Wilkinson v. Polk

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-3

PHILIP EDWARD WILKINSON,

Petitioner - Appellant,

versus

MARVIN L. POLK, Warden, Central Prison,
Raleigh, North Carolina,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:01-hc-00343-H)

Argued: November 29, 2006 Decided: April 5, 2007

Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit
Judges.

Affirmed by unpublished opinion. Chief Judge Wilkins wrote the
opinion, in which Judge Traxler and Judge Gregory joined.

ARGUED: Erwin Chemerinsky, Professor, DUKE UNIVERSITY SCHOOL OF
LAW, Durham, North Carolina, for Appellant. Sandra Wallace-Smith,
Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee. ON BRIEF: Mary Ann Tally,
CENTER FOR DEATH PENALTY LITIGATION, INC., Durham, North Carolina;
Matt C. Stiegler, Durham, North Carolina, for Appellant. Roy
Cooper, Attorney General, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
WILKINS, Chief Judge:

Philip Edward Wilkinson appeals an order of the district court

denying his petition for a writ of habeas corpus, see 28 U.S.C.A.

§ 2254 (West 2006), in which he challenged his convictions and

death sentences for the murders of Judy, Chrystal, and Larry

Hudson.1 Wilkinson contends that law enforcement officers

unconstitutionally interfered with his relationship with trial

counsel, that the prosecution failed to turn over materially

exculpatory evidence, and that his counsel were constitutionally

defective in several respects. Because we conclude that the first

of these claims is defaulted and that the rejection of the

remainder by the state court was neither contrary to, nor an

unreasonable application of, clearly established federal law, we

affirm.

I.

Judy, her 19-year-old daughter Chrystal, and her 11-year-old

son Larry were found dead in their apartment in Fayetteville, North

Carolina, on July 30, 1991. All three had been bludgeoned to

death; Judy and Chrystal had been sexually assaulted. Police were

at a standstill in the investigation until January 9, 1992, when

Wilkinson turned himself in and confessed to the crime.

1
Wilkinson named Marvin Polk, Warden of Central Prison in
Raleigh, North Carolina, as Respondent. We will refer to
Respondent as “the State.”

2
 Wilkinson provided the following account of the murders to law

enforcement officers. On the night of July 29, 1991, Wilkinson--a

habitual Peeping Tom--met a female friend at a restaurant at

approximately 9:00 p.m. Wilkinson drank heavily before, during,

and after this meeting. When Wilkinson’s friend left the bar, he

followed her in his vehicle. He was angry because she had been

“teasing” and “flirtatious,” and he intended to go to her apartment

to seduce her or, “if it did lead to that,” to rape her. Id. at

609. Wilkinson deliberately parked some distance from the

apartment in order to avoid detection. He abandoned his plan when

the woman’s dog began barking at him.

On his way back to his barracks,2 Wilkinson pulled into the

Heather Ridge Apartment complex, where the Hudsons lived. Walking

around the back of the complex, he approached the sliding glass

doors at the back of the Hudsons’ apartment and observed Chrystal

on the couch in a t-shirt and panties, asleep. Looking at her,

Wilkinson “was getting all worked up ... [b]ecause I had already

planned on doing that other chick.” Id. at 611. He picked up a

bowling pin that he saw outside the apartment door and “knew,” at

that point, that he “was going to kill her.” Id. at 640.

Wilkinson entered the apartment and fondled Chrystal, who woke

up. Wilkinson clubbed Chrystal repeatedly with the bowling pin,

2
At the time of the murders, Wilkinson was a soldier
stationed at Fort Bragg.

3
killing her. He then bit her breasts and attempted to rape her,

but failed because he was unable to achieve an erection. It then

occurred to Wilkinson that there might be other people in the

apartment. He found Judy and Larry asleep in one of the bedrooms.

He retrieved the bowling pin from the living room and bludgeoned

both of them to death. He then used a lightbulb to sexually

assault Judy and Chrystal.

Wilkinson eventually left the apartment, but upon reaching his

car he realized that he had left behind the bowling pin and the

lightbulb. He went back to the apartment to get these things, and

while there attempted to eliminate evidence of his presence in the

apartment by wiping down the screen door and the faucet where he

had washed his hands.

Police were without leads in the murders until approximately

six months later, when Wilkinson turned himself in and confessed.

He eventually pleaded guilty to three counts of first-degree murder

and other offenses. Thereafter, a jury sentenced him to death on

each of the murder convictions. The convictions and sentences were

affirmed on direct appeal. See State v. Wilkinson, 474 S.E.2d 375

(N.C. 1996). In 1997, Wilkinson filed a motion for appropriate

relief (MAR). The MAR court denied relief on the pleadings, and

the North Carolina Supreme Court denied Wilkinson’s petition for a

writ of certiorari. See State v. Wilkinson, 546 S.E.2d 394 (N.C.

