TIMOTHY L. BROOKS, District Judge.
Mickey Thomas, Jr. is an inmate in the Arkansas Department of Correction under a death sentence for the 2004 murders of Donna Cary and Mona Shelton. Thomas has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On September 28, 2005, following a jury trial in Pike County, Arkansas, Thomas was convicted of the murders of Donna Cary and Mona Shelton and was sentenced to death. Thomas appealed his convictions to the Arkansas Supreme Court, setting forth the following grounds for reversal on appeal:
In a published opinion,
Following denial of certiorari, attorney Jeff Harrelson was appointed to represent Thomas in state post-conviction proceedings. Thomas filed a petition for post-conviction relief, pursuant to Arkansas Rule of Criminal Procedure 37.5, in the Circuit Court of Sevier County, Arkansas. After an evidentiary hearing, the circuit court denied relief on the Rule 37.5 petition.
Thomas appealed to the Supreme Court of Arkansas arguing that the circuit court's order denying relief should be reversed for the following reasons:
The Supreme Court of Arkansas denied relief, rejecting Thomas's arguments.
Thomas then filed a petition for writ of habeas corpus relief pursuant to 28 U.S.C. § 2254 in this Court, and ultimately amended that petition on April 29, 2014. (Petition, Doc. 2; Amended Petition, Doc. 9). Following an expansion of the record with respect to Thomas's ineffective assistance of counsel claims (Order, Doc. 35) and an initial Case Management Hearing, the Court determined that an evidentiary hearing was appropriate under
For the reasons set forth below, the Court
In adjudicating Thomas's direct appeal, the Supreme Court of Arkansas set forth a summary of the presented evidence. Pursuant to 28 U.S.C. § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." Although this presumption may be rebutted by Thomas, the Court finds that Thomas has not done so. Thus, as determined by the Supreme Court of Arkansas, certain facts are as follows:
As a matter of comity, before a federal court can grant habeas relief, it must first determine that the petitioner has exhausted all of his state court remedies. According to
Finally, where it is more efficient to do so, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2).
In addition to the requirement of exhaustion, a federal habeas court must also examine the state court's resolution of the presented claim. "It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that `is independent of the federal question and adequate to support the judgment."
A claim can be lost to procedural default at any level of state court review: at trial, on direct appeal, or in the course of state post-conviction proceedings.
Once a claim is defaulted, the habeas court can only consider the claim if the petitioner can show cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice.
Finally, when the merits of a claim presented in a habeas action have been addressed in state court proceedings, the habeas court cannot grant habeas corpus relief upon the claim unless it determines that the state court proceedings resulted in a decision (1) "that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
To find that a decision is contrary to clearly established federal law, a habeas court must find that the state court decision directly contradicts Supreme Court precedent or if, when faced with "materially indistinguishable" facts, the state court reached a decision that was opposite to the result reached by the Supreme Court.
Before the Court is Thomas's amended petition (Amended Petition, Doc. 9), and the various responses and replies thereto. As the Court previously ordered, some of Thomas's claims required further development.
Thomas failed to present the majority of his current claims to the state courts. However, the claims that were effectively presented to the state courts will be addressed in this section.
Thomas claims he was denied effective assistance of counsel when his trial counsel unreasonably and prejudicially failed to introduce the testimony of Lt. Alex Mathis at trial or to at least offer his transcribed testimony from a pre-trial hearing to rebut any possible inference that Mickey Thomas attempted to rape or sexually assault the decedents because a condom and twine were found on his person upon his arrest.
Thomas claims that the testimony of Lt. Alex Mathis could have rebutted any inference that Thomas sexually assaulted or attempted to sexually assault the decedents. Although the State argues that this Court must deny relief under § 2254(d) because the Arkansas Supreme Court reasonably determined that trial counsels' failure to present the testimony of Lt. Mathis was a matter of trial strategy, Thomas asserts that § 2254(d) does not bar relief because the Arkansas Supreme Court's decision was based on an unreasonable determination of the facts. Specifically, Thomas argues that according to the trial record, trial counsel discussed specific topics he originally intended to question Lt. Mathis about. Thomas argues this proves that trial counsel's failure to call Mathis to testify was not a strategic decision.
As set forth above, when the merits of a claim presented in a habeas action have been addressed in state court proceedings, the habeas court cannot grant relief upon the claim unless it determines that the state court proceedings resulted in a decision (1) "that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
On appeal from the state post-conviction proceedings, the Arkansas Supreme Court accurately set forth the standard of review for claims of ineffective assistance of counsel under
Thomas argues that Thomas's counsel's requests for Mathis's testimony in a pretrial conference, including counsel's asserted reasons for Mathis's testimony, and counsel's motion seeking to have Mathis's prior testimony introduced during trial, are more contemporaneous proof of trial strategy and "[b]y ignoring [such evidence], the Arkansas Supreme Court unreasonably determined the facts." (Doc. 29, p. 52).
However, this Court does not find the Arkansas Supreme Court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." While the facts pointed to by Thomas are additional evidence of trial strategy, trial counsel specifically testified to their trial strategy in the Rule 37.5 hearing.
