GRAY H. MILLER, District Judge.
Charles Victor Thompson ("Thompson"), an inmate on Texas's death row, has filed a federal petition for a writ of habeas corpus. Respondent Lorie Davis ("Respondent") has answered. After considering the record, the pleadings, and the applicable law, the Court finds that Thompson has not shown an entitlement to habeas relief.
Thompson started dating Dennise Hayslip, who was twelve years his senior, around June of 1997. Thompson soon moved in with her. Thompson rarely worked, but relied on Hayslip and another roommate for support. Thompson became increasingly jealous, possessive, angry, and abusive. Thompson eventually moved out.
Hayslip began dating Darren Cain, but still occasionally saw Thompson. On April 30, 1998, Thompson was at Hayslip's apartment when Cain called at around 2:30 a.m. Thompson told Cain "to come over there and he would beat his ass." RR1 Vol. 11 at 76.
Cain and Hayslip exited the apartment. Thompson walked out also, yelling, cussing, and calling Hayslip a "whore." RR1 Vol. 11 at 53. As Cain told Thomson to "chill," Thompson responded: "do you want to die, mother fucker?" RR1 Vol. 11 at 54.
By that time, the police had been called. The responding officer encountered Thompson, Hayslip, and Cain standing outside. Thompson's eye was blackened from the fight he had started. Because no one wanted to press criminal charges, a police officer allowed Thompson to leave after threatening him with criminal trespass should he return. After the responding officer escorted him from the premises, Thompson went to get a gun.
Thompson later described to a friend, Diane Zernia, how he returned to Hayslip's apartment and shot both Hayslip and Cain. Thompson kicked down the door to Hayslip's apartment and encountered Cain inside. As Cain grabbed the end of the gun, Thompson began firing. Thompson shot Cain four times, and two bullets missed. After Cain fell to the ground, Thompson reloaded the gun, put it up to Hayslip's cheek, and said, "I can shoot you too, bitch." RR1 Vol. 11 at 132. The gun fired. The bullet traveled through Hayslip's cheek, into her tongue, and out the other side. Thompson later claimed that he also tried to shoot himself, causing a wound on his arm.
Neighbors heard the gunshots. Shortly thereafter, Hayslip began knocking on neighbors' doors. A neighbor found her sitting on the ground, gasping for breath as she leaned forward to prevent drowning in her own blood. When emergency responders arrived, they found Cain dead. Hayslip was bleeding profusely. Responders took her by life flight to a hospital where she later died.
Leaving the apartment, Thompson threw his gun in a nearby creek. Thompson then went to Zernia's house and fell asleep on a couch. When he woke up, he described the murders to Zernia. Thompson then called his father, who picked him up and took him to the police station.
The State of Texas charged Thompson with capital murder for intentionally or knowingly causing the death of more than one person in the same criminal transaction. See TEX. PENAL CODE ANN. § 19.03(a)(7). Specifically, the indictment required the prosecution to prove that Thompson "unlawfully, during the same criminal transaction, intentionally and knowingly caused the death of" Cain by "shooting [him] with a deadly weapon" and also "intentionally and knowingly caused the death" of Hayslip by "shooting [her] with a deadly weapon. . . ." CR at 51; RR1 Vol. 11 at 4-5. Thompson stood trial in 1999.
On direct appeal, Thompson raised issues relating to both the guilt/innocence and punishment phases of trial. In 2001, the Court of Criminal Appeals found that the State violated Thompson's rights by relying in the punishment phase on the tape recording of an undercover police officer's jailhouse conversation with him. The Court of Criminal Appeals remanded for a new sentencing hearing. Thompson v. State, 93 S.W.3d 16 (Tex. Crim. App. 2001).
The trial court held a new sentencing hearing in 2005.
Thompson v. State, No. AP-73,431, 2007 WL 3208755, at *1-2 (Tex. Crim. App. Oct. 31, 2007). The jury again answered Texas's special-issue questions in a manner requiring imposition of a death sentence. The Court of Criminal Appeals affirmed Thompson's sentence in a second direct appeal in 2007. Thompson v. State, No. AP-73,431, 2007 WL 3208755 (Tex. Crim. App. Oct. 31, 2007).
Thompson filed two state applications for a writ of habeas corpus. Thompson filed a state habeas application during the pendency of his first direct appeal. Thompson filed a second state habeas application after receiving his second death sentence. In 2013, the trial-level state habeas court entered findings of fact and conclusions of law recommending that the Court of Criminal Appeals deny both habeas applications. On April 17, 2013, the Court of Criminal Appeals adopted the lower court's recommendation and also provided additional reasons for denying Thompson's habeas applications. Ex Parte Thompson, No. WR-78,135-01, 2013 WL 1655676 (Tex. Crim. App. Apr. 17, 2013).
Federal review followed. Thompson filed an initial federal petition raising unexhausted issues. Dkt. 21. On Thompson's motion, the Court stayed the instant proceedings to allow state court review of Thompson's unexhausted claims. Texas only allows successive state habeas proceedings in narrowly defined circumstances. See TEX. CODE CRIM. PRO. art. 11.071 § 5. On March 9, 2016, the Court of Criminal Appeals found that Thompson's successive habeas application did not meet the statutory criteria and dismissed that action as an abuse of the writ. Ex parte Thompson, No. WR-78,135-03, 2016 WL 922131, at *1 (Tex. Crim. App. Mar. 9, 2016).
Thompson filed an amended federal habeas petition raising the following grounds for relief:
Dkt. 57.
Federal habeas review is secondary to the state court process and is limited in scope. The States "possess primary authority for defining and enforcing criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights." Engle v. Isaac, 456 U.S. 107, 128 (1982). How an inmate has litigated his claims in state court determines the course of federal habeas adjudication. Under 28 U.S.C. § 2254(b)(1), "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State[.]" Exhaustion "reflects a policy of federal-state comity designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (internal citations and quotations omitted).
As a corollary to exhaustion, the procedural-bar doctrine requires inmates to litigate their claims in compliance with state procedural law. See Dretke v. Haley, 541 U.S. 386, 392 (2004); Lambrix v. Singletary, 520 U.S. 518, 523 (1997); Coleman v. Thompson, 501 U.S. 722, 729 (1991). When an inmate fails to follow well-established state procedural requirements for attacking his conviction or sentence, and the state court finds that he has procedurally defaulted his claims, federal habeas adjudication is barred. See Lambrix, 520 U.S. at 523; Coleman, 501 U.S. at 732. A federal court may review an inmate's unexhausted or procedurally barred claims only if he shows: (1) cause and actual prejudice or (2) that "a constitutional violation has `probably resulted' in the conviction of one who is `actually innocent[.]'" Haley, 541 U.S. at 393 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
If the inmate has presented his federal constitutional claims to the state courts in a procedurally proper manner, and the state courts have adjudicated the merits, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") allows federal review but limits its depth. "[A] habeas petitioner has the burden under AEDPA to prove that he is entitled to relief." Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000); see also DiLosa v. Cain, 279 F.3d 259, 262 (5th Cir. 2002). A petitioner cannot meet this burden by merely alleging constitutional error. Instead, "focus[ing] on what a state court knew and did," Cullen v. Pinholster, 563 U.S. 170, 182 (2011), an inmate must show that the state court's adjudication of the alleged constitutional error "was `contrary to, or involved an unreasonable application of, clearly established Federal law.'" Berghuis v. Thompkins, 560 U.S. 370, 380 (2010) (quoting 28 U.S.C. § 2254(d)(1)); see also Thaler v. Haynes, 559 U.S. 43, 47 (2010); Bell v. Cone, 535 U.S. 685, 698 (2002); Early v. Packer, 537 U.S. 3, 7-8 (2002); Williams v. Taylor, 529 U.S. 362, 413 (2000). A federal habeas court must presume the underlying factual determinations of the state court to be correct, unless the inmate "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 341 (2003); Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004) ("As a federal habeas court, we are bound by the state habeas court's factual findings, both implicit and explicit.").
A petitioner's compliance with 28 U.S.C. § 2254 does not alone create an entitlement to habeas relief. No Supreme Court case "ha[s] suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard[.]" Horn v. Banks, 536 U.S. 266, 272 (2002); see also Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003) (finding that 28 U.S.C. § 2254(d) "does not require federal habeas courts to grant relief reflexively"). Other judicial doctrines, such as the harmless-error doctrine and the non-retroactivity principle, bridle federal habeas relief. See Thacker v. Dretke, 396 F.3d 607, 612 n.2 (5th Cir. 2005). Any trial error cannot require habeas relief unless it "ha[d] a `substantial and injurious effect or influence in determining the jury's verdict.'" Robertson, 324 F.3d at 304 (quoting Brecht v. Abrahamson, 507 U.S. 619, 629 (1993)); see also Aleman v. Sternes, 320 F.3d 687, 690-91 (7th Cir. 2003) ("Nothing in the AEDPA suggests that it is appropriate to issue writs of habeas corpus even though any error of federal law that may have occurred did not affect the outcome."). Also, under the jurisprudence flowing from Teague v. Lane, 489 U.S. 288 (1989), a habeas court cannot grant relief if it would require the creation and retroactive application of new constitutional law. See Horn, 536 U.S. at 272.
