                                                                                      FILED
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               January 28, 2010
                                    TENTH CIRCUIT
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court

JESIL ABRAHAM WILSON,

       Petitioner - Appellant

v.                                                             No. 08-5101
                                                               (N.D. Okla.)
STATE OF OKLAHOMA; JUSTIN                          (D.C. No. 4:02-CV-00323-CVE-PJC)
JONES; TULSA COUNTY,

       Respondents - Appellees



                                ORDER AND JUDGEMENT*


Before O’BRIEN, BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.


       Jesil Abraham Wilson, a minor, was charged with First Degree Murder in adult

court. The Oklahoma trial court denied Wilson’s motion to be certified as a child and

proceed in juvenile court (reverse certification). Wilson was convicted by a jury and

sentenced to life imprisonment. He filed a 28 U.S.C. § 2254 federal habeas petition

alleging ineffective assistance of counsel with respect to the reverse certification


       *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
proceedings. The district court concluded his claim as to pretrial counsel1 was

procedurally barred and Wilson had failed to show ineffective assistance of appellate

counsel constituted cause and prejudice to overcome the bar. We affirm.

                         I.      FACTUAL BACKGROUND

       The following facts derive mainly from the testimony of Officer Mark Brisbin,

Detective Alvin McDonald and the victim’s sister at the reverse certification hearing held

on November 4, 1998.

       At approximately 1:30 a.m. on January 3, 1997, 13-year-old Wilson and his cousin

Zachary Ferguson went to Mitchell Knighten’s apartment in Tulsa, Oklahoma, to retrieve

a gun Knighten had taken from Wilson a few days earlier. Wilson knocked on the door,

while Ferguson concealed himself around the corner. Knighten’s sister answered the

door. Wilson asked her to get her brother; Knighten then came to the door. Wilson

demanded the gun from Knighten. When Knighten did not return the gun, Ferguson

emerged from around the corner and fatally shot Knighten. Wilson and Ferguson fled the



       1
         Wilson had at least five different attorneys: (1) Cliff Stark who represented him
in juvenile court at the adult certification hearing; (2) Michael French who represented
him in adult court at the reverse certification hearing; (3) Gregg Graves who was
appointed after French withdrew; (4) David Phillips who represented him at trial and
sentencing; and (5) Kimberly Heinze who represented him on appeal. Phillips was
retained by Wilson; Stark, Graves and Heinze were court-appointed. Wilson says French
was appointed by the court but other evidence in the record indicates he may have been
retained. In particular, one of the reasons French gave for withdrawing was “[Wilson’s]
family . . . has decided not to honor their financial obligations and has refused to pay for
trial work.” (R. Vol. I, Doc. 43-5 at 2.) Our reference to pretrial counsel in this order
and judgment refers to French.



                                               -2-
scene.

         Police officer Mark Brisbin responded to the shooting and took a formal statement

from Knighten’s sister. While she was giving her statement, Wilson, Ferguson and

Kelvin Kelly arrived in a car. Knighten’s sister observed Wilson and Ferguson get out of

the car, pointed at them and said, “Hey, there they are.” (Appellant’s Reply Br., Ex. 1 at

22.) Brisbin, allegedly at gunpoint, handcuffed Wilson and Ferguson and placed them in

a patrol car. Kelly, who did not get out of the car, was also detained.

         Detective Alvin McDonald also responded to the scene. He identified Wilson,

Ferguson and Kelly as witnesses; they were transported to the police station where

McDonald interviewed them. Kelly said Ferguson had shot Knighten and Wilson was

with Ferguson at the time of the shooting. Ferguson denied any involvement in the

murder. Wilson initially denied involvement but eventually admitted he was with

Ferguson at the time Knighten was shot. He then said he shot Knighten once and

Ferguson shot Knighten twice. Based on these statements, McDonald no longer

considered Wilson a witness but rather a suspect. He stopped the interview and called

Wilson’s mother.

         When Wilson’s mother came to the police station, McDonald presented both

Wilson and his mother with a form explaining Wilson’s rights. It provided:

         BEFORE WE ASK YOU ANY QUESTIONS YOU MUST
         UNDERSTAND YOU HAVE THE FOLLOWING RIGHTS

         1.    You have the right to remain silent.

         2.    Anything you say can and will be used against you in court.



                                                -3-
       3.     You have the right to talk to a lawyer before we ask you any
              questions and you have the right to have him with you during the
              questioning.

       4.     If you cannot afford a lawyer and want one, the court will appoint
              one for you before you are asked any questions.

       5.     If you want to answer questions now without a lawyer present you
              may do so. You have the right to stop answering questions at any
              time. You may consult a parent/guardian in private concerning these
              rights before making a decision concerning these rights.

       6.     You are advised that under Oklahoma law there is a possibility that
              you may be certified and tried as an adult for this offense.

(R. Vol. I, Doc. 36-7 at 1.) According to McDonald’s testimony, he read these rights to

Wilson and his mother.

       The form also contained a “WAIVER” section stating: “I am the parent/guardian

of the above named juvenile. I have read the above rights and have had the opportunity

to ask any questions concerning these rights.” (Id.) Under this section, three statements

appeared: (1) “I have had the opportunity to confer with the juvenile in private

concerning these rights”; (2) “I want the juvenile to answer questions or make a statement

at this time”; and (3) “I do not want the juvenile to answer questions or make a statement

at this time.” (Id.) Before each statement is a box. Wilson and his mother checked the

box in front of the second statement and signed the form.

       After signing the form, Wilson told McDonald he and Ferguson went to

Knighten’s house to retrieve Wilson’s gun which Knighten had taken from him. The

plan was to first get Knighten outside the apartment. Once Knighten was outside,

Wilson’s “job” was to retrieve the gun. (Appellant’s Reply Br., Ex. 1 at 33.) If he did

not retrieve the gun, he was to step back, thereby signaling to Ferguson to shoot. “[T]he

                                               -4-
plan was to fix it where Mr. Knighten would never walk again, paralyze him” if he did

not return the gun. (Id. at 32.) McDonald asked Wilson how he felt about Knighten

being dead; Wilson said “he didn’t care.” (Id. at 34.) When asked why he had earlier

said he shot Knighten, Wilson responded: “[T]o take some of the heat off of [my] cousin,

[Ferguson], cause [Ferguson] was going to be going to prison for him for a long time.”

(Id. at 44.)

                             II.        OKLAHOMA LAW

       In Oklahoma, a 13-year-old charged with having violated any state statute or

municipal ordinance is normally tried in a juvenile proceeding. See Okla. Stat. Ann. tit.

10, §§ 7301-1.3(4), 7303-4.3(A).2 However, if the offense would be a felony if

committed by an adult, the juvenile court, on its own motion or at the request of the

district attorney, may seek to certify the juvenile to stand trial as an adult (adult

certification). In such circumstances, the juvenile court must first conduct a preliminary

hearing to determine whether there is prosecutive merit to the charge. Id. § 7303-4.3(B).

If so, the court must continue the hearing to determine if the juvenile should be held

accountable for his acts as if he were an adult (adult certification). Id. In making this

determination, the court considers such factors (not listed in order of importance) as the

seriousness of the alleged offense to the community; whether it was committed in a


       2
          All citations to the Oklahoma statutes are to the 1996 version in effect at the time
of Wilson’s offense. See Bowman v. State, 789 P.2d 631, 631 (Okla. Crim. App. 1990)
(“It is a well established rule of law that the appropriate criminal penalty is the penalty in
effect at the time the defendant commits the crime.”).



                                                 -5-
violent or premeditated manner; the nature of the alleged offense; the maturity of the

child and his ability to distinguish right from wrong; the juvenile’s previous record; the

prospects for adequate protection of the public and the likelihood of rehabilitating the

juvenile in the juvenile system; and whether the offense occurred while the juvenile was

escaping. Id. If the court decides adult certification is warranted, the juvenile proceeding

will be dismissed and an adult criminal proceeding will be commenced against the

juvenile. Id.

       In certain circumstances, a juvenile is automatically considered an adult based on

his age and the nature of the crime. Id. § 7306-1.1 (A), (B). Relevant here, a 13-year-old

charged with First Degree Murder is required to be considered as an adult; no

certification hearing is required. Id. § 7306-1.1(B) (“Any person thirteen . . . years of age

who is charged with murder in the first degree shall be considered as an adult.”).

However, the juvenile may file a motion for certification as a child (reverse certification)

before the start of the preliminary hearing. Id. § 7306-1.1(E). At the conclusion of the

State’s evidence at the preliminary hearing, the juvenile may offer evidence to support his

reverse certification motion. Id. In deciding the reverse certification motion, the court

must give consideration to the following factors listed in order of importance: (1) whether

the offense was committed in an aggressive, violent, premeditated or willful manner; (2)

whether the offense was against persons or property; (3) the record and past history of the

juvenile; and (4) the prospects for adequate protection of the public if the accused person

is processed through the juvenile system. Id. If the court grants the motion, the charge

will be expunged and the case will proceed in the juvenile division of the district court.

                                                -6-
Id. § 7306-1.1(F). This case involves both an adult certification and a reverse

certification proceeding.

      III.       WILSON’S STATE JUVENILE COURT PROCEEDINGS

       In September or October 1997, Wilson was charged as a juvenile with Accessory

to First Degree Murder.3 Cliff Stark was appointed to represent him. The case was

assigned to District Court Judge Chappelle. On July 30, 1998, Judge Chappelle held a

hearing and found prosecutive merit to the charge.

       It is unclear from the record whether the State moved for adult certification or

whether Judge Chappelle did so sua sponte. In any event, on September 17, 1998, Judge

Chappelle held another hearing to determine whether Wilson should be certified to stand

trial as an adult. He concluded Wilson should be so certified. In doing so, he considered

the factors set forth in Okla. Stat. Ann. tit. 10, § 7303-4.3(B) , finding: (1) the offense

was committed in an aggressive, violent, premeditated and willful manner against a

person and resulted in the loss of a person’s life; (2) Wilson had a fair understanding of

appropriate social behavior, was capable of making adequate decisions about social

situations, and was capable of understanding right from wrong; (3) Wilson minimized

responsibility for his actions and lacked respect for other people and property; (4) while

Wilson had only a few previous contacts with law enforcement, his mother had recently




       3
       Accessory to First Degree Murder is not an offense for which a juvenile is
automatically considered an adult. See Okla. Stat. Ann. tit. 10, § 7306-1.1(A), (B).