Finally, even if the Court were to find the Constitutional error in this regard, relief would not be warranted. See
The Court finds that Issue 1-6 of Thomas's petition should be dismissed.
In Point 2-1-1, Thomas contends that the trial court erred when it transferred Mr. Thomas's trial to a county with a substantially smaller population of persons of Mr. Thomas's race. At trial, Thomas's counsel moved for a change in venue. The trial court granted Thomas's motion, transferring the case from Sevier County to Pike County. Although trial counsel noted the make-up of the counties during the change of venue arguments, trial counsel failed to raise any of the constitutional arguments currently being raised on objection to the trial court. The Arkansas Supreme Court, therefore, found that Thomas failed to make a sufficient record that would preserve such an argument on appeal that the trial court erred in transferring the case to Pike County; and, further found that review on appeal was precluded under the contemporaneous objection rule.
Accordingly, the Court finds that Point 2-1-1 is procedurally defaulted. Any argument Thomas may have to excuse the procedural default of Point 2-1-1 will be discussed below.
In Point 2-1-2, Thomas asserts that the trial court erred by refusing to supplement the jury pool in violation of his Sixth and Fourteenth Amendment Constitutional rights. Specifically Thomas states that the trial judge used a "narrow jury pool drawn from voter registration rolls . . . [and] refused to use a statutorily authorized expanded jury pool that included other citizens drawn from the list of licensed drivers and persons issued a state identification card." As a result, Thomas argues, "African Americans and the poor were woefully underrepresented in Mr. Thomas's jury venire."
The Respondent argues that this claim was adjudicated on the merits by the Arkansas Supreme Court with the court finding that Thomas failed to make the prima facie showing required by
As set forth by the Arkansas Supreme Court, Arkansas Code Annotated § 16-32-301 allowed for jury pool expansion:
Further, Arkansas Code § 16-32-303 allowed the administrative circuit judge for each county to determine whether to use the list of registered voters or the enhanced list:
The Arkansas Supreme Court noted that pursuant to a memo dated September 14, 2004 Circuit Judges Charles Yeargan and Ted Capeheart "stated that they did not feel it was in the best interest of the Ninth West Judicial District to change to motor vehicle registration."
The Arkansas Supreme Court correctly set forth the standard with respect to a claim that an individual's right to a jury chosen from a fair cross section of his community has been violated:
Although Thomas argues that the state court held that one can never establish a fair cross-section violation when the jury venire is randomly selected, the Arkansas Supreme Court instead held "when the jury venire is drawn by random selection, the mere showing that it is not representative of the racial composition of the population will not make a prima facie showing of racial discrimination."
The Court dismisses Point 2-1-2 of Thomas's petition.
In Claim 12, Thomas argues that the trial court's denial of a continuance violated his federal constitutional rights to counsel and the effective assistance thereof, to due process, and to a fair and reliable determination of death eligibility and sentence selection, as guaranteed by the Sixth, Eighth and Fourteenth Amendment. Thomas further argues that the trial court unconstitutionally forced Thomas to trial despite his attorneys' repeated objections that they had not conducted an adequate investigation or completed preparation for his case.
The Respondent asserts that Thomas has not demonstrated the Arkansas Supreme Court's decision to be contrary to, or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence presented in the trial court. The Respondent points to the reasons the Arkansas Supreme Court cited in finding that the denial of a continuance was not an abuse of discretion.
As set forth by the Arkansas Supreme Court, under Arkansas law, "[a] trial court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case."
According to
Noting the generality of the constitutional rule with respect to a continuance request, the Eighth Circuit in
The Arkansas Supreme Court noted that the trial court denied Thomas's requests for a continuance because the trial had been set prior to one of counsel's other trial settings; because the trial court believed an unavailable witness would be at trial; and because the court did not believe requested DNA evidence would be exculpatory. Considering the reasons for the trial court's denial, and Thomas's failure to show that he was prejudiced in any way by the denial of the continuances, the Arkansas Supreme Court found no abuse of discretion by the trial court.
Although Thomas argues that the Arkansas Supreme Court's finding is contrary to or an unreasonable application to established federal law, this Court disagrees. The Arkansas Supreme Court reviewed the totality of the circumstances surrounding the requests for continuances and found justifiable reasons for the denial.
The Court finds that the holding was neither contrary to nor an unreasonable application of established federal law and therefore dismisses Claim 12 of Thomas's petition.
Claim 16 includes two parts concerning the jury instructions given during the penalty stage of Thomas's trial. Thomas claims that the trial judge gave prejudicial jury instructions, and refused to give necessary jury instructions, in violation of Thomas's federal constitutional rights to due process, equal protection, trial by jury, freedom from cruel and unusual punishment, and a fair and reliable determination of guilt, deatheligibility, and sentence, guaranteed by the Sixth, Eighth, and Fourteenth Amendments.
