UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

JESIL ABRAHAM WILSON, Petitioner - Appellant

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

ORDER AND JUDGEMENT *

Before O’BRIEN , BALDOCK, Circuit Judges, and BRORBY , Senior Circuit Judge.
Jesil Abraham Wilson, a minor, was charge d with First Degree Murder in adult court. The Oklahoma trial court denied Wils on’s motion to be certified as a child and proceed in juvenile court (reverse certific ation). Wilson was convicted by a jury and sentenced to life imprisonment. He filed a 28 U.S.C. § 2254 fe deral habeas petition alleging ineffective assistance of counsel with respect to the reverse certification

* This order and judgment is an unpublis hed decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited.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 th e 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 Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).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B (unpublished).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

. FILED United States Court of Appeals Tenth Circuit January 28, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - proceedings. The district court conclu ded his claim as to pretrial counsel 1 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 th e testimony of Officer Mark Brisbin, Detective Alvin McDonald and the victim’s sist er at the reverse certif ication hearing held on November 4, 1998. At approximately 1:30 a.m. on January 3, 1997, 13-year-old Wils on 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 Kn ighten 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 attorn eys: (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 certific ation hearing; (3) Gregg Graves who was appointed after French withdrew; (4) Davi d Phillips who represented him at trial and sentencing; and (5) Kimberly Heinze who represented him on appeal. Phillips was retained by Wilson; Stark, Grav es and Heinze were court-appo inted. 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 obligati ons and has refused to pay for trial work.” (R. Vol. I, Doc. 43-5 at 2.) Our refe rence to pretrial counsel in this order and judgment refers to French.- 3 - scene. Police officer Mark Brisbin responded to the shooting and took a formal statement from Knighten’s sister. While she was gi ving her statement, Wilson, Ferguson and Kelvin Kelly arrived in a car. Knighten’s si ster 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 gu npoint, 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 we re transported to the police station where McDonald interviewed them. Kelly said Ferguson had sh ot 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 susp ect. 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 explai ning Wilson’s rights. It provided:
BEFORE WE ASK YOU AN Y QUESTIONS YOU MUST UNDERSTAND YOU HAVE TH E FOLLOWING RIGHTS 1. You have the right to remain silent. 2. Anything you say can and will be used ag ainst you in court.- 4 - 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 an d 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 que stions at any time. You may consult a parent/gua rdian in private concerning these rights before making a decision concerning these rights. 6. You are advised that under Oklaho ma 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” sec tion stating: “I am the parent/guardian of the above named juvenile. I have read th e 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 th e opportunity to c onfer with the juvenile in private concerning these rights”; (2) “I want the juven ile to answer questions or make a statement at this time”; and (3) “I do not want the juve nile 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 Mc Donald 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 th e apartment. Once Kn ighten was outside, Wilson’s “job” was to retrieve the gun. (A ppellant’s Reply Br., Ex. 1 at 33.) If he did not retrieve the gun, he was to step back, th ereby signaling to Ferguson to shoot. “[T]he- 5 - plan was to fix it where Mr. Knighten would ne ver walk again, paralyze him” if he did not return the gun. ( Id. at 32.) McDonald asked Wils on 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 violat ed any state statute or municipal ordinance is normally tr ied 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 j uvenile 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 juven ile should be held accountable for his acts as if he were an adult (adult certification). Id. In making this determination, the court consid ers such factors (not listed in order of importance) as the seriousness of the alleged offense to th e community; whether it was committed in a