The State of Texas indicted Thompson for causing the death of both Cain and Hayslip. CR at 51; RR1 Vol. 11 at 4-5. Thompson complains that insufficient evidence supports his capital-murder conviction because intervening medical care was the direct cause of Hayslip's death. As previously discussed, when Thompson shot Hayslip in the cheek, the bullet traveled through her mouth and nearly severed her tongue. The wound left Hayslip bleeding profusely. Her tongue swelled up and threatened to close off her throat. Responders tried to keep her airway free. Life Flight transported Hayslip to a major trauma center. At one point in surgery Hayslip became unable to breathe, resulting in brain death. She died sometime later in the hospital.
Thompson argues that incompetent medical care intervened in the chain of causation and resulted in her death. Thompson argues: "The death of Ms. Hayslip was the sole result of her loss of oxygen to the brain, which in turn caused her family to terminate her life one week after she was shot. This event was produced by the physicians' respective inability to properly provide competent medical assistance by way of a commonly performed hospital procedure." Dkt. 57 at 52. Because the indictment required the State to prove that he was the agent of both victims' death, Thompson contends that medical malpractice rendered his own actions insufficient to support a capital conviction.
Insufficiency-of-the-evidence claims come before a federal habeas court under a standard of review that gives heavy deference to state-court adjudications. Under Jackson v. Virginia, 443 U.S. 307 (1979), a reviewing court affirms a jury's conviction if, considering all of the evidence in a light most favorable to the prosecution, a rational trier of fact could have returned a verdict unfavorable to the defendant. This demanding inquiry is highly deferential to, and resolves any conflicting evidence in favor of, the jury's verdict. See United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002); United States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990). AEDPA augments the deferential Jackson analysis, creating an enhanced barrier to federal habeas relief. See Coleman v. Jackson, 132 S.Ct. 2060, 2062 (2012); Perez v. Cain, 529 F.3d 588, 599 (5th Cir. 2008). Together, Jackson and the AEDPA create a "double dose of deference that can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). A federal habeas court focuses only on whether the state court reasonably applied the Jackson standard.
After reviewing the trial evidence, the Court of Criminal Appeals determined that the evidence sufficiently proved that Thompson's actions caused Hayslip's death. Texas law on causation framed the Court of Criminal Appeals's review of Thompson's insufficiency-of-the-evidence claim. Texas Penal Code § 6.04(a) provides: "A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." "An accused may be exonerated under [§6.04] only if his conduct alone was clearly insufficient to produce the result and the concurrent cause clearly sufficient, operating alone, to do so." Felder v. State, 848 S.W.2d 85, 90 (Tex. Crim. App. 1992) (quotation omitted). The Court of Criminal Appeals found:
Thompson, 93 S.W.3d at 20-21. Thompson raises two primary criticisms of the Court of Criminal Appeals's ruling. Dkt. 57 at 44. First, Thompson faults the state court for relying on a false premise by looking at whether the victim "would not have survived her injuries" if she went "without medical attention." Dkt. 57 at 44.
Thompson contends that "there was no chance that Hayslip would go without medical attention." Dkt. 57 at 44. Testimony from medical experts laid out the risks caused by Hayslip's bleeding and diminished breathing ability.
Thompson's second criticism is that the state court incorrectly characterized his expert's trial testimony. The Court of Criminal Appeals described defense witness Dr. Pat Radalat's testimony as "agree[ing] that the injury to Hayslip's tongue was life threatening and also agree[ing] that Hayslip `probably' would have died without medical intervention." Thompson, 93 S.W.3d at 21. Even though Thompson disputes the Court of Criminal Appeals's interpretation of the defensive testimony, Dr. Radalat testified that, without medical intervention, the wound "would probably be fatal." RR1 Vol. 12 at 232. Thompson's own expert would not testify that the medical efforts to save Hayslip's life caused her death. RR1 Vol. 12 at 256.
Viewing the trial evidence and testimony in a light most favorable to the jury's verdict, the Court of Criminal Appeals could reasonably find that a rational jury could convict Thompson. Thompson shot the victim in the mouth, causing a wound that nearly severed her tongue. The wound was serious and threatened her ability to breathe. Care had to be taken so that Hayslip would not drown in her own blood. Tr. Vol. 15 at 84. Surgical efforts to save the victim failed. Whether medical errors played some part in her death is not a question before this Court. This Court's sole inquiry is whether the state court unreasonably found that, construing the evidence in favor of the jury's verdict, sufficient evidence existed to support Thompson's conviction. The doubly deferential nature of federal review precludes habeas relief on this claim.
The Court of Criminal Appeals ordered a new sentencing hearing after finding that the State had unconstitutionally admitted into evidence a recording of Thompson's jailhouse conversation with undercover police officer Gary Johnson. In Thompson's first appellate proceeding, the Court of Criminal Appeals provided the following background:
Thompson, 93 S.W.3d 1 at 22-23 (footnotes in original).
Thompson argued that the State violated his Sixth Amendment rights by using "against him at his trial evidence from his own incriminating words, which [state] agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." Massiah v. United States, 377 U.S. 201, 206 (1964). A Massiah violation has three elements: "(1) the Sixth Amendment right to counsel has attached; (2) the individual seeking information from the defendant is a government agent acting without the defendant's counsel's being present; and (3) that agent deliberately elicits incriminating statements from the defendant." Henderson v. Quarterman, 460 F.3d 654, 664 (5th Cir. 2006) (quotation omitted). The Court of Criminal Appeals found that the punishment-phase introduction of the tape-recorded conversation between Thompson and Johnson was improper:
Thompson, 93 S.W.3d at 27 (citation omitted). On that basis, the Court of Criminal Appeals overturned Thompson's death sentence.
Thompson argues that the Court of Criminal Appeals did not ameliorate all the harm caused by the State's use of an undercover agent. Thompson's federal petition contends that, because the information Johnson obtained from him led to evidence the State presented in the guilt/innocence phase, the Court of Criminal Appeals should have overturned not just his first death sentence, but his capital conviction also. Thompson particularly objects because the discovery of the murder weapon revealed how many bullets it would hold, which in turn allowed the State to argue that Thompson reloaded the weapon during the criminal episode.
Thompson's arguments that a Massiah violation harmed him the guilt/innocence phase depend on his claim that "the gun was only found based on the information uncovered by Johnson." Dkt. 57 at 60. Before Johnson met with Thompson, the police obtained a map of where Thompson had discarded the gun.
Johnson met with Thompson on July 7, 1998. Johnson intended to talk to Thompson about "the retrieval of the gun" and "the solicitation" to kill witnesses. RR1 Vol. 14 at 171. After Johnson lied and said he had personally searched for, but could not find, the gun, Thompson showed a map that was nearly identical to the first one. RR1 Vol. 14 at 165. The police, however, apparently never took the second map from Thompson. RR1 Vol. 14 at 165-66, 175. The record does not elaborate on any information outside of the map that Thompson may have provided about the gun's location.
The police recovered the murder weapon almost two weeks later.
Before turning to the merits, the Court must clarify what issues were resolved by the Court of Criminal Appeals on direct appeal. Thompson contends that this Court can adjudicate the merits of his claim de novo because the Court of Criminal Appeals never ruled on his argument that a Massiah violation tainted the guilt/innocence phase. Respondent argues that either (1) Thompson never made clear to the state courts that the Johnson conversation influenced the guilt/innocence phase, thus rendering the claim in his federal petition unexhausted or (2) the Court of Criminal Appeals adjudicated the whole of his claim on the merits, requiring the application of AEDPA deference.
Respondent primarily argues that Thompson exhausted his Massiah claim on direct appeal, but in the alternative asserts that Thompson did not adequately place the issue before the state courts. Thompson never asked the trial court to find that the gun was inadmissible. The Court must decide whether his arguments on appeal sufficiently put the guilt/innocence aspects of his claim before the Court of Criminal Appeals.
Under 28 U.S.C. § 2254(b)(1), a federal habeas petitioner must fully exhaust remedies available in state court before proceeding to federal court. A federal court may only adjudicate a claim when the petitioner fairly presents its substance to the state courts. See Smith v. Dretke, 134 F. App'x 674, 677 (5th Cir. 2005). Then, AEDPA deference applies if the state court adjudicated the merits of the inmate's claim. Before turning to the merits, the Court must ask: Did Thompson sufficiently raise his federal claim in state court for the purposes of exhaustion? If so, did the state courts rule on his claim sub silentio or did they ignore it? If the state courts ruled on his claim, does AEDPA govern federal review?