                                                 -7-
obtained a protective order against him,4 he had been referred to law enforcement for

possessing marijuana and trespassing, and the assistant district attorney (ADA) had stated

he was a suspect in two other homicides; (5) according to Dr. Cooper, who performed a

psychological evaluation on Wilson, there was only a slight chance for adequate

protection of the community should Wilson be placed in a medium or secure facility; and

(6) there were facilities available for Wilson’s placement within the juvenile system.

While the last factor weighed in favor of Wilson (i.e., against certification), Judge

Chappelle stated he was “most concerned” with the nature of the charge, Wilson’s lack of

remorse, and the calculated design and planning used to carry out the crime “confessed to

by [Wilson].” (R. Vol. I, Doc. 1 at 46.) Judge Chappelle’s order certifying Wilson for

adult prosecution was immediately appealable, a remedy Wilson did not pursue. See

Okla. Stat. Ann. tit. 10, § 7303-4.3(E).

           IV.     WILSON’S STATE ADULT COURT PROCEEDINGS

       On September 21, 1998, as a result of Judge Chappelle’s certification order, the



       4
        On June 25, 1998, Wilson’s mother sought and obtained an emergency protective
order against Wilson. In her petition for a protective order, she alleged:

       My son told me he would kill me if I tried to have him locked up. He was
       yelling at me in my face. He raised his hand to hit me. He said he would
       have me killed. I suspect he is in a gang, so I take his threats seriously. In
       the past, he has beaten me to the ground. He kicked me, hit me with his
       fists and tried to strangle me. He did this because I tried to get him to wake
       up and go to his juv[enile] court hearing. He has a long juv[enile] record.

(R. Vol. 1, Doc. 1 at 56.)




                                                -8-
State charged Wilson with Accessory to First Degree Murder in adult court. The case

was assigned to District Court Judge Singer. A month later, the State filed an amended

information against Wilson adding First Degree Murder5 to the pending Accessory to

First Degree Murder charge. Wilson filed an application for reverse certification.

       On November 4, 1998, Judge Singer held a hearing on the reverse certification

application as well as a preliminary hearing to determine whether there was probable

cause to believe a crime was committed and Wilson committed it. See Okla. Stat. Ann.

tit. 22, § 258 (“The purpose of the preliminary hearing is to establish probable cause that

a crime was committed and probable cause that the defendant committed the crime.”).

Wilson was represented by Michael French at the hearing.

       Judge Singer first heard evidence from the State concerning whether there was

probable cause to bind Wilson over on the charges. The State called Knighten’s sister,

Officer Brisbin and Detective McDonald as witnesses. Relevant here, McDonald first

testified as to the incriminating statements Wilson made to him after Wilson and his

mother had signed the notification and waiver of rights form. He then testified as to the

incriminating statements Wilson had made earlier, when he was only considered a

witness, not a suspect (i.e., before his mother was called and the notification and waiver

of rights form was signed). French objected to the latter testimony under Okla. Stat. Ann.



       5
          As stated previously, a 13-year-old charged with First Degree Murder is required
to be tried as an adult. See supra at 5. Therefore, there was no need to hold an adult
certification hearing on that charge.



                                               -9-
tit. 10, § 7303-3.1, which, at the time Wilson made the statements, prohibited the

admission of any information gained by the custodial interrogation of a child unless the

interrogation occurred in the presence of a parent/guardian and the child and

parent/guardian were advised of the child’s rights. See Okla. Stat. Ann. tit. 10, § 7303-

3.1 . Through a series of questions, the State clarified that McDonald did not consider

Wilson to be in custody when he made the initial statements because he was only a

witness and was free to leave.

       At the conclusion of McDonald’s testimony, Judge Singer asked for argument on

whether there was probable cause to bind Wilson over for trial on the charges. French

responded: “First, Your Honor, I have a question as to whether there [are] special

considerations as to what merits the custodial—or what defines custodial interrogation as

to a juvenile versus what would constitute custodial interrogation?” (Appellant’s Reply

Br., Ex. 1 at 47.) The court responded:

       I can’t answer your question. If you have law to present or comments to
       make or to present to the Court, I would be glad to entertain it, take it under
       advisement. I will take motions to suppress as something that was
       requested instanter by you . . . . I’m assuming you’re going to demur to the
       evidence, but go ahead and please make your argument.

(Id.) French said he would demur to the evidence.6 Judge Singer then asked whether he



       6
         “A demurrer to the evidence (properly called a motion for a directed verdict)
admits for the sake of argument the facts which the State’s evidence tends to prove. If
there is any competent evidence reasonably supporting the allegations of the charge, the
demurrer should not be sustained.” See Renfro v. State, 607 P.2d 703, 705 (Okla. Crim.
App. 1980); see also BLACK’S LAW DICTIONARY 445 (7th ed. 1999) (a “demurrer to
the evidence” is “[a] party’s objection or exception that the evidence is legally


                                               - 10 -
had any argument as to whether Wilson was in custody at the time he made the initial

statements. French offered to put his argument in a motion to suppress but the court

pressed him as to the nature of his objection. French said: “That . . . once [Wilson] was

brought in a car over [to the police station], that this would have constituted custodial

interrogation and [Wilson] himself was unaware of his liberty to leave the scene at any

point in time.” (Id. at 48.) The State argued to the contrary and Judge Singer took

French’s demurrer to the evidence as well as the probable cause issue under advisement.

        Judge Singer then heard evidence on the reverse certification motion. Wilson

called his mother and grandmother as witnesses. He also introduced Dr. Cooper’s

psychological report, which was prepared for the juvenile court. Among other things, it

said:

        [Wilson had] been referred to juvenile court on two occasions for offenses
        related to violence or threats of violence to others. Aside from this,
        however, it does not appear that he has exhibited a consistent pattern of
        violence to others. He has been able to be managed without major
        difficulty . . . .

        There are a number of factors that suggest that [Wilson] will require a fairly
        intensive treatment effort to ensure positive results. He’s the product of a
        somewhat chaotic family system and has been exposed to a certain degree
        of violence within his family . . . .

        There are several factors that suggest that he may respond favorably to
        treatment within the juvenile system. Those include minimal treatment in
        juvenile system thus far; he does not have an extensive juvenile record; and
        that his chronological age suggests that he would appear to have sufficient
        time to . . . appreciate those programs . . . .



insufficient to make a case”).



                                               - 11 -
(Id. at 69-70 (quotations omitted).) The State introduced Wilson’s juvenile record.

       At the conclusion of the hearing, Judge Singer determined the State had

established probable cause as to the Murder in the First Degree charge but not as to the

Accessory to First Degree Murder charge. Therefore, he dismissed the latter. He denied

the application for reverse certification. In doing so, he “very seriously [and]

painstakingly considered each of the [statutory factors], as one would be remiss not to

with a 14-year old defendant, 13-year-old at the time of the crime, the seriousness of

what he’s facing if he’s initiated into the adult system.” (Appellant’s Reply Br., Ex. 1 at

69.) He also referred to Judge Chappelle’s previous order certifying Wilson as an adult

on the Accessory to First Degree Murder charge, including the ADA’s statements

indicating Wilson was a suspect in two other murders. Judge Singer concluded:

       Having viewed [Judge Chappelle’s order] and weighed it against Dr.
       Cooper’s report and having looked at the juvenile profile of this defendant,
       I find numerous remarks, notations made by the juvenile workers, social
       workers, case workers . . . that [Wilson] doesn’t really seem to care about
       what goes on, that he doesn’t seem to have, what I call, fire in his belly to
       get better and make himself a decent human being and show remorse and
       show concern and attentiveness toward his behavior . . . .

       I think I would be remiss if I didn’t in some way include that in my
       decision as to whether he would be amenable to rehabilitation. It’s a two-
       way street. You may have the facility to be amenable to rehabilitation, a
       lock-down facility for several years of this juvenile’s life, but the question
       then becomes, is he going to take advantage and respond to it? . . . [I]s he
       going to be proactive and affirmative to the point where he responds to
       treatment? And every indicator from his history shows he won’t.

       Failing to make arrangements to be timely in his appearance before the
       juvenile officers and, additionally, what obviously is not perjured testimony
       . . . by [his] mother, a propensity to be violent and make threats that are
       very, very unusual and not what I would call consistent with most children
       his age, as far as killing her, knocking her down, kicking her.


                                               - 12 -
       Now, taking all that evidence plus the testimony by, I know, a loving and
       doting grandmother and mother—which my heart goes out to you—but
       taking that and weighing it with the four factors [under the statute], I feel
       compelled and constrained by the laws that this young man needs to stand
       trial as an adult.

(Id. at 73-74.) Oklahoma law allows for an immediate appeal from the denial of a reverse

certification order, see Okla. Stat. Ann. tit. 10, § 7306-1.1(G) , but Wilson did not appeal.

       Five days later, on November 9, 1998, French successfully moved to withdraw as

Wilson’s attorney because

       [Wilson’s] family . . . has decided not to honor their financial obligations
       and has refused to pay for trial work. In addition, attorney was not retained
       to defend against murder charges, has no experience in the defense of
       murder charges and as a result the defendant would be severely prejudiced
       as a result of an inexperienced attorney[.]

(R. Vol. 1, Doc. 43-5 at 2.) Gregg Graves was appointed by the court to represent Wilson

but ultimately he retained David Phillips as new counsel and proceeded to trial on July 9-

10, 1999. The jury found Wilson guilty of First Degree Murder and recommended a

sentence of life imprisonment. On August 19, 1999, he was sentenced in accordance

with the jury’s recommendation.

       Wilson appealed to the Oklahoma Court of Criminal Appeals (OCCA). His

appointed counsel, Kimberly Heinze, argued: (1) the trial court improperly excluded

evidence of Knighten’s prior violent acts, which would have corroborated Wilson’s self-

defense arguments; (2) the trial court erred in failing to instruct on self-defense or defense

of another; (3) there was insufficient evidence to establish Wilson as a principal to the

crime charged; and (4) the cumulative effect of these errors deprived Wilson of a fair

trial. The OCCA affirmed on November 29, 2000.


