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Thomas v. Kelley

United States District Court, W.D. Arkansas, Hot Springs Division

March 31, 2017

MICKEY THOMAS, JR. PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.

         Mickey Thomas, Jr. is an inmate in the Arkansas Department of Correction under a death sentence for the 2004 murders of Donna Cary and Mona Shelton. Thomas has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I. Procedural History

         On September 28, 2005, following a jury trial in Pike County, Arkansas, Thomas was convicted of the murders of Donna Cary and Mona Shelton and was sentenced to death. Thomas appealed his convictions to the Arkansas Supreme Court, setting forth the following grounds for reversal on appeal:

1. That the trial court erred by transferring the trial to a county with a substantially smaller population of persons of Thomas's race;
2. That the trial court erred in failing to grant Thomas's motion to expand the jury pool;
3. That the Arkansas death-penalty sentencing scheme is unconstitutional because it fails to guide the jury in the exercise of its discretion during sentencing, or, alternatively, the statutory scheme, as applied in Thomas's case, violated his rights under the Eighth and Fourteenth Amendments;
4. That the trial court erred by failing to grant Thomas's motions to prohibit victim-impact evidence;
5. That the trial court abused its discretion in refusing to grant Thomas's requests for a continuance;
6. That the trial court erred by giving a jury instruction which imposed a non-statutory burden on Thomas to prove that mitigating circumstances “probably exist.”

         In a published opinion, Thomas v. State, 257 S.W.3d 92 (Ark. 2007), the Arkansas Supreme Court affirmed the convictions. Thomas petitioned the Supreme Court of the United States for a writ of certiorari, which was denied in Thomas v. Arkansas, 552 U.S. 1025 (2007).

         Following denial of certiorari, attorney Jeff Harrelson was appointed to represent Thomas in state post-conviction proceedings. Thomas filed a petition for post-conviction relief, pursuant to Arkansas Rule of Criminal Procedure 37.5, in the Circuit Court of Sevier County, Arkansas. After an evidentiary hearing, the circuit court denied relief on the Rule 37.5 petition.

         Thomas appealed to the Supreme Court of Arkansas arguing that the circuit court's order denying relief should be reversed for the following reasons:

1. Because he was denied the effective assistance of counsel when his trial counsel failed to object to the trial court's change of venue to Pike County, which has a substantially smaller population of African Americans; and
2. Because he was denied the effective assistance of counsel when his trial counsel failed to introduce the testimony of Lt. Alex Mathis at trial, or at least offer his transcribed testimony from a pre-trial hearing to rebut an inference that Thomas may have contemplated raping or sexually assaulting the victims because he possessed a condom and twine when he was arrested.

         The Supreme Court of Arkansas denied relief, rejecting Thomas's arguments. See Thomas v. State, 431 S.W.3d 923 (Ark. 2014).

         Thomas then filed a petition for writ of habeas corpus relief pursuant to 28 U.S.C. § 2254 in this Court, and ultimately amended that petition on April 29, 2014. (Petition, Doc. 2; Amended Petition, Doc. 9). Following an expansion of the record with respect to Thomas's ineffective assistance of counsel claims (Order, Doc. 35) and an initial Case Management Hearing, the Court determined that an evidentiary hearing was appropriate under Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013) with respect to the claims set forth in Appendix A. (Orders, Doc. 39, 40). An evidentiary hearing was held the week of January 30, 2017. The instant order is in response to Thomas's amended petition, the Respondent's answer to the amended petition, the parties' subsequent pleadings, and the evidence presented in the evidentiary hearing.

         For the reasons set forth below, the Court GRANTS IN PART the Amended Petition with respect to Issue 10-1, and DENIES IN PART the Amended Petition with respect to all other claims.

