINION AND
ORDER REGARDING REPORT AND
RECOMMENDATION ON PETITION
FOR WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2254
___________________________
TABLE OF CONTENTS

I. 

INTRODUCTION........................................................................... 2 
A. 
Procedural Background ........................................................... 2 
B. 
The Report And Recommendation............................................... 3 

II. 

LEGAL ANALYSIS ........................................................................ 5 
A. 
The Motion To Strike .............................................................. 5 
B. 
Standards For Review Of A Report And Recommendation ................. 6 
C. 
Standards For Federal Habeas Relief .......................................... 9 
D. 
Review Of The Recommended Disposition Of Wilkins’s
Claims............................................................................... 12 
1. 
The “nickname” claim .................................................. 12 
2. 
The “shooter identification” witness ................................. 14 

III. 

CONCLUSION ............................................................................ 16 

I.
A.

INTRODUCTION
Procedural Background

In this action, petitioner Omar Wilkins seeks federal habeas corpus relief, pursuant
to 28 U.S.C. § 2254, from his January 31, 2003, conviction and life sentence in Iowa
court for first-degree felony murder for the shooting of David Hayes during a drug
transaction on July 3, 2002. Wilkins’s claims for relief, as condensed, clarified, and
briefed by appointed counsel and considered by the magistrate judge to whom I referred
the case, are the following: (1) ineffective assistance of counsel for failure to object to
the prosecution’s use of Wilkins’s nickname “O.J.”; and (2) ineffective assistance of
counsel for failure to investigate information from and to call as a witness Kevin Johnson,
whom Wilkins contends would have testified that, while Johnson was in jail, Johnson
overheard persons present at Hayes’s shooting who were in jail with him conspire to
identify Wilkins as the shooter. By Order (docket no. 16), filed October 28, 2013, I
referred this entire action, including all pending motions, to United States Magistrate
Judge Leonard T. Strand for review of the record and the pleadings, the conduct of any
necessary evidentiary hearing, the hearing of any oral argument that might be necessary,
and the submission to me of a report and recommended disposition of the case.
On July 21, 2014, Judge Strand filed his Order On Pending Motions And Report
And Recommendation On Petition For Writ Of Habeas Corpus Pursuant To 28 U.S.C.
§ 2254 (docket no. 45). After an extension of time to do so, Wilkins’s appointed counsel
filed “Objections To Magistrates [sic] Report And Recommendations” (docket no. 48)
on August 15, 2014.

On August 25, 2014, the respondent filed a Response To

Petitioner’s Objections To Report And Recommendation (docket no. 49). On August 27,
2014, the Clerk of Court received and filed Wilkins’s “Pro-se Objections To Magistrates
[sic] Report And Recommendations” (docket no. 50), which were postmarked August
25, 2014. On August 27, 2014, the respondent filed a Motion To Strike Petitioner’s Pro
2

Se Brief (docket no. 51), relating to Wilkins’s pro se Objections. Wilkins filed no timely
response to the respondent’s Motion To Strike. Thus, the time is ripe for my review of
Judge Strand’s Report And Recommendation pursuant to 28 U.S.C. § 636.

B.