Thomas argues that the "trial court erroneously refused to eliminate the word `probably' from the mitigating circumstances instruction in violation of Mr. Thomas's Fourteenth Amendment right to due process and Eighth Amendment right to freedom from cruel and unusual punishment" by limiting the jury's consideration of mitigating evidence to evidence that supported a mitigating circumstance that "probably" existed.
According to the findings of the Supreme Court of Arkansas,
The Respondent states that the Supreme Court of Arkansas affirmed the trial court's denial of Thomas's requested instructions, rejecting Thomas's claims that the language "probably exist" in the mitigating circumstances verdict forms and that the trial court's failure to define "mitigating circumstances" prevented the jurors from considering all mitigating evidence in violation of his constitutional rights.
The Supreme Court of Arkansas noted that "criminal jury instructions do not trump the plain language of . . . criminal statutes." 257 S.W.3d at 103 (citing
According to
Thomas also argues that the trial court violated his right to due process, to present a defense, to freedom from cruel and unusual punishment, and to a fair and reliable determination of sentence selection, guaranteed by the Eighth and Fourteenth Amendments, when the court arbitrarily refused to provide the jury with a definition of the term "mitigating circumstances."
The Arkansas Supreme Court addressed this issue. According to the Arkansas Supreme Court decision, Thomas asked the court "to declare Ark. Code Ann. §§ 5-4-603-5-4-605 (Repl. 1997) constitutionally defective due to [Thomas's] assertion that it fails to guide the jury by failing to define `mitigation' and does not clearly and objectively establish standards with regard to the weight and effect to be given mitigation evidence."
In this respect, the Court again finds the decision of the Arkansas Supreme Court to be neither contrary to, nor an unreasonable application of established federal law. To the extent that Thomas's arguments contained in Claim 16 were addressed by the Arkansas Supreme Court, the claim is dismissed. Any other arguments contained in Claim 16 are either unexhausted or procedurally defaulted and will be discussed below.
In Claim 17, Thomas argues that his death sentences should be vacated because they were secured through the use of improper and unconstitutional victim impact testimony, in violation of his rights to fundamental fairness and to freedom from arbitrary or capricious infliction of the death penalty, guaranteed by the Due Process Clause of the Fourteenth Amendment and by the Cruel and Unusual Punishment Clause of the Eighth Amendment to the federal Constitution. The Respondent asserts that the Arkansas Supreme Court addressed Thomas's claim — at least to the extent he argues a violation of his Eighth Amendment rights; and, that the state court's rejection of the claim is neither contrary to, nor an unreasonable application of, clearly established law, pointing specifically to
On appeal to the Arkansas Supreme Court, Thomas argued that the trial court erred by failing to grant his motions to prohibit victim-impact evidence; that victim-impact evidence is only allowed by Arkansas law when relevant to the aggravators or mitigators advanced at trial; and that instead of helping to prove the aggravators or disprove any of the mitigators, the victim-impact evidence introduced "only encouraged the jury to respond emotionally and to arbitrarily base its decision on irrelevant matters."
Under Arkansas Code Annotated § 5-4-603(a), for the state to sentence a defendant to death it must demonstrate (1) that aggravating circumstances exist beyond a reasonable doubt; (2) that aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and (3) that the aggravating circumstances justify a sentence of death beyond a reasonable doubt. Victim-impact evidence is allowable under Ark. Code Ann. § 5-4-602(4) at the sentencing phase of a capital case as "relevant to a jury's determination of the appropriateness of the death penalty."
To the extent, however, that Thomas argues that the specific victim-impact evidence admitted during the sentencing was a violation of his due process rights, the Court finds the claim unexhausted. Thomas appealed, to the state's highest court, the trial court's denial of his pre-trial motions concerning victim-impact evidence and the relevance of the evidence admitted at trial. The availability of any relief on the unexhausted portion of this claim will be discussed below.
As set forth above, before seeking federal habeas review, a state prisoner must first "exhaus[t] the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To meet the exhaustion requirement, a prisoner must present his claims through "one complete round of the State's established appellate review process."
The Respondent claims that each and every claim not effectively presented to the state courts is barred by the doctrine of procedural default. Thomas, however, argues that, largely, the claims which were not ruled on by the Arkansas Supreme Court are unexhausted and, that this case should be stayed and held in abeyance pending further litigation of those claims in the state courts. Alternatively, Thomas argues that the procedural default of certain claims should be excused.
According to Eighth Circuit precedent,
The courts have recognized that dismissing unexhausted claims may result in the expiration of the statute of limitations for federal habeas actions provided in 28 U.S.C. § 2244(d)(1). The Supreme Court has therefore instructed that a district court may stay a federal habeas petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims.
As previously stated, Thomas argues that the majority of his claims are unexhausted, and that, because certain state court procedures are available, this matter should be stayed and held in abeyance pending exhaustion in state court. Specifically, Thomas asserts that relief remains available to him in the state courts by means of a motion to recall the mandate; and, with respect to Claim 15, a petition for writ of coram nobis. As explained below, the scope of each of these remedies is limited.
Thomas argues that a motion to recall the mandate is an available remedy in the Arkansas courts because of the state's failure to provide Thomas with effective postconviction counsel.