                                               - 13 -
       V.       WILSON’S STATE POST CONVICTION PROCEEDINGS

       On October 12, 2001, Wilson filed a petition for post-conviction relief in state

court. He sought an evidentiary hearing and claimed: (1) ineffective assistance of

appellate counsel based on counsel’s failure “to raise a dead-bang reversible error on

direct appeal” and (2) ineffective assistance of counsel at the preliminary and reverse

certification hearing based on counsel’s failure to, inter alia, file a motion to suppress the

statements he made to law enforcement on the day of the murder (both before and after

the notification and waiver of rights form was signed) and object to Judge Chappelle and

Judge Singer’s reliance on untrue statements from the ADA that he was a suspect in two

other murders. (R. Vol. 1, Doc. 1 at 31.)

       On February 1, 2002, the state trial court denied relief without a hearing. It

concluded any claim already raised on direct appeal was barred from further review

under the doctrine of res judicata and all claims capable of being but not raised on direct

appeal were procedurally barred. As to the ineffective assistance of appellate counsel

claim, the trial court concluded counsel was reasonably competent as she carefully

selected legal issues to be raised on appeal and the fact the OCCA denied relief is not the

test for determining the adequacy of legal representation.

       On February 4, 2002, Wilson appealed to the OCCA. The OCCA affirmed on

March 14, 2002, saying:

       Except for his claim of ineffective assistance of appellate counsel, the
       propositions of error asserted by [Wilson] in his post-conviction application
       either were or could have been raised in the direct appeal of his conviction.
       All issues not raised in a direct appeal that could have been raised are
       waived. Webb v. State, 1991 OK CR 38, ¶ 6, 835 P.2d 115. Further, any

                                                - 14 -
       claim that was raised and ruled upon by this Court on direct appeal is res
       judicata and may not be the basis of a post-conviction application. Id.

       Moreover, those issues may not be the basis of this post-conviction
       application, unless [Wilson’s] claim of ineffective [assistance of] appellate
       counsel provides sufficient reason for not asserting the issues on direct
       appeal. 22 O.S. 1991, § 1086 . . . . The fact appellate counsel fails to
       recognize or raise a claim, regardless of merit, is not and cannot alone be
       sufficient to establish ineffective assistance or to preclude enforcement of a
       procedural default . . . .

       After a review of the record and argument presented . . ., we FIND
       [Wilson] has not established appellate counsel’s performance was deficient
       or that the result of his appeal was not reliable and fair.

(R. Vol. 1, Doc. 36-3 at 49-50.)

              VI.       WILSON’S FEDERAL COURT PROCEEDINGS

       On April 25, 2002, Wilson filed a timely 28 U.S.C. § 2254 petition for writ of

habeas corpus claiming his counsel at the preliminary and reverse certification hearing

(hereinafter pretrial counsel) was constitutionally ineffective for, inter alia, (1) failing to

challenge statements Wilson made to law enforcement on the day of the murder and (2)

failing to object to Judge Singer’s reliance on Judge Chappelle’s adult certification order

because it contained (allegedly)7 untrue statements of the ADA that Wilson was a suspect

in two other homicides.

       The district court denied the petition on June 21, 2005. Relevant here, it

concluded the procedural ground relied upon by the OCCA to avoid reaching the merits

of Wilson’s ineffective assistance of pretrial counsel claim (i.e., the failure to raise it on



       7
           See discussion VII (B), infra at 45.



                                                  - 15 -
direct appeal) was an independent and adequate state procedural ground. Since the claim

was procedurally barred, it could be considered only if Wilson showed “cause and

prejudice” for the default or demonstrated a fundamental miscarriage of justice would

result if his claim was not considered. Wilson did not offer any explanation for his

failure to raise the issue prior to his state court petition for post-conviction relief.

Nevertheless, the district court liberally construed his petition as alleging the ineffective

assistance of his appellate counsel constituted “cause” for the default. However, since

appellate counsel does not act deficiently in failing to raise a waived claim, the court

concluded appellate counsel had not performed deficiently because Wilson waived any

claim arising at the preliminary and reverse certification hearing by failing to appeal from

the denial of reverse certification. Consequently, the alleged ineffective assistance of

appellate counsel did not constitute “cause” to overcome the procedural bar.

       Wilson successfully sought a certificate of appealability (COA) from this Court.

See Wilson v. Oklahoma, 192 Fed. Appx. 755, 756-57 (10th Cir. 2006) (Wilson I)

(unpublished). On August 17, 2006, we concluded the OCCA’s analysis of the

ineffective assistance of appellate counsel claim—“[t]he fact appellate counsel fails to

recognize or raise a claim, regardless of merit, is not and cannot alone be sufficient to

establish ineffective assistance or to preclude enforcement of a procedural default”—

deviated from the controlling federal standard. Id. at 757. Therefore, it was not entitled

to deference on habeas review. Id.

       We also determined the district court’s conclusion that appellate counsel was not

ineffective for failing to raise a waived claim was erroneous:

                                                 - 16 -
       The analysis tacitly rests on an unduly constricted notion of appellate
       ineffectiveness, with the result that one omission by counsel is excused on
       the basis of yet another. The very circumstance relied on to negate the
       appellate ineffectiveness claim, i.e., the failure to timely perfect an
       interlocutory appeal, could itself aptly fall within the heading of appellate
       ineffectiveness for procedural bar purposes even if the fault lies with
       [pretrial] counsel (or any other attorney representing petitioner during his
       trial proceedings) rather than the attorney who pursued an appeal following
       final judgment. Alternatively, viewed as a trial-level omission, [pretrial]
       counsel’s failure to perfect an appeal from the [reverse] certification order
       was in any event a separate instance of allegedly deficient representation,
       distinct from the [reverse] certification process itself that would have been
       the subject of the interlocutory appeal [pretrial] counsel failed to take.
       Thus, it would have been open to challenge following final judgment, in the
       same manner as any other instance of trial counsel ineffectiveness . . . .

       In sum, the district court’s threshold rejection of Wilson’s allegations of
       ineffective assistance of appellate counsel, and its consequent disposition of
       the petition on the basis of procedural bar, cannot stand on its stated
       rationale. To hold otherwise would be to embrace the notion that one act of
       ineffective assistance is cancelled out—when it is in fact compounded—by
       a second act that forfeits direct review of the first, so that counsel
       ineffectiveness that prejudices the defendant both at the trial level and
       (through waiver) on appeal is not remediable.

Id. at 758 (citation omitted). Consequently, we reversed and remanded for further

proceedings. Id. We declined to direct the district court to hold an evidentiary hearing,

finding such direction would be “premature.” Id. at 759.

       On remand, the court appointed counsel for Wilson and called for further briefing.

Without holding an evidentiary hearing, the district court again denied relief on May 13,

2008. Relevant here, the court concluded Wilson’s ineffective assistance of pretrial

counsel claim was procedurally barred. It also determined Wilson had failed to

demonstrate the ineffective assistance of appellate counsel constituted cause to overcome

the bar as appellate counsel was not ineffective for failing to raise the ineffective



                                                - 17 -
assistance of pretrial counsel claim because the claim lacked merit. The district court

also denied Wilson’s request for a COA.

       Wilson filed a combined request for a COA and an opening brief with this Court.

He claimed he was entitled to a COA on the district court’s conclusion that the

ineffective assistance of appellate counsel did not constitute cause to overcome the

procedural bar applicable to his ineffective assistance of pretrial counsel claim. We

granted a COA, ordered additional briefing and granted Wilson’s request for oral

argument.

                              VII.        DISCUSSION

       Wilson concedes his ineffective assistance of pretrial counsel claim is procedurally

barred. However, he argues the bar should be excused based on the ineffective assistance

of his appellate counsel who failed to raise the ineffective assistance of pretrial counsel

claim on direct appeal. Whether appellate counsel is constitutionally ineffective for

failing to raise a claim requires us to examine the merits of the omitted claim:

       If the omitted [claim] is so plainly meritorious that it would have been
       unreasonable to winnow it out even from an otherwise strong appeal, its
       omission may directly establish deficient performance; if the omitted
       [claim] has merit but is not so compelling, the case for deficient
       performance is more complicated, requiring an assessment of the issue
       relative to the rest of the appeal, and deferential consideration must be
       given to any professional judgment involved in its omission; of course, if
       the [claim] is meritless, its omission will not constitute deficient
       performance.

See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). Consequently, in deciding

whether appellate counsel was ineffective in failing to raise the ineffective assistance of

pretrial counsel claim, we look to the merits of that claim.


                                               - 18 -
       Because the OCCA’s analysis of Wilson’s ineffective assistance of appellate

counsel claim was contrary to federal law, it is not entitled to deference, see Wilson I, 192

Fed. Appx. at 757; see also Douglas v. Workman, 560 F.3d 1156, 1170 (10th Cir. 2009),

and the district court afforded none. We review the district court’s legal conclusions de

novo. Douglas, 560 F. 3d at 1170. We normally review a district court’s factual findings

for clear error. Id.; see also Morris v. Burnett, 319 F.3d 1254, 1268 (10th Cir. 2003).

But where, as here, the district court’s factual findings are based entirely on the state

court record, we independently review that record. Douglas, 560 F.3d at 1170; Morris,

319 F.3d at 1268.

       Wilson alleges pretrial counsel was constitutionally ineffective in failing to (1)

move to suppress the statements he made to law enforcement on the day of the murder

and (2) object to Judge Singer’s reliance on Judge Chappelle’s adult certification order,

namely, the ADA’s allegedly false statements that Wilson was a suspect in two other

murders. To establish pretrial counsel’s ineffectiveness, Wilson must show (1)

“counsel’s performance was deficient” and (2) “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

       Under the first prong, he must show counsel’s representation fell below an

objective standard of reasonableness considering all the circumstances. Id. at 688.

“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. We

“must indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered strong trial

                                                - 19 -
strategy.” Id. (quotations omitted).

       Under the prejudice prong, “[i]t is not enough for the defendant to show that

[counsel’s] errors had some conceivable effect on the outcome of the proceeding.” Id. at

693. On the other hand, he is not required to establish “counsel’s deficient conduct more

likely than not altered the outcome in the case.” Id. Rather, “[t]he 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. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694.

A.     Statements to Law Enforcement

       On the day of the murder, Wilson made statements to law enforcement both before

and after he and his mother signed the notification and waiver of rights form. Detective

McDonald testified to these statements (i.e., Wilson’s pre-Miranda8 and post-Miranda

statements, respectively) at the preliminary and reverse certification hearing. Wilson

claims pretrial counsel was constitutionally ineffective for failing to move to suppress

these statements.

