CHARLES VICTOR THOMPSON, Petitioner - Appellant v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee
No. 17-70008
United States Court of Appeals, Fifth Circuit
February 18, 2019
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge:
Case: 17-70008 Document: 00514838385
In the early hours of April 30, 1998, responding to a call, police arrived at the apartment of Glenda Dennise Hayslip to find Hayslip‘s boyfriend, Darren Cain, arguing with Thompson, Hayslip‘s ex-boyfriend.1 After calming the situation, the police let Thompson leave the scene.2 Three hours later, however, Thompson returned with a gun. After kicking down the door to the apartment, Thompson confronted Cain and shot him four times in the neck and chest, killing him. Thompson then turned to Hayslip. After reloading the gun, he told Hayslip “I can shoot you too, bitch,” and fired into her cheek.3 The bullet passed through Hayslip‘s face, blowing the dentures out of her mouth and nearly severing her tongue.4 Thompson left the apartment, threw the gun into a creek, and went to the house of a friend, Diane Zernia, where he fell asleep.5
Hayslip was alive, but bleeding profusely, and sought help from neighbors.6 Emergency responders arrived at the apartment and airlifted Hayslip to a hospital. During surgery, doctors were unable to secure an airway for Hayslip‘s breathing, and, while they were preparing for emergency surgery, she fell into a coma.7 A few days later, Hayslip‘s family took her off of life
Awaking later in the morning, Thompson described the shootings to Zernia, including how he had disposed of the murder weapon.9 He then called his father, who brought him to the police station where he turned himself in.10 The State indicted Thompson for capital murder for intentionally or knowingly causing Cain and Hayslip‘s deaths. The state court appointed counsel on May 19, 1998.
Thompson was active during his pretrial detention at the Harris County Jail. A few days after the shooting, he called Zernia asking what she had told the police. Thompson called again a few weeks later, again seeking details on what Zernia had told investigators, and clarifying that she was the only witness who could link him to Cain and Hayslip‘s murders. During this second call, Thompson asked Zernia for her home address, purportedly so that his attorney “could send her some documents and talk with her.” Weeks later, Zernia told investigators that she “ha[d] not heard from his attorney as of yet.”
During the same period, Thompson also discussed his case with fellow inmates Jack Reid and Max Humphrey, contemplating Zernia‘s status as a potential state witness and looking to arrange for her death.11 According to Reid, Thompson engaged Humphrey, an Aryan Brotherhood gang member, to murder Zernia after his release on June 30th. Thompson also arranged retrieval of the murder weapon for delivery to Humphrey, to be used to
Reid instead relayed the information to the police,13 who attempted to recover the weapon. But their divers were unable to locate it. Although Thompson‘s right to counsel had attached, officers instructed the informant Reid to tell Thompson his contact had been unable to find the weapon, and would visit for better directions.14 Posing as Reid‘s outside contact, Investigator Gary Johnson visited Thompson at the Jail, wearing a wire to record their conversation.15 Thompson told Johnson he believed Humphrey had betrayed him, and offered Johnson $1,500 to retrieve the weapon and murder Zernia.16 During the meeting, Thompson pressed a hand-drawn map against the glass of the visitor‘s booth, one similar to the map the police already held, depicting the weapon‘s location, as well as Zernia‘s address. Thompson then described Zernia‘s husband, daughter, her home and vehicles, and discussed the best times to carry out the murder.17
Relying on the recording of Johnson‘s meeting, the district attorney charged Thompson with solicitation of capital murder. Police visited Thompson in his cell and notified him of the charge; they searched his cell but were unable to recover the map displayed to Johnson. Police also apprehended Humphrey, who corroborated Reid‘s account of the murder arrangement, but denied that
Undeterred by the solicitation charge, on August 21, 1998, Thompson spoke with another inmate, Robin Rhodes, again seeking help in persuading “some people not to [come] or be able not to come” to testify at his trial.18 Thompson provided a list of names including Zernia‘s,19 advising that Rhodes “either kill them or persuade them not to be there.” Rhodes, it turned out, was a long time police informant. He gave the list to the police and expressed his willingness to testify against Thompson.20