According to established caselaw, the Arkansas Supreme Court will "recall a mandate and reopen a case only in extraordinary circumstances."
Thomas argues that the ineffective assistance of his post-conviction counsel amounted to a defect in the appellate process; and, that, therefore, a motion to recall the mandate as an available remedy is not clearly futile. While it is true that the Arkansas Supreme Court has recalled a mandate and reopened a case due to extreme ineffective assistance of counsel, the Arkansas Supreme Court has recently held "[w]e do not entertain a claim for recalling the mandate based solely on allegations of ineffective assistance of postconviction counsel."
The Court also notes that, although under a slightly different procedural posture, the Eighth Circuit has found that the procedure "appears to remain extraordinary rather than routine" and "is not a proper vehicle for exhausting state remedies in Arkansas."
Thomas also claims that a writ of coram nobis is an available remedy in state court with respect to Claim 15 of his petition which asserts that he was incompetent to stand trial. Under Arkansas law, "[a] writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval."
Further, "[a]lthough there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. In the absence of a valid excuse for delay, the petition will be denied."
Here, as set forth above, Thomas claims that he was incompetent to stand trial. Specifically, in claim 15 of his petition, Thomas states that he "was suffering from a devastating complex of mental disorders and disabilities that undermined his ability to consult with his lawyers with a reasonable degree of rational understanding and prevented him from gaining a rational and factual understanding of the proceedings against him." (Amended Petition, Doc. 9, Claim 15, p. 244) As set forth by the petition, soon after his arrest, Thomas was ordered to undergo a mental health evaluation to determine whether he was competent to proceed and whether he appreciated the criminality of his conduct at the time of the offense. He was examined by Dr. Michael McAllister and was found competent to stand trial. Thomas asserts that Dr. McAllister's examination "was woefully inadequate in multiple respects." Thomas specifically argues: that Dr. McAllister's examination was unreasonably short, and did not include the assistance of a social worker or medical doctor; that Dr. McAllister did not gather past medical, school, prison and mental health records; that Dr. McAllister's testing was inadequate and deficient; and that Dr. McAllister ignored "clear signs" that Thomas was suffering from a mental disease or defect that affected his ability to understand the proceedings against him.
Incorporated into Thomas's Claim 15 are the arguments contained in Issue 10-1 of the petition that he received ineffective assistance of counsel during the mitigation phase of trial. The Court has allowed for the expansion of the record with regard to Issue 10-1. (Order, Doc. 35). Included in that expansion is the expert report of Dr. Logan, in which he expresses his opinion that Mr. Thomas was not competent to stand trial at the time he was tried in 2005. (Doc. 28-35, Expert Report of Dr. Logan). The Court also received evidence with respect to Thomas's competency during the hearing held the week of January 30, 2017. Such evidence included the reports and testimony of Dr. Lisak and Dr. Gur, as well as the testimony of Thomas's trial counsel concerning his behavior during their representation of him. Based upon Thomas's petition and this evidence, the Court concludes that Claim 15 is meritless. The Court simply does not believe the weight of the evidence supports that Thomas was incompetent to stand trial under the standard set forth in
In addition, the Court notes that Thomas's lack of diligence in pursuit of this issue via writ of coram nobis in state court also weighs against Thomas's likelihood of success in state court. Clearly, Thomas's current counsel were formulating this argument prior to the filing of Thomas's original petition in March of 2014. For all of these reasons, the Court finds that a stay for the purpose of the pursuit of a writ of error coram nobis would be clearly futile.
As set forth above, the Respondent claims that each and every claim not effectively presented to the state courts is barred by the doctrine of procedural default. Thomas, however, argues that certain exceptions apply to the State's alleged procedural bar.
This Court may only consider the merits of the procedurally defaulted claims if Thomas can show (1) cause for the default and actual prejudice, or (2) that the default will result in a fundamental miscarriage of justice.
Thomas asserts that the procedural default of certain claims can be excused under
As set forth above, the Court previously found that Thomas may be able to establish actual prejudice on his post-conviction ineffectiveness claims arising from the alleged failure of trial counsel to present compelling mental health and mitigation evidence. (Order, Doc. 40). The Court also found that Thomas's claims arising from the alleged failure of trial counsel in the investigation and presentation of claims of juror misconduct were potentially meritorious and warranted a hearing under
* Point 1-5-1, Failure to Support Theory of Defense with Readily Available Evidence, including the bases for this claim incorporated through Issue 10-1;
* Issue 1-13, Ineffective Assistance of Counsel with Respect to Suppression Claim, including the bases for this claim set forth under Claim 14;
* Issue 1-14, Failure to Support Claim of Incompetency to Stand Trial with Readily Available Evidence, including the bases for this claim incorporated through Issue 10-1 and Claim 15; and,
* Issue 10-1, Ineffective Presentation of the Case in Mitigation, including the bases for this claim presented in each of the Points under Issue 10-1.