         II. Facts

         In adjudicating Thomas's direct appeal, the Supreme Court of Arkansas set forth a summary of the presented evidence. Pursuant to 28 U.S.C. § 2254(e)(1), ''a determination of a factual issue made by a State court shall be presumed to be correct.'' Although this presumption may be rebutted by Thomas, the Court finds that Thomas has not done so. Thus, as determined by the Supreme Court of Arkansas, certain facts are as follows:

On June 14, 2005, DeQueen Police found the bodies of two women at Cornerstone Monument Company after receiving a call about a possible break in. Mona Shelton, the owner of the company, had been beaten and shot once in the head. Donna Cary, a customer, had been shot once in the head at close range. Police received a report of a black male with a white bag walking away from the front of Cornerstone Monument Company and getting into a pewter or copper-colored Ford Mustang with an Oklahoma license plate. Police broadcast this description to area law enforcement officers, and at 11:27 a.m., Trooper Jamie Gravier of the Arkansas State Police spotted the Mustang traveling west near the Oklahoma-Arkansas border. Gravier attempted to stop the vehicle, and a high-speed chase ensued into Broken Bow, Oklahoma.
Oklahoma police ultimately located the vehicle parked behind the Broken Bow residence of Hazel Thomas, [Thomas's] mother, but the driver had already left the area. That same afternoon, police received a report that a black male with a gun had just stolen a Broken Bow resident's Mercury Cougar. The Oklahoma authorities spotted the vehicle, and they were able to apprehend [Thomas].
[Thomas] waived extradition to Arkansas and was charged in Sevier County with two counts of capital murder in the deaths of Mona Shelton and Donna Cary. The case was transferred to Pike County where [Thomas] was convicted of two counts of capital murder and was given a sentence of death for each count.
. . . .
[T]hree aggravating circumstances were presented by the State: (1) that [Thomas] previously committed another felony, an element of which was the use or threat of violence to another person or created a substantial risk of death or serious physical injury to another person; (2) that in the commission of the capital murder, [Thomas] knowingly caused the death of Mona Shelton and Donna Cary in the same criminal episode; and (3) that the capital murder was committed for pecuniary gain. [Thomas] provided evidence of thirty-two separate mitigators, twenty-five of which one or more members of the jury found to exist.

Thomas v. State, 257 S.W.3d 92, 95-96, 100 (Ark. 2007). Additional particular facts will be referenced herein as they relate to the individual grounds for relief raised by Thomas.

         III. Standard of Review

         A. Exhaustion

         As a matter of comity, before a federal court can grant habeas relief, it must first determine that the petitioner has exhausted all of his state court remedies. According to Coleman v. Thompson, 501 U.S. 722, 731 (1991), ''in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.'' ''[A] claim has not been fairly presented to the state courts unless the same factual grounds and legal theories asserted in the prisoner's federal habeas petition have been properly raised in the prisoner's state court proceedings.'' Krimmel v. Hopkins, 56 F.3d 873, 876 (8th Cir. 1995).

         Finally, where it is more efficient to do so, ''[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.'' 28 U.S.C. § 2254(b)(2). See also Russell v. State of Mo., 511 F.2d 861, 863 (8th Cir. 1975).

         B. Procedural Bar

         In addition to the requirement of exhaustion, a federal habeas court must also examine the state court's resolution of the presented claim. ''It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that >is independent of the federal question and adequate to support the judgment.'''Cone v. Bell, 556 U.S. 449, 465 (2009)(quoting Coleman). ''The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.'' Coleman, 501 U.S. at 729-30. A “habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of the opportunity to address those claims in the first instance.” Id. At 732.

         A claim can be lost to procedural default at any level of state court review: at trial, on direct appeal, or in the course of state post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2001); see also Noel v. Norris, 194 F.Supp.2d 893, 903 (E.D. Ark. 2002).

         Once a claim is defaulted, the habeas court can only consider the claim if the petitioner can show cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice. Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992). ''[T]he cause standard requires the petitioner to show that some objective factor external to the defense impeded counsel's efforts to raise the claim in state court.'' McCleskey v. Zant, 499 U.S. 467, 493 (1991)(internal quotations and citations omitted). Examples of cause include constitutionally ineffective assistance of counsel, an unavailable factual or legal basis for a claim, or interference by state officials that made complying with the exhaustion requirements impracticable. Murray v. Carrier, 477 U.S. 478, 488-89 (1986). The petitioner must also show that the errors not only created possible prejudice, '''but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.''' 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170(1982). A habeas court may bypass complex procedural issues if it is more efficient: ''judicial economy sometimes dictates reaching the merits if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated.'' Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999). See also Trussell v. Bowersox, 447 F.3d 588, 590-91 (8th Cir. 2006).

         C. Merits

         Finally, when the merits of a claim presented in a habeas action have been addressed in state court proceedings, the habeas court cannot grant habeas corpus relief upon the claim unless it determines that the state court proceedings resulted in a decision (1) ''that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States'' (2) ''that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'' 28 U.S.C. § 2254(d).