       1.       Pre-Miranda Statements

       The district court concluded pretrial counsel was deficient in failing to move to

suppress Wilson’s pre-Miranda statements because they were taken outside the presence

of his mother and prior to Wilson and his mother being advised of their constitutional



       8
           See Miranda v. Arizona, 384 U.S. 436 (1966).



                                                - 20 -
rights in violation of Okla. Stat. Ann. tit. 10, § 7303-3.1(A).9 However, it concluded that

in light of the other evidence presented at the preliminary hearing, Wilson did not suffer

prejudice as a result of counsel’s deficient performance. It found significant that at a

motions hearing held approximately two months after the preliminary and reverse

certification hearing, the state court granted Wilson’s motion to suppress the pre-Miranda

statements and therefore they were not introduced at trial.

       Wilson agrees with the district court that counsel acted deficiently in failing to

move to suppress his pre-Miranda statements.10 He disputes, however, the court’s



       9
          As we will discuss, this statute requires the statements to have been obtained as a
result of “custodial interrogation” and defines “custodial interrogation” as the
“questioning of a child while that child is in law enforcement custody or while that child
is being deprived of freedom of action in any significant way by a law enforcement
officer . . . .” Okla. Stat. Ann. tit. 10, § 7303-3.1(A). The district court did not expressly
determine whether Wilson’s pre-Miranda statements were made in response to “custodial
interrogation.” And the issue is disputed. Detective McDonald testified that at the time
Wilson made these statements, he was a witness and free to leave. But Wilson says he
was “handcuffed at the scene,” “taken into custody at the scene at gunpoint,” “told at the
scene that [he] was under arrest,” and remained handcuffed during interrogation at the
police station. (R. Vol. I, Doc. 43-2 at 3-5.) However, because the State has not
appealed from the district court’s determination that reverse certification counsel was
deficient for failing to challenge Wilson’s pre-Miranda statements, we need not resolve
the issue.

       We also question whether pretrial counsel was deficient in failing to move to
suppress the pre-Miranda statements. The record shows he did object to those statements
under § 7303-3.1(A) at the hearing and offered to brief the issue but was foreclosed from
doing so when the judge pressed him for the basis of his argument, which counsel
supplied, and decided the issue without briefing.
       10
        As we will explain, statements taken in violation of § 7303-3.1(A) are not
admissible at either a certification hearing or a preliminary hearing. See In re R.L.N., 603
P.2d 1149, 1150 (Okla. Crim. App. 1979) (preliminary hearing); J.T.P. v. State, 544 P.2d


                                               - 21 -
prejudice analysis. He claims prejudice because the pre-Miranda statements were used

by Judge Singer to find probable cause and to deny his motion for reverse certification.

       We agree the district court’s prejudice analysis is flawed. Just because Wilson’s

pre-Miranda statements were suppressed at trial does not lessen their possible impact on

Judge Singer’s reverse certification and probable cause determinations. But the

suppression of the pre-Miranda statements is significant in a slightly different regard. A

jury—without hearing his incriminating pre-Miranda statements—found Wilson guilty of

First Degree Murder beyond a reasonable doubt. Therefore, even had pretrial counsel

successfully moved to suppress Wilson’s pre-Miranda statements at the preliminary and

reverse certification hearing, it is unlikely Judge Singer would not have found probable

cause—a significantly lesser standard than proof beyond a reasonable doubt—to bind

him over for trial for First Degree Murder. See State v. Smith, 617 P.2d 232, 233 (Okla.

Crim. App. 1980) (“[T]he preliminary hearing burden of proof is a lesser one than the

standard for conviction . . . .”). That is because the judge, as well as the jury, heard

Wilson’s highly incriminating post-Miranda statements, which, as we discuss next, were

properly admitted. Thus, we cannot say Judge Singer’s probable cause determination

would have been different had the pre-Miranda statements been suppressed; in other

words, the admission of these statements, if error, was harmless error.

       The same reasoning does not apply in evaluating the effect the pre-Miranda


1270, 1276 (Okla. Crim. App. 1975) (certification hearing); see also Crisp v. Mayabb,
668 F.2d 1127, 1134 (10th Cir. 1981).



                                                - 22 -
statements possibly had on Judge Singer’s reverse certification determination. But it

does not appear Judge Singer relied on the pre-Miranda statements in denying Wilson’s

reverse certification motion. He did not directly refer to them in announcing his decision.

However, he did read from Judge Chappelle’s adult certification order. In that order, in

addressing “the likelihood of reasonable rehabilitation of the juvenile if he is found to

have committed the alleged offense, by the use of procedures and facilities currently

available to the juvenile court,” one of the statutory factors to be considered in an adult

certification proceeding under Okla. Stat. Ann. tit. 10, § 7303-4.3(B), Judge Chappelle

said:

        The Court finds that there are facilities available for placement for [Wilson]
        within the juvenile system. This weighs for [Wilson]. However, this Court
        is most concerned about the nature of this charge; Accessory to first degree
        murder, the lack of remorse shown by [Wilson], and the calculated design
        and planning in carrying out of this crime confessed to by [Wilson].”

(R. Vol. I, Doc. 1 at 46 (emphasis added).) But this reference to Wilson’s confession

clearly refers to his post-Miranda statements as his pre-Miranda statements did not

contain any information concerning a design or plan. Because the post-Miranda

statements were properly admitted, any effect the pre-Miranda statements had on Judge

Singer’s reverse certification decision was harmless.

        Wilson has not shown he was prejudiced by pretrial counsel’s failure to move to

suppress his pre-Miranda statements. Consequently, counsel was not constitutionally

ineffective.

        2.     Post-Miranda Statements

        Wilson argues his pretrial counsel was ineffective for failing to move to suppress


                                               - 23 -
his post-Miranda statements because (1) they were made outside the presence of his

mother in violation of Okla. Stat. Ann. tit. 10, § 7303-3.1(A) and (2) there was no valid

waiver of his Miranda rights. The district court rejected both arguments. Wilson and his

mother submitted affidavits on remand saying Wilson’s mother was not present during

Wilson’s post-Miranda interrogation. The court concluded these affidavits, made more

than eight years after the reverse certification hearing, were directly refuted by the

hearing record which showed Detective McDonald “took steps” to comply with § 7303-

3.1(A) ’s requirement that Wilson’s interrogation take place in the presence of a parent or

guardian and not until after he and his mother were made aware of Wilson’s

constitutional rights. (R. Vol. I, Doc. 46 at 25-26.) Indeed, McDonald had them sign a

notification and waiver of rights form prior to obtaining Wilson’s statements. The court

determined Wilson and his mother acknowledged they had read the Miranda rights and

had had the opportunity to ask questions concerning those rights. They also checked the

box beside the statement: “I want the juvenile to answer the questions or make a

statement at this time.” The court concluded:

       After considering the circumstances reflected by the record compiled at the
       time of the statement and the subsequent hearing, the Court cannot find that
       [reverse] certification counsel performed deficiently in failing to file a
       motion to suppress statements made by [Wilson] to Detective McDonald
       after his mother arrived at the police station and after receiving a Miranda
       warning and signing a rights waiver.

(R. Vol. I, Doc. 46 at 26.)

       Wilson argues the district court’s finding that McDonald “took steps” to comply

with § 7303-3.1(A) is insufficient to demonstrate his mother was present during his post-



                                                - 24 -
Miranda interrogation as required by that statute. He says the record does not show his

mother’s presence for anything other than signing the notification and waiver of rights

form. He points to his and his mother’s affidavits on remand which state she was not

present during his post-Miranda interrogation. Wilson also argues the court erred in

determining his waiver was knowingly and voluntarily made. Seeking to exploit a silent

record, Wilson says he did not knowingly or voluntarily waive his rights. He claims the

court failed to consider the totality of the circumstances, instead focusing on the mere

fact he and his mother signed a notification and waiver of rights form.11

              a)      Mother’s Presence

       At the time Wilson made the incriminating statements:

       No information gained by a custodial interrogation of a child nor any
       evidence subsequently obtained as a result of such interrogation shall be
       admissible into evidence against the child unless the custodial interrogation
       about any alleged offense by any law enforcement officer . . . is done in the
       presence of the parents, guardian, attorney, or legal custodian of the child.
       No such custodial interrogation shall commence until the child and the
       parents, or guardian, or other legal custodian of the child have been fully
       advised of the constitutional and legal rights of the child, including the right
       to be represented by counsel at every stage of the proceedings, and the right
       to have counsel appointed by the court if the parties are without sufficient



       11
          The district court found Wilson had not challenged his pretrial counsel’s failure
to move to suppress his post-Miranda statements until remand. Wilson says the court is
wrong. He claims he raised his post-Miranda statements in his § 2254 petition by citing
to Crisp v. Mayabb, 668 F.2d 1127 (10th Cir. 1981), and challenging his “compelled
incrimination.” (Appellant’s Reply Br. at 22.) It is Wilson who is in error. It is clear
that when read as a whole, his reference to “compelled incrimination” in his § 2254
petition refers to his pre-Miranda statements. Nevertheless, because the district court
addressed the issue, we will do the same.



                                               - 25 -
       financial means . . . .12

Okla. Stat. Ann. tit. 10, § 7303-3.1(A). This statute “clearly establishes an automatic and

mandatory rule . . . .[;] [n]o custodial interrogation of a child may proceed until both the

child and his parents have been fully advised of their constitutional and legal rights; nor

may such interrogation be conducted outside the presence of the child’s parent or

guardian or attorney.” J.T.P., 544 P.2d at 1277. “Partial and substantial compliance is

not sufficient . . . .” Lane v. State, 558 P.2d 1204, 1206 (Okla. Crim. App. 1977)

(concluding juvenile’s statement inadmissible where father was not present during

interrogation because juvenile stated he would prefer to talk outside his father’s presence

and father consented to leaving the room); see also Crook v. State, 546 P.2d 648 (Okla.



       12
            This statute only applies to a “child,” which is defined as:

       any person under eighteen (18) years of age, except for any person sixteen
       (16) or seventeen (17) years of age who is charged with any crime specified
       in subsection A of Section 7306-1.1 of [this title], or any person thirteen
       (13), fourteen (14) or fifteen (15) years of age who is charged with murder
       in the first degree pursuant to subsection B of Section 7306-1.1 of [this
       title], or any individual who has been certified as an adult pursuant to
       Section 7303-4.3 of [this title] . . . .