* Issue 1-11, Failure to Raise Claims of Juror Misconduct, including all bases for this claim incorporated through Claim 11;
* Point 10-2-2, Trial Counsel Failed to Investigate for, Discover, and Present Claims of Juror Misconduct, including all bases for this claim incorporated through Claim 11; and,
* Issue 13-2, Failure to Raise Claims of Jury Misconduct by trial counsel, including all bases for this claim incorporated through Claim 11.
The Court's findings with respect to these claims are discussed in section IV(C) below.
In order for
Thomas also argues that he should be granted a
The issue presented with respect to the claim of ineffective assistance of appellate counsel has been directly addressed by the Eighth Circuit Court of Appeals. The Eighth Circuit, in
Thomas's claim concerning ineffective assistance of counsel during the initialreview collateral proceedings (Claim 21) further fails on the merits. 28 U.S.C. § 2254(1) provides that "the ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief." Although ineffective assistance of counsel during the initial-review collateral proceedings can, under
Finally, except to the extent that any facts set forth in the stand alone claims form the basis for Thomas's claims of ineffective assistance of trial counsel, the stand alone claims in no way merit a
Thomas claims that he can establish cause and prejudice outside the
In Claim 18, Thomas argues that his sentences should be vacated because he suffered from severe mental disorder and disabilities at the time of the offense. Specifically, he argues that the death sentences violate his federal constitutional rights to equal protection and freedom from cruel and unusual punishment, as guaranteed by the Eighth and Fourteenth Amendments, because, at the time of the offenses, he suffered from a combination of severe mental disorders and disabilities that significantly impaired his capacity to appreciate the nature, consequences, or wrongfulness of his conduct; to exercise rational judgment in relation to the conduct; and/or to conform to the requirements of the law. Thomas argues that any procedural default of this claim should be excused because the claim is novel and because the underlying facts show that Thomas's death sentence is substantively illegal.
The Court finds the alleged cause and prejudice to excuse procedural default lacking. More importantly, the Court finds Claim 18 without merit. See
In Claim 19, Thomas argues that the death penalty violates the Eighth Amendment's cruel and unusual punishment clause. Thomas argues that the cruel and unusual punishment clause "draws its meaning from the evolving standards of decency that mark the progression of a maturing society." Thomas asserts that the procedural default of this claim should be excused because it is legally novel and relies on facts that were not in existence at the time of Thomas's trial. The Court finds both no cause to excuse the procedural default and no merit to the claim.
The United States Supreme Court recently reiterated the constitutionality of the death penalty in
In Claim 22, Thomas argues that his convictions and sentences were unlawfully obtained in violation of his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights as a result of the multiple constitutional errors committed by the prosecutor, Thomas's counsel, the trial court, and the jurors. Thomas argues that the errors together render Thomas's trial fundamentally unfair and render the verdicts and judgments unreliable and in violation of his Fourteenth Amendment right to due process. This claim is both procedurally defaulted and lacks merit.
According to the Eighth Circuit:
As set forth above, this Court held an evidentiary hearing the week of January 30, 2017. The parties were instructed that the Court would consider the procedurally defaulted claims set forth in Appendix A. Under
The Court has found the claims set forth in Appendix A procedurally defaulted. The Court initially notes, however, that the Respondent argues that at least certain claims set forth in Appendix A do not fall under the purview of
The Court acknowledges that as explained by the Eighth Circuit in
Thomas's Rule 37 Amended Petition for Post-Conviction Relief Pursuant to Rule 37.5 A.R.Cr.P. included the following claims concerning ineffective assistance of trial counsel:
Amended Petition for Post-Conviction Relief Pursuant to Rule 37.5 A.R.Cr.P., p. 4. The state trial court denied those claims, specifically stating:
Order of the Circuit Court of Sevier County, Arkansas, dated February 1, 2010, p. 5-6(emphasis added). The Court notes that the Eighth Circuit has held:
The Court must next consider several factors to determine whether the claims merit relief. Specifically, the following questions must be considered:
The alleged ineffectiveness of counsel, both that of Thomas's post-conviction counsel and Thomas's trial counsel, is viewed under the
The evidentiary hearing in this case consisted of the Petitioner's presentation of the testimony of twenty-one (21) witnesses, Respondent's cross-examination of those witnesses, and presentation of one (1) witness for the Respondent. Included in the Petitioner's presentation were Pam Welling Smith, Carol Holloway, Lou Marczuk, and Tammy Harris, whose testimony centered on the trial team's representation of Mr. Thomas. The testimony of Jeff Harrelson and Jason Horton was also presented, as they represented Mr. Thomas during the post-conviction period. Adrian Wooten, Tyron Thomas, Calvin Marshall, Zonzurea Thomas, Samritha Sanchez, Robert Marshall, Earnestine Thomas, Hazel Thomas, and Creola Cotton were presented — these witnesses are either family members or friends of Mr. Thomas and largely testified concerning Thomas's childhood and life experiences, family background, and general behavior. The Petitioner also presented Richard Branch, who served as a juror and testified concerning his experience during the trial. Dr. Richard Livingston testified concerning his evaluation of Thomas prior to trial and his testimony at trial. Medical experts Dr. Ruben Gur, Dr. David Lisak and Dr. William Logan were presented and testified concerning the effects Thomas's childhood experiences and trauma had on him, the effects of drug use and toxic chemicals on Thomas's brain, and Thomas's mental state, limitations, and impairments. Finally, expert witness Sean O'Brien testified concerning the prevailing professional norms and standard of performance required of Thomas's trial and postconviction counsel. The Respondent presented the testimony of Melody McKnight, who served as the jury foreman during Mr. Thomas's trial, concerning her experience as a juror during Thomas's trial. Voluminous documentary evidence was also received by the Court.