Thompson's appellate brief first introduced his theory that a Massiah violation tainted both stages of trial: "The undercover interview was intertwined with the recovery of the murder weapon and the investigation of a solicitation of a homicide. The State of Texas did not make any attempt to delineate between the two events." Appellate Brief, at 28. But Thompson's brief still focused its discussion on the jury's punishment phase deliberations: "The record clearly demonstrates that the Defendant's statements on the tape recording and to Gary Johnson were incriminating both at guilt and punishment and significantly aided the State of Texas in securing an affirmative answer to Special Issue Number 1. It created future dangerousness evidence for the State." Appellate Brief, at 28. A supplemental brief emphasized that "[a]s a direct result of the interview the weapon was recovered by the State," but only generally argued that "the judgment of the Court should be reversed and remanded for a new trial or a new punishment hearing." Supplemental Appellate Brief, at 3.
The Court of Criminal Appeals extensively discussed the effect that the Massiah violation had on the punishment phase of trial without mentioning Thompson's allegations relating to the guilt/innocence phase. Thompson subsequently filed a pro se motion for rehearing and argued that the Massiah violation harmed him "throughout trial," including in the guilt/innocence phase. The Court of Criminal Appeals initially granted Thompson's motion for rehearing, but subsequently dismissed it as improvidently granted.
On federal review, the question of whether Thompson fairly presented his claims to the Texas courts is separate from the question of whether the Texas courts adjudicated them. See Smith v. Digmon, 434 U.S. 332, 333 (1978) ("It is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim[.]"). Thompson did not provide the same detailed briefing regarding the Massiah violation as he does in federal court, but still afforded the state courts an opportunity to consider whether the Johnson conversation influenced the guilt/innocence phase. The Court finds that Thompson exhausted his Massiah claim.
The record, however, does not clearly indicate whether the Court of Criminal Appeals intended to adjudicate the guilt/innocence portion of the Massiah claim, intentionally ignored it, or neglected to rule on it. Generally, "[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits." Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013); see also Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits [for purposes of § 2254(d)] in the absence of any indication or state-law procedural principles to the contrary."). The "presumption can in some limited circumstances be rebutted . . . either by the habeas petitioner (for the purpose of showing that the claim should be considered by the federal court de novo) or by the State (for the purpose of showing that the federal claim should be regarded as procedurally defaulted). . . . Thus, while the . . . presumption is a strong one that may be rebutted only in unusual circumstances, it is not irrebuttable." Williams, 133 S. Ct. at 1096.
Thompson's pro se motion for rehearing argued that the Court of Criminal Appeals did not fully adjudicate his claim. The Court of Criminal Appeals ultimately denied rehearing without divulging whether it had already adjudicated the claim, considered it to be meritless, applied Texas procedural law, or found some other reason for denial. Nevertheless, neither party has rebutted the presumption that the Court of Criminal Appeals decided the issue on the merits. The Court, therefore, presumes that the Court of Criminal Appeals denied the guilt/innocence aspects of his Massiah claim on the merits. The Court will apply AEDPA's deferential scheme to Thompson's Massiah claim.
The Court of Criminal Appeals decided on direct appeal that the State had committed a Massiah violation by sending an undercover agent to speak with Thompson. Because neither party questions whether the Court of Criminal Appeals was correct in finding a constitutional violation, this Court does not revisit that decision and only considers its impact on Thompson's conviction.
Johnson did not testify in the guilt/innocence phase. Instead, Thompson objects to derivative evidence and testimony relating to the murder weapon, which Thompson argues was only discovered after Johnson's conversation with him. Information about the gun came before the jury in various contexts.
Respondent claims that two doctrines overcome the deterrence rationale underlying a Massiah violation. The Supreme Court recognizes an "independent source doctrine" that allows trial courts to admit evidence when "officers independently acquired it from a separate, independent source." Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016); see also Nix v. Williams, 467 U.S. 431, 442 (1984). Also, Respondent argues that the inevitable-discovery doctrine, which "asks whether there is a reasonable probability that the evidence in question would have been discovered in the absence of the police misconduct," cured the Massiah violation. United States v. Zavala, 541 F.3d 562, 579 (5th Cir. 2008); see also Nix, 467 U.S. at 443-44. Respondent argues that "it is clear that the gun was discovered either from a source independent of Johnson or its discovery was inevitable." Dkt. 66 at 40. Respondent's arguments under both the inevitable-discovery and the independent-source doctrine rely on the absence of a link between the Johnson conversation and the gun's recovery.
Thompson has not shown that his conversation with Johnson was the predicate for the police recovering the murder weapon. Thompson assumes that the police recovered the gun "with the help of Johnson's recording," because they found it afterward. Dkt. 57 at 58. Showing that the police found the gun after the Johnson conversation does not mean they found it because of the conversation. The record does not extensively discuss the discovery of the murder weapon, likely because trial counsel did not challenge its admissibility. Still, the record does not suggest that the police used information from Johnson to find the gun. Thompson has not pointed to anything in the record showing that he provided Johnson some detail not already known from the first map or his statements to Zernia.
With that record, Thompson bases his claim on speculation that he provided Johnson some previously unknown fact about the location of the discarded weapon. He also speculates that Johnson provided some otherwise-unknown information to the officers who found the gun. From the record before the Court, it appears that the discovery of the gun was "wholly independent of any constitutional violation." Nix, 467 U.S. at 442. Thompson, therefore, has not shown that the Court of Criminal Appeals was unreasonable in denying the guilt/innocence aspects of his Massiah claim.
In his third ground for relief, Thompson claims that the State violated his constitutional rights by presenting testimony in the second punishment phase from fellow inmate Robin Rhodes. As previously discussed, undercover police officer Johnson testified in the first penalty hearing that Thompson had attempted to solicit the murder of witnesses. Johnson, however, was not the only person who could describe Thompson's efforts to solicit murder. Prior to Thompson's original trial, the Harris County District Attorney's office gave Thompson the following notice: "In August, 1998 the defendant solicited inmate Robin Rhodes to kill numerous witnesses and obtain and destroy the murder weapon in this case." CR at 67-68. Rhodes, however, did not testify at the original trial.
Because the Court of Criminal Appeals found that Johnson's testimony should have been excluded, Thompson, 93 S.W.3d at 22-29, the State called other witnesses to show that Thompson tried to solicit murder, including Rhodes who had been incarcerated with Thompson in 1998. Thompson contends: "it is clear that (1) his right to counsel had attached in both the capital murder and the subsequently filed solicitation of capital murder proceedings; (2) Robin Rhodes was a government agent (full time informant for Harris County law enforcement); (3) and that Rhodes deliberately elicited evidence from Thompson." Dkt. 57 at 62. Thompson, in fact, now calls Rhodes not only an informant, but a "government employee." Dkt. 69 at 27.
Based on that premise, Thompson raises three separate constitutional arguments. First, Thompson argues that Rhodes's testimony amounted to a separate Massiah violation.
Thompson failed to raise any arguments from claim three in his first two state habeas applications. When Thompson raised these claims in his third state habeas application, the Court of Criminal Appeals dismissed the claims under TEX. CODE CRIM. PRO. art. 11.071 §5 as an abuse of the writ without considering the merits. "A dismissal pursuant to Article 11.071 `is an independent and adequate state ground for the purpose of imposing a procedural bar' in a subsequent federal habeas proceeding." Gutierrez v. Stephens, 590 F. App'x 371, 384 (5th Cir. 2014) (quoting Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir. 2008)).
Thompson makes two arguments to overcome the procedural bar. First, Thompson contends that the suppression of evidence, discussed in the Brady portion of his argument, should forgive his failure to raise the claim properly in state court. Second, Thompson argues that state habeas counsel provided ineffective representation under Martinez v. Ryan, 132 S.Ct. 1309 (2012), by not raising his federal claims in the initial rounds of state habeas review. Both arguments, however, cover the same ground as his substantive claims. For the same reasons that Thompson has not shown constitutional error in the State's use of Rhodes's testimony, he has not shown cause or actual prejudice to overcome the procedural bar.
At the core, each of Thompson's various constitutional arguments complains that the State failed to divulge important facts about its relationship with Rhodes. Thompson specifically says that Rhodes "was, by his own admission, a full time informant for Harris County when he elicited information from Thompson." Dkt. 57 at 63. Thompson wishes that the State had disclosed that Rhodes: was employed by the Harris County Organized Crime Narcotics Task Force, which included the Harris County District Attorney's Office; had been a confidential informant in numerous cases and had twice testified for the State, including once in a capital murder prosecution; had received $30,000 for his participation in another capital murder case relating to a narcotics transaction; had previously received other payments for assisting police; had helped secure numerous search warrants; and had acted at the State's direction in extracting statements from Thompson. As discussed below, whether he casts his claims in the context of Massiah, Brady, or Strickland claims, much of the information on which Thompson bases his claim was known to — and used by — trial counsel.
Before the retrial, the State gave notice that it intended to call Rhodes as a witness in the retrial of Thompson's punishment. CR2 at 110.
Before testimony began in the second punishment phase, the parties discussed the disclosure of any information relating to Rhodes. RR2 Vol. 16 at 8.
