Solly M. THOMPKINS, Petitioner-Appellant, v. David R. McKUNE, Warden, Lansing Correctional Facility; Attorney General of Kansas, Respondents-Appellees.
No. 11-3022
United States Court of Appeals, Tenth Circuit
Aug. 12, 2011
433 Fed. Appx. 652
A state court jury convicted Mr. Law of first degree murder and unauthorized use of a vehicle. He was sentenced to life in prison with the possibility of parole for the murder and a consecutive seven years’ imprisonment for the vehicle conviction. It is uncontested that the one-year statute of limitations for filing a petition for federal habeas relief expired on November 13, 2007. See
The district court dismissed Mr. Law‘s
Mr. Law argues to this court that he should qualify for equitable tolling because (1) he pursued his rights diligently and (2) extraordinary circumstances beyond his control prevented his timely filing. See Young v. Davis, 554 F.3d 1254, 1258 (10th Cir.2009) (“In the federal habeas context ... the statute of limitations may be tolled for extraordinary circumstances, but tolling is only appropriate when an inmate diligently pursues his claim.“).
We agree with the district court‘s well-reasoned opinion that although Mr. Law did encounter extraordinary circumstances due to his attorney‘s misconduct, Mr. Law was not sufficiently diligent in pursuing his claim to merit equitable tolling. See Law, 2011 WL 846872, at *4-5. He discovered that his attorney had lied about filing a petition in early 2008, and yet Mr. Law did not file one himself until nearly two years later. Id. at *5. Mr. Law complains of obstacles to using the prison law library and obtaining a portion of relevant transcripts. But these obstacles were not sufficiently immediate and prolonged to justify the extent of Mr. Law‘s delay. See id. Thus, Mr. Law is not entitled to equitable tolling.
Mr. Law has not shown that “reasonable jurists would debate the correctness of the district court‘s procedural ruling,” which he must do for a COA. Lopez v. Trani, 628 F.3d 1228, 1231 (10th Cir.2010). We therefore DENY the application for a COA and DISMISS this appeal.
Solly M. Thompkins, Lansing, KS, pro se.
Kristafer R. Ailslieger, Office of the Attorney General for the State of Kansas, Topeka, KS, for Respondents-Appellees.
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
JEROME A. HOLMES, Circuit Judge.
Solly M. Thompkins, a Kansas state
BACKGROUND
Kansas charged Mr. Thompkins with “first-degree murder under alternate theories of premeditation and felony murder, aggravated robbery ..., assault and battery ..., burglary ..., and two misdemeanors” in connection with the murder of his wife. State v. Thompkins (Thompkins I), 263 Kan. 602, 952 P.2d 1332, 1337 (1998). At the conclusion of Mr. Thompkins‘s preliminary examination, the state district judge found no evidence of premeditation and therefore dismissed the premeditated-murder charge, but bound Mr. Thompkins over for trial on the other felony charges and immediately arraigned him.
“Rather than appeal the dismissal of the premeditated first-degree murder charge, ... the State filed an amended information charging premeditated murder or in the alternative felony murder, aggravated robbery, and burglary ... [and] moved to proceed under the amended information.” State v. Thompkins (Thompkins II), 271 Kan. 324, 21 P.3d 997, 1000 (2001). The state trial judge denied this motion, but said that he would instruct the jury on premeditated murder if sufficient evidence of premeditation were presented during trial. At trial, the judge instructed the jury on both premeditated and felony murder. The jury convicted Mr. Thompkins of premeditated murder and burglary, but acquitted him of aggravated robbery, which was the felony underlying the felony-murder charge.
On direct appeal, the Kansas Supreme Court reversed Mr. Thompkins‘s premeditated-murder conviction because his due process rights were violated when “the jury convicted him of an offense the judge conducting the preliminary examination had dismissed for insufficient evidence, and on which he had not been arraigned.” Id. at 1001. The Kansas Supreme Court remanded for further proceedings on the premeditated-murder charge.
On remand, after a preliminary examination, Mr. Thompkins was bound over for trial on the premeditated-murder charge, and a jury again convicted him of premeditated murder. Mr. Thompkins again filed a direct appeal, arguing, inter alia, that his reprosecution for premeditated murder violated the Double Jeopardy Clause. The Kansas Supreme Court affirmed his conviction, holding that the Double Jeopardy Clause was not violated.