Three of the claims set for consideration at the hearing (Issue 1-11, Point 10-2-2, and Issue 13-2) concern the failure of trial counsel to raise claims of jury misconduct. Thomas asserts that constitutionally competent trial counsel would have raised claims of juror misconduct during the guilt, penalty, and post-trial period of trial, and that Thomas was prejudiced by trial counsel's failure to raise those claims. Specifically, at the hearing, Thomas focused his claims on the argument that jurors were exposed to pre-trial prejudicial publicity and that certain jurors, including Richard Branch, received, either prior to or during the trial, extraneous information concerning criminal conduct in Oklahoma of which Thomas has been accused but has not been convicted. Although the fact that Thomas was convicted of a prior violent felony in Oklahoma was introduced into evidence during the trial, this more recent alleged criminal conduct, which includes a murder charge, was not presented to the jury.
As conceded by counsel for the Petitioner during the post-hearing arguments held on March 8, 2017, the evidence presented at the hearing simply does not support this allegation or any of the juror misconduct allegations contained in Thomas's petition. Richard Branch clearly testified that he knew of the prior criminal activity admitted into evidence, but that he did not know of the alleged more recent criminal activity of Thomas in Oklahoma during the trial. Branch pointed out that had he known about those things during the trial phase, that information would have been contained in his notes from the trial. Although, as Thomas points out, Branch's written declaration and deposition testimony could be viewed as contradictory to Branch's hearing testimony, Branch explained that after reviewing his notes he was sure that he had no knowledge of the recent alleged criminal conduct until after the trial.
Based on this testimony, the testimony of Melody McKnight, and the Petitioner's concession, the Court finds no facts to support Thomas's claims that trial counsel was ineffective in any manner with respect to alleged juror misconduct. The Court, therefore, finds that
The remaining claims arise from the alleged failure of trial counsel to present compelling mental health and mitigation evidence during trial. Point 1-5-1, Issue 1-13, and Issue 1-14 are claims which concern the guilt phase of Thomas's trial. Issue 10-1 concerns the sentencing phase of trial.
Initially, the Court notes that during the March 8, 2017 post-hearing arguments, Petitioner's counsel conceded that the proof presented at the hearing did not support Issue 1-13 or Issue 1-14. The Court agrees. In Issue 1-13 of his petition, Thomas argues that his trial counsel was ineffective in that counsel failed to protect Thomas's constitutional rights against self-incrimination, his right to counsel, and his right of due process when counsel failed to fully litigate and preserve Thomas's motion to suppress his statements to police. In Issue 1-14 of his petition, Thomas argues that his trial counsel was ineffective, in violation of the Sixth Amendment to the Constitution, in that they failed to argue that he was incompetent to stand trial. No evidence was presented directly regarding the suppression of Thomas's statements to the police; and, while Thomas presented some evidence and argument with respect to his competency to stand trial, there was significant proof that Thomas was cooperative and helpful to his trial counsel and understood the proceedings against him. Because the Court finds no merit to these claims, and considering the Petitioner's concession with respect to the claims, the Court finds that the procedural default of Issue 1-13 and Issue 1-14 are not excused by
The remaining two claims include Point 1-5-1 and Issue 10-1. In Point 1-5-1 of his petition, Thomas argues that trial counsel was ineffective during the guilt phase of trial, in violation of the Sixth Amendment, because counsel failed to effectively argue that Thomas did not act with the requisite premeditation and deliberation for capital murder. Thomas argues that trial counsel should have bolstered this mental state argument by presenting effective mental health evidence, including evidence and expert testimony of dissociation disorders from which Thomas allegedly suffered.
Issue 10-1 of Thomas's petition asserts that trial counsel was ineffective at the penalty phase of trial with respect to their presentation of the case in mitigation. Thomas argues that trial counsel failed to conduct a thorough investigation with respect to mitigation and could have presented documentary evidence and testimony from lay and expert witnesses that could have changed the jury's decision when weighing the aggravating circumstances against the mitigating circumstances at sentencing. Specifically, as included in Issue 10-1, Thomas argues that, with respect to mitigation evidence, trial counsel:
At the hearing, Thomas presented extensive mental health and mitigation evidence which was not effectively introduced at trial. Mickey Thomas was raised in a family that was dysfunctional at best. Alcohol abuse, drug abuse, physical abuse, and violence were prevalent among Thomas's mother, father, step-father, and grandparents. Thomas was born pre-mature, having been exposed to alcohol and drug use in utero. Thomas learned illicit behavior early on, and reportedly began huffing gas as a toddler. This behavior, almost certainly learned from the observation of his parents, on more than one occasion as a 3-4 year old child caused him to become unconscious, with his mother reporting that he had to be "brought . . . back to life". Thomas witnessed domestic abuse between his mother, father, and mother's boyfriends, and between his maternal grandparents. Thomas also personally experienced verbal and physical abuse from his mother, father, and his mother's boyfriends — the physical abuse including being tied up and beaten on multiple occasions.