Rhodes testified on the second day of the punishment hearing. Rhodes told jurors that he worked with the Harris County Organized Crime Task Force relating to "pretty much whatever situation he stumbled into." RR2 Vol. 17 at 136. In August 1998, Rhodes struck up a conversation with Thompson in recreation and claimed that he "could find anybody anywhere at any time." RR2 Vol. 17 at 136. Thompson responded that he "wanted some people to not appear [at his trial] or disappear." RR2 Vol. 17 at 138. Rhodes testified:
RR2 Vol. 17 at 138. "The deal was that [Rhodes] would do what [he] could do" to keep them from coming to court. RR2 Vol. 17 at 138. When Rhodes "asked for some descriptions" of the intended victims, Thompson gave him a list of names. RR2 Vol. 17 at 140-41. Rhodes then contacted an officer with the Harris County Organized Crime Unit and gave him the list. RR2 Vol. 17 at 141. The State admitted the list into evidence without any objection.
Rhodes also testified that Thompson told him about the murders. Thompson explained that "he had gone over to the apartment and he had shot the gentleman and got mad because it didn't kill him and they accidentally got into a struggle and he shot himself and then he shot the guy again." RR2 Vol. 17 at 139. Referring to Hayslip, Thompson said "the bitch wouldn't get up again." RR2 Vol. 17 at 139.
On cross-examination, Rhodes explained that he had helped the government for a long time. RR2 Vol. 17 at 149. He had assisted the Harris County District Attorney's Office as an informant and had been paid "on many occasions." RR2 Vol. 17 at 153. Rhodes described his role: "I was a full-time — basically I was a full-time informant for the Harris County Organized Crime Task Force." RR2 Vol. 17 at 153. Rhodes explained that he had testified in two other trials that he could recall. RR2 Vol. 17 at 154. In one of the trials in which he provided information about a capital murder involving a significant amount of drugs, the State paid him "somewhere in the neighborhood of between 20 and $30,000" from money the government had seized. RR2 Vol. 17 at 159. The defense unsuccessfully moved to strike Rhodes's testimony because the District Attorney's Office violated Brady by not divulging that he was in their employ. RR2 Vol. 17 at 163.
Trial counsel's thorough cross-examination of Rhodes demonstrated an intricate understanding of his past interaction with the State.
Stephens, 59 S.W.3d at 381. Thompson has not shown how the State could have suppressed information in a published judicial decision. See Parr v. Quarterman, 472 F.3d 245, 254 (5th Cir. 2006) ("[T]he prosecution is not required to disclose evidence that could be discovered by exercising due diligence.").
The trial record clearly shows that Rhodes had a history of providing information to, and testimony for, the State. Even accepting Thompson's argument that "there is no doubt that [Rhodes's] aim, once in jail, was to get information and relay it to the government," Dkt. 21 at 57, Thompson's briefing does not show that the State instructed Rhodes to do so. Rhodes characterized himself as a "ful-time" informant, but the record does not show that he was an agent or employee of the State with regard to securing information from Thompson. Instead, the record confirms that Rhodes often provided information to the State in return for monetary gain or leniency. But the question is "whether the challenged statements had been deliberately elicited" and "whether the government had directed or steered the informant toward the defendant." United States v. York, 933 F.2d 1343, 1356 (7th Cir. 1991). The core of Thompson's claims depends on showing that Rhodes "was acting under instructions as a paid informant for the Government[.]" United States v. Henry, 447 U.S. 264, 270 (1980) (emphasis added); see also Kuhlmann v. Wilson, 477 U.S. 436, 459 (5th Cir. 1986) ("[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation."). Rhodes explicitly testified, however, that he did not talk with Thompson pursuant to any State-directed instruction or order:
RR2 Vol. 17 at 134-35. As it now stands, Thompson only speculates that Rhodes "was charged with obtaining information" from him. Henry, 447 U.S. at 272 n.10. Even to the extent that Thompson may not have had all possible information about Rhodes, the new information only fills in outlines known at the time of trial, yet still does not suggest that the State encouraged Rhodes to act. Simply, the record before the Court does not suggest that the State deliberately used Rhodes as an agent to deliberately secure information from Thompson in violation of his constitutional rights.
The transcript alone reveals that the defense understood at least the rudimentary facts of Rhodes's background as a government informant. While Thompson later learned additional information about Rhodes,
In conclusion, Thompson has not shown that Rhodes elicited information at the behest of state agencies or with the authority of a state actor. The record does not show that state actors engaged in a plot to hide Rhodes's alleged role as a state agent. Concomitantly, Thompson has not shown any new or previously undisclosed information about Rhodes' relationship with the State that would have excluded him from testifying or made any greater impact in the jury's consideration of his testimony than that known at trial. In sum, Thompson has not overcome the procedural bar of his third federal claim and, alternatively, has not provided a reasonable basis to suspect that Rhodes was a government agent or that the State did not divulge material details about his status. Thompson has not shown that claim three merits federal relief.
Thompson contends that the indictment against him was insufficient because it did not allege any facts relating to the special-issue questions that the jury would answer. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that "[o]ther than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt[.]" See also Ring v. Arizona, 536 U.S. 584, 609 (2002) (extending Apprendi to capital cases). Thompson argues that Texas's capital punishment system violates Apprendi because it does not require the indictment to notify him of what evidence the State intends to introduce in seeking a death sentence.
The Court of Criminal Appeals summarily denied this claim on direct appeal by simply stating: "This Court has repeatedly rejected the argument that Apprendi requires the State to allege the special issues in the indictment." Thompson, 2007 WL 3208755, at *3. Thompson has not shown that the terse rejection of this claim was contrary to, or an unreasonable application of, federal law. As an initial matter, defects in a state criminal indictment are of no moment on federal habeas review. The Supreme Court has never held that the indictment provisions of the Fifth Amendment apply to the States through the Fourteenth Amendment. See, e.g., Branzburg v. Haynes, 408 U.S. 665, 686-88 n.25 (1972) (noting that "indictment by grand jury is not part of the due process of law guaranteed to state criminal defendants by the Fourteenth Amendment"); see also Apprendi, 530 U.S. at 477 n.3 (declining to discuss the implications of that decision on the sufficiency of an indictment). The sufficiency of a state indictment is an appropriate concern on federal habeas corpus only when it can be shown that the indictment is so defective that it deprives the convicting court of jurisdiction. Williams v. Collins, 16 F.3d 626, 637 (5th Cir. 1994); McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994).
State law dictates whether a state indictment is sufficient to confer a court with jurisdiction. In addressing a separate issue, the Court of Criminal Appeals found that Texas state law "do[es] not require the State to plead the punishment special issues in [the indictment in] a capital case." Thompson, 2007 WL 3208755, at *4. The Fifth Circuit has held that the district court is "required to accord due deference to the state's interpretation of its own law that a defect of substance in an indictment does not deprive a state trial court of jurisdiction." McKay, 12 F.3d at 69 (citations omitted). Where, as here, the state court has been presented the question of the indictment's sufficiency on appeal and ruled that the indictment was not fundamentally defective, federal habeas review is foreclosed. See Wood v. Quarterman, 503 F.3d 408, 412 (5th Cir. 2007).
Even if federal law placed any requirement on state criminal indictments, Thompson has not shown that Apprendi requires that an indictment include facts relating to the special issues. The Supreme Court has approached Apprendi from several different legal angles, but has never held that the prosecution must plead punishment-phase factors in the indictment. See Apprendi, 530 U.S. at 477 n. 3 (refusing to address the indictment issue because the petitioner did not raise it); Ring, 536 U.S. at 597 n. 4 (noting that petitioner did not allege constitutional defects in the indictment); see also United States v. Bourgeois, 423 F.3d 501, 507 (5th Cir. 2005) (noting that the Supreme Court has yet to hold that aggravating factors must be charged in the indictment). The Fifth Circuit has summarily denied a similar claim in at least one case. See Bigby v. Stephens, 595 F. App'x 350, 354 (5th Cir. 2014). For this court to rule otherwise would violate the non-retroactivity principle of Teague v. Lane, 489 U.S. 288 (1989). See Harris, 81 F.3d at 541.
For the reasons discussed above, the Court of Criminal Appeals's denial of Thompson's claim of error in the indictment was not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Thompson contends that the State adduced impermissible victim-impact evidence in violation of his constitutional right to be free from cruel and unusual punishment. "To be clear, the Eighth Amendment does not per se bar the introduction of victim impact evidence in capital cases." Roberts v. Thaler, 681 F.3d 597, 611 (5th Cir. 2012) (citing Payne v. Tennessee, 501 U.S. 808, 827 (1991)). Instead, the United States Supreme Court has held that, because "[a] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed," a State may "choose[] to permit the admission of victim impact evidence and prosecutorial argument on that subject. . . ." Payne, 501 U.S. at 827. Still, "an Eighth Amendment problem may result" if "`evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair. . . .'" Janecka v. Cockrell, 301 F.3d 316, 328 (5th Cir. 2002) (quoting Payne, 501 U.S. at 825).
During the second punishment phase, Michael Gene Donaghy, Hayslip's brother, testified about her funeral. During that testimony, Thompson claims that the State "exceeded the scope of permissible victim impact [testimony] when it sought detailed testimony on the number and types of persons who appeared at the complainant Hayslip's funeral." Dkt. 57 at 12. Specifically, Thompson objects to the following interchange:
RR2 Vol. 18 at 35. At that point, the prosecutor did not pursue any more testimony about who attended Hayslip's funeral.