         To find that a decision is contrary to clearly established federal law, a habeas court must find that the state court decision directly contradicts Supreme Court precedent or if, when faced with ''materially indistinguishable'' facts, the state court reached a decision that was opposite to the result reached by the Supreme Court. Kinder v. Bowersox, 272 F.3d 532, 537-38 (8th Cir. 2001). With respect to the reasonableness requirement, the petitioner must show that the state court decision is ''objectively unreasonable.'' Williams v. Taylor, 529 U.S. 362, 409 (2000)(O'Connor, J., concurring in part). Although a state court's application of federal law might be mistaken in this Court's independent judgment, that does not mean that it is objectively unreasonable. Id. at 411-13. Relief is warranted only ''where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents.'' Harrington v. Richter, 562 U.S. 86, 102 (2011).

         IV. Claims

         Before the Court is Thomas's amended petition (Amended Petition, Doc. 9), and the various responses and replies thereto. As the Court previously ordered, some of Thomas's claims required further development.[1] In this section, however, the Court will address the claims which this Court can resolve on the pleadings.

         A. Claims for Relief Presented to the State Courts

         Thomas failed to present the majority of his current claims to the state courts. However, the claims that were effectively presented to the state courts will be addressed in this section.

         1. Issue 1-6: Failure to Introduce the Testimony of Lt. Alex Mathis at Trial.[2]

         Thomas claims he was denied effective assistance of counsel when his trial counsel unreasonably and prejudicially failed to introduce the testimony of Lt. Alex Mathis at trial or to at least offer his transcribed testimony from a pre-trial hearing to rebut any possible inference that Mickey Thomas attempted to rape or sexually assault the decedents because a condom and twine were found on his person upon his arrest.

         Thomas claims that the testimony of Lt. Alex Mathis could have rebutted any inference that Thomas sexually assaulted or attempted to sexually assault the decedents. Although the State argues that this Court must deny relief under ' 2254(d) because the Arkansas Supreme Court reasonably determined that trial counsels' failure to present the testimony of Lt. Mathis was a matter of trial strategy, Thomas asserts that ' 2254(d) does not bar relief because the Arkansas Supreme Court's decision was based on an unreasonable determination of the facts. Specifically, Thomas argues that according to the trial record, trial counsel discussed specific topics he originally intended to question Lt. Mathis about. Thomas argues this proves that trial counsel's failure to call Mathis to testify was not a strategic decision.

         As set forth above, when the merits of a claim presented in a habeas action have been addressed in state court proceedings, the habeas court cannot grant relief upon the claim unless it determines that the state court proceedings resulted in a decision (1) ''that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States'' or (2) ''that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'' 28 U.S.C. § 2254(d).

         On appeal from the state post-conviction proceedings, the Arkansas Supreme Court accurately set forth the standard of review for claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984) and, with respect to the claim, stated:

[i]n reviewing an assertion of ineffective assistance of counsel concerning the failure to call a certain witness, [the] court's objective is to determine whether the failure resulted in actual prejudice that denied the petitioner a fair trial. The decision whether to call or not to call a particular witness is largely a matter of professional judgment. The fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Accordingly, in order to demonstrate prejudice, Thomas must establish that there was a reasonable probability that, had counsel presented the witness, the outcome of the trial would have been different.

Thomas v. State, 431 S.W.3d 923, 929-30 (Ark. 2014)(citations omitted). The Arkansas court found that the record of Thomas's Rule 37.5 hearing demonstrates that his counsel made a strategic decision not to call Mathis because he did not want to draw attention to the evidence. The Arkansas court also found that Thomas failed to demonstrate that he was prejudiced by his counsel's decision not to call Mathis to testify.

         Thomas argues that Thomas's counsel's requests for Mathis's testimony in a pretrial conference, including counsel's asserted reasons for Mathis's testimony, and counsel's motion seeking to have Mathis's prior testimony introduced during trial, are more contemporaneous proof of trial strategy and A[b]y ignoring [such evidence], the Arkansas Supreme Court unreasonably determined the facts." (Doc. 29, p. 52).

         However, this Court does not find the Arkansas Supreme Court's decision ''was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." While the facts pointed to by Thomas are additional evidence of trial strategy, trial counsel specifically testified to their trial strategy in the Rule 37.5 hearing.