Thompson was tried for capital murder in 1999. The guilt stage of the trial centered on Hayslip‘s injuries, and whether Thompson‘s shooting—as opposed to medical malpractice—caused her death. Thompson called an expert witness, Dr. Pat Radalat, who initially testified Hayslip would have survived the gunshot had she received proper medical care. Radalat opined that Hayslip‘s medical team failed to correctly place a nasotracheal tube, and then failed to monitor Hayslip‘s breathing while preparing for surgery, allowing her to experience bradycardia, a condition in which the heart slows due to low oxygen. On cross examination, however, Radalat backtracked, conceding Hayslip would have died in the absence of medical intervention. The State introduced the murder weapon and called a firearms expert to explain that, given the weapon‘s capacity and the number of shots fired, Thompson must have reloaded during the shooting.21 The State also introduced the autopsy
During the punishment phase of the trial, the State introduced Johnson‘s recording of his jailhouse meeting with Thompson, and Johnson himself took the stand.23 Based on the jury‘s answers to the questions regarding punishment—whether Thompson would be a future danger to society and whether there were sufficient circumstances mitigating against a death sentence—the court imposed the death penalty.24
In 2001, on direct appeal, the Texas Court of Criminal Appeals affirmed Thompson‘s conviction,25 but found the punishment phase of the trial tainted by the admission of Johnson‘s testimony, solicited after Thompson‘s right to counsel had attached, in violation of the Sixth Amendment.26 It vacated and remanded for a retrial on punishment.27 The court also denied Thompson‘s pro se motion for rehearing, which argued the entirety of his trial was tainted by the Sixth Amendment violation and that his conviction should be vacated and remanded for retrial.28
In 2005, Thompson‘s case returned to the trial court for a retrial on punishment before a new jury.29 During a pre-trial hearing, the State disclosed
On retrial, the State presented evidence of Thompson‘s past criminality, beginning in his childhood.30 The State called Rhodes, who recounted his jailhouse discussions with Thompson. On cross examination, Rhodes explained that he had a longstanding working relationship with the State and had previously served as a paid informant. The trial court denied Thompson‘s motion to strike Rhodes‘s testimony. The jury answered the two-part inquiry on punishment as before, and the court again imposed the death penalty.31 In 2007, on direct appeal of the retrial, the Texas Court of Criminal Appeals affirmed.32
Thompson had originally filed a state habeas petition in 2000 following his first trial presenting seventeen grounds for relief, and amended this application in 2007 following the retrial on punishment to raise fourteen
Thompson first filed a habeas petition with the federal district court in 2014, fifteen years after his conviction. During this same period, Rhodes‘s counsel submitted a Public Information Act request to the Harris County District Attorney‘s office for information related to Robin Rhodes. The State‘s responsive disclosures indicated that Rhodes went by several pseudonyms in his transactions with the State, and that there was a signed contract from 1993 between Rhodes and Assistant District Attorney Joan Huffman. Citing these new sources—undisclosed in the state trial court—Thompson moved unopposed in federal court for limited discovery from Harris County, the Houston Police Department and the City of Baytown regarding Rhodes‘s status as an informant. The district court granted the motion, and also ordered the District Attorney‘s office to produce its files relating to Rhodes for in camera review. Thompson moved to stay and abet proceedings while the state habeas court resolved a third application for post-conviction relief, and the district court granted the stay. After the Texas Court of Criminal Appeals dismissed Thompson‘s third application as an abuse of the writ in March 2016, Thompson filed an amended petition with the federal district court raising fourteen grounds for relief, and requested an evidentiary hearing. On March 23, 2017,
II.
We have jurisdiction over the district court‘s final decision denying post-conviction relief and a hearing under
A state prisoner does not have “an absolute right to appeal” from a federal district court decision denying a petition for a writ of habeas corpus.36 Instead, the prisoner must obtain a COA.37 We issue a COA upon a “substantial showing of the denial of a constitutional right”38—that “jurists of reason could disagree with the district court‘s resolution of [the applicant‘s] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.”39 This determination is a threshold inquiry, not a full-fledged merits analysis.40 Any doubts as to whether a COA should issue must be resolved in the applicant‘s favor.41
Thompson‘s petition is “also subject to the deferential standards of AEDPA.”42 Where Thompson seeks a COA on claims denied on the merits by the state habeas court, he must show that the state court‘s decision was “contrary to” or “involved an unreasonable application of” clearly established federal law, or that it “was based on an unreasonable determination of the
A.