2000).

4
 In May 2001, Wilkinson filed this petition for a writ of

habeas corpus in the district court. As is relevant here,

Wilkinson raised three claims:

1. Law enforcement officers, acting as agents of the state,
violated Wilkinson’s constitutional right to counsel by making
disparaging remarks about counsel and encouraging Wilkinson to
reject counsel’s advice.

2. The State failed to disclose material, exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963).

3. Trial counsel were ineffective in their preparation and
presentation of Wilkinson’s case in mitigation.

The district court concluded that the first claim was procedurally

defaulted and that all of the claims were without merit. Having

received a certificate of appealability from the district court,

Wilkinson now appeals.

II.

To the extent that Wilkinson’s claims were reviewed on the

merits in state court proceedings, our review is constrained by the

provisions of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. Pursuant to

that act, we review the decision of the district court de novo, but

we defer to the decision of the state court insofar as it

adjudicated Wilkinson's claims. See Conaway v. Polk, 453 F.3d 567,

581 (4th Cir. 2006). A federal court may grant habeas relief on a

claim “adjudicated on the merits” by a state court only if the

state court ruling “resulted in a decision that was contrary to, or

5
involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States” or “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.A. § 2254(d).

A decision is “contrary to” clearly established federal
law if it either applies a legal rule that contradicts
prior Supreme Court holdings or reaches a conclusion
different from that of the Supreme Court “on a set of
materially indistinguishable facts.” A decision is an
“unreasonable application” of clearly established federal
law if it “unreasonably applies” a Supreme Court
precedent to the facts of the petitioner's claim.

Buckner v. Polk, 453 F.3d 195, 198 (4th Cir. 2006) (quoting

Williams v. Taylor, 529 U.S. 362, 412-13 (2000)) (citation

omitted), petition for cert. filed, No. 06-8699 (U.S. Jan. 3,

2007).

With these principles in mind, we turn to an examination of

Wilkinson's claims.

III.

During Wilkinson’s initial contact with police, the following

exchange occurred between Wilkinson, Sergeant Mike Calfee, and

Investigator Jeff Stafford:

P. Wilkinson: I want a quick or a speedy trial.... How
long do you think [it’s] going to be
before the trial.

Sgt. Calfee: That’s up to you.

Inv. Stafford: The quickest that this would get done
would be six months.

6
 P. Wilkinson: I have to stay in Fayetteville for six
months.

Sgt. Calfee: Maybe four months if [you’re] real
adamant[. W]hat will happen to you, is
you will get an appointed public defender
.... And with all public defenders they
are going to want you to plead not
guilty. And try to make up some kind of
a story, as to why it couldn’t be used.

P. Wilkinson: What I am [sic] here telling you guys
everything.

Sgt. Calfee: You have to be adamant with your public
defender, about what you want to do,
because they are going to tell you what
they are going to do. They are good for
that, for not listening to what you want
to do. What you want to do is what I
would want to do, if I was in your
position.... [G]et it over with, get my
sentence started, and go on with the rest
of my life....

P. Wilkinson: This is taxpayer[s’] money, and I really
don’t think that’s fair, that they have
to pay for what I did.

Sgt. Calfee: That will be between you and your public
defender.

P. Wilkinson: What if I didn’t have one?

Sgt. Calfee: You have to have one. This is a
[capital] case. You have to be
represented by a competent counselor.
[It’s] up to you, your public defender[]
will say we want you to [plead] not
guilty and come up with some excuse.
That’s where you come in and say look no,
that’s not what I want you to do, you are
here to represent me, and this is the way
I want to proceed.

J.A. 655-56 (emphasis added).

7
 A public defender was appointed to represent Wilkinson on

January 10, and she instructed Wilkinson not to talk with anyone,

especially Calfee and Stafford. Nevertheless, the officers

contacted Wilkinson on January 16 and spoke to him without his

attorney’s knowledge. The notes of this interview state that

Wilkinson “told us that he thought[] that he made his attorney mad,

because she wanted him to sign a paper, telling him not to talk to

us [any] more. And he refused to sign this paper. We told him

that [s]he was only looking out for him.” J.A. 422 (emphasis

added). The report further states that the officers advised

Wilkinson of his Miranda rights. See Miranda v. Arizona, 384 U.S.