2 All citations to the Oklahoma statutes ar e to the 1996 version in effect at the time of Wilson’s offense. See Bowman v. State , 789 P.2d 631, 631 (Okl a. Crim. App. 1990) (“It is a well established rule of law that the appropriate crim inal penalty is the penalty in effect at the time the defe ndant commits the crime.”).- 6 - violent or premeditated manner; the nature of the alleged offense; the maturity of the child and his ability to distingu ish right from wrong; the juve nile’s previous record; the prospects for adequate protection of the pub lic and the likelihood of rehabilitating the juvenile in the juvenile syst em; and whether the offense o ccurred while the juvenile was escaping. Id. If the court decides adult certificati on is warranted, the juvenile proceeding will be dismissed and an ad ult criminal proceeding will be commenced against the juvenile. Id. In certain circumstances, a juvenile is automatically consider ed 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 requi red to be considered as an adult; no certification hearing is required. Id. § 7306-1.1(B) (“Any person th irteen . . . years of age who is charged with murder in the first degree shall be c onsidered 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 th e conclusion of the State’s evidence at the preliminary hearing, th e juvenile may offer ev idence to support his reverse certification motion. Id. In deciding the reverse certification motion, the court must give consideration to the following fact ors listed in order of importance: (1) whether the offense was committed in an aggressive, vi olent, premeditated or willful manner; (2) whether the offense was against persons or prope rty; (3) the record and past history of the juvenile; and (4) the prospects for adequate pr otection of the public if the accused person is processed through th e juvenile system. Id. If the court grants the motion, the charge will be expunged and the case w ill proceed in the juvenile divi sion of the district court.- 7 - Id. § 7306-1.1(F). This case involves both an adult certification and a reverse certification proceeding.
III. WILSON’S STATE JUVENI LE 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, Ju dge Chappelle held a hearing and found prosecutiv e merit to the charge. It is unclear from the reco rd 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 conclu ded 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 lif e; (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 respec t 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 consid ered an adult. See Okla. Stat. Ann. tit. 10, § 7306-1.1(A), (B).- 8 - obtained a protective order against him, 4 he had been referred to law enforcement for possessing marijuana and trespassing, and the assi stant district attorn ey (ADA) had stated he was a suspect in two other homicides; (5 ) according to Dr. C ooper, who performed a psychological evaluation on Wilson, there was only a slight chance for adequate protection of the community shou ld Wilson be placed in a me dium or secure facility; and (6) there were facilities availa ble for Wilson’s placement with in the juvenile system. While the last factor wei ghed 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 desi gn 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 appealab le, a remedy Wilson did not pursue. See Okla. Stat. Ann. tit. 10, § 7303-4.3(E).
IV. WILSON’S STATE ADUL T COURT PROCEEDINGS On September 21, 1998, as a result of Judge Chappelle’s certification order, the

4 On June 25, 1998, Wilson’s mother soug ht 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 hi s hand to hit me. He said he would have me killed. I suspect he is in a ga ng, so I take his threats seriously. In the past, he has beaten me to the gro und. 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 heari ng. He has a long juv[enile] record. (R. Vol. 1, Doc. 1 at 56.)- 9 - State charged Wilson with Accesso ry 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 Murder 5 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 pre liminary hearing to determine whether there was probable cause to believe a crime was co mmitted 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 th at the defendant committed the crime.”). Wilson was represented by Mich ael French at the hearing. Judge Singer first heard ev idence from the State con cerning whether there was probable cause to bind Wilson over on the char ges. The State called Knighten’s sister, Officer Brisbin and Detective McDonald as w itnesses. Relevant here, McDonald first testified as to the incrimin ating 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 char ged with First Degree Murder is required to be tried as an adult. See supra at 5. Therefore, there wa s no need to hold an adult certification hearing on that charge.- 10 - tit. 10, § 7303-3.1, which, at the time Wilson made the statements, prohibited the admission of any information gained by the cu stodial interrogation of a child unless the interrogation occurred in the presence of a parent/guardian and the child and parent/guardian were advise d of the child’s rights. See Okla. Stat. Ann. tit. 10, § 7303- 3.1 . Through a series of questions, the Stat e 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 testim ony, Judge Singer asked for argument on whether there was probable cause to bind Wils on over for trial on the charges. French responded: “First, Your Honor, I have a que stion as to whether there [are] special considerations as to what merits the custod ial—or what defines custodial interrogation as to a juvenile versus what w ould constitute custodial interr ogation?” (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 ah ead and please make your argument. ( Id. ) French said he woul d demur to the evidence. 6 Judge Singer then asked whether he

6 “A demurrer to the eviden ce (properly called a motion for a directed verdict) admits for the sake of argument the facts wh ich the State’s evidence tends to prove. If there is any competent evidence reasonably su pporting 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 (7 th ed. 1999) (a “demurrer to the evidence” is “[a] party’s objection or exception that the ev idence is legally- 11 - had any argument as to whet her 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 th e contrary and Judge Singer took French’s demurrer to th e evidence as well as the probab le cause issue under advisement. Judge Singer then heard ev idence on the reverse cert ification motion. Wilson called his mother and grandmother as witn esses. He also in troduced 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 ha s 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 sugg est 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 sugges t 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 thos e programs . . . .