On direct appeal, Thompson complained that the trial court erred in allowing Donaghy to testify about both the number and the type of people who attended Hayslip's funeral. The Court of Criminal Appeals provided three justifications for denying Thompson's claim. The Court finds that each ground provides a reasonable basis to deny federal habeas relief.
First, the Court of Criminal Appeals held that Thompson failed to preserve error with regard to testimony about number of people who attended Hayslip's funeral. See Thompson, 2007 WL 3208755, at *6. Texas contemporaneous objection rule requires "a party to preserve an issue for appellate review" by making "a timely objection with specific grounds for the desired ruling[.]" Livingston v. Johnson, 107 F.3d 297, 311 (5th Cir. 1997). The Fifth Circuit "has consistently held that the Texas's contemporaneous objection rule constitutes an adequate and independent state ground that procedurally bars federal habeas review of a petitioner's claims." Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999); see also Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir. 2003). The state courts's invocation of its procedural law on that portion of Thompson's claim bars federal review.
Second, the Court of Criminal Appeals found that Thompson failed to show error because Donaghy never actually testified about the type of people who attended Hayslip's funeral. The Court of Criminal Appeals observed: "Although [Thompson] argues that the trial court erred in allowing Donaghy `to testify to the . . . types of people who attended the . . . funeral,' no testimony was actually elicited. The question was asked, and the trial court overruled [Thompson's] objection, but the prosecutor never pursued an answer." Thompson, 2007 WL 3208755, at *6. Even if the prosecutor asked a question intended to elicit improper victim-impact testimony, the witnesses did not answer it.
Finally, the Court of Criminal Appeals found that "assuming that the question was improper," Thompson "was not harmed by the unanswered question. The question by itself did not assume, suggest, or interject any facts about who actually attended the service or leave the jury with a particular impression about the types of persons who attended." Thompson, 2007 WL 3208755, at *6. Given the nature of the evidence against Thompson, inferences the jury may have taken from the question would have had negligible, if any, impact on the jury's consideration of Thompson's sentence. Even if the prosecution erred in asking for details about the victim's funeral, Thompson has not shown any prejudice resulting therefrom.
Thompson procedurally defaulted a portion of this claim in state court. Thompson has otherwise not shown that the state court's adjudication of the merits was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Thompson claims that Texas's lethal-injection procedure violates the Eighth Amendment. In 1982, the State of Texas adopted lethal injection as its sole method of execution. Texas law does not specify what substance will be used to effectuate its death sentences, but since 2012 Texas has used pentobarbital. Thompson asserts that a constitutionally unacceptable risk attends Texas's use of pentobarbital. Respondent contends that Thompson's complaints about lethal injection sound in civil rights, not habeas, law. Alternatively, Respondent argues that Thompson has not shown that the state habeas court's rejection of his arguments about lethal injection were contrary to, or an unreasonable application of, federal law.
In Hill v. McDonough, 547 U.S. 573 (2006), the Supreme Court confronted the question of "whether a challenge to a method of execution must be brought by means of an application for a writ of habeas corpus or a civil action under § 1983." Glossip v. Gross, 135 S.Ct. 2726, 2738 (2015). The Supreme Court "held that a method-of-execution claim must be brought under § 1983 because such a claim does not attack the validity of the prisoner's conviction or death sentence." Glossip v. Gross, 135 S.Ct. 2726, 2738 (2015). Based on Hill and Glossip, this ground for relief should be dismissed without prejudice so that Thompson may raise it in a § 1983 action.
The Court observes, however, that, even if an inmate could properly litigate a lethal-injection challenge on habeas review, Thompson has not met his AEDPA burden to show an entitlement to relief. The state habeas court found that the "Texas lethal injection procedure satisfies the prohibition against cruel and unusual punishment." State Habeas Record at 255. Federal law defers to that factual determination, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1). Texas has performed numerous executions using pentobarbital as the only agent of execution. Even while identifying hypothetical concerns about the use of pentobarbital, Thompson has not pointed to any particularized defect in its use, administration, or efficacy. See Raby v. Livingston, 600 F.3d 552, 560 (5th Cir. 2010) (concluding that the plaintiff "has failed to establish that the Texas lethal injection protocol creates a demonstrated risk of severe pain" in Texas's lethal injection process). Thompson provides nothing but conjecture that Texas will change the execution drug any time before his execution. "The reality is that pentobarbital, when used as the sole drug in a single-drug protocol," has not realized "a sure or very likely risk of pain." Wood v. Collier, 836 F.3d 534, 540 (5th Cir. 2016). Thompson's speculative habeas claim falls far short of proving that the state habeas court's rejection of his lethal-injection claim was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1). The Court would still deny habeas relief even if lethal-injection claims were cognizable on habeas review.
Under Article 11.071 of the Texas Code of Criminal Procedure, a state habeas applicant must file his or her state habeas application (1) within 180 days of appointment of state writ counsel or (2) forty-five days after the State has filed its response on direct appeal, whichever is later. An applicant may obtain a 90-day extension of the deadline upon a showing of good cause. TEX. CODE. CRIM. PROC. ANN. art. 11.071 § 4(a),(b). Thompson "contends that [Texas's capital-habeas statute] is unconstitutional, on its face and as applied, because it distorts the historic purpose of a post-conviction application for [a] writ of habeas corpus." Dkt. 57 at 143. Thompson argues that the short time for filing a habeas writ precludes development of the record and the ripening of issues, including Strickland claims. With those defects, Thompson contends that Texas's habeas statute does not provide due process.
The state habeas court rejected Thompson's arguments because "[t]he imposition of a time limit for filing an initial application for writ of habeas corpus in capital cases is appropriate [and] constitutional." State Habeas Record at 220. To the extent some claims may not ripen by the time for habeas filing, Texas allows successive habeas actions to proceed "provided [the inmate] meets the statutory exceptions." State Habeas Record at 220. The state habeas court concluded that Texas habeas procedure met constitutional requirements. State Habeas Record at 220. Importantly, Thompson failed to show that Texas's habeas procedure "prevented him from advancing meritorious habeas claims. . . ." State Habeas Record at 34.
The Supreme Court has held that state collateral proceedings are not constitutionally required. Murray v. Giarrantano, 492 U.S. 1, 10 (1989); Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Because the federal constitution does not require state post-conviction remedies, defects in a State's chosen habeas process do not give rise to a federal constitutional claim. See Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999).
As previously discussed, the defense in this case argued that medical error, not Thompson's action, was the primary cause of Hayslip's death. With the defense's argument that botched medical care caused Hayslip's death, the trial court instructed the jury as follows:
State Habeas Record at 221. The trial court's instruction mirrored the Texas statutory language on causation found in Texas Penal Code Section 6.04.
Mullaney was the first case the Supreme Court decided based on In re Winship, 397 U.S. 358 (1970), which "made clear what has long been accepted in our criminal justice system[:] . . . in a criminal case the government must establish guilt beyond a reasonable doubt." Jones v. United States, 526 U.S. 227, 264 (1999). In Mullaney, the Supreme Court struck down a Maine law placing the burden of proof on a defendant when he argued that a killing was in the heat of passion or due to provocation. Cases have relied on Mullaney to hold "that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense." Patterson v. New York, 432 U.S. 197, 215 (1977). Thompson contends that the Texas statute, by asking whether the conduct in the concurrent cause was "clearly insufficient" to "produce the result," unconstitutionally "creates an impermissible burden of proof for defendants." Dkt. 57 at 149.
When Thompson raised this claim on state habeas review, the state habeas court found two reasons to apply a procedural bar. First, Thompson's claim ran afoul of Texas's contemporaneous-objection rule because "counsel objected to the trial court's charge on concurrent causation, but not on the basis urged in the instant habeas application." State Habeas Record at 222. Additionally, Thompson "fail[ed] to assert legal arguments or authorities to support his [state habeas] claim that TEX. PENAL CODE 6.04 is unconstitutional. . . ." State Habeas Record at 222. Both Texas's contemporaneous-objection rule and a dismissal for inadequate briefing provide a sufficient basis to bar federal review. See Roberts v. Thaler, 681 F.3d 597 (5th Cir. 2012); Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir. 1998). Thompson has not shown cause or actual prejudice to overcome the procedural bar to federal review.
Alternatively, the state habeas court found that Thompson's "claims are meritless" because TEX. PENAL CODE § 6.04(a) "does not create a burden of proof for defendants." State Habeas Record at 252. The trial court's instructions properly directed the jury to consider concurrent causes as provided by the statute. Unlike the Maine law in Mullaney, neither the Texas statute or the jury instructions explicitly or implicitly placed a burden on the defense to prove that any concurrent cause was sufficient to product the victims' death. The instructions centered the jury's duty on the reasonable doubt standard, and focused their inquiry on whether Thompson's own actions caused the victim's death, without requiring the defense to present evidence about a separate, concurrent cause. Thompson has not pointed to any clearly established Supreme Court precedent extending Mullaney to the circumstances presented by a statute such as TEX. PENAL CODE § 6.04(a). Thompson, therefore, has not shown that the state court's decision was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
On state habeas review, Thompson exhausted several complaints about trial counsel's representation in the guilt/innocence phase. Thompson now argues that trial counsel performed deficiently by: (1) failing to conduct an effective voir dire; (2) failing to prevent the State from presenting evidence of extraneous bad acts; (3) not objecting to the prosecution's characterization of one defense witness's testimony; (4) not requesting a lesser-included-offense instruction relating to Hayslip's death; and (5) not objecting to the admission of the gun.