436, 478-79 (1966). The report continues: “He initialed and

indicated that he understood, and that he did not want to talk to

us, and that he would talk to us, without an attorney being

present.” J.A. 422. The officers contacted Wilkinson once more on

February 14, again without the knowledge of his attorney.

Wilkinson maintains that these contacts, particularly the

first one, violated his Sixth Amendment rights because the officers

disparaged his attorneys and thus interfered with his relationship

with them. The MAR court found that this claim was procedurally

defaulted because Wilkinson could have raised it on direct appeal.

The district court affirmed this finding and also determined that

the claim was without merit. We affirm on the basis that the claim

was procedurally defaulted.

8
 Absent cause and prejudice or a miscarriage of justice, a

federal habeas court may not review constitutional claims when a

state court has declined to consider their merits on the basis of

an adequate and independent state procedural rule. See Harris v.

Reed, 489 U.S. 255, 262 (1989). The procedural rule at issue here

is N.C. Gen. Stat. § 15A-1419(a)(3) (2005), which provides that a

claim is defaulted if the petitioner could have raised it in a

previous appeal but failed to do so. The MAR court determined that

the facts underlying Wilkinson’s Sixth Amendment claim were

presented on the face of the trial record, and thus the claim could

have been raised on direct appeal, see State v. Fair, 557 S.E.2d

500, 525 (N.C. 2001) (holding that an ineffective assistance of

counsel claim must be raised on direct appeal when the facts

supporting the claim are presented on the face of the record).

Wilkinson does not dispute the general adequacy of § 15A-

1419(a)(3). Rather, he maintains that counsel could not have

raised the issue at trial or on direct appeal because the fact and

content of Wilkinson’s conversations with Calfee and Stafford were

known only to Wilkinson. This is an incorrect statement of the

record. As the district court noted, “a videotape of Wilkinson’s

conversation with the officers was admitted into evidence” during

the penalty phase, and “Sergeant Stafford testified that he met

with Wilkinson on two other occasions at the jail.” J.A. 698-99.

9
We therefore affirm the conclusion of the district court that this

claim is procedurally defaulted.

IV.

Wilkinson next maintains that the State failed to disclose

material exculpatory evidence--namely, the results of a blood

alcohol test--in violation of Brady. The MAR court ruled that this

claim was procedurally defaulted and that, alternatively, it was

without merit. On federal habeas review, the district court

concluded that the claim was not defaulted but that the merits

ruling of the MAR court was not an unreasonable application of

clearly established law. The State does not challenge the

rejection by the district court of the procedural default ruling by

the MAR court, and we therefore do not consider it. We conclude,

rather, that the rejection of this claim on the merits by the MAR

court is entitled to deference under the AEDPA.

By his own account, Wilkinson drank heavily on the night of

the murders. By 8:00 p.m., he had drunk eight beers. He then met

his friend at the bar, where he drank another six to eight mixed

drinks, each one a double. After leaving the bar, Wilkinson drank

another two beers in his car before he committed the murders.

Indeed, Wilkinson told the police during his confession that he was

drunk at the time of the murders and had difficulty recalling some

of the details of the crimes.

10
 Wilkinson missed his 6:00 a.m. formation on the morning

following the murders. His squad leader found him and had him

taken to the hospital, where a blood alcohol test was conducted.

Defense counsel repeatedly requested a copy of the test results but

did not receive them until two days after Wilkinson pleaded guilty.

Based on the test results, a toxicologist hired by MAR counsel

estimated that Wilkinson had a blood alcohol level of .174 at the

time of the murders.

Wilkinson argues that the failure to provide the test results

prior to his guilty plea constituted a violation of his due process

rights. Suppression by the government of evidence favorable to the

defense that is material to the outcome of a trial or sentencing

proceeding violates due process, irrespective of the good or bad

faith of the prosecutor. See Brady, 373 U.S. at 87. Undisclosed

evidence is material when its cumulative effect is such that “there

is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different.” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)

(internal quotation marks omitted); see id. at 436 (explaining that

“suppressed evidence [must be] considered collectively, not item by

item”). A “reasonable probability” is one sufficient to undermine

confidence in the outcome. See id. at 434.

Wilkinson contends that the test results were material because

they would have enabled trial counsel to persuade Wilkinson that he

11
was too drunk to premeditate the murders, and thus that he should

plead guilty to second-degree murder or plead not guilty and try to

persuade a jury, based on a defense of voluntary intoxication, that

he was innocent of capital murder. This claim fails. Even without

the test results, Wilkinson’s attorneys had ample evidence to

support a jury instruction on voluntary intoxication. See State v.

