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Wilkins v. Premo

United States District Court, Ninth Circuit

December 4, 2013

JEFF PREMO, Defendant.

Kristina Hellman, Assistant Federal Public Defender, Portland, OR Attorney for Petitioner.

Ellen F. Rosenblum, Attorney General, Samuel A. Kubernick, Assistant Attorney General Department of Justice Salem, OR, Attorneys for Defendant.


GARR M. KING, District Judge.

Petitioner Earl Douglas Wilkins, an inmate incarcerated at the Oregon State Penitentiary, brings this action, pursuant to 28 U.S.C. ยง 2254, seeking a writ of habeas corpus. For the reasons set forth below, I deny the petition.


On October 10, 1994, petitioner was indicted on five counts of aggravated murder, one count of theft in the first degree, and one count of felon in possession of a firearm. A jury convicted petitioner on all counts.

At trial, the state's theory of the case was that petitioner purchased stolen stereo equipment and, when he was confronted by the owner of the stolen items, Shango Wade, petitioner shot Wade and his girlfriend, Deborah Payton.

The state presented evidence that, while Wade was in Beaverton on September 22, 1994, his apartment was burglarized. His friend discovered the burglary, called Wade, and Wade returned to the apartment and called the police. Wade and the friend then questioned a neighbor, McComb, about what he may have seen. Soon thereafter, McComb informed Wade that three men were in a nearby alley carrying a television and stereo speakers from an abandoned house and placing the equipment in a light blue Mercedes-Benz with a diesel engine. Wade and the friend pursued the men in two separate cars; Wade caught one of the men, but he escaped before the police arrived. The friend chased the Mercedes, but lost track of it. The two then found some of Wade's belongings in a bush nearby.

A little over a week later, on September 30, Wade entered the hair salon where petitioner was working. A customer at the salon overheard petitioner and Wade arguing. Another customer heard Wade tell petitioner, "Man, I'm giving you fair warning." State of Oregon v. Wilkins , 175 Or.App. 569, 572, 29 P.3d 1144 (2001). Petitioner and Wade left the salon, walked to petitioner's Mercedes, and opened the trunk. The same salon customer then heard Wade say, "Man, somebody had this car, either you or someone else was driving it." Id . Wade then left.

Petitioner returned to the salon for a short time, then left and drove off. When he returned, he borrowed a cordless phone from one of the workers at the salon and called his girlfriend, Stephanie Dunn. According to Dunn's testimony, petitioner told her a man and a woman had been "talking shit" about "the stuff he bought the other day." Id . Dunn testified petitioner said he "might have to drive them out somewhere secluded and take care of them because the nigger was threatening him." Id . Petitioner then told her they had come back and he would call later.

Sayles, one of the hair stylists in the salon, testified that she then heard two gunshots two or three seconds apart, looked out the window, and saw petitioner with a gun in his hand. Petitioner then put the gun in his waistband and walked to his car, got in and drove away. Sayles yelled, "Earl just shot somebody." Id . When she went outside, she saw a red van crashed into a telephone pole with two people inside who had been shot. Brown, another salon employee, also saw the bodies in the van and tentatively identified one as the man with whom petitioner had been talking. Petitioner then called the salon a few minutes later and asked Brown if anyone had mentioned his name. She told him no, and then told him the people in the van were dead. Petitioner replied, "I know." Id. at 573.

Two other individuals who had witnessed the shooting testified in the state's case. Cook heard two gunshots, one or two seconds apart while driving down the street. She saw a man to her left, on the driver's side of the van, with his arm all the way in the driver's window. When he pulled his arm out, he had a gun in his hand. He put the gun away, walked calmly and casually to a blue Mercedes, and drove away. Cook pulled over to call the police; she looked back and saw that the van had moved across the street and had smashed into a telephone pole. Holmes, who was in the car with Cook, also heard the shots and saw a man standing by the van. He had his right hand in the van, pulled it out, put what appeared to be a gun in his waistband, turned and headed casually toward a blue Mercedes.

When police arrived, they found Payton dead of a gunshot wound to her head. They found Wade in the driver's seat with a gunshot wound to his head. He died at the hospital later that day.