Thompson first seeks a COA arguing that the guilt phase of his trial was tainted by the State‘s introduction of the murder weapon in violation of right to counsel. Massiah v. United States held that the Government violated a criminal defendant‘s Sixth Amendment right to counsel “when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.”45 The rule from Massiah applies not only to interrogation by identified officials, but also to “indirect and surreptitious” meetings during which the indicted individual may not “even know that he was under interrogation by a government agent.”46 Where state actors have obtained incriminating statements in violation of individual‘s right to counsel, “the defendant‘s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.”47 To bring a Massiah claim, the claimant must establish that his Sixth Amendment right to counsel
At the outset, Thompson argues the district court erred in treating the issue as resolved by the Texas Court of Criminal Appeals and thus entitled to AEDPA deference. Jurists of reason would not debate the district court‘s granting of deference to the Court of Criminal Appeals’ opinion on this issue. When Thompson raised the issue on direct appeal, the Court of Criminal Appeals granted a retrial on punishment, but, without stating its reasons, denied retrial on guilt. “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 in the absence of any indication or state-law procedural principles to the contrary.”50 We presume that the state court adjudicated the claim on the merits, and Thompson has presented no indication or state-law procedural principles to overcome that presumption. Jurists of reasons would not debate the district court‘s application of AEDPA deference to this claim.
Thompson‘s argument hinges on the assertion that “the police only recovered the gun based on statements illegally obtained.” Given the deferential AEDPA review standards, jurists of reason would not debate the state court‘s denial of relief in light of the lack of factual support for this
Moreover, even if the murder weapon was recovered based on Johnson‘s meeting, jurists of reason would not debate the harmlessness of its introduction during the guilt phase of Thompson‘s trial.51 The murder weapon was introduced during testimony of a firearms expert, who explained that Thompson had reloaded during the shooting.52 Thompson argues that but for the Massiah violation, the State would have introduced no evidence of reloading, vitiating its showing that Thompson intentionally killed Hayslip. This is farfetched. Taken together with the evidence properly before the jury—not least facts showing Thompson shot Zernia in the face and left her drowning in her own blood and suffocating on the swollen remnants of her severed tongue—the introduction of the murder weapon was not crucially important, let alone dispositive. The district court thus found that the state habeas court was not unreasonable to reject this claim. We agree that jurists of reason could not debate this conclusion, and that the claim does not deserve encouragement to proceed further. We deny a COA on this claim.
Second, Thompson seeks a COA arguing the State violated his rights to due process and counsel when it introduced the testimony of fellow inmate Robin Rhodes during the retrial on punishment. Though these claims were procedurally defaulted, Thompson argues he overcomes the procedural bar. Thompson also appeals the district court‘s denial of an evidentiary hearing on the Rhodes-related claims, which we review for an abuse of discretion.53
A Brady violation can provide cause and prejudice to overcome a procedural bar on a habeas claim.54 Under Brady, a defendant is denied due process where the State fails to disclose evidence favorable to the accused and that evidence is material, meaning there is a reasonable probability that, had the evidence been disclosed, the outcome of the trial would be different.55 To determine whether an informant was a government agent for purposes of a Massiah claim, the court asks whether the informant was promised, reasonably led to believe, or actually received a benefit in exchange for soliciting information from the defendant; and whether he acted pursuant to instructions from the State, or otherwise submitted to the State‘s control.56
1.
Thompson raised this claim in his third state habeas petition, which the Court of Criminal Appeals dismissed as an abuse of the writ.57 The district court found the claim procedurally defaulted. Thompson argues, however, that the State‘s Brady violation in failing to disclose the full nature of Rhodes‘s
Days before his 2005 retrial on punishment, Thompson‘s trial counsel overheard a conversation suggesting Rhodes had previously worked as an informant. Thompson then probed Rhodes‘s relationship with the State during the retrial: specifically, during his cross examination, Rhodes self-described as a “full time informant” for the State at the time of his encounter with Thompson. The meaning of this description is not self-evident. While during the same testimony Rhodes explained that he had not solicited Thompson on the instructions of any state official, this does not preclude the possibility of more general open-ended instruction or guidance from his government “handler,” nor even the possibility that Rhodes was performing general information-gathering duties. Thompson learned further that Rhodes not only served repeatedly as an informant for the State—in some cases paid tens of thousands of dollars for his services—but was even at some point an employee of the Harris County Organized Crime Task Force.58 Aspects of Rhodes‘s history with the State were discoverable in public records, specifically the Texas Court of Appeals’ published decision in Stephens v. State. That opinion describes Rhodes as an employee of the Organized Crime Task Force and “confidential informant in over 50 cases.”59 But that opinion does not necessarily describe the State‘s relationship with Rhodes exhaustively, particularly with respect to his status at the time he engaged Thompson in the Harris County Jail.
We therefore grant COAs on two questions arising from this claim: first, whether Thompson has established a Brady violation in the State‘s non-disclosure of its past relationship with Rhodes that would allow Thompson to overcome the procedural bar and entitle him to habeas relief; second, if the procedural bar is overcome, whether the introduction of Rhodes‘s testimony at the retrial on punishment constituted a Massiah violation under which Thompson is entitled to habeas relief.
