Mickey Thomas v. Dexter Payne, 960 F.3d 465

Background

Mickey Thomas was convicted of capital murder in Arkansas and sentenced to death; two public defenders represented him at trial.
In his Rule 37 postconviction petition he alleged multiple ineffective-assistance-of-trial-counsel (IAC) claims, including failures to investigate and present mitigation and mental-health evidence and that trial counsel conceded guilt; the state trial (Rule 37) court denied relief and the Arkansas Supreme Court later affirmed as to the claims presented on appeal.
Thomas filed a federal habeas petition under 28 U.S.C. § 2254, renewing some previously asserted IAC claims and raising new ones (including a jury-pool claim and a McCoy-based concession claim).
The federal district court held an evidentiary hearing, found trial counsel ineffective in investigating/presenting mitigation, found Rule 37 counsel ineffective for failing to properly litigate those penalty-phase claims (thus excusing procedural default), and granted relief requiring resentencing unless the State stipulated to life.
On appeal the Eighth Circuit rejected the district court’s conclusion that the initial Rule 37 proceeding triggered procedural default; it held Thomas’s failure to appeal the Rule 37 court’s adverse rulings caused the default (so Trevino/Martinez did not excuse it) and reversed the grant of relief as to the penalty-phase IAC claim while affirming denials on guilt-phase, jury-pool, and McCoy-related claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Thomas’s guilt-and-penalty IAC claims were procedurally defaulted and whether default was excused by Rule 37 counsel’s ineffectiveness (Trevino/Martinez)	Trevino/Martino (sic) excuse default because Rule 37 counsel failed to develop/raise trial IAC claims, so cause and prejudice exist	Default occurred by failing to appeal Rule 37 court’s adverse merits ruling; Trevino/Martinez do not excuse failure-to-appeal defaults	Default was triggered by failure to appeal; Trevino/Martinez do not excuse that default; habeas relief on those claims unavailable
Whether trial counsel provided constitutionally ineffective assistance in the penalty phase (mitigation investigation/presentation)	Trial counsel conducted a deficient mitigation investigation; with adequate mitigation there is a reasonable probability of a life sentence	State defends adequacy of counsel’s mitigation investigation and contest prejudice	District court’s finding of penalty-phase IAC reversed because the claim is procedurally defaulted and default not excused; no federal relief granted on guilt-and-penalty IAC
Whether counsel were ineffective for failing to secure an expanded jury pool (jury-pool IAC)	Failure to timely/adequately move for expanded jury pool deprived Thomas of potentially more favorable jurors and prejudiced him	Jury-selection was constitutionally adequate; assumptions about racial composition and resulting leniency are impermissible under Strickland; claim not substantial	Denial of evidentiary hearing affirmed; claim procedurally defaulted/not potentially meritorious and no relief granted
Whether McCoy-type concession claim (counsel conceded guilt over client’s wishes) warrants a federal hearing or relief	McCoy establishes a structural right to veto counsel’s concession; post-McCoy review needed and default should be excused by ineffective Rule 37 counsel	Thomas raised a Strickland-style concession claim in state court and didn’t appeal; under pre-McCoy law (Nixon) Rule 37 court reasonably rejected claim; even if distinct, unlikely Rule 37 court would have granted relief	McCoy-type claim is procedurally defaulted and, under governing Nixon precedent at the time of the Rule 37 proceedings, it is not reasonably probable relief would have been granted; no hearing or relief granted

Key Cases Cited

Coleman v. Thompson, 501 U.S. 722 (1991) (establishes cause-and-prejudice standard to excuse state procedural default)
Martinez v. Ryan, 566 U.S. 1 (2012) (limited exception: ineffective assistance of postconviction counsel can establish cause for default of trial IAC claims in initial-review collateral proceedings)
Trevino v. Thaler, 569 U.S. 413 (2013) (extends Martinez in certain state-court systems where initial-review collateral counsel de facto operates as first meaningful opportunity)
Strickland v. Washington, 466 U.S. 668 (1984) (two-part standard for ineffective assistance: deficient performance and prejudice)
McCoy v. Louisiana, 138 S. Ct. 1500 (2018) (a defendant may retain the right to insist counsel not concede guilt; waiver of that right has structural-error implications)
Schriro v. Landrigan, 550 U.S. 465 (2007) (district courts’ discretion on evidentiary hearings in habeas matters and limits under § 2254)
Duren v. Missouri, 439 U.S. 357 (1979) (fair-cross-section requirement for jury selection)
Flieger v. Delo, 16 F.3d 878 (8th Cir. 1994) (state postconviction generic claims do not preserve unpresented specific variations for federal habeas)
Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013) (applies Trevino/Martinez principles in Arkansas postconviction context)
Thomas v. State, 257 S.W.3d 92 (Ark. 2007) (Arkansas Supreme Court’s decision on trial errors and jury-pool issue)
Thomas v. State, 431 S.W.3d 923 (Ark. 2014) (Arkansas Supreme Court’s decision affirming denial of Rule 37 relief)