Strickland v. Washington, 466 U.S. 668, 686 (1984), provides the general conceptual framework for judging an attorney's representation. Under Strickland, a criminal defendant's Sixth Amendment rights are "denied when a defense attorney's performance falls below an objective standard of reasonableness and thereby prejudices the defense." Yarborough v. Gentry, 540 U.S. 1, 3 (2003) (emphasis added); see also Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 520 (2003). To establish deficient performance, the petitioner must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687. A petitioner must also show actual prejudice, meaning "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694; see also Wiggins, 539 U.S. at 534.
"Surmounting Strickland's high bar is never an easy task. . . ." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). In federal habeas proceedings, the Strickland inquiry merges with AEDPA's forgiving standards into a "doubly deferential" review. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Pinholster, 131 S. Ct. at 1403; Gentry, 540 U.S. at 5-6. In practice, this standard gives wide latitude to state adjudications: "The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 105; see also Premo v. Moore, 562 U.S. 115, 123 (2011) (quoting Richter).
Thompson generally criticizes his initial trial counsel's handing of jury selection, claiming that trial counsel engaged in superficial and too-brief questioning. Thompson, however, only makes two specific complaints about trial counsel's handling of voir dire. First, Thompson complains that trial counsel did not adequately question jurors about Texas parole law and victim-impact testimony. Second, Thompson claims that trial counsel should have used peremptory strikes on two prospective jurors who served at his first trial. Neither argument warrants federal habeas relief.
Thompson's challenge to trial counsel's approach to questioning jurors only complains about the voir dire before his first trial. The Court of Criminal Appeals reversed Thompson's sentence, allowing the state habeas court to conclude that "any alleged harm relating to [his initial] trial counsel's failure to voir dire on victim impact evidence is moot." State Habeas Record at 235. Thompson's complaints about trial counsel's questioning focus on punishment issues without drawing a connection to why those potential jurors would have been partial on questions of guilt. Thompson cannot show harm because the jurors affected by his initial counsel's questioning did not return the death sentence under which he is currently in custody.
The only portion of this claim presenting a judicable issue is that relating to trial counsel's failure to use peremptory strikes on two prospective jurors. The state habeas court engaged in a detailed review of trial counsel's questioning of the two challenged jurors. The state habeas court rejected this claim for three reasons. First, trial counsel used strategic professional judgment in not striking the two jurors. Second, the record suggested that the two jurors would be favorable to the defense. Finally, the questioning of the two jurors "establishes that both jurors understood various legal burdens and distinctions, could follow the law, consider the evidence, be fair to both parties, and participate as jurors in the instant capital murder case. . . ." State Habeas Record at 239.
The state habeas court was not unreasonable in finding that trial counsel did not provide deficient representation in this regard. Trial counsel made a strategic decision to accept the final two jurors, which a reviewing court must uphold unless the decision was "so ill chosen that it permeates the entire trial with obvious unfairness." Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995). Perhaps Thompson has provided reasons for which an attorney may have used peremptory strikes to remove the two final jurors. He has not, however, shown that those jurors were biased as a matter of law or subject to strikes for cause. Thompson has not shown that the two challenged jurors were so poorly chosen that it permeated his trial with unfairness. Thompson has not shown that the state habeas court's decision on this issue was contrary to, or an unreasonable application of, federal law.
Trial counsel filed a pre-trial motion in limine to preclude the prosecution from discussing "prior convictions, extraneous offenses, and bad acts." CR at 33. The trial court granted the motion. During the guilt/innocence phase, Hayslip's co-worker and roommate Lisa Gonzalez described the tumultuous relationship between Hayslip and Thompson. Gonzalez testified that when Thompson became angry he would break things, kick things, and punch holes in the wall. RR1 Vol. 11 at 190-92. Trial counsel objected to Gonzalez's testimony, and in a bench conference reminded the judge of the motion in limine, but did not seek any ruling from the trial court. Thompson faults trial counsel for not acting more zealously to exclude testimony about his anger outbursts.
"In order to show that counsel was deficient for failing to object . . ., the objection must have merit." Ries v. Quarterman, 522 F.3d 517, 530 (5th Cir. 2008). "Admitting evidence of prior convictions and other bad acts is generally prohibited in the guilt-innocence phase." Robles v. State, 85 S.W.3d 211, 213 (Tex. Crim. App. 2002). Still, as the state habeas court observed, Texas law "allows admission of evidence that shows (1) relevant facts and circumstances surrounding the murder, (2) the previous relationship between the accused and the deceased, or (3) the condition of the mind of the accused at the time of the offense." State Habeas Record at 235; see also TEX. CODE CRIM. PRO. art. 38.36(a). Presumably because Gonzalez's testimony related to the "previous relationship existing between the accused and the deceased" and to "facts and circumstances going to show the condition of the mind of the accused at the time of the offense," the state habeas court concluded that "[t]rial counsel was not ineffective for failing to object and/or preserve error regarding the State's properly admitted evidence of the [Thompson's] violent acts involving complainant Hayslip at guilt-innocence." State Habeas Record at 259.
The state habeas court found that the complained-of testimony was admissible under state law. A federal habeas court does not sit in judgment of a state court's interpretation of its own law. With that state-law finding, Thompson has not shown that trial counsel failed to make a meritorious objection. The state habeas court reasonably found that counsel did not provide deficient performance with regard to the testimony about his anger outbursts.
Thompson contends that trial counsel should have objected to prosecution's closing arguments summarizing Dr. Radalat's testimony as "finally admitt[ing] to you that the wounds would be fatal if left untreated." With that testimony, the prosecution said: "You got causation. The defendant is guilty." RR1 Vol. 13 at 30-31. Thompson claims that the prosecution's argument "mischaracterized" Dr. Radalat's testimony because he "did not quite go so far as to concede that the shooting did cause death." Dkt. 57 at 169-70. The state habeas court, however, found that "the State's complained of argument at guilt-innocence was proper as a summary of the evidence and/or a reasonable deduction of evidence elicited at trial." State Habeas Record at 237.
Courts traditionally give defense attorneys broad discretion in choosing whether to object during closing arguments. See, e.g., Hernandez v. Thaler, 463 F. App'x. 349, 356 (5th Cir. 2012); Charles v. Thaler, 629 F.3d 494, 502 (5th Cir. 2011). Here, the prosecutor's statements were within the range of proper closing argument and a fair interpretation of the defense witness's testimony. Dr. Radalat told jurors that "[t]he intermediate long term conditions without any medical intervention . . . [o]ver the long term . . . would probably be fatal." RR1 Vol. 12 at 255-56. In addition, Dr. Radalat replied "no" when asked on cross-examination if the doctors' actions caused Hayslip's death. RR1 Vol. 12 at 256. A reasonable trial attorney could decide not to highlight the prosecution's fair interpretation of Dr. Radalat's testimony by objecting. The state habeas court was not unreasonable in finding that trial counsel did not provide deficient representation at closing argument.
On trial counsel's request, RR1 Vol. 13 at 39, the trial court instructed jurors that, if they found Thompson had committed the murder of Cain, but was only guilty of some crime other than capital murder against Hayslip, they should find Thompson only guilty of the lesser-included offense of murder. Thompson argues that trial counsel should have requested two additional lesser-included-offense instructions. First, Thompson argues that the defense's theory blaming Hayslip's death on botched medical care would have allowed jurors to convict him only of aggravated assault. Second, Thompson contends that he did not intentionally shoot Hayslip, allowing for an instruction on felony murder.
Texas law entitles a defendant to a lesser-included-offense instruction when: (1) the lesser-included offense is included within the proof necessary to establish the offense charged, and (2) there is some evidence showing that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-673 (Tex. Crim. App. 1993). Respondent does not dispute that aggravated assault and felony murder are lesser-included offenses of capital murder. Respondent, however, argues that the evidence did not only allow for Thompson's conviction of lesser offenses.