         Finally, even if the Court were to find the Constitutional error in this regard, relief would not be warranted. See Fry v. Pliler, 551 U.S. 112, 121-122 (2007) (In § 2254 proceedings, a court must assess the prejudicial impact of any constitutional error). Under Brecht v. Abrahamson, 507 U.S. 619 (1993), “the standard for determining whether habeas relief must be granted is whether the . . . error ‘had substantial and injurious effect or influence in determining the jury's verdict.”' Brecht, 507 U.S. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). According to the Eighth Circuit in Christenson v. Ault, “[a] ‘substantial and injurious effect' occurs when a court finds itself in ‘grave doubt' about the effect of the error on the jury's verdict.” 598 F.3d 990, 994 (2010). Further, “‘grave doubt' exists when the issue of harmlessness is ‘so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.'” Id. (citing Chang v. Minnesota, 521 F.3d 828, 832 (8th Cir. 2008)). A review of the testimony leads the Court to determine that the failure to include the potential testimony of Lt. Alex Mathis did not negatively affect the jury's verdict.

         The Court finds that Issue 1-6 of Thomas's petition should be dismissed.

         2. Point 2-1-1: The Trial Court Violated Mr. Thomas's Fair Cross-Section Rights by Transferring Mr. Thomas's Trial to a County With a Substantially Smaller Population of Persons of Mr. Thomas's Race.[3]

         In Point 2-1-1, Thomas contends that the trial court erred when it transferred Mr. Thomas's trial to a county with a substantially smaller population of persons of Mr. Thomas's race. At trial, Thomas's counsel moved for a change in venue. The trial court granted Thomas's motion, transferring the case from Sevier County to Pike County. Although trial counsel noted the make-up of the counties during the change of venue arguments, trial counsel failed to raise any of the constitutional arguments currently being raised on objection to the trial court. The Arkansas Supreme Court, therefore, found that Thomas failed to make a sufficient record that would preserve such an argument on appeal that the trial court erred in transferring the case to Pike County; and, further found that review on appeal was precluded under the contemporaneous objection rule. Thomas v. State, 257 S.W.3d 92, 96-97 (Ark. 2007). See also Wicks v. State, 606 S.W.2d 366 (Ark. 1980).

         Accordingly, the Court finds that Point 2-1-1 is procedurally defaulted. Any argument Thomas may have to excuse the procedural default of Point 2-1-1 will be discussed below.

         3. Point 2-1-2: The Trial Court Erred by Refusing to Supplement the Jury Pool.[4]

         In Point 2-1-2, Thomas asserts that the trial court erred by refusing to supplement the jury pool in violation of his Sixth and Fourteenth Amendment Constitutional rights. Specifically Thomas states that the trial judge used a ''narrow jury pool drawn from voter registration rolls . . . [and] refused to use a statutorily authorized expanded jury pool that included other citizens drawn from the list of licensed drivers and persons issued a state identification card.'' As a result, Thomas argues, ''African Americans and the poor were woefully underrepresented in Mr. Thomas's jury venire.''

         The Respondent argues that this claim was adjudicated on the merits by the Arkansas Supreme Court with the court finding that Thomas failed to make the prima facie showing required by Duren v. Missouri, 439 U.S. 357 (1979) and rejecting his claim that the trial court erred by refusing to supplement the jury pool. See Thomas, 257 S.W.3d at 97-99. Further, the Respondent argues that Thomas has not demonstrated the Arkansas Supreme Court's decision to be contrary to, or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence presented in the trial court.

         As set forth by the Arkansas Supreme Court, Arkansas Code Annotated ' 16-32-301 allowed for jury pool expansion:

(a) The pool of names from which prospective jurors are chosen may be expanded from the list of registered voters to include the list of licensed drivers and persons issued an identification card under ' 27-16-805.

         Further, Arkansas Code ' 16-32-303 allowed the administrative circuit judge for each county to determine whether to use the list of registered voters or the enhanced list:

(a) The administrative circuit judge for each county shall determine that either the list of registered voters or the enhanced list, but not both, shall be utilized in the selection of all prospective jurors for all circuit court divisions within the county, based upon a consideration of whether the use of registered voters creates a sufficient pool for the selection of jurors to offer an adequate cross section of the community.