Mr. Thompkins thereafter sought post-conviction relief pursuant to
Mr. Thompkins then filed a petition for a writ of habeas corpus pursuant to
Mr. Thompkins now seeks a COA from this court so that he can appeal the district court‘s denial of his § 2254 petition. He advances two arguments under the Constitution‘s Double Jeopardy Clause. First, he argues that his prosecution for premeditated murder after that charge was dismissed at his preliminary examination contravenes his double-jeopardy protections. Second, he contends that these protections were abridged when he was reprosecuted for premeditated murder after he supposedly was impliedly acquitted of felony murder. Mr. Thompkins also argues that his lawyer was constitutionally ineffective in two ways: first, his lawyer presented a guilt-based defense, and second, he performed his work while burdened with a mental disability—i.e., depression.
DISCUSSION
I. Standard of Review
A COA is a jurisdictional prerequisite to this court‘s review of a habeas corpus petition. See
In determining whether to grant a COA, we need not engage in a “full consideration of the factual or legal bases adduced in support of the claims,” Miller-El, 537 U.S. at 336; instead, we undertake “a preliminary, though not definitive, consideration of the [legal] framework” applicable to each claim, id. at 338. Although an applicant need not demonstrate that his appeal will succeed, he “must prove something more than the absence of frivolity or the existence of mere good faith” to obtain a COA. Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983), superseded on other grounds by statute,
Mr. Thompkins argues that his prosecution for premeditated murder after that charge was dismissed at his preliminary examination violates the Double Jeopardy Clause. See Aplt.‘s Combined Opening Br. & Appl. for COA at 7-12 [hereinafter Aplt. Br.]. We conclude that this claim is without merit and, consequently, that reasonable jurists could not debate the correctness of the district court‘s resolution of it.
“The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: ‘Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.‘” Monge v. California, 524 U.S. 721, 727-28 (1998) (quoting
A. Jeopardy Did Not Attach at the Preliminary Examination
“The protections afforded by the [Double Jeopardy] Clause are implicated only when the accused has actually been placed in jeopardy,” which occurs “when a jury is empaneled and sworn, or, in a bench trial, when the judge begins to receive evidence.” United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977). “[A]n accused must suffer jeopardy before he can suffer double jeopardy.” Serfass v. United States, 420 U.S. 377, 393 (1975). “Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.” Id. at 391-92. We conclude that jeopardy had not yet attached at the time of Mr. Thompkins‘s preliminary examination. Consequently, his double-jeopardy argument predicated on the dismissal of the premeditated-murder charge at that examination must fail.3
In Kansas, the purpose of a preliminary examination is to “determin[e] ... whether a crime has been committed and whether there is a probability that the defendant committed the crime,” Mortimer v. Evans, 192 Kan. 164, 386 P.2d 261, 263 (1963), and “not to determine the guilt or innocence of the accused,” State v. Boone, 218 Kan. 482, 543 P.2d 945, 949 (1975), superseded on other grounds by statute,
Accordingly, the dismissal of the premeditated-murder charge against Mr. Thompkins at his original preliminary hearing cannot provide support for his Double Jeopardy claim.
B. Reversal of Conviction Due to Procedural Defect
Nor does the fact that Mr. Thompkins was convicted of the dismissed premeditated-murder charge change this result, as his initial conviction was reversed because of a procedural defect.
“[T]he Double Jeopardy Clause‘s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside because of some error in the proceedings leading to conviction.” Lockhart v. Nelson, 488 U.S. 33, 38 (1988). Put differently, “[t]he successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, poses no bar to further prosecution on the same charge.” United States v. Scott, 437 U.S. 82, 90–91 (1978) (citation omitted). This is because a “reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case,” and “implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect....” Burks v. United States, 437 U.S. 1, 15 (1978).