insufficient to make a case”).- 12 - ( Id. at 69-70 (quotations omitted).) The Stat e introduced Wilson’s juvenile record. At the conclusion of the hearing, Ju dge Singer determined the State had established probable cause as to the Murder in the First Degr ee charge but not as to the Accessory to First Degree Murder charge. Ther efore, 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 adul t 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 ot her murders. Judge Singer concluded: Having viewed [Judge Chappelle’s order] and weighed it against Dr. Cooper’s report and having looked at th e juvenile profile of this defendant, I find numerous remarks, notations made by the juvenile workers, social workers, case workers . . . that [Wilson] doesn’t really se em 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 am enable to rehabilitation. It’s a twoway street. You may have the facility to be amenable to rehabilitation, a lock-down facility for severa l years of this juvenile’s life, but the question then becomes, is he going to take advant age and respond to it? . . . [I]s he going to be proactive and affirmative to the point where he responds to treatment? And every indicator fro m 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 prop ensity to be violent and make threats that are very, very unusual and not what I woul d call consistent with most children his age, as far as killing her, knocking her down, kicking her.- 13 - 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 i mmediate 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, Fren ch successfully move d to withdraw as Wilson’s attorney because [Wilson’s] family . . . ha s decided not to honor th eir 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 de fendant would be severely prejudiced as a result of an in experienced attorney[.] (R. Vol. 1, Doc. 43-5 at 2 .) Gregg Graves was appointed by the court to represent Wilson but ultimately he retained Da vid 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 sent enced in accordance with the jury’s recommendation. Wilson appealed to the Oklahoma Cour t 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 selfdefense arguments; (2) the trial court erred in failing to instruct on self-defense or defense of another; (3) there was insu fficient evidence to establish Wilson as a principal to the crime charged; and (4) the cumu lative effect of these errors deprived Wilson of a fair trial. The OCCA affirm ed on November 29, 2000.- 14 - V. WILSON’S STATE POST CONVICTION PROCEEDINGS On October 12, 2001, Wilson filed a pe tition for post-conviction relief in state court. He sought an evidentiary hearing an d claimed: (1) ineffective assistance of appellate counsel based on counsel’s failur e “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 th e 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 wa s a suspect in two other murders. (R. Vol. 1, Doc. 1 at 31.) On February 1, 2002, the st ate trial court denied relief without a hearing. It concluded any claim already ra ised on direct appeal was barred from further review under the doctrine of res judicata and all claims capable of be ing but not raised on direct appeal were procedurally barred. As to th e ineffective assistance of appellate counsel claim, the trial court concluded counsel was reasonably competen t as she carefully selected legal issues to be ra ised on appeal and the fact th e OCCA denied relief is not the test for determining the adequ acy 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 [Wils on] in his post-convi ction application either were or could have been raised in the direct appeal of his conviction. All issues not raised in a direct appe al that could have been raised are waived. Webb v. State , 1991 OK CR 38, ¶ 6, 835 P. 2d 115. Further, any- 15 - 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 a nd cannot alone be sufficient to establish ineffective assist ance 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 timel y 28 U.S.C. § 2254 petition for writ of habeas corpus claiming his counsel at the pr eliminary and reverse certification hearing (hereinafter pretrial counsel) was constitutionally ineffective for, inter alia , (1) failing to challenge statements Wilson made to law en forcement 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 assistan ce of pretrial counsel claim ( i.e. , the failure to raise it on