Here, trial counsel gave the jury the options to render a non-capital verdict. Trial counsel's closing argument urged jurors to find that Thompson did not intend to harm Hayslip, requiring them to return a lesser verdict of simple murder. RR1 Vol. 13 at 36. Trial counsel tried to form a defense for an acquittal based on the medical-malpractice theory, CR at 171, and asked jurors to convict Thompson only on a lesser offense based on that same theory, RR1 Vol. 13 at 48-49. Thompson may wish that trial counsel had requested additional instructions, but trial counsel explained on habeas review: "I did everything possible to rebut the State's theory of causation and persuade the jury to adopt the defense's theory of the case. Consistent with the defensive theory an instruction on concurrent causation and the lesser-included offense of murder were included in the guilt/innocence charge." State Habeas Record at 171. Thompson may wish that trial counsel had made different tactical decisions, but under Strickland jurisprudence decisions such as those made by counsel are "virtually unchallengeable." Strickland, 466 U.S. at 690-91. Thompson has also not shown that jurors would be more likely to forgo a capital conviction had the trial court given instructions different from those provided by trial counsel. Thompson may argue that counsel should have made different choices, but he has not shown that counsel should have made better ones. Trial counsel gave the jury two vehicles to return a non-capital conviction; Thompson has not shown that trial counsel provided constitutionally deficient, prejudicial representation by not doing more.
Thompson makes a conclusory argument that trial counsel should have objected to the admission of the murder weapon. Thompson does not elaborate, but his argument presupposes that trial counsel should have argued that the police only found the weapon because they had violated his constitutional rights by sending Johnson to interview him. Thompson did not raise this claim on direct appeal or in any of his state habeas applications. Because the state courts would not authorize him to file a successive application raising this argument, and he has not shown cause or prejudice to allow federal review, it is procedurally barred from federal habeas review.
Alternatively, the Court has already discussed at length the tenuous connection between the Johnson conversation and the recovery of the gun. Thompson had already provided the police a map of where he discarded the weapon. The trial testimony did not show that the Johnson conversation provided the police with previously unknown information necessary to recover the gun. Thompson has not shown that the murder weapon was inadmissible, and thus has not shown that trial counsel provided ineffective representation.
Thompson argues that the trial court violated his rights by denying his requests to postpone trial. Specifically, Thompson complains that the trial court's denial of additional time for trial preparation deprived him of due process under the Fourteenth Amendment and precluded effective legal representation under the Sixth Amendment.
The Constitution guarantees inmates "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted). Still, not every denial of a continuance violates the Constitution:
Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (citations omitted). "When a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process." Skillern v. Estelle, 720 F.2d 839, 850 (5th Cir. 1983) (quotation omitted). Also, "the failure to grant a continuance [must have] harmed the defense." Newton v. Dretke, 371 F.3d 250, 255 (5th Cir. 2004).
Determining whether the trial court abused its discretion in refusing to continue Thompson's trial requires a detailed review of the trial court proceedings. When the Court of Criminal Appeals remanded this case for a new punishment hearing, the trial court appointed Thompson's original trial attorney, Ellis McCullough, to represent him at retrial. On January 21, 2005, the trial court appointed Terrence Gaiser as second-chair counsel. Six months later, Thompson filed a pro se motion to dismiss McCullough arguing that he was not qualified to represent capital defendants under Texas's Fair Defense Act. The trial court delayed ruling on the motion, but on September 15, 2005, removed McCullough from representing Thompson. The trial court elevated Gaiser to first chair and appointed Kyle Johnson as second-chair counsel.
Gaiser had not been inactive during the pendency of Thompson's substitution motion. Throughout August and September 2005, Gaiser filed motions on Thompson's behalf. Gaiser's filings included motions for the appointment of a mitigation specialist, an investigator, and various experts, including a psychologist. The trial court promptly granted the defense's motions. Gaiser secured investigative assistance.
The trial court set October 24, 2005, as the first day for trial testimony. On September 29, 2005, the day before jury selection was set to begin, Thompson's attorneys filed a motion for continuance. Trial counsel asked for an additional ninety days because the attorneys had a limited time to prepare and to investigate mitigating theories after their appointment. In a hearing, trial counsel provided additional background on the motion for a continuance: "Gaiser stated that he was recently elevated to first chair, and Johnson was recently appointed to [Thompson's] case as second chair counsel and had a limited time to prepare for trial; Gaiser stated that he and Johnson lost time in their offices due to the threat of a hurricane. . . ." State Habeas Record at 241. The prosecution, however, provided reasons to deny a continuance: "prosecutor Vic Wisner stated that counsel Gaiser had been the de facto lead counsel on the case since his appointment, that Wisner had worked with Gaiser on discovery over the last two months, that Wisner had met with Gaiser and his expert, and, that the State's file had been available to Gaiser and his experts `at length.'" State Habeas Record at 241. The trial court denied a continuance.
The next week the defense filed a notice listing two potential experts for defense testimony. On October 25, 2005, the defense filed a second motion for a continuance. This time, the defense specifically said it needed additional time to investigate the State's proposed witness Robin Rhodes. The trial court denied the second motion for a continuance. CR2 at 209-14.
On state habeas review, Thompson argued that the trial court's denial of a continuance violated federal and state law. Thompson argued that additional time would have allowed the defense to (1) develop mitigating themes, particularly relating to an expert's testimony about past substance abuse and possible brain damage and (2) engage in additional investigation of witness Rhodes for impeachment.
Thompson wanted more time to prepare his punishment phase expert neuropsychologist, Dr Daneen Milam. Dr. Milam testified that Thompson suffered from "mild and diffused" brain damage, but was able to function. Dr. Milam based her conclusion on Thompson's results from an IQ test and the Halstead-Reitan Battery. A sharp cross-examination centered on the lack of physical testing to verify Dr. Milam's conclusions. Thompson argued that additional time would have allowed trial counsel to bolster Dr. Milam's conclusions. In particular, Thompson argues that trial counsel should have sought out the psychologist who developed the Halstead-Reitan Battery to shore up Dr. Milam's interpretation of Thompson's results.
The state habeas court found that Thompson had not shown prejudice relating to Dr. Milam's testimony. The state habeas court specially found that Thompson's claim that he suffered prejudice from the denial of a continuance was "purely speculative." State Habeas Record at 242. The state habeas court observed that "trial counsel investigated the potential benefit of presenting other experts" who could provide information about Thompson's mental health. State Habeas Record at 243. The state habeas court found that Dr. Milam had provided trial counsel documentary evidence relating to her testing. Also, Dr. Milam testified "concerning the futility of obtaining a MRI or CAT scan to support her diagnosis of the [his] alleged brain damage," thus discounting the benefit of any physical confirmation of Dr. Milam's testimony. State Habeas Record at 243.
The state habeas court also found no prejudice in the lack of additional time to investigate State's witness Rhodes. The state habeas court found that Thompson "concede[d] that counsel did not do a bad job impeaching Rhodes. . . ." State Habeas Record at 244.
Under AEDPA jurisprudence, Thompson must show that the state habeas court unreasonably found that the trial court did not abuse its discretion and that he had not shown prejudice. Thompson has not shown constitutional error in the state court's decision not to provide more time before trial. The Supreme Court has noted that trial judges enjoy "a great deal of latitude in scheduling trials and "only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay" poses constitutional concern. Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quotation omitted). Gaiser represented Thompson ten months before the punishment hearing began. Even though he initially served as second-chair counsel, Gaiser represented Thompson until eventually appointed first chair. In fact, Gaiser told the trial court that he had been "the de facto first chair" for some time. RR1 2 Vol. 2 at 7-8. Thompson's trial attorneys approached the defense of his punishment retrial with a preview of what evidence the State would present and the viability of defensive theories. Despite his arguments to the trial court about needing additional time, the record shows that investigators and experts had been assembled and were working toward a mitigation defense. Given those circumstances, the state habeas court was not unreasonable in finding that the trial court had not abused its discretion.
Additionally, Thompson has not shown that the denial prejudiced him. As in state court, Thompson does not prove that his trial attorneys were unprepared or demonstrate what evidence remained unpresented. Instead, Thompson speculates that additional witnesses or additional evidence may have influenced jurors, but provides no specificity about what trial counsel should have put forth. Without a concrete understanding of how additional time would have amplified or altered the mitigation defense, the state habeas court was reasonable in finding his allegations of prejudice to be speculative. Thompson has not shown that the state habeas court's rejection of this claim was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Thompson contends that the State violated his Eighth Amendment rights by presenting evidence of his youthful misconduct. As described by the Court of Criminal Appeals, the State presented evidence during the punishment stage of trial of crimes and bad acts Thompson committed as a minor:
Thompson, 2007 WL 3208755 at 3.
Thompson, however, did not object to the use of youthful-misconduct testimony at trial. The state habeas court found that the lack of a contemporaneous objection defaulted judicial consideration of the instant claim. State Habeas Record at 256. Thompson has not shown cause or prejudice to overcome the procedural bar of that claim, thus precluding federal review.
Alternatively, the state habeas court found that "the admission of punishment evidence of the [Thompson's] youthful misconduct did not violate [his] constitutional rights." State Habeas Record at 256. Thompson has not pointed to any Supreme Court case preventing the State from relying on youthful misconduct when arguing for a death sentence. Thompson instead asks for an extension of other cases in which the Supreme Court has recognized special protections for juvenile offenders. Thompson relies on the prohibition on executing juvenile offenders, Roper v. Simmons, 543 U.S. 551 (2005); Thompson v. Oklahoma, 487 U.S. 815 (1988), and the exclusion of juveniles from mandatory life sentences, Miller v. Alabama, 132 S.Ct. 2455 (2012); Graham v. Florida, 560 U.S. 48 (2010), to emphasize the lessened moral blameworthiness of juvenile offenders. Because "the juvenile crimes used against Thompson in his sentencing, essentially crimes of criminal mischief, show both a lack of maturity and a strong correlation to peer pressure," Thompson contends that the Constitution should bar their use in determining his sentence. Dkt. 57 at 218.