         The Arkansas Supreme Court noted that pursuant to a memo dated September 14, 2004 Circuit Judges Charles Yeargan and Ted Capeheart ''stated that they did not feel it was in the best interest of the Ninth West Judicial District to change to motor vehicle registration.'' Thomas, 257 S.W.3d at 98.

         The Arkansas Supreme Court correctly set forth the standard with respect to a claim that an individual's right to a jury chosen from a fair cross section of his community has been violated:

[i]n order to establish a prima facie case of deliberate or systemic exclusion, a defendant must prove that: (1) the group alleged to be excluded is a 'distinctive' group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systemic exclusion of the group in the jury-selection process.

Thomas v. State, 257 S.W.3d 92, 98 (Ark. 2007)(citing Lee v. State, 942 S.W.2d 231 (Ark. 1997); Duren v. Missouri, 439 U.S. 357 (1979)). The state court went on to find that Thomas had failed to prove ''systemic exclusion of black people from the jury-selection process.''

         Although Thomas argues that the state court held that one can never establish a fair cross-section violation when the jury venire is randomly selected, the Arkansas Supreme Court instead held ''when the jury venire is drawn by random selection, the mere showing that it is not representative of the racial composition of the population will not make a prima facie showing of racial discrimination." Thomas, 257 S.W.3d at 77-78. Further, as set forth in Berghuis v. Smith, 559 U.S. 314, 329 (2010) ''neither Duren nor any other decision of this Court specifies the method or test courts must use to measure the representation of distinctive groups in jury pools." The Court finds that the Arkansas Supreme Court's decision on this issue is neither contrary to nor an unreasonable application of established federal law.

         The Court dismisses Point 2-1-2 of Thomas's petition.

         4. Claim 12: The Trial Court Unfairly Denied Mr. Thomas an Adequate Opportunity To Prepare for Trial.[5]

         In Claim 12, Thomas argues that the trial court's denial of a continuance violated his federal constitutional rights to counsel and the effective assistance thereof, to due process, and to a fair and reliable determination of death eligibility and sentence selection, as guaranteed by the Sixth, Eighth and Fourteenth Amendment. Thomas further argues that the trial court unconstitutionally forced Thomas to trial despite his attorneys' repeated objections that they had not conducted an adequate investigation or completed preparation for his case.

         The Respondent asserts that Thomas has not demonstrated the Arkansas Supreme Court's decision to be contrary to, or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence presented in the trial court. The Respondent points to the reasons the Arkansas Supreme Court cited in finding that the denial of a continuance was not an abuse of discretion. Thomas, 257 S.W.3d at 101(citing Dirickson v. State, 953 S.W.2d 55 (Ark. 1997)).

         As set forth by the Arkansas Supreme Court, under Arkansas law, ''[a] trial court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.'' Thomas, 257 S.W.3d 92, 101 (Ark. 2007)(citing Ark. R. Crim. P. 27.3 (2006)).

         According to Ungar v. Sarafite, 376 U.S. 575 (1964), ''[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary to violate due process;'' instead, ''[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.'' Id. at 589. Further, ''a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.'' Id. at 590. The Supreme Court later emphasized in Morris v. Slappy, 461 U.S. 1 (1983), A[t]rial judges necessarily require a great deal of latitude in scheduling trials. 461 U.S. at 11. “Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise prepare for trial violates a defendant's Sixth Amendment right to counsel.'' Id.

         Noting the generality of the constitutional rule with respect to a continuance request, the Eighth Circuit in Middleton v. Roper, 498 F.3d 812, (8th Cir. 2007) noted A[i]n applying the deferential standard of AEDPA, '[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.''' Id. at 817 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         The Arkansas Supreme Court noted that the trial court denied Thomas's requests for a continuance because the trial had been set prior to one of counsel's other trial settings; because the trial court believed an unavailable witness would be at trial; and because the court did not believe requested DNA evidence would be exculpatory. Considering the reasons for the trial court's denial, and Thomas's failure to show that he was prejudiced in any way by the denial of the continuances, the Arkansas Supreme Court found no abuse of discretion by the trial court.

         Although Thomas argues that the Arkansas Supreme Court's finding is contrary to or an unreasonable application to established federal law, this Court disagrees. The Arkansas Supreme Court reviewed the totality of the circumstances surrounding the requests for continuances and found justifiable reasons for the denial.

         The Court finds that the holding was neither contrary to nor an unreasonable application of established federal law and therefore ...


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