7 See discussion VII (B), infra at 45.- 16 - direct appeal) was an independent and adequate state procedural ground. Since the claim was procedurally barred, it could be consid ered 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. W ilson did not offer any explanation for his failure to raise the issue pr ior to his state court petition for post-conviction relief. Nevertheless, the district court liberally cons trued his petition as alleging the ineffective assistance of his appellate counsel constitute d “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 ce rtification hearing by failing to appeal from the denial of reverse certification. Conseq uently, the alleged ineffective assistance of appellate counsel did not constitute “caus e” to overcome the procedural bar. Wilson successfully sought a certificate of appealability (COA) from this Court. See Wilson v. Oklahoma , 192 Fed. Appx. 755, 75 6-57 (10th Cir. 2006) ( Wilson I ) (unpublished). On August 17, 2006, we concluded the OCCA’s analysis of the ineffective assistance of appella te counsel claim—“[t]he fact appellate counsel fails to recognize or raise a claim, regardless of meri t, is not and cannot alone be sufficient to establish ineffective assistan ce 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:- 17 - The analysis tacitly rests on an un duly constricted notion of appellate ineffectiveness, with th e 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 head ing of appellate ineffectiveness for procedural bar pur poses even if the fault lies with [pretrial] counsel (or any other atto rney representing petitioner during his trial proceedings) rather than the atto rney 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] certificati on process itself that would have been the subject of the interlocutory appeal [pretrial] counsel failed to take. Thus, it would have been open to cha llenge following fina l judgment, in the same manner as any other instance of trial counsel ineffectiveness . . . . In sum, the district court’s threshol d rejection of Wilson’s allegations of ineffective assistance of appellate coun sel, 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 revi ew 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 wo uld be “premature.” Id. at 759. On remand, the court appointed counsel fo r Wilson and called for further briefing. Without holding an evid entiary hearing, the district cour t again denied relief on May 13, 2008. Relevant here, the court concluded W ilson’s ineffective assistance of pretrial counsel claim was procedurally barred. It also determined Wilson had failed to demonstrate the ineffective assistance of a ppellate counsel constituted cause to overcome the bar as appellate counsel was not ineffe ctive for failing to raise the ineffective- 18 - assistance of pretrial counsel claim because the clai m lacked merit. The district court also denied Wilson’s request for a COA. Wilson filed a combined request for a COA a nd an opening brief with this Court. He claimed he was entitled to a COA on th e district court’s conclusion that the ineffective assistance of appe llate counsel did not constitu te cause to overcome the procedural bar applicable to his ineffective assistance of pretrial counsel claim. We granted a COA, ordered additional briefi ng and granted Wilson’s request for oral argument. VII. DISCUSSION Wilson concedes his ineffective assistance of pretrial counsel cl aim is procedurally barred. However, he argues the bar should be excused based on the ineffective assistance of his appellate counsel who failed to raise th e ineffective assistance of pretrial counsel claim on direct appeal. Whether appellate counsel is constitutionally ineffective for failing to raise a claim requires us to ex amine 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 fro m an otherwise strong appeal, its omission may directly establish de ficient performance; if the omitted [claim] has merit but is not so co mpelling, the case for deficient performance is more comp licated, requiring an a ssessment of the issue relative to the rest of the appeal, a nd deferential consideration must be given to any professional judgment invo lved in its omission; of course, if the [claim] is meritless, its omi ssion will not constitute deficient performance. See Cargle v. Mullin , 317 F.3d 1196, 1202 (10th Cir. 20 03). 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.- 19 - 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 fa ctual findings are based entirely on the state court record, we independen tly review that record. Douglas , 560 F.3d at 1170; Morris , 319 F.3d at 1268. Wilson alleges pretrial counsel was constitu tionally 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 adu lt 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 c onsidering all the circumstances. Id. at 688. “Judicial scrutiny of counsel’s perform ance must be highly deferential.” Id. at 689. We “must indulge a strong presumptio n that counsel’s conduct fall s within the wide range of reasonable professional assistance; that is, the defendant must ove rcome the presumption that, under the circumstances, the challenge d action might be considered strong trial- 20 - 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 e ffect 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 st atements to law enfo rcement both before and after he and his mother si gned the notification and waiver of rights form. Detective McDonald testified to these statements ( i.e. , Wilson’s pre- Miranda 8 and post- Miranda statements, respectively) at the preliminar y 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).- 21 - rights in violation of Okla. St at. 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 counse l’s deficient performance. It found significant that at a motions hearing held approximately two m onths after the preliminary and reverse certification hearing, the state court gr anted 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 th e statements to have been obtained as a result of “custodial interrogation” and de fines “custodial interrogation” as the “questioning of a child while that child is in law enforcement cust ody 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, § 73 03-3.1(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. De tective McDonald testified that at the time Wilson made these statements, he was a witne ss and free to leave. But Wilson says he was “handcuffed at the scene,” “taken into cu stody at the scene at gunpoint,” “told at the scene that [he] was under arrest,” and rema ined 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 c ourt’s determination that reve rse certification counsel was deficient for failing to challenge Wilson’s pre- Miranda statements, we need not resolve the issue. We also question whether pretrial counse l 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 hear ing 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. A pp. 1979) (preliminary hearing); J.T.P. v. State , 544 P.2d- 22 - 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 anal ysis 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 pr obable cause determinations. But the suppression of the pre- Miranda statements is significant in a slightly different regard. A jury—without hearing hi s 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 Ju dge Singer would not have found probable cause—a significantly lesser standard than proof beyon d 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 be cause 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 Ju dge Singer’s probable cause determination would have been different had the pre- Miranda statements been suppressed; in other words, the admission of these statem ents, 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).