Okla. Stat. Ann. tit. 10, § 7301-1.3(4). The OCCA has held that § 7303-3.1 does not
apply to a juvenile who is arrested for a reverse certification offense because under those
circumstances he is considered an “adult.” See Harris v. State, 777 P.2d 1359, 1362-63
(Okla. Crim. App. 1989); see also Highshaw v. State, 758 P.2d 336, 340 (Okla. Crim.
App. 1988). It is unclear for what offense Wilson was under arrest, if at all, when he
made the post-Miranda statements. Had he been arrested for First Degree Murder at the
time of the interrogation, he would not have been entitled to § 7303-3.1’s protections. Id.
We need not resolve the issue because even assuming § 7303-3.1 applies, Wilson has not
shown his post-Miranda statements were taken in violation of the statute.



                                                  - 26 -
Crim. App. 1976) (same). Statements taken in violation of § 7303-3.1(A) are not

admissible against a child at a certification or preliminary hearing. See In re R.L.N., 603

P.2d 1149, 1150 (Okla. Crim. App. 1979) (preliminary hearing); J.T.P., 544 P.2d at 1276

(certification hearing); see also Crisp, 668 F.2d at 1134.

       Wilson claims his pretrial counsel was ineffective in failing to move to suppress

his post-Miranda statements under § 7303-3.1(A) because his mother was not present

when they were made. In an apparent attempt to create an issue of fact and obtain an

evidentiary hearing on this issue, both he and his mother filed affidavits on remand

saying she was not present during Wilson’s post-Miranda interrogation. These post hoc

affidavits appear to be the product of cultivated retrospection. They were made over 8

years after the preliminary and reverse certification hearing and, tellingly, were the first

indication of any claim that Wilson’s mother was not present during his post-Miranda

interrogation.13 Those considerations aside, the question is whether the affidavits are

refuted by the record produced at the time of the events and whether they even address

the relevant issue, counsel’s knowledge.



       13
          In his petition for state post-conviction relief, his appeal to the OCCA from the
denial of his petition for state post-conviction relief and his federal habeas petition,
Wilson cited to § 7303-3.1(A). But his argument was always limited to claiming that
because his statements were taken during “custodial interrogation” they were
inadmissible under that statute. Wilson also attached an affidavit from his mother to his
petition for state post-conviction relief. In that affidavit, his mother complained she was
on various medications when she was called to the police station and claimed she was not
made aware of her son’s rights. She never indicated, however, she was not present
during Wilson’s post-Miranda interrogation.



                                                - 27 -
       As the district court concluded, Wilson is only entitled to an evidentiary hearing if

his “allegations, if true and not contravened by the existing factual record, would entitle

him to habeas relief.”14 See Barkell, 468 F.3d at 696. He is not entitled to habeas relief.

And the reason why requires focus. Even if Wilson and his mother’s affidavits were true

and not contradicted by the record (a dubious proposition), Wilson would not be entitled

to habeas relief because whether his mother was in fact present is not the operative

question.

       Understandably, Wilson has not argued his post-Miranda statements should have

been suppressed because his mother was not present as required by Okla. Stat. Ann. tit.

10, § 7303-3.1(A). Indeed, such argument based solely on state law would not have been

cognizable under § 2254.15 Nor would the United States Constitution require suppression


       14
          Because Wilson diligently sought an evidentiary hearing on his claims in state
court, the district court properly determined 28 U.S.C. § 2254(e) did not apply. See
Barkell v. Crouse, 468 F.3d 684, 693-94 (10th Cir. 2006). Therefore, the court proceeded
to analyze whether Wilson was entitled to an evidentiary hearing under the pre-AEDPA
standard. Id. at 693. Under this standard, a habeas petitioner is entitled to an evidentiary
hearing in federal court “if (1) the facts were not adequately developed in the state court,
so long as that failure was not attributable to the petitioner, and (2) his allegations, if true
and not contravened by the existing factual record, would entitle him to habeas relief.”
Id. at 696 (quotations omitted). Wilson satisfied the first requirement. Thus, whether he
was entitled to an evidentiary hearing turned on whether he satisfied the second
requirement. Id.
       15
          See 28 U.S.C. § 2254(a) (“The Supreme Court, a Justice thereof, a circuit judge,
or 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.”)
(emphasis added); see also Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[H]abeas corpus
relief does not lie for errors of state law.”).



                                                - 28 -
of the statements.16

       Ingeniously, Wilson avoids those obvious problems by claiming ineffective

assistance of counsel. And such a claim, even if based on counsel’s failure to raise a state

law issue, is cognizable under § 225417 because an ineffective assistance of counsel claim

alleges a violation of the federal constitution, specifically, a criminal defendant’s Sixth

Amendment right to the effective assistance of counsel. See Strickland, 466 U.S. at 684-

86. But focusing on the nature of the ineffectiveness claim, the question is not whether

Wilson’s mother was in fact present but rather whether pretrial counsel acted deficiently.

And that question turns on what counsel knew or reasonably should have known at the

time of the alleged ineffectiveness, i.e., at the preliminary and reverse certification

hearing.

       Absent from the affidavits submitted by Wilson and his mother is any fact

suggesting counsel knew she was not present. And while Wilson asserts pretrial counsel

“never even asked [him] anything about what happened prior to [his] arrival at the police


       16
         “The Supreme Court has never held that juveniles have a right to the presence of
a parent or guardian during custodial interrogation . . . .” See Blankenship v. Estep, 316
Fed. Appx. 758, 760 (10th Cir. 2009) (unpublished). Unpublished decisions are not
binding precedent. 10th Cir. R. 32.1(A). We mention Blankenship as we would any
other non-precedential authority.
       17
          See, e.g., Bland v. Sirmons, 459 F.3d 999, 1030-31 (10th Cir. 2006) (ineffective
assistance of counsel claim based on counsel’s failure to request jury instruction on
voluntary intoxication under Oklahoma law); Upchurch v. Bruce, 333 F.3d 1158, 1164-
65 (10th Cir. 2003) (ineffective assistance of counsel claim based on appellate counsel’s
failure to raise claim that defendant’s conduct did not satisfy elements of Kansas’
kidnapping law).



                                                - 29 -
station,” notably absent is any allegation that counsel failed to inquire about or

investigate the circumstances surrounding his post-Miranda statements. (R. Vol. I, Doc.

43-2 at 6.) Since there is no allegation counsel knew or should have known Wilson’s

mother was not present during the interrogation (if, in fact, she was not), our analysis is

simplified.

       Indeed, the record suggests pretrial counsel believed Wilson’s mother was present

during the post-Miranda interrogation. Counsel was obviously aware § 7303-3.1(A)

required the presence of a parent or guardian during custodial interrogation as he cited to

it in objecting to McDonald’s testimony concerning Wilson’s pre-Miranda statements.

Had counsel believed Wilson’s mother was not present during the post-Miranda

interrogation, his prior acts strongly suggest he would have objected under the statute.

His silence is telling.

       Moreover, the record demonstrates pretrial counsel’s belief that Wilson’s mother

was present was patently reasonable. At the preliminary and reverse certification

hearing, Detective McDonald testified on direct examination as follows:

       Q.      [T]ell me about where were you when you interviewed [Wilson].

       A.      In the detective division.

       Q.      Did you have a chance to have the mother present?

       A.      Yes, I did.

       Q.      And do you recall her name?

       A.      Miss Cinderella Wilson.

       Q.      Did you have an opportunity to read a Miranda Rights to the juvenile
               and the mother?

                                               - 30 -
       A.    Yes, we did.

       Q.    And were they afforded the opportunity to sign a rights waiver?

       A.    Yes, they did.

****

       Q.    I want to show you what’s been marked as State’s Exhibit No. 1.
             Can you identify that for me?

       A.    Yes, I can. This is a juvenile notification of rights.

       Q.    And do you recognize the signatures?

       A.    Yes, I do.

       Q.    What are those signatures?

       A.    Cinderella Ferguson, signature of parent-guardian; Jesil Wilson,
             signature of juvenile.

                                          ****

       Q.    Was there a box signed above their signatures?

       A.    Yes.

       Q.    What is that box?

       A.    “I want the juvenile to answer questions or make statements at this
             time.”

       Q.    . . . At the top of that sheet, are those the Miranda Rights that were
             read to [Wilson] and the mother?

       A.    Yes, it is.

       Q.    And then what did they execute next after those were read?

       A.    They executed their right to speak with the detective regarding this
             case.

(Appellant’s Reply Br., Ex. 1 at 31-32, 39-40 (emphasis added).)

       And on cross-examination:


                                              - 31 -
       Q.        What was the third story [Wilson told you]?

       A.        First story, he wasn’t involved in it. The second story, he said he
                 was there, and he went on to say that he was involved in the
                 shooting. That’s when the interview stopped and he became a
                 suspect. And when we got the mother there, he came back on record
                 saying he didn’t shoot him. Three different stories.

       Q.        In other words, this one was after the mother had been brought in at
                 that point?

       A.        That’s correct.

(Appellant’s Reply Br., Ex. 1 at 43 (emphasis added).)

       This testimony, although equivocal on the mother’s presence, strongly suggests

Wilson’s mother was present during the post-Miranda interrogation. At any rate, this

testimony, as well as the mother’s signature on the notification and waiver of rights form,

conclusively establishes she was present immediately prior to Wilson’s post-Miranda

interrogation. Nothing in the record (other than her eight-year-old self-serving affidavit)

indicates she left or suggests a reason why she would have left prior to Wilson’s

interrogation.

       In summary, all record evidence indicates pretrial counsel believed Wilson’s

mother was present during his post-Miranda interrogation and no record evidence gave

pretrial counsel a reason to believe otherwise. We cannot say pretrial counsel acted

deficiently in failing to move to suppress Wilson’s post-Miranda statements under Okla.

Stat. Ann. tit. 10, § 7303-3.1(A).18



       18
            The State says other evidence shows Wilson’s mother was present during the


                                                - 32 -
              b)     Waiver of Rights

       The Fifth Amendment privilege against self-incrimination applies to juveniles. In

re Gault, 387 U.S. 1, 55 (1967). To protect this privilege, the Supreme Court requires the

police to inform a suspect of his Miranda rights prior to subjecting him to custodial

interrogation. See Miranda, 384 U.S. at 478-79 (requiring police to warn suspect “prior

to any questioning that he has the right to remain silent, that anything he says can be used

against him in a court of law, that he has the right to the presence of an attorney, and that

if he cannot afford an attorney one will be appointed for him prior to any questioning if

he so desires”). A suspect is free to waive his Miranda rights and speak to the police. Id.

at 444. Such waiver must be “made voluntarily, knowingly and intelligently.” Id.