The Report And Recommendation

In his Report And Recommendation, Judge Strand first considered Wilkins’s claim
of ineffective assistance of trial counsel concerning the prosecution’s use of Wilkins’s
nickname “O.J.” Judge Strand concluded that, on direct appeal of Wilkins’s conviction,
the Iowa Supreme Court had applied a standard applicable to misconduct of a prosecutor
to this claim, not the standard for ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984), which was contrary to clearly established federal law.
Report And Recommendation at 21-22. Thus, Judge Strand reviewed this claim de novo
under the Strickland standard, by conducting his own review of the transcript. Id. Judge
Strand noted that the prosecutor used “O.J.” to identify Wilkins well over 100 times in
his examination or cross-examination of numerous witnesses. Id. at 22-24. He then
concluded that, even if the failure of trial counsel to object to these uses of “O.J.” could
be considered deficient performance, Wilkins had failed to demonstrate prejudice, as
required to obtain relief under Strickland. Id. at 24. Judge Strand took note of various
decisions finding that use of references to O.J. Simpson, to “getting away with it” like
O.J. Simpson, or to other comparisons of criminal defendants to O.J. Simpson were
prejudicial. He distinguished these cases, however, on the ground that, in Wilkins’s case,
“the trial transcript indicates that use of the name ‘O.J.’ was primarily guided by witness
testimony and used to identify the defendant,” for example, when a witness stated that
he or she knew Wilkins as “O.J.,” so use of the nickname was “to avoid confusion.”
Judge Strand also noted that there were no attempts by the prosecutor to compare Wilkins
or his defense to O.J. Simpson or O.J. Simpson’s defense. Id. at 24-25.
3

Furthermore, Judge Strand recognized that there was no specific jury instruction
on this issue, but he observed that the jury was instructed on what it could and could not
consider, including instructions that the jury must base its verdict only on the evidence
and the instructions that were given, not on statements, arguments, questions, or
comments by the lawyers. Id. at 25. Judge Strand also noted that the evidence included
multiple witnesses’ testimony and sworn statements to police that Wilkins was the one
who shot Hayes. Id.
On this claim, Judge Strand ultimately concluded,
For these reasons, I find Wilkins has not demonstrated a
reasonable probability that the result of his trial would have
been different had his counsel objected to use of the nickname
“O.J.” at trial. Therefore, counsel’s failure to object to the
use of “O.J.” does not amount to ineffective assistance of
counsel under Strickland.
Report And Recommendation at 25-26.
Judge Strand next considered Wilkins’s claim of ineffective assistance of trial
counsel based on his failure to investigate information from and to call as a witness Kevin
Johnson, whom Wilkins contends would have testified that, while Johnson was in jail, he
overheard persons who were present at Hayes’s shooting, who were in jail with him,
conspire to identify Wilkins as the shooter. Judge Strand concluded that, because the
Iowa Court of Appeals had identified Strickland as the standard applicable to this claim,
on Wilkins’s appeal of denial of his petition for state post-conviction relief, the state court
had used the correct governing standard. Thus, he concluded that the question was
whether the state court’s application of Strickland was unreasonable under § 2254.
Report And Recommendation at 28. Judge Strand concluded,
I find that the Iowa Court of Appeals reasonably
applied Strickland in concluding Wilkins had not
demonstrated prejudice from his counsel’s failure to
4

investigate information from Johnson and call him as a
witness at trial. The court acknowledged that Johnson’s
testimony would have only provided an additional basis to
discredit three of the state’s witnesses. It also suggested that
it would have been difficult for the jury to credit Johnson’s
testimony because Edwards and Burden [two other witnesses
present at the time of the shooting] had each provided prior
consistent statements to police that Wilkins was the shooter
before any of the jailhouse conversations Johnson overheard
in August 2002. Moreover, Coleman and Smith (who were
not parties to the jailhouse conversations) [but were also
present at the time of the shooting] identified Wilkins as the
shooter shortly after the event. Finally, the court also
reasoned that Johnson’s testimony would have been
inconsistent with Wilkins’s defense theory 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.
Report And Recommendation at 28-29.
II.
A.

LEGAL ANALYSIS
The Motion To Strike

Before discussing the standards applicable to review of Judge Strand’s Report And
Recommendation, I must briefly address the respondent’s Motion To Strike, in which the
respondent asks me to strike Wilkins’s pro se objections. The respondent asserts that
Wilkins is not entitled to “hybrid” representation and that courts generally disregard pro
se filings from parties represented by counsel. The respondent also argues that Wilkins’s
pro se objections are untimely.
The respondent is right on both grounds. First, courts, including the Eighth
Circuit Court of Appeals, generally do not accept or consider pro se briefs or filings
5

when a party is represented by counsel. See, e.g., Anderson v. United States, ___ F.3d
___, ___, 2014 WL 3882885, *6 (8th Cir. Aug. 8, 2014); United States v. Pate, 754
F.3d 550, 553 (8th Cir. 2014); United States v. McIntosh, 492 F.3d 956, 961 n.2 (8th
Cir. 2007). Second, Wilkins’s pro se objections are untimely. The time for objections
runs from the service of the Report And Recommendation.