2.
Thompson was unable to develop the facts underlying the Rhodes-related Brady and Massiah claims in state habeas court. When he got to federal district court, Thompson moved for limited discovery—which was granted—and then for an evidentiary hearing—which was not. Considering documents turned over by the State pursuant to its discovery order, including privileged documents reviewed in camera, the district court found an evidentiary hearing not “necessary to a full and fair adjudication of [Thompson‘s] claims.” In so deciding, the district court downplayed the toll of time. By 2014, the Harris County Organized Crime Task Force, the government entity with which Rhodes had interacted, had dissolved, and Rhodes‘s handler Floyd Winkler no longer worked with the State. In response to the subpoena for Rhodes-related documents, the City of Baytown, which had taken possession of the Task
Even so, the district court did not err in denying Thompson an evidentiary hearing. Under
C.
Third, Thompson seeks a COA arguing that the guilt phase of his trial was tainted by the State‘s failure to disclose that the Hayslip autopsy report was false and improperly certified by an incompetent, unqualified medical examiner. This claim was only raised in Thompson‘s third state habeas application, which the state habeas court deemed an abuse of the writ.66 To overcome the procedural default, Thompson must establish cause and prejudice.67
Thompson argues that the State committed a Brady violation that allows him to overcome the procedural default. We need not proceed past the first Brady element. Thompson begins from the premise that the autopsy report mischaracterized Hayslip‘s cause of death, and that the medical examiner, Dr. Paul Shrode, and by imputation the State, knew this was so. In support, Thompson relies on the opinion of another expert, pathologist Dr. Lloyd White,
D.
Fourth, Thompson seeks a COA arguing he received ineffective assistance of counsel during the guilt stage of his trial, describing five separate deficiencies. To prevail on such a claim, Thompson must establish that “counsel‘s representation fell below an objective standard of reasonableness”
1.
Thompson argues his trial counsel provided ineffective assistance by failing thoroughly to question potential jurors about their reactions to his potential parole eligibility if sentenced to life imprisonment and about their likely reactions to victim-impact evidence. He also faulted trial counsel for failing to exercise preemptory strikes of jurors Harrell Rogers and Maria Blassingame. The state habeas court found that trial counsel acted “to select jurors that would give the defense the best possible chance at trial,” and that “counsel strategically conducted voir dire, including the use of peremptory strikes, to achieve that goal.” With some potential jurors, counsel did not ask about parole eligibility because the State had already touched on the subject. With respect to victim-impact evidence, no such evidence was presented during the guilt phase of the trial (the only phase subject to this claim) and so Thompson could show no prejudice. The decisions not to strike Rogers and Blassingame were “reasonable strategic decision[s],” taken considering their circumstances and attitudes relative to other potential jurors‘.
2.
Thompson argues his trial counsel failed to object to a state witness‘s references to his prior bad acts—namely instances in which Thompson lost his temper and destroyed property at Hayslip‘s house. Under Texas law, evidence of these bad acts was admissible as probative of the previous relationship between the accused and the deceased. Thompson argues that because the State had not provided notice of these prior bad acts, they were clearly inadmissible under state law. This argument does not appear to have been
3.
Thompson argues that his trial counsel failed to object to the prosecution‘s mischaracterization of Dr. Radalat‘s testimony. The parties agree on the substance of Radalat‘s testimony: he initially described Hayslip‘s wound as survivable, attributing her death to inadequate medical intervention, but later conceded on cross examination that Hayslip would have died in the absence of intervention. In its argument, the prosecution told the jury that Radalat “finally admitted to you that [Hayslip‘s] wounds would be fatal if left untreated.” Thompson argues this statement mischaracterized Radalat‘s testimony, such that trial counsel‘s failure to object falls below the
4.
Thompson argues that his trial counsel failed to request the inclusion of lesser included offenses with respect to Hayslip in the jury charge, even though Thompson had presented evidence suggesting he had not intended to shoot Hayslip. According to Thompson, the limited set of lesser included offenses narrowed the jury‘s options in the event jurors were determined to convict Thompson in some way for Hayslip‘s death, leaving a capital murder conviction as their only option. His argument is premised on possibility that jurors would have found that Hayslip‘s shooting was an accident—but the state court found that there was no evidence that could have supported such a conclusion. Trial counsel‘s decision as to which lesser included offenses to include in instructions is tactical, and the choice reached here was within the bounds of counsel‘s discretion. Once again, Thompson offers ex post evaluation of how these strategic decisions could have been better, but this cannot carry his claim. The state habeas court concluded that trial counsel was not deficient in not
5.