- 23 - statements possibly had on Ju dge Singer’s reverse certifica tion determination. But it does not appear Judge Si nger relied on the pre- Miranda statements in denying Wilson’s reverse certification motion. He did not directly refer to them in anno uncing his decision. However, he did read from Judge Chappelle’s a dult certification order. In that order, in addressing “the likelihood of r easonable rehabilitation of the j uvenile if he is found to have committed the alleged o ffense, by the use of proced ures and facilities currently available to the juvenile court,” one of the st atutory factors to be considered in an adult certification proceeding under Okla. Stat. A nn. tit. 10, § 7303-4.3(B), Judge Chappelle said: The Court finds that there are facilitie s 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 ad mitted, 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 coun sel’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 ine ffective for failing to move to suppress- 24 - 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 reject ed 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 conclude d these affidavits, made more than eight years after the reverse certificat ion hearing, were directly refuted by the hearing record which showed Detective McDonald “took step s” 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 right s. They also checked the box beside the statement: “I want the juve nile to answer the questions or make a statement at this time.” The court concluded: After considering the circumstances re flected by the record compiled at the time of the statement and the subsequent hearing, the Court cannot find that [reverse] certification counsel perform ed deficiently in failing to file a motion to suppress statements made by [Wilson] to Detective McDonald after his mother arrived at the pol ice 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 mo ther was present during his post-- 25 - Miranda interrogation as required by th at statute. He says th e record does not show his mother’s presence for anything other than signing the notif ication 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 volu ntarily made. Seeking to exploit a silent record, Wilson says he did not knowingly or vol untarily waive his rights. He claims the court failed to consider the totality of the circumstances, instead fo cusing on the mere fact he and his mother signed a notif ication and waiver of rights form. 11 a) Mother’s Presence At the time Wilson made the incriminating statements: No information gained by a custodia l interrogation of a child nor any evidence subsequently obtained as a re sult of such inte rrogation shall be admissible into evidence ag ainst the child unless th e custodial interrogation about any alleged offense by any law enfo rcement officer . . . is done in the presence of the parents, guardian, attorn ey, or legal custodian of the child. No such custodial interrogation sh all commence until th e child and the parents, or guardian, or other legal cu stodian of the child have been fully advised of the constitutional and legal ri ghts 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 in crimination” in his § 2254 petition refers to his pre- Miranda statements. Nevertheless, because the district court addressed the issue, we will do the same.- 26 - 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 advise d 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 inadmissi ble where father was not present during interrogation because juvenile st ated 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 wh o is charged with any crime specified in subsection A of Secti on 7306-1.1 of [this title], or any person thirteen (13), fourteen (14) or fifteen (15) ye ars of age who is charged with murder in the first degree pursuant to subsec tion 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 a rrested for a reverse certifica tion 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 th e issue because even assuming § 7 303-3.1 applies, Wilson has not shown his post- Miranda statements were taken in violation of the statute.- 27 - Crim. App. 1976) (same). St atements taken in violati on of § 7303-3.1(A) are not admissible against a child at a certi fication or preliminary hearing. See In re R.L.N. , 603 P.2d 1149, 1150 (Okla. Crim. A pp. 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 in effective 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 attemp t 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 presen t during Wilson’s post- Miranda interrogation. These post hoc affidavits appear to be the product of cultivated retrospec tion. They were made over 8 years after the preliminary and reverse certific ation hearing and, tellingly, were the first indication of any claim that Wilson’s mo ther was not present during his post- Miranda interrogation. 13 Those considerations aside, the que stion 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 re lief, his appeal to the OCCA from the denial of his petition for state post-convic tion relief and his federal habeas petition, Wilson cited to § 7303-3.1(A). But his argu ment was always limited to claiming that because his statements were taken duri ng “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 neve r indicated, however, she was not present during Wilson’s post- Miranda interrogation.- 28 - As the district court concluded, Wilson is only entitled to an evidentiary hearing if his “allegations, if true and not contravened by the existi ng 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 W ilson and his mother’s affidavits were true and not contradicted by the record (a du bious proposition), Wils on would not be entitled to habeas relief because whet her 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 pr esent as required by Okla. Stat. Ann. tit. 10, § 7303-3.1(A). Indeed, such argument base d solely on state law would not have been cognizable under § 2254. 15 Nor would the United States Constitution require suppression