See Report And

Recommendation at 29. In this case, service happened immediately on filing of the
Report And Recommendation, when Wilkins’s counsel was notified of the filing by the
CM/ECF electronic filing system, not from the date that Wilkins eventually received a
copy, at least where Wilkins is represented by counsel. Wilkins’s attorney obtained an
extension only until August 15, 2014, to file objections. See Order (docket no. 47).
Wilkins’s pro se objections were not mailed until August 25, 2014, or received and filed
until August 27, 2014, well beyond the additional 3 days tacked on to deadlines for
“mailing time” still provided under Rule 6(b) of the Federal Rules of Civil Procedure
and N.D. IA. L.R. 6, even after the institution of the electronic filing system.
Consequently, I have not considered Wilkins’s pro se objections, but I find it
unnecessary to strike them from the record.

B.

Standards For Review Of A Report And
Recommendation

As to review by a district judge of a magistrate judge’s ruling, the applicable
statute expressly provides for de novo review when objections are made, as follows:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
6

28 U.S.C. § 636(b)(1) (2006); see FED. R. CIV. P. 72(b) (stating identical requirements);
N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge
but not articulating any standards to review the magistrate judge’s report and
recommendation). The United States Supreme Court has explained that the statutory
standard does not preclude review by the district court in other circumstances, however:
Any party that desires plenary consideration by the Article III
judge of any issue need only ask. Moreover, while the statute
does not require the judge to review an issue de novo if no
objections are filed, it does not preclude further review by the
district judge, sua sponte or at the request of a party, under a
de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 154 (1985). Thus, the specific standard of review may
depend upon whether or not a party has objected to portions of the report and
recommendation.
Where, as here, a party files an objection to a magistrate judge’s report and
recommendation, the district court must “make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1) (emphasis added). In most cases, to trigger de novo
review, “objections must be timely and specific.” Thompson v. Nix, 897 F.2d 356, 35859 (8th Cir. 1990). However, the Eighth Circuit Court of Appeals has been willing to
“liberally construe[]” otherwise general pro se objections to require a de novo review of
all “alleged errors,” see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995), and has
also been willing to conclude that general objections require “full de novo review” if the
record is concise, Belk, 15 F.3d at 815 (“Therefore, even had petitioner’s objections
lacked specificity, a de novo review would still have been appropriate given such a
concise record.”).

7

When objections have been made, and the magistrate judge’s report is based upon
an evidentiary hearing, “‘the district court must, at a minimum, listen to a tape recording
or read a transcript of the evidentiary hearing.’” United States v. Azure, 539 F.3d 904,
910 (8th Cir. 2008) (quoting Jones v. Pillow, 47 F.3d 251, 252 (8th Cir. 1995), in turn
quoting Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989)). Judge Strand did not
hold an evidentiary hearing on Wilkins’s § 2254 Petition or hear oral arguments on the
merits of Wilkins’s claims. Instead, he considered only the parties’ written submissions,
and I have done the same.1