Shortly thereafter, a driver saw a light blue Mercedes pull across several lanes of traffic on the Fremont Bridge, throw a paper sack out of the window of the car into the river, then pull back through traffic and exit. She reported what she had seen to the police, along with the license plate number. It was petitioner's license plate number.

Dunn testified that petitioner called her later that afternoon and told her he "did it." Tr. 1326, ECF No. 17.[1] A few hours later, he told her "he wasn't leaving no witnesses." Tr. 1330.

Petitioner testified at trial. He testified that he bought stereo equipment from two men out of a house near what he later learned was Wade's apartment; one of the men said he was splitting from his wife and needed to get rid of his stuff.

On September 30, the man he later learned was Wade, entered the salon and asked who owned the blue Mercedes parked in front. When petitioner said it was his, Wade accused petitioner of taking Wade's belongings. Petitioner said he did not know Wade and did not know anything about a burglary. Petitioner took Wade outside, opened up the trunk, and Wade accused petitioner of having his drugs and threatened to "fuck [him] up." Tr. 1876. Petitioner told Wade that others used his car and he would make some calls. After an exasperated Wade left, petitioner testified he went to buy hair supplies for the day.

Petitioner returned to the salon, then went back out to his car to pick out some rap tapes to play in the salon. He then talked with Dunn on the phone while sitting on the front steps. He was about to go in when Wade approached him and asked whether petitioner had contacted any of his friends about Wade's stuff. Petitioner suggested Wade write down his information so petitioner could contact him later. Wade walked toward his van and opened the door. Petitioner thought he was getting a business card. A big truck drove by and petitioner moved out of the way, but when he turned around Wade was pointing a gun at petitioner's face. Petitioner then testified:

Well, what happened next happened real fast, but I grabbed his hand, the gun, or I grabbed his hand and tried to move the weapon out of my face, because I felt like I was in danger at the time. And I tried to move it out of my face, but he was way stronger than me.
So the weapon started coming back towards my face, and I tried to push, use his own strength against him and use a defense tactic, and he jerked his hand back away from me with his strength, and the gun went off when his arm went back, (indicating).
But quick as that happened-he had on like a nylon type windbreaker-type jacket, and my arm - my hands was on his arm still, so when he, when this - the explosion from the gun shocked me, and apparently it shocked him, and I was able to wrestle the gun out of his hand, but he didn't let go of the gun, he had the gun by the barrel, and he grabbed my arm right here by where I had got shot at [in an unrelated incident], and his hand covered my whole arm, and he had me.
And he started twisting my arm back like he was going to make me shoot myself, and at that time I was very fearful of my life, and I shot Mr. Wade. I thought I shot him in his eye, but after the second shot he, um - he went back inside, went back inside the vehicle, but he was holding onto me, and I was leaning inside of the car because he had a grip on my arm.
And I asked him to like just let me go. And when he let me go, I was kind of like in shock from everything. And I was standing there with the gun in my hand, and then the car started up, and he drove off, and he pulled out into the street, and so I stepped back and put the gun in my pocket and I started walking towards my vehicle, and when as I was going back to my vehicle, I heard the engine from the mini-van accelerate like, voom, real fast, like that, and I picked up the phone and opened the door to my car, and then as I was getting in I heard a crash, and I turned around and saw that he had wrecked into the pole.

Tr. 1887-1888.

Petitioner testified he had to drive right by the van and saw Payton dead, hanging out of the window. While he was on the Fremont Bridge, he began thinking about how Payton looked and he vomited. He pulled over, got out of the car and threw a rag over the bridge. But when he got back in the car, he saw the gun on the seat. He testified, "[T]he first thing I thought about is now I know why people hate guns, because guns killed my nephew and killed the people, and I threw the gun out over the bridge." Tr. 1893. He drove to his niece's house, took off his clothes "like I always do" and left on foot. Tr. 1894. He left his car because "I was in kind of like in shock, ... [and] it was a nice neighborhood, so I started walking down the street so I could think clearly, try to figure out what, you know, what all this was about, because I didn't even know." Tr. 1894-95. He ended up hailing a cab to his brother-in-law's house, but when ...

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