14 Because Wilson diligently so ught an evidentiary hearing on his claims in state court, the district court properly determ ined 28 U.S.C. § 2254(e) did not apply. See Barkell v. Crouse , 468 F.3d 684, 693-94 (10th Cir. 2006). Ther efore, 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 habe as 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) hi s allegations, if true and not contravened by the ex isting factual record, would entitle him to habeas relief.” Id. at 696 (quotations omitted). Wilson satisfied the first re quirement. 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 Cour t, a Justice thereof, a circuit judge, or a district court shall entertain an applicatio n for a writ of habeas corpus in behalf of a person in custody pursuant to th e 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.”).- 29 - of the statements. 16 Ingeniously, Wilson avoids those ob vious problems by claiming ineffective assistance of counsel. And such a claim, even if based on coun sel’s failure to raise a state law issue, is cognizable under § 2254 17 because an ineffective assistance of counsel claim alleges a violation of the fe deral 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 natu re of the ineffectiveness clai m, the question is not whether Wilson’s mother was in fact present but rather whether pret rial 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 wa s not present. And while W ilson 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 ju veniles have a right to the presence of a parent or guardian during cu stodial interrogation . . . .” See Blankenship v. Estep , 316 Fed. Appx. 758, 760 (10th Cir. 2009) (unp ublished). Unpublishe d 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 counse l’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 c onduct did not satisfy elements of Kansas’ kidnapping law).- 30 - 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 c ounsel 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 co unsel 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 pretri al counsel’s belief that Wilson’s mother was present was patently reasonable. At the preliminary and reverse certification hearing, Detective McDonald testifie d on direct examination as follows: Q. [T]ell me about where were yo u 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 r ead a Miranda Rights to the juvenile and the mother?- 31 - A. Yes, we did. Q. And were they afforded the op portunity 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 j uvenile 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 qu estions or make statements at this time.” Q. . . . At the top of that sheet, ar e 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:- 32 - 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 inte rview stopped and he became a suspect. And when we got the mother th ere, 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 presen t immediately prior to Wilson’s post- Miranda interrogation. Nothing in the r ecord (other than her eight-ye ar-old self-serving affidavit) indicates she left or suggests a reason wh y she would have left prior to Wilson’s interrogation. In summary, all record ev idence 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 otherwis e. 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- 33 - b) Waiver of Rights The Fifth Amendment privilege against sel f-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 rema in 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 attorn ey one will be appointed for hi m 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 vo luntarily, 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 choi ce rather than intimid ation, coercion, or deception. Second, the waiver must have be en made with a full awareness both of the nature of the right being abandoned and the c onsequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal[s] both an uncoerced choice and the requis ite level of comprehension ma y 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 omitte d)). It also alleges that when it asked Detective McDonald at trial to name the i ndividuals present in the room during Wilson’s post- Miranda interview, McDonald said: “Mysel f, Detective Tom Campbell, [Wilson], and his mother.” ( Id. (quotations omitted).) But the tria l transcript and witness list are not included in the appellate re cord. Nor were they relied upon by the district court in deciding this issue. Theref ore, we do not consider them.- 34 - 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 circumstance s] approach permits—indeed, it mandates—inquiry into all the circumst ances surrounding the interrogation. This includes evaluation of the juven ile’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 uncounse led] admission was voluntary, in the sense not only that it was not coerced or suggested, bu t 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, file d 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 stati on 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 suspec t for First Degree Murder or the- 35 - difference in punishment between being tried as a juvenile and being tried as an adult;

