Jay Thompson v. Frank Vanihel, 998 F.3d 762

On March 8, 1981, Jay R. Thompson and Richard Dillon burglarized the Hilborns’ home; both victims were stabbed and killed. Thompson carried a folding knife; Dillon carried a hunting knife.
Evidence tying Thompson to the killings: blood on Thompson’s jeans and a glove recovered from his closet, a freshly cleaned hunting knife in Thompson’s trunk, eyewitnesses placing Thompson and Dillon at a laundromat after the murders, and forensic testimony suggesting two different knives were used.
On March 12, 1981, a recorded police interview occurred after Thompson (a 17‑year‑old) and his mother signed a juvenile waiver; Thompson said he thought they should get a lawyer and then made one limited question after the recording was briefly stopped.
At trial the recording was played in full; the prosecutor commented in closing on Thompson’s request for counsel. Thompson’s trial counsel did not object, nor did counsel raise the prosecutor’s remarks on direct appeal.
Thompson later sought state post‑conviction relief; the state court proceeding was dismissed on laches so the state court did not adjudicate the ineffective‑assistance claim on the merits. On federal habeas, the district court, after remand from this Court on laches, rejected Thompson’s ineffective‑assistance claim for lack of prejudice.
The Seventh Circuit affirmed, holding that even assuming deficient performance, Thompson failed Strickland prejudice because the record evidence against him was overwhelming.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Trial counsel ineffective for not moving to suppress statements made after Thompson invoked right to counsel	Thompson: post‑invocation statements (and the recording played) should have been suppressed; counsel’s failure prejudiced the defense	State: even if suppression merited, overwhelming physical and eyewitness evidence makes a different outcome unlikely	No prejudice under Strickland; outcome would not likely have changed
Trial counsel ineffective for failing to object to prosecutor’s Doyle‑type closing remarks	Thompson: prosecutor’s remarks about requesting a lawyer violated Doyle v. Ohio and counsel’s failure to object was prejudicial	State: remarks implicated Doyle but were not outcome‑determinative given overwhelming evidence	No prejudice; errors would not substantially change result
Appellate counsel ineffective for not raising prosecutor’s remarks on direct appeal	Thompson: appellate counsel should have raised the Doyle argument on direct appeal	State: appellate omission was not prejudicial because trial record was overwhelming	No prejudice; no reasonable probability of different outcome on appeal

Doyle v. Ohio, 426 U.S. 610 (1976) (prosecutor may not use defendant’s post‑Miranda silence to impeach credibility)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective assistance test: deficient performance and prejudice)
Harrington v. Richter, 562 U.S. 86 (2011) (requires a substantial—not merely conceivable—likelihood of a different result for prejudice)
Adorno v. Melvin, 876 F.3d 917 (7th Cir. 2017) (discussing when state courts actually adjudicate federal claims under § 2254)
Makiel v. Butler, 782 F.3d 882 (7th Cir. 2015) (Strickland applies to both trial and appellate counsel claims)
Hicks v. Hepp, 871 F.3d 513 (7th Cir. 2017) (prejudice inquiry for suppression failures requires showing a reasonable probability of acquittal absent the confession)
Dunn v. Jess, 981 F.3d 582 (7th Cir. 2020) (failure to prove either Strickland prong defeats the claim)
Cook v. Foster, 948 F.3d 896 (7th Cir. 2020) (evaluate prejudice by assessing the trial as a whole)
Taylor v. Bradley, 448 F.3d 942 (7th Cir. 2006) (discussion of corroboration and alibi credibility)
Thompson v. Brown, 901 F.3d 851 (7th Cir. 2018) (prior appeal addressing state‑court laches as a basis to deny relief)
Thompson v. State, 492 N.E.2d 264 (Ind. 1986) (direct‑appeal decision summarizing trial evidence and facts)