1

In the absence of an objection, the district court is not required “to give any more
consideration to the magistrate’s report than the court considers appropriate.” Thomas,
474 U.S. at 150; see also Peretz v. United States, 501 U.S. 923, 939 (1991) (stating that
§ 636(b)(1) “provide[s] for de novo review only when a party objected to the magistrate’s
findings or recommendations” (emphasis added)); United States v. Ewing, 632 F.3d 412,
415 (8th Cir. 2011) (“By failing to file objections, Ewing waived his right to de novo
review [of a magistrate judge’s report and recommendation on a suppression motion] by
the district court.”). A district court may review de novo any issue in a magistrate judge’s
report and recommendation at any time, even if no objections were made. Id. at 154.
This discretion to conduct de novo review of any issue at any time makes sense, because
the Eighth Circuit Court of Appeals has “emphasized the necessity . . . of retention by
the district court of substantial control over the ultimate disposition of matters referred to
a magistrate.” Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). On the other hand,
Thomas suggests that no review at all is required in the absence of any objections. Id. at
150 (“We are therefore not persuaded that [§ 636(b)(1)] requires some lesser review by
the district court when no objections are filed.”).
Nevertheless, the Eighth Circuit Court of Appeals has indicated that a district court
should review the portions of a magistrate judge’s report and recommendation to which
no objections have been made under a “clearly erroneous” standard of review. See
Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that, when no objections
are filed and the time for filing objections has expired, “[the district court judge] would

8

I will review Judge Strand’s Report And Recommendation with these standards in
mind.

C.

Standards For Federal Habeas Relief

In reviewing Judge Strand’s Report And Recommendation, I must also keep in
mind the standards for federal habeas relief to a state prisoner. Since the passage of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas review by the
federal courts of state court convictions and the state courts’ denials of post-conviction
relief, pursuant to 28 U.S.C. § 2254, is limited and, at least ordinarily, deferential.
Specifically, if a claim has been “adjudicated on the merits in State court,” a federal
habeas court may not grant relief 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

only have to review the findings of the magistrate judge for clear error”); Taylor v.
Farrier, 910 F.2d 518, 520 (8th Cir. 1990) (noting that the Advisory Committee’s Note
to FED. R. CIV. P. 72(b) indicates “when no timely objection is filed the court need only
satisfy itself that there is no clear error on the face of the record”). Review for clear
error, even when no objection has been made, is also consistent with “retention by the
district court of substantial control over the ultimate disposition of matters referred to a
magistrate.” Belk, 15 F.3d at 815. Although the Eighth Circuit Court of Appeals has
not explained precisely what “clear error” review means in this context, in other contexts,
the Supreme Court has stated that the “foremost” principle under this standard of review
“is that ‘[a] finding is “clearly erroneous” when although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.’” Anderson v. City of Bessemer City, 470 U.S. 564,
573 74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
This standard of review will only come into play to the extent that I review findings to
which Wilkins has not objected.
9

light of the evidence presented in the State court proceeding.” Johnson v. Williams, ___
U.S. ___, ___, 133 S. Ct. 1088, 1091 (2013) (quoting § 2254(d) (citations and quotation
marks omitted)). “[R]eview under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S.
___, ___, 131 S.Ct. 1388, 1398 (2011). As a consequence of the limitations on relief
under § 2254(d)(1), “[t]he starting point for cases subject to § 2254(d)(1) is to identify
the ‘clearly established Federal law, as determined by the Supreme Court of the United
States’ that governs the habeas petitioner’s claims.” Marshall v. Rodgers, ___ U.S. ___,
___, 133 S. Ct. 1446, 1449 (2013); Williams v. Taylor, 529 U.S. 362, 412 (2000);
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). “Clearly established law” means
“‘the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.’” Howes v.
Fields, ___ U.S. ___, ___, 132 S. Ct. 1181, 1187 (2012) (quoting Williams, 529 U.S. at
412)). The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have
“independent meaning.” Williams, 529 U.S. at 405.
A state court decision is “contrary to” clearly established federal law, within the
meaning of § 2254(d)(1), “if the state court ‘applies a rule that contradicts the governing
law set forth in [Supreme Court] cases.’” Lafler v. Cooper, ___ U.S. ___, ___, 132 S.
Ct. 1376, 1390 (2012) (quoting Williams, 529 U.S. at 405)). “A state-court decision will
also be contrary to [the Supreme] Court’s clearly established precedent if the state court
confronts a set of facts that are materially indistinguishable from a decision of th[e] Court
and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S.
at 406. A federal court’s belief that it might have reached a different result is not enough
to show that the state court decision was “contrary to” established federal law, where the
state court applied the correct standard under established Supreme Court law. Id. A
state court’s decision involves an “unreasonable application” of federal law, within the
meaning of § 2254(d)(1), if “‘there was no reasonable basis for’ the [state court’s]
10