 he was in handcuffs thro ughout the interrogation;

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

 he did not understand the m eaning of having anything he said used against him;

 he did not understand that he did not have to answ er 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 a nd 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 o pportunity to meet in private and discuss his rights;- 36 -  she was never told Wilson was a suspect for First Degree Murder or the difference in punishment between Wils on 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. Ou r 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 whet her pretrial counsel was constitutionally ineffective for fa iling to move to suppress them . Again, we must closely examine the claims and proofs, looking for evid ence 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 couns el 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 pun ishment between being tried as a juvenile and being tried as an adult (the notification and waiver of ri ghts form did not mention this- 37 - information) and (5) Wilson was not expressly to ld 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 s uggests 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 ha ve known (1) Wilson’s mother only signed the waiver and notification of rights form because she had b een told Wilson had already admitted to shooting Knighten and she did not know this ad mission was invalid or (2) she was hysterical when she arrived at the polic e station because she had been made to believe Wilson had been killed. Neither Wils on nor his mother allege s they told counsel these things or that counsel failed to i nvestigate 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 pret rial counsel “never even asked [him] anything about what happened prior to [his] arrival at th e police station,” there is no allegation from either Wilson or his mother that counsel failed to investigate.- 38 - 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 neve r 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 (19 86) (“The voluntariness of a waiver [of Miranda rights] has always depe nded on the absence of police overreaching, not on ‘free choice’ in any broa der sense of the word.”) (emphasis added). Pretrial counsel was obviously aware W ilson and his mother did not confer in private concerning his rights as the box preced ing that statement was not checked on the notification and waiver of rights form. But on e of the rights identif ied on the form was that Wilson could consult a parent or guardi an in private concerning his rights before making a decision. Detective McDonald te stified at the preliminary and reverse certification hearing that he read the rights on the form to Wils on and his mother; no contrary evidence is presented. While Wilson and his mother now sa y they did not get a chance to confer in private, Wilson was informed of his right. Consequently, pretrial counsel likely believed, and reasonably so, th at Wilson could have conferred in private with his mother but never aske d to do so or chose not to. Wilson and his mother were told there wa s a possibility he would be certified to stand trial as an adult for the offense. Th ey complain, however, th at he was never told the “offense” was First Degree Murder. But ob viously the offense related to the killing- 39 - of Knighten and Wilson’s participation in it. And, of course , it would have been impossible for McDonald to know at that time for wh at offense Wilson would be ultimately charged. In any event, Wils on and his mother were not constitutionally entitled to such information and Okla. Stat. A nn. tit. 10, § 7303-3.1( A) does not require it. Detective McDonald explained to Wilson a nd 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 advise d of every possible consequenc e 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 know ingly 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 evid ence against him. The Constitu tion 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 counse l at every stage of the procee dings, and the right to have counsel appointed by the court if the partie s are without sufficien t 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 re asoning applies to Wilson and his mother’s claim they were not informed of the differenc e 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- 40 - 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 questio ns. 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 answeri ng 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, pr etrial counsel could have re asonably believed Wilson (with parental assistance) was aware he had the righ t 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 cons idered 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-yea rs-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 prov ide 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 “befor e 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.- 41 - 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 suggestio n of intoxication or mental or emotional impairment, (3) juvenile’s initia ls and signatures on the waiv er of rights form and written confession were clear and legi ble, (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) (1 4-year-old’s waiver valid where he was accompanied to the poli ce station by his grandmot her—his legal guardian—who advised him to cooperate and, prior to an y questioning, he ack nowledged 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 e xperience 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 ha d no prior experience with law enforcement was valid where (1) there wa s no evidence of in timidation, physical deprivation or inducement, (2) the length, intensity and frequ ency of interrogation were reasonable, (3) there was no evidence juvenile was of insufficient intelligence or mentally impaired, and- 42 - (4) the police took great care to ensure he and his mother understood his rights and that they voluntarily chose to continue the interview withou t an attorney); Shawn B.N. v.
State , 497 N.W.2d 141, 148-49 (W is. Ct. App. 1992) (13-yea r-old’s waiver valid even though taken without the presence of a pa rent 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 an d frightened but responded to the police’s questions in a meaningful manner, (6) no prom ises 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 W ilson’s mother was present when Detective McDonald read Wilson his rights and obtained hi s 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 wa s 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 knowi ng the consequences of his admissions but stating “[a] lawyer or an adult relative or friend could have given the petitione r the protection which his own immaturity could not[;] [a]dult a dvice 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 waiv er 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- 43 - was made to believe Wilson had been kille d, she makes no claim her medication or hysteria affected her ability to understand Wils on’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 fa iling 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 mute s Wilson’s claim he did not read the rights because he su ffers from a learning disability . While Wilson now claims in his affidavit he did not unde rstand those rights, he does not allege and there is no evidence showing pretrial counsel knew or sh ould have been aware of these recently presented “facts.” Indeed, while not conclu sive, Wilson and his mother’s signatures on the notification and waiver of rights form is strong evid ence 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 th e validity of that waiver”). The record, considered glob ally, refutes Wilson’s late-blooming claim that his waiver of his Miranda rights was not voluntary, kn owing and intelligent; more importantly, that pretrial counsel shou ld 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- 44 - than handcuffing, which is insufficient, there is absolutely no evid ence or allegation the police coerced or otherwise in timidated or deceived Wilson into waiving his rights. Compare Fare , 442 U.S. at 726-27 (concluding 161⁄2-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 with out “friend or counsel,” signed a confession prepared by the police after being shown the alleged conf essions 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 ine ffective 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 proc ess case, which in the confession context requires confessions to be voluntar y, 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 obvi ously no reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.”).- 45 - 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 cann ot be ineffective for failing to raise [an] ineffectiveness [of trial counsel] claim.”).