       First the relinquishment of the right must have been voluntary in the sense that it

was the product of a free and deliberate choice rather than intimidation, coercion, or

deception. Second, the waiver must have been made with a full awareness both of the

nature of the right being abandoned and the consequences of the decision to abandon it.

Only if the totality of the circumstances surrounding the interrogation reveal[s] both an

uncoerced choice and the requisite level of comprehension may a court properly conclude


interrogation. It points to the fact Wilson named his mother as a witness on his witness
trial list and indicated she would “testify to being with [Wilson] when he talked to
police.” (Appellee’s Br. at 25 (quotations omitted)). It also alleges that when it asked
Detective McDonald at trial to name the individuals present in the room during Wilson’s
post-Miranda interview, McDonald said: “Myself, Detective Tom Campbell, [Wilson],
and his mother.” (Id. (quotations omitted).) But the trial transcript and witness list are
not included in the appellate record. Nor were they relied upon by the district court in
deciding this issue. Therefore, we do not consider them.



                                               - 33 -
that the Miranda rights have been waived. Colorado v. Spring, 479 U.S. 564, 573 (1987)

(quotations omitted). In the juvenile context:

       The totality [of the circumstances] approach permits—indeed, it
       mandates—inquiry into all the circumstances surrounding the interrogation.
       This includes evaluation of the juvenile’s age, experience, education,
       background, and intelligence, and into whether he has the capacity to
       understand the warnings given him, the nature of his Fifth Amendment
       rights, and the consequences of waiving those rights.

Fare v. Michael C., 442 U.S. 707, 725 (1979). “[T]he greatest care must be taken to

assure [the juvenile’s uncounseled] admission was voluntary, in the sense not only that it

was not coerced or suggested, but also that it was not the product of ignorance of rights or

of adolescent fantasy, fright or despair.” In re Gault, 387 U.S. at 55.

       In his patently belated affidavit, filed after our remand, Wilson conveniently

alleged the following:

           he was told at the scene he was under arrest;

           he did not read the Miranda warnings given to him because he has a

              learning disability which makes it difficult for him to read;

           he and his mother were not given the opportunity to meet in private and

              discuss his rights;

           he had no sleep the night before he signed the Miranda waiver;

           when he arrived at the police station in handcuffs, it was approximately

              2:00 a.m.;

           he was kept at the police station all night;

           he was never told he was a suspect for First Degree Murder or the


                                                 - 34 -
       difference in punishment between being tried as a juvenile and being tried

       as an adult;

    he was in handcuffs throughout the interrogation;

    he did not understand what it meant to have a lawyer;

    he did not understand the meaning of having anything he said used against

       him;

    he did not understand that he did not have to answer any questions and no

       one told him he did not have to answer the police’s questions;

    he did not understand that if he said he wanted an attorney, the court would

       appoint one for him; and

    no one explained to him the meaning of Miranda waiver or its

       ramifications.

In like vein, his mother’s post-remand affidavit said:

    the only reason she signed the Miranda waiver form was because the police

       had told her Wilson had already admitted to shooting Knighten;

    she was not told Wilson’s pre-Miranda statements were obtained in

       violation of his constitutional rights and could not be used against him and

       had she been so told, she would have insisted on the presence of a lawyer

       before Wilson made any statements;

    she and Wilson were not given the opportunity to meet in private and

       discuss his rights;



                                       - 35 -
            she was never told Wilson was a suspect for First Degree Murder or the

              difference in punishment between Wilson being tried as a juvenile and

              being tried as an adult;

            she had taken her antidepressant medication the night before the

              interrogation; and

            she was hysterical when she arrived at the police station because she had

              been made to believe Wilson had been killed.

       Again, we need not concern ourselves with whether these allegations are in fact

true because his direct constitutional claims (i.e., his non-ineffective assistance of counsel

claims) are barred from habeas review. Our focus remains extremely narrow. The

question is not whether his post-Miranda statements should have been suppressed

because he did not validly waive them but rather whether pretrial counsel was

constitutionally ineffective for failing to move to suppress them. Again, we must closely

examine the claims and proofs, looking for evidence as to what pretrial counsel knew or

reasonably should have known at the time of the preliminary and reverse certification

hearing.

       The record evidence demonstrates counsel was probably aware or should have

been aware (1) Wilson had been arrested and was possibly handcuffed, (2) Wilson

remained at the police station overnight and perhaps without sleep, (3) Wilson and his

mother did not discuss his rights in private, (4) Wilson was not told he was a suspect for

First Degree Murder or the difference in punishment between being tried as a juvenile

and being tried as an adult (the notification and waiver of rights form did not mention this

                                               - 36 -
information) and (5) Wilson was not expressly told he did not have to answer the police’s

questions (because the notification and waiver of rights form did not expressly mention

this right). Counsel also obviously knew Wilson was only 13-years old at the time he

waived his rights.

       But nothing in the record suggests pretrial counsel knew or should have known (1)

Wilson could not read the warnings given to him, (2) Wilson and his mother were not

given the opportunity to confer in private, or (3) Wilson and/or his mother did not

understand his rights when they were presented and read to them. Nor is there any record

evidence demonstrating he knew or should have known (1) Wilson’s mother only signed

the waiver and notification of rights form because she had been told Wilson had already

admitted to shooting Knighten and she did not know this admission was invalid or (2) she

was hysterical when she arrived at the police station because she had been made to

believe Wilson had been killed. Neither Wilson nor his mother alleges they told counsel

these things or that counsel failed to investigate or otherwise inquire into the

circumstances under which he was interrogated.19 Focusing on what counsel knew or

should have known, we cannot say upon this record that counsel acted deficiently in

failing to move to suppress the post-Miranda statements because Wilson’s waiver was

involuntary, unknowing or unintelligent.



       19
         Again, other than Wilson’s claim pretrial counsel “never even asked [him]
anything about what happened prior to [his] arrival at the police station,” there is no
allegation from either Wilson or his mother that counsel failed to investigate.



                                               - 37 -
       The fact Wilson was handcuffed is not determinative. See United States v.

Cardenas, 410 F.3d 287, 295 (5th Cir. 2005) (“Such basic police procedures as

restraining a suspect with handcuffs have never been held to constitute sufficient coercion

to warrant suppression.”). Nor is the fact he was sleep-deprived. Wilson does not allege

and there is no indication in the record that he was prevented from sleeping by

continuous interrogation or by any other police conduct, a necessary requirement for

involuntariness. See Colorado v. Connelly, 479 U.S. 157, 170 (1986) (“The voluntariness

of a waiver [of Miranda rights] has always depended on the absence of police

overreaching, not on ‘free choice’ in any broader sense of the word.”) (emphasis added).

       Pretrial counsel was obviously aware Wilson and his mother did not confer in

private concerning his rights as the box preceding that statement was not checked on the

notification and waiver of rights form. But one of the rights identified on the form was

that Wilson could consult a parent or guardian in private concerning his rights before

making a decision. Detective McDonald testified at the preliminary and reverse

certification hearing that he read the rights on the form to Wilson and his mother; no

contrary evidence is presented. While Wilson and his mother now say they did not get a

chance to confer in private, Wilson was informed of his right. Consequently, pretrial

counsel likely believed, and reasonably so, that Wilson could have conferred in private

with his mother but never asked to do so or chose not to.

       Wilson and his mother were told there was a possibility he would be certified to

stand trial as an adult for the offense. They complain, however, that he was never told

the “offense” was First Degree Murder. But obviously the offense related to the killing

                                              - 38 -
of Knighten and Wilson’s participation in it. And, of course, it would have been

impossible for McDonald to know at that time for what offense Wilson would be

ultimately charged. In any event, Wilson and his mother were not constitutionally

entitled to such information and Okla. Stat. Ann. tit. 10, § 7303-3.1(A) does not require

it. Detective McDonald explained to Wilson and his mother his “basic rights, which is all

that is required.” United States v. Hernandez, 93 F.3d 1493, 1503 (10th Cir. 1996) (“A

defendant need not be advised of every possible consequence of a waiver of the Fifth

Amendment privilege.”); see also Spring, 479 U.S. at 574 (“There also is no doubt that

Spring’s waiver of his Fifth Amendment privilege was knowingly and intelligently made:

that is, that Spring understood that he had the right to remain silent and that anything he

said could be used as evidence against him. The Constitution does not require that a

criminal suspect know and understand every possible consequence of a waiver of the

Fifth Amendment privilege.”); Okla. Stat. Ann. tit. 10, § 7303-3.1(A) (requiring police to

inform parent/guardian and child of child’s constitutional and legal rights “including the

right to be represented by counsel at every stage of the proceedings, and the right to have

counsel appointed by the court if the parties are without sufficient financial means”); In

re V.W.B., 665 P.2d 1222, 1223-24 (Okla. Crim. App. 1983) (concluding juveniles do not

have a constitutional right to be advised they may be tried as adults and to require such

advisement “would require arresting officers to offer legal advice requiring a great deal

of background information”). The same reasoning applies to Wilson and his mother’s

claim they were not informed of the difference in punishment between Wilson being tried

as a juvenile and being tried as an adult, as well as his mother’s late-blooming claim she

                                               - 39 -
would not have signed the waiver form and would have requested counsel had the police

advised her Wilson’s pre-Miranda statements could not be used against him.

       The notification and waiver of rights form did not expressly inform Wilson he did

not have to answer any questions. However, it did inform him he had the right to remain

silent. And it said: “If you want to answer questions now without a lawyer present you

may do so. You have the right to stop answering questions at any time.” (R. Vol. I, Doc.

43-6.) Both Wilson and his mother signed the form waiving those rights, which were

also read to them. Thus, pretrial counsel could have reasonably believed Wilson (with

parental assistance) was aware he had the right not to answer any questions but chose to

waive that right.20

       Wilson was just three weeks shy of his 14th birthday at the time of this incident.