In addition to being riddled with drug, alcohol, verbal, and physical abuse, Thomas's childhood was permeated by poverty. Evidence was presented that, as a child, Thomas, on occasion, stole food, clothing, and shoes to provide for his mother and siblings. Running water was occasionally not present in Thomas's childhood home; accordingly, hygiene was poor.
Thomas's social history contains a strong family and personal history of mental health issues. Introduced into evidence at the hearing were voluminous Oklahoma Department of Human Services records. The records were never introduced or even obtained by Thomas's trial counsel. The DHS records show that social services in Oklahoma supported Thomas's family for extended periods of time, with services including welfare assistance, food stamps, and housing subsidies. The records show that Thomas's mother abandoned the family for a period of months when Thomas was very young. The records also show that Thomas was transferred to foster care on at least two occasions — with one occasion lasting at least a year.
From the age of 18 until 27, Thomas was in prison in Oklahoma. During that time he received mental health services. Following his release from prison, he obtained a job and got married. However, in 2004, Thomas began having marital problems and lost his job. Thomas asked family members for mental health help and sought mental health services not long before the murders.
Thomas presented the testimony of Dr. Richard Livingston at the evidentiary hearing. Dr. Livingston was retained as an expert in Thomas's trial and testified for Thomas during the sentencing phase of trial. Although at trial Livingston testified concerning the risk factors present for Thomas stemming from his exposure to toxins and low birth weight, Livingston testified that if asked he could have performed an evaluation for trauma or dissociation.
As stated above, Dr. Ruben Gur, Dr. David Lisak and Dr. William Logan provided expert medical testimony for Thomas during the evidentiary hearing. Dr. Gur concluded that Thomas suffered brain damage, both structural and functional, but did not conclude as to the effect that brain damage had on Thomas. Dr. Lisak testified that Thomas experienced extensive trauma during his childhood, including both physical abuse and sexual abuse. Lisak also noted that Thomas was exposed to significant violence in his home, and that, due to these traumas, he suffers from symptoms of posttraumatic stress disorder and displays dissociative symptoms; but, Lisak stopped short of formulating a specific diagnosis with respect to Thomas. Dr. William Logan testified as an expert in forensic psychiatry. Logan ultimately concluded that Thomas was suffering from dissociation including a "depersonalization disorder with some symptoms of depersonalization, derealization, some spotty amnesia, [and] some identity problems". Logan also opined that Thomas's dissociation disorder prevented him from having adequate cognitive control over his actions and behavior "at certain points in [the] offense" and "prevented him from being able to premeditate or deliberate about his actions in the cause of the death of the two victims."
With respect to the guilt phase of trial, the Court finds that there is no reasonable probability that the evidence presented would have made any difference on Thomas's guilt or innocence of capital murder. The Court simply does not believe that even if presented, there is a reasonable probability that the jury would have found that Thomas lacked the mental capacity to act with a premeditated and deliberate purpose. The trial record is replete with evidence which supports the necessary mens rea for capital murder. Further, even if the expert testimony as presented at the hearing was found to be admissible with respect to whether Thomas exhibited a culpable mental state,
The prejudicial effect on the sentencing phase is a much different question. As set forth above, the picture painted in mitigation at the evidentiary hearing was compelling. "[T]he Constitution requires that the sentencer in capital cases must be permitted to consider any relevant mitigating factor."
In addition to the mitigation evidence introduced at the hearing, Thomas introduced evidence concerning trial counsel's performance during their representation of him. From the evidence presented, trial counsel consisted of a team which was unquestionably experienced, but, the Court finds, was dysfunctional and disjointed during Thomas's representation as related to the development and presentation of mitigation evidence. For whatever reason, the trial team unquestionably failed to conduct a thorough investigation with respect to mitigation. Lou Marczuk was lead counsel, and focused on the guilt portion of Thomas's trial. Tammy Harris was assigned to the case in mitigation. Although the team included a "mitigation specialist" and a paralegal, those individuals did not work independently, but rather at the direct direction of the attorneys.
Trial counsel initially reached out to Thomas's family at the beginning of their representation, securing rich information through a written questionnaire completed by Thomas's mother, but follow up was lacking. Important documentary evidence prompted by that questionnaire was either not gathered in a timely manner or not gathered at all. The evidence presented during this Court's evidentiary hearing included extensive Oklahoma DHS records, Oklahoma department of corrections records, medical records, employment records and school records. Under the required standard of care established by
Few mitigation witness interviews were conducted; and, many of the mitigation witness interviews that were conducted occurred just prior to trial. In addition, many of the mitigation witness interviews were conducted ineffectively, either with multiple parties present or over the telephone.