decision.” Cullen, ___ U.S. at ___, 131 S. Ct. at 1402 (quoting Harrington v. Richter,
562 U.S. ___, ___, 131 S. Ct. 770, 786 (2011)). Thus, “‘an unreasonable application
of federal law is different from an incorrect application of federal law.’” Richter, 562
U.S. at ___, 131 S. Ct. at 785 (emphasis in the original) (quoting Williams, 529 U.S. at
410).
Even if a petitioner establishes that the state court’s determination was “contrary
to” or an “unreasonable application of” federal law, within the meaning of § 2254(d)(1),
that determination does not, standing alone, entitle the petitioner to relief. Rather, it only
entitles the petitioner to de novo consideration by the federal court of the petitioner’s
underlying constitutional claim for post-conviction or habeas relief. See Johnson, ___
U.S. at ___, 133 S. Ct. at 1097 (“Even while leaving ‘primary responsibility’ for
adjudicating federal claims to the States, AEDPA permits de novo review in those rare
cases when a state court decides a federal claim in a way that is ‘contrary to’ clearly
established Supreme Court precedent.” (internal citations omitted)); Lafler, ___ U.S. at
___, 132 S. Ct. at 1390-91 (holding that, where the state court’s decision was “contrary
to” clearly established federal law, because it failed to apply the Strickland standards to
an ineffective assistance of counsel claim, the federal court “can determine the principles
necessary to grant relief” and apply them to the facts of the case); Richter, ___ U.S. at
___, 131 S. Ct. at 770 (stating that § 2254(d)(1)’s exception “permit[s] relitigation where
the earlier state decision resulted from an ‘unreasonable application of’ clearly established
federal law”); Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (stating that, when the
state court’s adjudication was “contrary to” Federal law, within the meaning of
§ 2254(d)(1), “[a] federal court must then resolve the claim without the deference
AEDPA otherwise requires”); Wiggins v. Smith, 539 U.S. 510, 534 (2003) (performing
the analysis required under Strickland’s “prejudice” prong without deferring to the state
court’s decision, because the state court’s resolution of Strickland’s “deficient
11

performance” prong involved an “unreasonable application” of federal law, and the state
court had considered the “deficient performance” prong dispositive).

D.
1.

Review Of The Recommended
Disposition Of Wilkins’s Claims

The “nickname” claim

Here, Judge Strand applied de novo review to Wilkins’s claim of ineffective
assistance related to use of the nickname “O.J.,” because the Iowa Supreme Court had
applied the wrong standard to that claim, a prosecutorial misconduct standard rather the
ineffective assistance of counsel standard in Strickland. Report And Recommendation at
21-22. Wilkins does not assert that doing so was error, and I find that not only did Judge
Strand not clearly err on this point, he was indubitably correct. See Grinder, 73 F.3d at
795 (clear error review applies when no objections are made); see also Lafler, ___ U.S.
at ___, 132 S. Ct. at 1390-91 (holding that, where the state court’s decision was “contrary
to” clearly established federal law, because it failed to apply the Strickland standards to
an ineffective assistance of counsel claim, the federal court “can determine the principles
necessary to grant relief” and apply them to the facts of the case).
Wilkins objects2 to just about every aspect of Judge Strand’s de novo consideration
of this claim, however, requiring me to make a de novo review of Judge Strand’s de novo
review of Wilkins’s claim.