But youth alone is not determinative—it is but one factor to be considered in the totality

of the circumstances. See Fare, 442 U.S. at 725; see also Vance v. Bordenkircher, 692

F.2d 978, 980 (4th Cir. 1982). Indeed, there have been a number of cases in which courts

have found the waiver of Miranda rights by juveniles 14-years-old or younger to be


       20
          The Supreme Court has granted certiorari to decide (1) whether a suspect must
be expressly advised of his right to counsel during custodial interrogation in order to
comply with Miranda and (2) whether the failure to provide express advice of the right to
the presence of counsel during questioning vitiate Miranda warnings which advise of
both (a) the right to talk to a lawyer “before questioning” and (b) the “right to use” the
right to consult a lawyer “at anytime” during questioning. See Florida v. Powell, 129 S.
Ct. 2827 (2009); Petition for Writ of Certiorari, Powell, 129 S. Ct. 2827 (No. 08-1175).
Here, Wilson and his mother were informed he had the right to talk to a lawyer before the
police asked him any questions and the right to have the lawyer with him during the
questioning. Therefore, Powell will not impact this case.



                                              - 40 -
voluntary, knowing and intelligent. See, e.g., United States v. Miller, 453 F.2d 634, 635-

36 (4th Cir. 1972) (14-year-old’s waiver valid where he was advised of his rights,

provided a printed waiver form which he read silently to himself and signed, and there

was no evidence or allegation that police made promises or threats to induce him into

making the statements); State v. Perez, 591 A.2d 119, 126 (Conn. 1991) (14-year-old’s

waiver valid where, inter alia, (1) juvenile demonstrated he had no difficulty with

English language, (2) there was no suggestion of intoxication or mental or emotional

impairment, (3) juvenile’s initials and signatures on the waiver of rights form and written

confession were clear and legible, (4) the police scrupulously followed proper procedure

in informing him of his rights, and (5) the juvenile’s mother was present); State v.

Goodwin, 774 N.W.2d 733, 740, 744 (Neb. 2009) (14-year-old’s waiver valid where he

was accompanied to the police station by his grandmother—his legal guardian—who

advised him to cooperate and, prior to any questioning, he acknowledged each of his

legal rights); In re Richard UU., 870 N.Y.S.2d 472, 475-76 (N.Y. App. Div. 2008) (14-

year-old’s waiver valid where both he and his guardian were advised of his Miranda

rights prior to questioning, he unequivocally indicated he understood those rights and was

willing to speak, and he had prior experience with law enforcement); In re Goins, 738

N.E.2d 385, 388-89 (Ohio Ct. App. 1999) (concluding waiver by juvenile who was

“eleven and three-quarters years old” and had no prior experience with law enforcement

was valid where (1) there was no evidence of intimidation, physical deprivation or

inducement, (2) the length, intensity and frequency of interrogation were reasonable, (3)

there was no evidence juvenile was of insufficient intelligence or mentally impaired, and

                                              - 41 -
(4) the police took great care to ensure he and his mother understood his rights and that

they voluntarily chose to continue the interview without an attorney); Shawn B.N. v.

State, 497 N.W.2d 141, 148-49 (Wis. Ct. App. 1992) (13-year-old’s waiver valid even

though taken without the presence of a parent or guardian where (1) interview was

conducted by an unarmed officer in plain clothes, (2) juvenile was not handcuffed, (3)

officer read juvenile his rights, (4) juvenile stated he understood his rights and signed a

waiver form, (5) juvenile was nervous and frightened but responded to the police’s

questions in a meaningful manner, (6) no promises or threats were made, and (7) test

results showed juvenile performed at level of average adult).

       Parental assistance is a potent factor in the totality of the circumstances evaluation

and pretrial counsel knew Wilson’s mother was present when Detective McDonald read

Wilson his rights and obtained his and his mother’s waiver. Pretrial counsel could have

reasonably believed that any effect Wilson’s youth had on his ability to voluntarily,

knowingly and intelligently waive his rights was ameliorated by the guiding presence of

his mother. See Gallegos v. Colorado, 370 U.S. 49, 54 (1962) (noting 14-year-old’s

youth prevented him from knowing the consequences of his admissions but stating “[a]

lawyer or an adult relative or friend could have given the petitioner the protection which

his own immaturity could not[;] [a]dult advice would have put him on a less unequal

footing with his interrogators.”); see also In re Goins, 738 N.E.2d at 389 (“The presence

of appellee’s mother is a factor that tends to show that the waiver was voluntary.”).

While Wilson’s mother claims she had taken antidepressant medication the night before

the interrogation and was hysterical when she arrived at the police station because she

                                               - 42 -
was made to believe Wilson had been killed, she makes no claim her medication or

hysteria affected her ability to understand Wilson’s rights or the consequences of waiving

them.

        Even looking to Wilson’s other allegations and proofs, they fail to convince us

pretrial counsel performed deficiently in failing to file a motion to suppress. Officer

McDonald testified he read Wilson’s legal rights to Wilson and his mother. The fact

McDonald read these rights to Wilson and his mother mutes Wilson’s claim he did not

read the rights because he suffers from a learning disability. While Wilson now claims in

his affidavit he did not understand those rights, he does not allege and there is no

evidence showing pretrial counsel knew or should have been aware of these recently

presented “facts.” Indeed, while not conclusive, Wilson and his mother’s signatures on

the notification and waiver of rights form is strong evidence of the validity of their

waiver and pretrial counsel was certainly reasonable in according it such weight. See

North Carolina v. Butler, 441 U.S. 369, 373 (1979) (while not conclusive, “[a]n express

written or oral statement of waiver of the right to remain silent or of the right to counsel

is usually strong proof of the validity of that waiver”).

        The record, considered globally, refutes Wilson’s late-blooming claim that his

waiver of his Miranda rights was not voluntary, knowing and intelligent; more

importantly, that pretrial counsel should have known his waiver was invalid.21 Other



        21
         Although we have addressed each of Wilson’s allegations separately, even
considering them collectively as pretrial counsel was required to do under the totality of


                                                - 43 -
than handcuffing, which is insufficient, there is absolutely no evidence or allegation the

police coerced or otherwise intimidated or deceived Wilson into waiving his rights.

Compare Fare, 442 U.S. at 726-27 (concluding 16½-year-old knowingly and voluntarily

waived his Fifth Amendment rights because, inter alia, “[h]e was not worn down by

improper interrogation tactics or lengthy questioning or by trickery or deceit”), with

Haley v. Ohio, 332 U.S. 596, 598 (1948) (holding 15-year-old’s confession was taken in

violation of his Fourteenth Amendment due process rights where juvenile, without being

informed of his right to counsel and without “friend or counsel,” signed a confession

prepared by the police after being shown the alleged confessions of his cohorts and

subjected to continuous interrogation by a rotation of several police officers from

midnight to 5 a.m.).22 Both Wilson and his mother were informed of his rights. After

being so informed, both he and his mother agreed to talk to the police and signed a form

to that effect.

       Pretrial counsel was not constitutionally ineffective in failing to move to suppress




the circumstances test, we cannot say pretrial counsel acted deficiently in failing to seek
suppression of the post-Miranda statements.
       22
         Haley is a Fourteenth Amendment due process case, which in the confession
context requires confessions to be voluntary, which in turn requires the absence of
“coercive police activity.” Connelly, 479 U.S. at 167. The voluntariness inquiry in the
Fourteenth Amendment due process context is equivalent to the voluntariness inquiry in
the Miranda waiver context. Id. at 169-70 (“There is obviously no reason to require
more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the
Fourteenth Amendment confession context.”).



                                               - 44 -
Wilson’s post-Miranda statements.23 Because pre-trial counsel was not ineffective in

failing to move to suppress either the pre- or post-Miranda statements, appellate counsel

was also not ineffective for failing to raise an ineffective assistance of counsel claim.

Duckett v. Mullin, 306 F.3d 982, 998 (10th Cir. 2002) (“Because trial counsel was not

ineffective, appellate counsel correlatively cannot be ineffective for failing to raise [an]

ineffectiveness [of trial counsel] claim.”).

B.     Failure to Object to Judge Singer’s Reference to Judge Chappelle’s Previous
       Order

       The district court concluded reverse certification counsel did not act deficiently in

failing to object when Judge Singer read from Judge Chappelle’s previous order

certifying Wilson as an adult, in particular, the order’s reference to the ADA having told

Judge Chappelle that Wilson was a suspect in two other murders.24 It said Judge


       23
          Wilson does not claim his pre-trial counsel should have moved to suppress his
post-Miranda statements as a fruit of his illegal pre-Miranda statements. Even if he had,
his claim would be without merit because his pre-Miranda statements, although
unwarned and taken without his mother present, were otherwise voluntary. See Oregon
v. Elstad, 470 U.S. 298, 314 (1985) (“A subsequent administration of Miranda warnings
to a suspect who has given a voluntary but unwarned statement ordinarily should suffice
to remove the conditions that precluded admission of the earlier statement. In such
circumstances, the finder of fact may reasonably conclude that the suspect made a
rational and intelligent choice whether to waive or invoke his rights.”); see also United
States v. Carrizales-Toledo, 454 F.3d 1142, 1149-53 (10th Cir. 2006).
       24
          Both Wilson and the district court state Judge Singer relied on Judge
Chappelle’s previous adult certification order. We believe “reliance” misrepresents what
actually occurred in this case. As we will discuss, the more appropriate characterization
is that Judge Singer read Judge Chappelle’s order and used it only to show Judge
Chappelle had found certification was proper despite Dr. Cooper’s report indicating there
were juvenile facilities available for Wilson’s placement.



                                                - 45 -
Chappelle’s order was part of Wilson’s file and a judge has the discretion to take judicial

notice of such orders. Moreover, the factors considered by Judge Chappelle at the adult

certification hearing overlapped with those to be considered by Judge Singer at the

reverse certification hearing. Therefore, the court said the evidence relied upon by Judge

Chappelle was relevant to Judge Singer’s ruling.

       Predictably, Wilson disagrees, saying Judge Singer did not take judicial notice of

the ADA’s statements and, in any event, they were not properly the subject of judicial

notice. Under Oklahoma law, a judicially noticed adjudicative fact is one which is

capable of accurate and ready determination by resort to sources whose accuracy cannot

be reasonably questioned. The ADA’s statements do not pass muster under this rule.