Thompson argues that his trial counsel failed to object to the admission of the murder weapon even though it was discovered as a result of Investigator Johnson‘s unlawful jailhouse interrogation. This claim does not appear to have been raised before the state habeas court, and therefore is procedurally defaulted. But even had it not faced the procedural bar, it would fail. We have already rejected Thompson‘s arguments attributing the recovery of the weapon to the Johnson meeting. Since that attribution is without merit, as the district court held, counsel‘s decision not to object on that basis was sound. We agree jurists of reason could not debate this conclusion, and that this claim does not deserve encouragement to proceed further. We deny a COA on this claim.
E.
Fifth, Thompson seeks a COA arguing the Texas capital murder scheme under which he was sentenced violates his rights under the Fifth, Sixth, and Fourteenth Amendments. In the punishment phase, the State has the burden to prove beyond a reasonable doubt that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”75 If the jury finds future dangerousness, the jury must then consider whether there are sufficient mitigating circumstances to
Thompson‘s challenge addresses the second question. He argues that the trial court‘s death sentence is impermissible where the jury does not find the absence of sufficient mitigating circumstances beyond a reasonable doubt. The state habeas court denied relief, finding that the Court of Criminal Appeals had already rejected the same argument. The district court did not find this conclusion unreasonable, agreeing that settled precedent foreclosed relief on the claim.
We agree jurists of reason could not debate the district court‘s conclusion, and that this claim does not deserve encouragement to proceed further. We have addressed similar constitutional challenges, concluding that they “ignore[] the distinction . . . between facts in aggravation of punishment and facts in mitigation.”78 As we have stated, “not asking the jury to find an absence of mitigating circumstances beyond a reasonable doubt is perfectly consistent with Ring and Apprendi because a finding of mitigating circumstances reduces a sentence from death, rather than increasing it to death.”79 Thompson concedes that this court has already answered the question, but argues that the situation has changed in light of the Supreme Court‘s 2016 decision in
F.
Sixth, Thompson seeks a COA arguing the trial court‘s denial of his motion for a continuance before the start of the retrial on punishment violated his right to due process. The state habeas court found no error in the denials of Thompson‘s motions for continuance in connection with his retrial on punishment. It also rejected Thompson‘s premise that he was prejudiced by the lack of preparation time, and that his trial counsel failed to develop an adequate mitigation case as a result. The district court observed 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.” Additionally, it agreed that Thompson had not shown that the denials of continuance resulted
On remand for a retrial on punishment, the state trial court appointed Thompson‘s previous trial counsel, Ellis McCullough, as first chair, and in January 2005 appointed Terrence Gaiser second chair. In June, Thompson moved pro se to remove McCullough as appointed counsel; the trial court granted this motion on September 15, 2005. In that interval, Gaiser was active in Thompson‘s representation, including development of a mitigation case for the upcoming retrial on punishment. That retrial commenced on October 24, 2005. Thompson argues that Gaiser required more time to prepare because of the transition; he argues Gaiser discovered new information—new evidence pertaining to Thompson‘s treatments, closed head injuries, and documentation of substance abuse. Also, Gaiser had newly discovered a potential Brady violation in the State‘s plans to call Rhodes to testify. Without a continuance, he argues, Gaiser was unable adequately to prepare for the retrial in light of time lost after Hurricane Katrina.
Gaiser represented Thompson for almost ten months before the retrial, during which time he investigated and developed a mitigation case for his client. Thompson provides only conclusory assertions—no specific examples—in response to the state habeas court‘s question regarding specific evidence that went unpresented or specific instances in which Gaiser was in fact unprepared during the retrial. While Thompson is correct that denial of a continuance can violate a defendant‘s constitutional rights, the district court found the state habeas court was not unreasonable to conclude there was no violation in Thompson‘s case. We agree jurists of reason could not debate the
III.
We GRANT a COA as to whether Thompson has established a Brady violation in the State‘s non-disclosure of a past relationship with Rhodes, sufficient to overcome the procedural default of Thompson‘s second claim; and, if so, whether Thompson is entitled to habeas relief on the grounds of the Brady violation or a Massiah violation in the introduction of Rhodes‘s testimony during the retrial on punishment. We otherwise DENY Thompson‘s application for COAs on all other claims and AFFIRM the district court‘s denial of an evidentiary hearing.
PATRICK E. HIGGINBOTHAM
UNITED STATES CIRCUIT JUDGE