The fact that trial counsel was grossly unprepared is further evidenced by their own admissions in the motions for continuance presented prior to trial. Specifically, the second motion for continuance, filed on September 7, 2005, just days before the start of trial, notes the Constitutional requirements of trial counsel in a death penalty case, stating: "Since a person's life is at stake, counsel is required to exhaustively explore every factual and legal aspect of the `defendant's character . . . and any of the circumstances of the offense.'
The motions for continuance, presented by Tammy Harris during a pre-trial hearing, were denied.
The result of trial counsel's lack of investigation and preparation was an entirely unconvincing case in mitigation, that failed to tell Thomas's whole life story. Thomas's experts in mitigation relied on inaccurate and incomplete background information. Trial counsel presented a total of three, rather insignificant, single page documents into evidence for jury consideration. The family members and other lay witnesses that did testify were unprepared and underutilized.
Much argument has been made about the reasonableness of trial counsel to proceed to trial and the decision to hold back on certain mitigation evidence for fear of "opening the door" with regards to the Oklahoma crimes which Thomas is alleged to have committed. The Court acknowledges that such considerations are important. Although strategic choices are given deference, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation."
For all of these reasons, the Court finds that trial counsel was constitutionally ineffective with respect to their presentation of the case in mitigation. And, as discussed above, Thomas was prejudiced by this failure.
From the evidence presented, the Court finds that post-conviction counsel did very little preparation with respect to Mr. Thomas's case beyond reviewing the trial and appellate court record. Post-conviction counsel performed very little, if any, review of the 19 bankers boxes which made up trial counsel's collective file. Post-conviction counsel did not request funding for an investigator or a mitigation specialist. Post-conviction counsel did not consult with experts or interview mitigation witnesses. In fact, postconviction counsel failed to conduct any timely or meaningful interviews of trial counsel in preparation for the Rule 37.5 hearing. Despite the fact that the continuance motions served as a literal road map to making a case for ineffective preparation of the mitigation case, post-conviction counsel demonstrated little or no interest in pursuing it. In fact, post-conviction counsel actually testified that they viewed their main role as preserving issues for federal review. The Court does not entirely understand what that means, but it most certainly cannot excuse their failure to investigate any issues outside the four corners of the court record, nor can it excuse their failure to present readily available evidence in support of a claim they specifically recited as a premise of the Rule 37.5 petition.
Again, with respect to post-conviction counsel, under
Finally, Thomas argues that he is actually innocent of capital murder. The Supreme Court has held "`[i]n appropriate cases' the principles of comity and finality that inform the concepts of cause and prejudice `must yield to the imperative of correcting a fundamentally unjust incarceration."
Thomas argues that "for all the reasons that [he] was prejudiced by ineffective assistance of counsel . . . he would suffer a miscarriage of justice if not allowed to present his constitutional claims." (Reply to Response to First Amended Petition, Doc. 29, p. 48). Thomas further argues that he "can establish innocence of the death penalty necessary to excuse any procedural default of Claim 18".
For the reasons set forth above, the Court
The Respondent is, therefore, ordered to either (1) retry the penalty phase of the case or (2) stipulate to a life sentence. No later than
The Court further finds that reasonable judges could disagree about this Court's conclusion with respect to certain issues. 28 U.S.C. § 2253(c)(2). The Court, therefore, grants a certificate of appealability on the following questions:
* Point 1-5-1, Failure to Support Theory of Defense with Readily Available Evidence, including the bases for this claim incorporated through Issue 10-1;
* Issue 1-13, Ineffective Assistance of Counsel with Respect to Suppression Claim, including the bases for this claim set forth under Claim 14;
* Issue 1-14, Failure to Support Claim of Incompetency to Stand Trial with Readily Available Evidence, including the bases for this claim incorporated through Issue 10-1 and Claim 15; and,
* Issue 10-1, Ineffective Presentation of the Case in Mitigation, including the bases for this claim presented in each of the Points under Issue 10-1.
* Issue 1-11, Failure to Raise Claims of Juror Misconduct, including all bases for this claim incorporated through Claim 11.
* Point 10-2-2, Trial Counsel Failed to Investigate for, Discover, and Present Claims of Juror Misconduct, including all bases for this claim incorporated through Claim 11; and,
* Issue 13-2, Failure to Raise Claims of Jury Misconduct by trial counsel, including all bases for this claim incorporated through Claim 11.
As set forth in this Court's Order dated September 16, 2015 (Order, Doc. 40), the Court then held an evidentiary hearing concerning the procedural default of certain claims concerning ineffective assistance of counsel arising from the alleged failure to present compelling mental health and mitigation evidence and certain claims that trial counsel was ineffective for failing to investigate and present claims of juror misconduct. Appendix A to this Order sets forth the claims taken up at the evidentiary hearing.