Moreover, a court may only take judicial notice of properly admitted evidence in a prior

proceeding. Here, the ADA’s statements were not properly admitted evidence in the

prior adult certification hearing as they were unsubstantiated and not subject to cross-

examination. In his brief, Wilson alleges he was never a suspect in two other murders

(but, as explained below, he never made this claim in his habeas petition). Thus,

according to Wilson, the use of the ADA’s statements was a clear violation of his due

process rights and counsel should have objected to their consideration.

       In his habeas petition, Wilson alleged the ADA’s statements were false because he

had “NEVER been questioned, charged or tried for ANY OTHER CRIME.” (R. Vol. I,

Doc. 1 at 15.) But the fact Wilson was not “questioned, charged or tried” for two other

homicides does not mean he was not a suspect. Therefore, it is unclear whether the

ADA’s statements were in fact false. But they were inadmissible at the adult certification

                                               - 46 -
hearing. See U.S. Const. amend. VI (a criminal defendant has right to confront witnesses

against him); see also Okla. Stat. Ann. tit. 12, §§ 2603 (“Every witness shall be required

to declare [by oath or affirmation] before testifying that the witness will testify truthfully

. . . .), 2801 (definition of hearsay), 2802 (hearsay inadmissible).25 Nevertheless, we

conclude pretrial counsel was not deficient in failing to object to Judge Singer’s referral

to Judge Chappelle’s certification order which mentioned the ADA’s statements.

       In determining whether a juvenile should be tried as an adult under Oklahoma law,

a court is required to consider seven factors set forth by statute. See Okla. Stat. Ann. tit.

10, § 7303-4.3(B). Those factors (previously noted at page 5 but repeated here for

convenience) are:

       1.     The seriousness of the alleged offense to the community, and
              whether the alleged offense was committed in an aggressive, violent,
              premeditated or willful manner;

       2.     Whether the offense was against persons or property, greater weight


       25
           It appears the rules of evidence apply to certification hearings and preliminary
hearings, see J.D.L., Jr. v. State, 782 P.2d 1387, 1390 (Okla. Crim. App. 1989) (adult
certification hearing); H.W. v. State, 759 P.2d 214, 218 (Okla. Crim. App. 1988) (reverse
certification hearing); Magill v. Miller, 455 P.2d 715, 716 (Okla. Crim. App. 1969)
(preliminary hearing), but are applied less strictly than at trial. See Magill, 455 P.2d at
716 (because “a preliminary hearing is ordinarily a much less searching exploration into
the merits of a case than that of a trial, . . . the rules of evidence are not applied as
rigidly” at a preliminary hearing as they are at trial) (citations and quotations omitted);
Bledsoe v. State, 572 P.2d 235, 237 (Okla. Crim. App. 1977) (concluding foundation
need not be laid for admission of social reports of the juvenile’s background at a
certification hearing but juvenile must “be afforded a fair opportunity to examine,
criticize, and refute the findings of such a report”). We assume here the ADA’s
statements were inadmissible at the adult certification hearing under the rules of evidence
and the United States Constitution.



                                                - 47 -
              being given to transferring the accused person to the adult criminal
              justice system for offenses against persons and, if personal injury
              resulted, the degree of personal injury;

       3.     The sophistication and maturity of the juvenile and his capability of
              distinguishing right from wrong as determined by consideration of
              his psychological evaluation, home, environmental situation,
              emotional attitude and pattern of living;

       4.     The record and previous history of the accused person, including
              previous contacts with community agencies, law enforcement
              agencies, schools, juvenile or criminal courts and other jurisdictions,
              prior periods of probation or prior commitments to juvenile
              institutions;

       5.     The prospects for adequate protection of the public;

       6.     The likelihood of reasonable rehabilitation of the juvenile if he is
              found to have committed the alleged offense, by the use of
              procedures and facilities currently available to the juvenile court;
              and

       7.     Whether the offense occurred while the juvenile was escaping or in
              an escape status from an institution for delinquent children.

Okla. Stat. Ann. tit. 10, § 7303-4.3(B).

       Judge Chappelle considered each of these factors in determining whether to certify

Wilson as an adult on the Accessory to First Degree Murder charge. In addressing the

fourth factor he said:

       The Court must take into account the previous referrals of this juvenile.
       The Court finds that this juvenile has not had very many referrals from law
       enforcement to this court. However, [the] Court recognizes that the
       referrals have been for a protective order against Juvenile respondent for
       the natural mother, possession of marijuana, and trespassing. The District
       Attorney’s Office has stated that the juvenile respondent is a suspect in two
       other homicides. This weighs slightly against the juvenile respondent.

(R. Vol. I, Doc. 1 at 45.)

       Wilson is not challenging Judge Chappelle’s use of the ADA’s statements.


                                               - 48 -
However, it is important to note Judge Chappelle only used these statements in

addressing Wilson’s “previous referrals”—which is but one of seven factors relevant to

the adult certification analysis. In turn, the ADA’s statements were only one of several

factors considered in the “previous referral” analysis. Additionally, Judge Chappelle

ultimately determined Wilson’s previous referrals weighed only “slightly” against him

whereas the serious nature of the offense and the fact the offense resulted in death

weighed “heav[ily]” against him. (R. Vol. I, Doc. 1 at 45.)

       Oklahoma law provides a different, yet similar, set of factors to be considered in

deciding whether a juvenile is entitled to reverse certification. Unlike those used to

determine whether to certify a juvenile as an adult, the statutory factors used to determine

whether a juvenile is entitled to reverse certification are “listed in order of importance” as

follows (again, previously cited on page 6 but repeated here for convenience):

       1.     Whether the alleged offense was committed in an aggressive,
              violent, premeditated or willful manner;

       2.     Whether the offense was against persons or property, greater weight
              being given for retaining the accused person within the adult
              criminal system for offenses against persons, especially if personal
              injury resulted;

       3.     The record and past history of the accused person, including
              previous contacts with law enforcement agencies and juvenile or
              criminal courts, prior periods of probation and commitments to
              juvenile institutions; and

       4.     The prospects for adequate protection of the public if the accused
              person is processed through the juvenile system.

Okla. Stat. Ann. tit. 10, § 7306-1.1(E).

       In deciding Wilson’s reverse certification motion, Judge Singer began by


                                               - 49 -
recognizing there is a presumption under Oklahoma law that any person 13 to 17 years of

age charged with First Degree Murder shall be considered an adult. He then listed the

statutory factors to be considered in deciding whether a juvenile is entitled to reverse

certification. He stated he had “very seriously” and “painstakingly” considered each of

the factors. (Appellant’s Reply Br., Ex. 1 at 69.) He then read from Dr. Cooper’s report

which he determined was “somewhat optimistic” as to whether Wilson could be safely

treated in the juvenile system. The report (set forth on page 10 but repeated again for

convenience) stated among other things:

       [Wilson had] been referred to juvenile court on two occasions for offenses
       related to violence or threats of violence to others. Aside from this,
       however, it does not appear that he has exhibited a consistent pattern of
       violence to others. He has been able to be managed without major
       difficulty . . . .

       There are a number of factors that suggest that [Wilson] will require a fairly
       intensive treatment effort to ensure positive results. He’s the product of a
       somewhat chaotic family system and has been exposed to a certain degree
       of violence within his family . . . .

       There are several factors that suggest that he may respond favorably to
       treatment within the juvenile system. Those include minimal treatment in
       juvenile system thus far; he does not have an extensive juvenile record; and
       that his chronological age suggests that he would appear to have sufficient
       time to . . . appreciate those programs . . . .

(Id. at 69-70 (quotations omitted).). [Appellant’s Reply Br., Ex. 1 at 68-70]

       Judge Singer next read Judge Chappelle’s order certifying Wilson to stand trial as

an adult on the Accessory to First Degree Murder charge. While he read the entire order,

including the fact the ADA had told Judge Chappelle that Wilson was a suspect in two

other murders, Judge Singer placed particular emphasis on the fact Judge Chappelle had



                                               - 50 -
determined adult certification was proper despite Dr. Cooper’s report indicating there

were juvenile facilities available for Wilson’s placement.

       We acknowledge the nature of the ADA’s statements to Judge Chappelle had a

strong potential to negatively influence Judge Singer’s decision on the motion for reverse

certification.26 See cf. Wong v. Belmontes, --U.S.--,130 S. Ct. 383, 391 (2009)

(“[E]vidence that Belmontes had committed another murder [is] the most powerful

imaginable aggravating evidence.”). But it is clear the fact Wilson was a suspect in other

homicides was only a minor factor in Judge Chappelle’s analysis. And there is no reason

to think Judge Singer would accord it more weight. And, when Judge Singer’s decision

to deny Wilson’s motion for reverse certification is read as a whole, it is readily apparent

this decision was not based on the ADA’s statements. Judge Singer merely used Judge

Chappelle’s order to refute Dr. Cooper’s report. And Dr. Cooper’s report was only

significant in considering “[t]he prospects for adequate protection of the public if the

accused person is processed through the juvenile system”—the least important factor in

the reverse certification analysis. See Okla. Stat. Ann. tit. 10, § 7306-1.1(E). It is also

clear Judge Singer’s decision to deny reverse certification was based largely on the fact

Wilson had no desire to rehabilitate himself. Not to mention the presumption under


       26
          Judge Singer did not rely on Judge Chappelle’s certification order in
determining probable cause. Therefore, it played no role in Judge Singer’s probable
cause determination. Consequently, Wilson cannot show a reasonable probability that
the result of Judge Singer’s probable cause determination would have been different had
pretrial counsel objected to Judge Singer’s reliance on Judge Chappelle’s order. See
Strickland, 466 U.S. at 694.



                                                - 51 -
Oklahoma law that Wilson should be treated as an adult based on his age and the nature

of the offense.

       Given that neither Judge Chappelle nor Judge Singer placed much weight on the

ADA’s statements, we cannot fault pretrial counsel for failing to object to their being

mentioned by either judge. Indeed, an objection would have accorded them more

importance than either judge did.

       Pretrial counsel was not constitutionally ineffective in failing to object to Judge

Singer’s reliance on Judge Chappelle’s adult certification order. Consequently, appellate

counsel was not ineffective for failing to raise an ineffective assistance of counsel claim.

                            VIII.        CONCLUSION

       Wilson’s ineffective assistance of pretrial counsel claim is without merit.

Therefore, appellate counsel was not ineffective in failing to raise that claim on direct

appeal. Consequently, Wilson has failed to show cause and prejudice to overcome the

procedural default of that claim.

       AFFIRMED.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




                                               - 52 -