In essence, Wilkins contends that Judge Strand’s

recommended disposition of this claim is wrong, because the record clearly shows that
all witnesses who used the nickname “O.J.” to identify Wilkins at trial also knew him by

2

Because I will not consider Wilkins’s pro se objections, all references to
“Wilkins’s objections” in the remainder of this decision refer to Wilkins’s counsel’s
objections.
12

other, “non-prejudicial” names; in the prosecutor’s examination or cross-examination of
particular witnesses, the prosecutor often referred to Wilkins as “O.J.” before
establishing whether that was a name by which the witness knew Wilkins; not counting
witness usage, Wilkins was identified as “O.J.” more than 300 times during the trial, and
at least 66 times by his defense counsel. Thus, Wilkins argues that the use of “O.J.” to
identify him was not fleeting, or just a couple of statements referring to “O.J.,” but a
steady “drumbeat” of “O.J.,” “O.J.,” “O.J.,” so incessant and so invasive that even
defense counsel fell into the trap of referring to his client as “O.J.” He argues that using
the nickname “O.J.” had no probative value, at least none over using his actual name,
and that using his nickname incessantly was prejudicial, because it undermined his
plausible defense that someone else shot Hayes by inflammatory references to an
infamous murder case in which the prime suspect is generally believed to have “gotten
away with murder.”
There are several flaws in Wilkins’s objections. First, “O.J.” was, in fact,
Wilkins’s nickname and one of the names by which witnesses most often knew him.
Second, using a consistent reference for a defendant for identity purposes would have
aided the jurors in following the evidence and testimony in the case. Third, Wilkins still
has not identified any use of “O.J.” that directly or impliedly likened him to O.J. Simpson
or likened his defense to “getting away with it” like many people believe that O.J.
Simpson did. Fourth, notwithstanding the notoriety of the O.J. Simpson case, I cannot
conclude that referring to a defendant whose commonly recognized nickname was
“O.J.,” without ever attempting to relate that nickname to O.J. Simpson or his
entanglements with criminal law, is anywhere near as inherently prejudicial as a nickname
like “Murder,” see United States v. Farmer, 583 F.3d 131, 146 (2d Cir. 2009), or
“Crime,” see United States v. Price, 443 F. App’x 576, 579 (2d Cir. 2011), to which
Wilkins likens use of his nickname in his case. As used in this case, “O.J.” was not
13

simply an irrelevant nickname used to suggest a defendant’s bad character or unsavory
proclivities, but a nickname properly used to clarify the identity of the defendant as the
person to whom witnesses were referring, so that it was not prejudicial. See, e.g., United
States v. Delpit, 94 F.3d 1134, 1146 (8th Cir. 1996) (indicating when use of nicknames
or aliases may be unduly prejudicial). Fifth, even if the evidence against Wilkins was
not overwhelming, as he claims—and I do not necessarily agree with him—upon de novo
review, I agree with Judge Strand that Wilkins has not demonstrated a reasonable
probability that the result of his trial would have been different if his counsel had objected
to use of the nickname “O.J.” to identify him, and this ineffective assistance of counsel
claim fails under Strickland. See Strickland, 466 U.S. at 694 (explaining that, to establish
the required 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”); see also Richter, 562 U.S. at ___, 131 S. Ct. at 791 (explaining that a
“reasonable probability” requires a “substantial,” not just “conceivable,” likelihood of a
different result).
I accept Judge Strand’s recommended disposition of this claim.
2.

