Thompkins v. McKune
433 F. App'x 652
10th Cir.2011Background
- Thompkins, a Kansas state prisoner, sought a COA to appeal the district court's dismissal of his §2254 petition.
- The district court dismissed the habeas petition without issuing a COA; Thompkins proceeded in forma pauperis on appeal.
- Thompkins faced state charges including first-degree murder, with trial and multiple related crimes; preliminary hearing dismissed the premeditated-murder charge but allowed trial on other charges.
- On remand after initial reversal, Thompkins was again convicted of premeditated murder; his conviction was affirmed on appeal by the Kansas courts.
- Thompkins pursued post-conviction relief under Kan. Stat. Ann. § 60-1507; state courts denied relief and denied certification for review by the Kansas Supreme Court.
- Thompkins argued in federal habeas that double jeopardy and ineffective assistance of counsel violations occurred, in addition to an alleged depression-related impairment of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double Jeopardy after preliminary hearing dismissal | Thompkins asserts prejudice from prosecution for premeditated murder despite dismissal at the preliminary examination. | State argues jeopardy had not attached at preliminary hearing; dismissal does not bar reprosecution. | Jeopardy did not attach; no double jeopardy bar to reprosecution. |
| Retrial after reversal for procedural defect | Reversal of the initial conviction due to a procedural defect bars retrial. | Reversal for trial error does not preclude retrial for the same charge. | Reprosecution is not barred by the reversal. |
| Guilt-based defense strategy and ineffective assistance | Counsel's guilt-based defense and Thompkins's consent were mishandled; the strategy was unreasonable. | State courts found Thompkins consented and that counsel's strategy was reasonable; AEDPA review applied. | No reasonable jurists could differ; issues waived; no COA warranted. |
| Implied acquittal and counsel's depression as a basis for IAC | Reprosecution violated double jeopardy due to implied acquittal and depressed performance by counsel. | Issues were not properly presented; waived for habeas review. | Waived and not properly before the court; no COA on these grounds. |
Key Cases Cited
- Monge v. California, 524 U.S. 721 (1998) (jeopardy protections and dual concept of attachment)
- United States v. Martin Linen Supply Co., 430 U.S. 564 (1977) (jeopardy attaches when fact-finding begins)
- Serfass v. United States, 420 U.S. 377 (1975) (jeopardy requires actual risk of guilt)
- Mortimer v. Evans, 386 P.2d 261 (Kan. 1963) (preliminary examination role and purpose in Kansas)
- Boone, 543 P.2d 945 (Kan. 1975) (preliminary hearing discharge not bar to later prosecution)
- Puckett, 729 P.2d 458 (Kan. 1986) (discharge at preliminary hearing not bar to subsequent proceeding)
- Burks v. United States, 437 U.S. 1 (1978) (reversal for trial error does not prove innocence and allows retrial)
- Montana v. Hall, 481 U.S. 400 (1987) (retrials after invalid charging instruments permissible)
- United States v. Farr, 536 F.3d 1174 (10th Cir. 2008) (contextual limits on double jeopardy in retrials)
- United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995) (defect in trial procedure and legal standards supporting retrial)
- Parker v. Scott, 394 F.3d 1302 (10th Cir. 2005) (preservation of claims in habeas petitions; waivers on appeal)