Mr. Thompkins‘s initial premeditated-murder conviction was reversed by the Kansas Supreme Court because his conviction on this charge—a charge on which he had not been arraigned—violated his due process rights. See Thompkins I, 952 P.2d at 1344-47. This error is comparable to other procedural errors that have been held not to bar reprosecution after reversal. In Burks, for example, the United States Supreme Court identified “incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct” as examples of legal errors that do not bar retrial after a conviction is reversed. 437 U.S. at 15. It also has
The Kansas Supreme Court reversed Mr. Thompkins‘s initial premeditated-murder conviction because of an error in the judicial process. Its decision implies nothing about Mr. Thompkins‘s guilt or innocence. Accordingly, the Double Jeopardy Clause did not prohibit Mr. Thompkins‘s reprosecution for premeditated murder.
III. Guilt-Based Defense Strategy (Ineffective Assistance of Counsel)
Mr. Thompkins attacks the state court‘s factual determination that he consented to counsel‘s use of a guilt-based defense, and also challenges the reasonableness of counsel‘s strategic decision. Mr. Thompkins‘s factual challenge is unavailing under the deferential standard of review required by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), and his legal argument has been waived. Accordingly, we conclude that reasonable jurists could not debate the correctness of the district court‘s resolution of this claim.
On post-conviction review, the state trial court explained that Mr. Thompkins‘s “major complaint” was “that a ‘guilt based defense’ was presented against [his] wishes.” R., Vol. 1, at 130. The state trial court weighed Mr. Thompkins‘s testimony “that he did not authorize such a defense” against his trial counsel‘s testimony “that Thompkins was in agreement with proceeding in that fashion, and ... never expressed any disapproval of defending the case in this fashion.” Id. at 131. The court found “that trial counsel‘s testimony is more credible than that of Thompkins ... and that trial counsel informed Thompkins in advance of the trial strategy and that there was no objection to proceeding in that fashion.” Id. at 131-32. On appeal, the Kansas Court of Appeals explained that “Thompkins’ argument on appeal rests entirely upon a factual dispute resolved by the district court against Thompkins,” and upheld the state trial court‘s factual findings. Thompkins, 2009 WL 929100, at *4.
Under AEDPA, “[w]e presume the factual findings of the state courts to be correct, and petitioner bears the burden of rebutting this presumption by clear and convincing evidence.” Fairchild v. Workman, 579 F.3d 1134, 1139 (10th Cir.2009); accord
Mr. Thompkins also challenges the reasonableness of counsel‘s strategic decision to present a guilt-based defense. See id. at 17-19. However, Mr. Thompkins waived this argument by failing to assert it in his federal habeas petition. See Rule 2(c) of the Rules Governing Section 2254
IV. Implied Acquittal (Double Jeopardy) and Counsel‘s Depression (Ineffective Assistance of Counsel)
Mr. Thompkins also has waived his remaining two claims—specifically, (1) that his reprosecution for premeditated murder violated the Double Jeopardy Clause because he was impliedly acquitted of premeditated murder when the jury effectively acquitted him of felony murder (by acquitting him of the underlying felony); and (2) that counsel‘s depression caused him to render ineffective assistance—by failing to raise them in his habeas petition.6 See, e.g., Parker, 394 F.3d at 1327.
CONCLUSION
For the foregoing reasons, we DENY Mr. Thompkins‘s application for a COA and DISMISS his appeal. We GRANT Mr. Thompkins‘s motion to proceed in forma pauperis.
JEROME A. HOLMES
Circuit Judge
Notes
R., Vol. 1, at 9.Petitioner Was Denied His Right Against Double Jeopardy[.] The State Was Barred By Res Judicata To Re-Try Him On First Degree Murder.
. . . .
Petitioner‘s original conviction for First Degree Murder was reversed[.] The state relied upon the same evidence to re-try defendant and such violated the double jeopardy clause as the re-prosecution was barred under the doctrine of Res Judicata. The merits had been litigated.
R., Vol. 1, at 12.Petitioner‘s Sixth and Fourteenth Amendments Were Violated Because Of Counsel‘s Ineffectiveness and Inadequate Representation.
. . . .
Trial counsel‘s repres[e]ntation was ineffective. The representation by counsel was prejudicial to petitioner‘s right to receive a fair trial. Trial counsel without permission presented a guilt based defense. Trial Counsel failed to call and secure the testimony of certain witnesses vital to presenting a[n] adequate defense. Trial counsel failed to move for a mistrial and move for a new trial. Trial counsel committed cumulative errors of constitutional magnitude.