The Supreme Court has recognized that important constitutional principles protect juvenile offenders. Here, although the State presented evidence of bad acts Thompson committed when he was under the age of eighteen, he was tried and convicted for an offense he committed as an adult. The Fifth Circuit has held that Supreme Court precedent "does not clearly establish that [a juvenile] offense may not be used to elevate murder to capital murder." Taylor v. Thaler, 397 F. App'x 104, 108 (5th Cir. 2010). Extending the constitutional protections in the manner proposed by Thompson would require the creation of new constitutional law in violation of Teague's non-retroactivity principles. For those reasons, Thompson has not shown that he merits federal habeas relief on this claim.
Thompson raises two claims challenging the manner in which Texas structures a jury's consideration of mitigating evidence. In his twelfth claim, Thompson argues that the Constitution requires that jurors consider the mitigation special issue under a beyond-a-reasonable-doubt standard. Thompson's thirteenth claim argues that Texas's mitigation special issue unconstitutionally sends mixed signals to jurors. Settled precedent forecloses relief on both claims.
Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), Thompson's twelfth claim argues the Texas capital sentencing scheme violates constitutional protections by not requiring the State to prove the absence of sufficient mitigating evidence beyond a reasonable doubt. The Fifth Circuit has repeatedly rejected the argument that the prosecution bears a burden to disprove the existence of mitigating factors beyond a reasonable doubt. See Blue v. Thaler, 665 F.3d 647, 668 (5th Cir. 2011); Druery v. Thaler, 647 F.3d 535, 546-47 (5th Cir. 2011); Adams v. Thaler, 421 F. App'x 322, 334 (5th Cir. 2011); Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir. 2006); Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005).
Thompson's thirteenth claim argues that the Texas death penalty scheme violates the Eighth Amendment in light of the Supreme Court's decision in Penry v. Johnson, 532 U.S. 782 (2001), because the mitigation special issue sends "mixed signals" to the jury. In Penry, the Supreme Court struck down a judicially crafted jury instruction because it was perplexing and, in effect, required the jury to answer the special issues dishonestly in order to give effect to the defendant's mitigating evidence. Thompson clams that current mitigation special issue sends mixed signals because it is unclear about the burden of proof. The state habeas court relied on Texas precedent and denied relief. State Habeas Record at 247-48.
Here, the mitigation instruction that the trial court delivered did not contain the defect identified in Penry. In fact, the Supreme Court has described the current mitigation special issue as "[a] clearly drafted catchall instruction on mitigating evidence" whose "brevity and clarity . . . highlight[ed] the confusing nature of the supplemental instruction" they had previously condemned. Penry, 532 U.S. at 803. Given that endorsement, the Fifth Circuit has found no merit to similar claims raised by other inmates. See Foster v. Thaler, 369 F. App'x 598, 606 (5th Cir. 2010); Manns v. Quarterman, 236 F. App'x 908, 911-12 (5th Cir. 2007); Oliver v. Quarterman, 254 F. App'x 381, 385-86 (5th Cir. 2007). The Texas court's rejection of this claim was not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Thompson complains that the State violated his due process rights, his right to confront witnesses against him, and right to counsel though its use of the autopsy results in this case. At the guilt/innocence phase, the State presented evidence about Hayslip's cause of death based on an autopsy performed by Dr. Paul Shrode. Dr. Shrode reported that Hayslip's cause of death was a "gunshot wound to the face." Dr. Shrode, however, did not testify at trial. The State admitted the autopsy report into evidence during the testimony of Dr. Shrode's colleague Dr. Patricia Moore. Dr. Moore had performed the autopsy on Cain and testified about the cause of death for both victims. Dr. Moore's testimony reiterated Dr. Shrode's finding that the cause of Hayslip's death was a gunshot wound to the face.
Thompson raises three separate claims based on Dr. Shrode performing the autopsy and the related testimony. Thompson contends that: (1) the State violated Brady by failing to disclose that Dr. Shrode lacked adequate qualifications; (2) trial counsel should have objected to the admission of Dr. Moore's testimony about the autopsy report on Sixth Amendment Confrontation Clause grounds; and (3) the State violated the Due Process Clause by knowingly admitting a false autopsy report. Dkt. 57 at 236-43. Thompson, however, raised these arguments in his third state habeas application that the Court of Criminal Appeals found to be an abuse of the writ. This claim is procedurally barred from federal review unless Thompson can show cause and actual prejudice.
Thompson contends that the Court can reach the merits of this claim because the State suppressed evidence of Dr. Shrode's qualifications and the true cause of Hayslip's death. Also, Thompson contends that he can show ineffective representation by habeas counsel for failing to raise the issues. This Court's review of the records and the pleadings shows that Thompson cannot overcome the procedural bar.
As an initial matter, Thompson contends that "Shrode was incompetent and unqualified to perform the work he was tasked with, and for failing to disclose that his autopsy was factually incorrect and misleading." Dkt. 57 at 240. Thompson bases his arguments on disciplinary actions and allegations of falsehoods on Dr. Shrode's curriculum vitae that came to light well after the trial in this case. Thompson has not pointed to any contemporaneous evidence that any member of the prosecutorial team knew of the alleged problems with Dr. Shrode's work. Additionally, Thompson's allegations of incompetency may serve to allow the impeachment of Dr. Shrode's work, but he has not shown demonstrable errors in Hayslip's autopsy. Thompson has provided the opinion of another expert, Dr. Lloyd White, who would have reached a different conclusion about Hayslip's death. In doing so, however, Thompson only casts a defensive theory from trial in a different light. Trial counsel attempted to convince the jury that intervening medical care caused Hayslip's death. The fact that other medical professionals may disagree with Dr. Shrode's conclusions does not mean that the prosecution knowingly suppressed information about Hayslip's death.
Also, Thompson faults trial counsel for not raising a Confrontation Clause objection because Dr. Moore, rather than Dr. Shrode who performed the autopsy, testified about the cause of Hayslip's death. After Thompson's trial, the Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), which held that admission of testimonial statements against a criminal defendant violates the Confrontation Clause unless the witness is unavailable and was subject to a prior cross-examination. At the time of Thompson's trial, however, Texas courts held that autopsy reports were not testimonial, and thus not subject to a Confrontation Clause challenge. Since Crawford courts have been split on its application to autopsy reports, and some Texas courts have held autopsy reports are testimonial, see Martinez v. Davis, 653 F. App'x 308, 320 n.5 (5th Cir. 2016) (reviewing relevant law), but the law at the time of trial and of Thompson's first two habeas proceedings did not support a Confrontation Clause challenge to the autopsy report.
Accordingly, Thompson has not shown cause to overcome the procedural bar of his claims under either Brady or Martinez. For those same reasons, and in consideration of the Court's review of the record and the parties' briefing, the Court would find his claims without merit if fully available for federal review. The Court denies Thompson's final ground for relief.
Under AEDPA, a prisoner cannot seek appellate review from a lower court's judgment without receiving a Certificate of Appealability ("COA"). See 28 U.S.C. § 2253(c). Thompson has not yet requested that this Court grant him a COA, though this Court can consider the issue sua sponte. See Alexander, 211 F.3d at 898. "The COA statute establishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal." Slack v. McDaniel, 529 U.S. 473, 482 (2000). A court may only issue a COA when "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
The Fifth Circuit holds that the severity of an inmate's punishment, even a sentence of death, "does not, in and of itself, require the issuance of a COA." Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). The Fifth Circuit, however, anticipates that a court will resolve any questions about a COA in the death-row inmate's favor. See Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000). The Supreme Court has explained the standard for evaluating the propriety of granting a COA on claims rejected on their merits as follows: "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484; Miller-El, 537 U.S. at 336-38. On the other hand, a district court that has denied habeas relief on procedural grounds should issue a COA "when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; Miller-El, 537 U.S. at 336-38. Unless the prisoner meets the COA standard, "no appeal would be warranted." Slack, 529 U.S. at 484.
Thompson's petition raises several issues worthy of judicial review. Nevertheless, having considered the merits of Thompson's petition, and in light of AEDPA's standards and controlling precedent, this Court determines that a COA should not issue on any of Thompson's claims.
For the reasons described above, the Court finds that Thompson has not shown an entitlement to federal habeas relief. The Court
The Clerk will provide copies of this Order to the parties.
State Habeas Record at 250.
Dkt. 57 at 199-200. Thompson conceded that "[s]teps one, two, and three had been undertaken by Gaiser while he was second-chair counsel," but argues that his trial attorneys did not have time to complete "work still needed to be done on steps four, five, and six. . . ." Dkt. 57 at 200.
State Habeas Record at 244.