The “shooter identification” witness

Wilkins also objects to Judge Strand’s recommended disposition of his claim of
ineffective assistance of counsel for failure to investigate information from and to call as
a witness Kevin Johnson, whom Wilkins contends would have testified that, while
Johnson was in jail with persons who had been present at Hayes’s shooting, Johnson
overheard them conspire to identify Wilkins as the shooter. Wilkins objects to Judge
Strand’s conclusion that the rejection of this claim by the Iowa Court of Appeals was a
reasonable application of federal law, specifically, Strickland, because even if counsel
performed deficiently, Wilkins could not show the required prejudice. Wilkins argues
that the problem with the decision of the Iowa Court of Appeals is that it does not
14

adequately take into account that the veracity of the state’s witnesses had already been
called into question by Michael Daniel’s unbiased eyewitness testimony that it was Wood,
someone actually testifying for the state, not Wilkins, who shot Hayes. Wilkins argues
that Johnson would have added weight to that testimony and it is a reasonable probability
that this would have tipped the weight of the evidence in Wilkins’s favor.3
After de novo review, I agree with Judge Strand’s conclusions that the Iowa Court
of Appeals did not unreasonably conclude that Wilkins had not demonstrated prejudice
from his counsel’s failure to investigate information from Johnson and to call Johnson as
a witness at trial. See Cullen, ___ U.S. at ___, 131 S. Ct. at 1402; see also Richter, 562
U.S. at ___, 131 S. Ct. at 785 (explaining that “‘an unreasonable application of federal
law is different from an incorrect application of federal law’” (emphasis in the original)
(quoting Williams, 529 U.S. at 410)). The Iowa Court of Appeals acknowledged that
Johnson’s testimony would have only provided an additional basis to discredit three of
the state’s witnesses; suggested that it would have been difficult for the jury to credit
Johnson’s testimony because Edwards and Burden, two other witnesses present at the
time of the shooting, had each provided prior consistent statements to police that Wilkins
was the shooter before any of the jailhouse conversations Johnson overheard in August
2002; recognized that Coleman and Smith, who were not parties to the jailhouse
conversations, but who were also present at the time of the shooting, identified Wilkins
as the shooter shortly after the event; and reasoned that Johnson’s testimony would have

3

There is some merit to the respondent’s argument that Wilkins’s counsel
marshaled different arguments to attack Judge Strand’s recommended disposition than
counsel did to support Wilkins’s claim in the first instance. I find that it makes no
difference whether I consider Wilkins’s counsel’s “old” or “new” arguments, because
none of them demonstrate that the decisions of the Iowa courts on this claim were
unreasonable.
15

been inconsistent with Wilkins’s defense theory, because Burden allegedly told Johnson
that Edwards, not Woods, shot Hayes. Upon de novo review, I conclude that the Iowa
Court of Appeals did not unreasonably conclude that Johnson’s testimony likely would
not have changed the jury’s verdict and, therefore, that Wilkins suffered no prejudice, as
required for relief under Strickland. See Strickland, 466 U.S. at 694 (explaining that, to
establish the required 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”); see also Richter, 562 U.S. at ___, 131 S. Ct. at 791
(explaining that a “reasonable probability” requires a “substantial,” not just
“conceivable,” likelihood of a different result).
I accept Judge Strand’s recommendation to deny this claim for federal habeas
relief.
III.

CONCLUSION

Upon the foregoing, I conclude, as follows:
1.

The respondent’s August 27, 2014, Motion To Strike Petitioner’s Pro Se

Brief (docket no. 51), relating to Wilkins’s pro se Objections (docket no. 50), is granted
to the extent that I have not considered Wilkins’s pro se Objections, because Wilkins is
represented by counsel and/or because his pro se Objections are untimely, but I find it
unnecessary to strike them from the record;
2.

I overrule Wilkins’s counsel’s August 15, 2014, “Objections To

Magistrates [sic] Report And Recommendations” (docket no. 48);
3.

I accept Judge Strand’s July 21, 2014, Report And Recommendation On

Petition For Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 (docket no. 45) to
deny Wilkins’s petition pursuant to 28 U.S.C. § 2254;
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4.

Wilkins’s February 25, 2013, Petition Under 28 U.S.C. § 2254 For Writ

Of Habeas Corpus By A Person In State Custody (docket no. 1), as subsequently
supplemented, clarified, or amended, is denied; and
5.

The Clerk of Court shall enter judgment accordingly.

IT IS SO ORDERED.
DATED this 6th day of October, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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