Mash, 372 S.E.2d 532, 538 (N.C. 1988). Wilkinson’s attorneys knew

that Wilkinson had been drinking heavily for hours before the

incident and that he had stated in his confession that he was drunk

at the time of the murders--even that he did not think he would

have killed the victims had he been sober. Additionally, counsel

knew that Wilkinson’s sobriety was sufficiently questionable the

next day that his commanding officer had him taken in for a blood

alcohol test. In short, even without the test results, Wilkinson’s

attorneys had ample evidence to support a voluntary intoxication

defense and to persuade their client to seek a lesser conviction,

whether through plea or trial. It is exceedingly unlikely that

having the actual test results would have made any difference to

the outcome. We therefore conclude that the rejection of this

claim by the MAR court was neither contrary to, nor an unreasonable

application of, clearly established federal law.

12
 V.

Finally, Wilkinson challenges the effectiveness of trial

counsel. In order to establish that his constitutional right to

the effective assistance of counsel was violated, Wilkinson must

make a twofold showing. See Wiggins v. Smith, 539 U.S. 510, 521

(2003). First, he must demonstrate that his attorneys’

“representation fell below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 688

(1984). “Judicial scrutiny of counsel’s performance must be highly

deferential,” and “every effort [must] be made to eliminate the

distorting effects of hindsight ... and to evaluate the

[challenged] conduct from counsel’s perspective at the time.” Id.

at 689.

Wilkinson must also demonstrate that he was prejudiced by his

attorneys’ ineffectiveness, i.e., “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.

In the context of an ineffective assistance claim related to

counsel’s performance during the penalty phase of a capital trial,

the question is whether the habeas petitioner can demonstrate a

reasonable probability that at least one juror would have voted to

impose a sentence of life imprisonment. See Buckner, 453 F.3d at

203.

13
 A.

Wilkinson maintains that trial counsel failed to make an

adequate presentation regarding the statutory mitigating factor

that “the defendant was under the influence of mental or emotional

disturbance.” N.C. Gen. Stat. § 15A-2000(f)(2) (2005). In

particular, Wilkinson criticizes trial counsel’s failure to make

use of Dr. Billy Royal and Dr. Faye Sultan, both of whom were

defense experts who had examined Wilkinson. Instead, trial counsel

presented the testimony of Dr. Stephen Alexander, who testified at

length regarding Wilkinson’s mental state around the time of the

murders.

Trial counsel adequately explained their failure to use Royal

and Sultan. As to Royal, trial counsel abandoned him as an expert

after he failed to produce an intelligible report after two years

on the case. As the district court explained,

Despite having worked on [Wilkinson’s] case for two years
and having cost the defense over $7,000 in court-
authorized funds, Dr. Royal never completed his
evaluation and never reached any final conclusions
regarding [Wilkinson’s] state of mind. Counsel told the
trial judge that they were finally able to “pry an
evaluation out of [Dr. Royal]” approximately eight or
nine months before [Wilkinson’s] trial but that the
evaluation was “worthless” and “gibberish.” Trial
counsel effectively had two choices -- they could
continue working with Dr. Royal and hope that he would
provide something useful or they could cut their losses
and begin anew with different experts. Given the
circumstances trial counsel faced, it cannot be said that
they performed deficiently in choosing different mental
health experts to assist them.

14
J.A. 725 (third alteration in original). Dr. Sultan, after

examining Wilkinson, adamantly refused to have any further

involvement in the case, saying that her testimony would hurt

Wilkinson more than help him.

In light of these circumstances, it was not ineffective for

counsel to employ different experts to present Wilkinson’s case in

mitigation. Indeed, this is precisely the type of strategic

judgment that is entitled to a full measure of deference from

reviewing courts. See Strickland, 466 U.S. at 690 (“[S]trategic

choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable.”). Moreover,

the experts employed by counsel, particularly Dr. Alexander, who

testified as to Wilkinson’s mental state, were very effective. The

jury found the “mental or emotional disturbance” mitigator based on

Dr. Alexander’s testimony. Therefore, it was not unreasonable or

contrary to Strickland for the MAR court to reject this claim.

B.

Trial counsel presented substantial evidence regarding the

circumstances of Wilkinson’s upbringing. This testimony was

presented through Wilkinson’s younger brother and sister, Paul and

Jennifer, and through psychotherapist Janet Vogelsang. These three

witnesses testified that Wilkinson’s parents divorced when he was

six and that his father visited the family on Sundays for a while,

but then dropped out of their lives. They also testified that

15
despite living in a middle-class neighborhood in Ohio, they were

sometimes without electricity and hot water because Wilkinson’s

mother, a nurse, refused to work to support the family. On

occasion, Wilkinson’s mother would parade her children (including

Wilkinson’s older brother, Peter, who is developmentally disabled)

in front of various churches, begging for charity. They would move

on to another church when one grew tired of supporting them. All

of the churches were fundamentalist Pentecostal, and Wilkinson grew

up fearing that if he took one wrong step, he would go to Hell.