B. Failure to Object to Judge Singer’s Re ference to Judge Chappelle’s Previous Order The district court concluded reverse certif ication 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, th e 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 couns el should have m oved 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 un warned statement ordinarily should suffice to remove the conditions that precluded admi ssion of the earlier statement. In such circumstances, the finder of fact may reas onably 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 cer tification order. We believe “reliance” misrepresents what actually occurred in this case. As we will di scuss, 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 ava ilable for Wilson’s placement.- 46 - Chappelle’s order was part of Wilson’s file a nd 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 prope rly 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 s ources whose accuracy cannot be reasonably questioned. Th e ADA’s statements do not pass muster under this rule. Moreover, a court may only take judicial noti ce of properly admitte d evidence in a prior proceeding. Here, the ADA’s statements we re not properly adm itted evidence in the prior adult certification hearing as they we re unsubstantiated and not subject to crossexamination. 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 stat ements 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 suspec t. Therefore, it is unclear whether the ADA’s statements were in fact false. But they were inadmissible at the adult certification- 47 - 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 affirma tion] before testifying that the witness will testify truthfully . . . .), 2801 (definition of hearsa y), 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 (previousl y 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 comm itted in an aggressive, violent, premeditated or willful manner; 2. Whether the offense was against pe rsons 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. S ee Magill , 455 P.2d at 716 (because “a preliminary hearing is ordinar ily 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 hearin g as they are at trial) (cit ations and quot ations omitted); Bledsoe v. State , 572 P.2d 235, 237 (Okla. Crim. App. 1977) (concluding foundation need not be laid for admissi on of social reports of the juvenile’s background at a certification hearing but juvenile must “be afforded a fair oppor tunity to examine, criticize, and refute the findings of such a report”). We assume here the ADA’s statements were inadmissible at the adult certification heari ng under the rules of evidence and the United St ates Constitution.- 48 - being given to transferring the accus ed 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, ho me, environmental situation, emotional attitude and pattern of living; 4. The record and previous histor y of the accused person, including previous contacts with commun ity agencies, law enforcement agencies, schools, juvenile or crim inal courts and other jurisdictions, prior periods of probation or pr ior commitments to juvenile institutions; 5. The prospects for adequate protection of the public; 6. The likelihood of reas onable rehabilitation of th e 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 ins titution for delinquent children. Okla. Stat. Ann. tit. 10, § 7303-4.3(B). Judge Chappelle considered ea ch 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 pr evious referrals of this juvenile. The Court finds that this juvenile has not had very many referrals from law enforcement to this court. Howe ver, [the] Court recognizes that the referrals have been for a protective or der against Juvenile respondent for the natural mother, possession of mariju ana, 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.- 49 - However, it is important to note Judge Ch appelle only used these statements in addressing Wilson’s “previous re ferrals”—which is but one of seven factors relevant to the adult certification analysis. In turn, th e ADA’s statements were only one of several factors considered in the “previous referr al” analysis. Additionally, Judge Chappelle ultimately determined Wilson’s previous re ferrals weighed only “s lightly” 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 simi lar, set of factors to be considered in deciding whether a juvenile is entitled to reverse certifica tion. Unlike those used to determine whether to certify a juvenile as an a dult, the statutory factors used to determine whether a juvenile is entitled to reverse certific ation are “listed in order of importance” as follows (again, previously cited on page 6 but repeated here for convenience):
1. Whether the alleged offense wa s committed in an aggressive, violent, premeditated or willful manner; 2. Whether the offense was against pers ons or property, greater weight being given for retaining the ac cused person w ithin the adult criminal system for offenses agai nst persons, especially if personal injury resulted; 3. The record and past history of the accused person, including previous contacts with law enforc ement agencies and juvenile or criminal courts, prior periods of probation and commitments to juvenile institutions; and 4. The prospects for adequate protec tion 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 certific ation motion, Judge Singer began by- 50 - recognizing there is a presum ption 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 deci ding whether a j uvenile is entitled to reverse certification. He stated he had “very seriously” and “painsta kingly” considered each of the factors. (Appellant’s Re ply Br., Ex. 1 at 69.) He then read from Dr. Cooper’s report which he determined was “som ewhat optimistic” as to whet her Wilson could be safely treated in the juvenile system. The report (s et 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 ha s 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 sugg est 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 expos ed to a certain degree of violence within his family . . . . There are several factors that sugges t 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 thos e programs . . . . ( Id. at 69-70 (quotations omitted).). [Appe llant’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 particul ar emphasis on the fact Judge Chappelle had- 51 - determined adult certification was proper despite Dr. Cooper’s report indicating there were juvenile facilities ava ilable for Wilson’s placement. We acknowledge the nature of the ADA’s statements to Judge Chappelle had a strong potential to negatively influence Judg e 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 fa ct Wilson was a suspect in other homicides was only a minor factor in Judge Ch appelle’s analysis. An d there is no reason to think Judge Singer would accord it more we ight. And, when Judge Singer’s decision to deny Wilson’s motion for revers e certification is read as a whole, it is readily apparent this decision was not based on the ADA’s stat ements. 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 fo r adequate protection of the public if the accused person is processed thro ugh 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 rehab ilitate himself. Not to me ntion the presumption under

26 Judge Singer did not rely on Judge Chappelle’s certification order in determining probable cause. Therefore, it pl ayed no role in Judge Singer’s probable cause determination. Conseq uently, Wilson cannot show a reasonable probability that the result of Judge Singer’s pr obable cause determination w ould have been different had pretrial counsel objected to Judge Singe r’s reliance on Judge Chappelle’s order. See Strickland , 466 U.S. at 694.- 52 - Oklahoma law that Wilson should be treated as an adult ba sed on his age and the nature of the offense. Given that neither Judge Chappelle nor Ju dge 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 ob jection would have accorded them more importance than either judge did. Pretrial counsel was not constitutionally in effective in failing to object to Judge Singer’s reliance on Judge Chappelle’s adult certification order. Consequently, appellate counsel was not ineffective for fa iling to raise an ineffective assistance of counsel claim.
VIII. CONCLUSION Wilson’s ineffective assistance of pretri al counsel claim is without merit. Therefore, appellate counsel was not ineffec tive 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