Also, the Wilkinson home was chaotic and filthy, and the children

could not bring their friends over. Their mother was often absent

when the children were home; once, Jennifer was injured by a piece

of falling plaster, and the children had to go to a neighbor for

help because they could not find their mother. In addition to

laying out this factual background, Dr. Vogelsang testified at

length regarding the impact of Wilkinson’s upbringing on his mental

health, specifically relating the circumstances to his behavior in

the murders.

Despite all of this, Wilkinson maintains that trial counsel

were ineffective for not presenting more witnesses, particularly

Wilkinson’s parents. Indeed, Wilkinson criticizes the fact that

his parents were told there were no funds to bring them to North

Carolina for the trial. Wilkinson maintains that additional

witnesses would have allowed trial counsel to “develop[] a far more

16
detailed and richer description of Mr. Wilkinson’s childhood.” Br.

of Appellant at 49.

The rejection of this assertion by the MAR court was not

unreasonable. The picture presented to the jury, particularly

through the testimony of Wilkinson’s siblings, was quite detailed.

It is highly unlikely that additional evidence, which would merely

have been cumulative, would have changed the outcome. We therefore

affirm the denial of habeas relief on this claim.

C.

Wilkinson’s strongest claim regarding the effectiveness of

trial counsel concerns their failure to present evidence that

Wilkinson was filled with remorse for the murders. Specifically,

Wilkinson maintains that trial counsel should have presented

testimony from Randy Johnson, a pastor who spoke with Wilkinson

shortly before Wilkinson confessed to the murders. In an affidavit

submitted with Wilkinson’s MAR, Pastor Johnson stated that he

“could sense that [Wilkinson] was extremely remorseful.” J.A. 466.

Pastor Johnson further affirmed that he thought Wilkinson was a

very likeable young man and that he would have been willing to

testify if he had been subpoenaed. Although Wilkinson’s acceptance

of responsibility for his criminal conduct was submitted as a

mitigating factor, it was not found by any juror.

The failure to call Pastor Johnson as a witnesses is

troubling, particularly since it appears that no other witness

17
testified at length regarding Wilkinson’s remorse for the crimes,

and counsel did not spend any significant time arguing that

Wilkinson was remorseful, instead focusing on the fact that the

investigation of the murder was at a dead end and that Wilkinson

did the right thing by turning himself in. However, we do not

consider this claim on de novo review, but rather subject to the

strictures of the AEDPA. Pursuant to those limitations, that we

would decide an issue differently on de novo review is not enough

to grant habeas relief; the decision of the state court must not be

merely incorrect, but unreasonable. See Lovitt v. True, 403 F.3d

171, 178 (4th Cir.), cert. denied, 126 S. Ct. 400 (2005).

We cannot reach such a conclusion here. Assuming that trial

counsel were ineffective for failing to present Pastor Johnson’s

testimony, it was not unreasonable for the MAR court to conclude

that there was no resulting prejudice. In the first place,

Wilkinson’s confession revealed that he had talked to Pastor

Johnson for the very first time only a few hours, at most, before

his confession. And, as the district court noted, not only did

Dr. Alexander testify regarding Wilkinson’s remorse, but trial

counsel made it clear to the jury that the crime would have gone

unsolved had Wilkinson not voluntarily confessed. Finally, the

jury knew that Wilkinson had pleaded guilty and that he had

insisted upon doing so from the moment he turned himself in. In

light of the evidence presented of Wilkinson’s remorse, we cannot

18
say that it was unreasonable for the MAR court to conclude that the

failure to present the additional testimony of Pastor Johnson would

not have created a reasonable probability of a different outcome.

We therefore affirm the denial of relief on this claim.3

VI.

For the reasons set forth above, we affirm the denial of

habeas relief by the district court.

AFFIRMED

3
Wilkinson also argues that trial counsel should have
presented evidence regarding his ability to adjust to a prison
environment. This claim is without merit. Given the evidence
before the jury (both in aggravation and mitigation), it is highly
unlikely that the jury would have been swayed to impose a life
sentence based on the fact that Wilkinson would have been a good
prisoner, especially considering that the state did not argue
future dangerousness as an aggravating factor. It therefore was
not unreasonable for the MAR court to reject this assertion.

19