Arthur v. Thomas

Citation739 F.3d 611
Decision Date06 January 2014
Docket NumberNo. 12–13952.,12–13952.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
PartiesThomas D. ARTHUR, Petitioner–Appellant, v. Kim Tobias THOMAS, Interim Commissioner, Alabama Department of Corrections, in his official capacity, Respondent–Appellee.

OPINION TEXT STARTS HERE

Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 2:01–cv–00983–LSC.

Before HULL, MARCUS, and WILSON, Circuit Judges.

HULL, Circuit Judge:

Death row inmate Thomas Arthur appeals the denial of his Federal Rule of Civil Procedure 60(b)(6) Motion for Relief from Judgment. Arthur asserts that the Supreme Court's issuance of its decision in Martinez v. Ryan, 566 U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), constitutes an extraordinary circumstance under Rule 60(b)(6) sufficient to justify the reopening of the final judgment in his prior 28 U.S.C. § 2254 habeas petition. After reviewing the record and considering the arguments presented in the briefs, and with the benefit of oral argument, we affirm.

I. BACKGROUND 1

Most of this opinion recounts the 30–year history of Arthur's conviction for the murder of Troy Wicker, which involved three jury trials, three direct appeals, multiple state and federal post-conviction proceedings, and several lawsuits. This procedural background, though lengthy, helps demonstrate (1) why we must affirm the district court's denial of Arthur's Rule 60(b)(6) motion because Martinez involves only the procedural default doctrine as to an ineffective-trial-counsel claim in initial-review state collateral proceedings and does not apply to Arthur's § 2254 petition that was barred by AEDPA's statute of limitations 2 and (2) in any event, why Arthur has not shown an extraordinary circumstance necessary to proceed under Rule 60(b)(6).

A. West Murder Conviction (1977)

Before the 1982 brutal murder of Troy Wicker at issue here, Arthur was convicted in 1977 for the equally brutal murder of Eloise Bray West, the sister of Arthur's common-law wife. See Ex parte Arthur, 472 So.2d 665, 669 (Ala.1985). Arthur killed West at a commercial office during business hours. When West failed to reveal the location of Arthur's wife, Arthur drew two guns, aimed one at West's head, and said, [T]ell me where my wife is, or I'm going to blow your head off.” As West picked up the telephone, Arthur fired both guns. One bullet went into the floor in front of West's desk, one bullet hit a witness in his side, and one bullet struck West in the right eye, killing her nearly instantly.

After a jury trial in 1977, Arthur was convicted of second-degree murder and sentenced to life imprisonment.

B. Wicker Murder (1982)

While serving his life sentence for the West murder, Arthur joined a work release program. While on work release, Arthur had an affair with Judy Wicker. In 1982, Judy Wicker offered Arthur $10,000 in exchange for killing her husband, Troy Wicker. Arthur accepted the offer.

The day before he murdered Wicker, Arthur asked an acquaintance, Patricia Green, for ammunition. Green obliged. Arthur told Green that the bullets would be used to kill someone.

On the night of Troy Wicker's murder, Arthur wore an “afro” wig and dark face makeup to disguise himself as a black man. He then entered Troy Wicker's bedroom while he slept and murdered Wicker by shooting him in the right eye at close range with a pistol. Troy Wicker died almost instantly.

When officers arrived at the Wicker residence, they found Troy Wicker murdered in his bed; his wife, Judy Wicker, lying on the floor with traces of blood on her face; and Judy Wicker's sister kneeling beside her. Judy Wicker told investigators that, when she returned home after dropping her children off at school, she found a black man in her home. She said that the intruder raped her, knocked her unconscious, and shot her husband.

After discovering discrepancies in Arthur's work release time and payment logs, an investigation into Arthur's work-release activities began. During a search, $2,000 in cash was found in Arthur's personal belongings. Thereafter, authorities questioned Arthur and, subsequently, arrested him for Troy Wicker's murder. Judy Wicker had collected $90,000 in life insurance proceeds due to Troy Wicker's death and paid Arthur from this sum.

Judy Wicker testified for the prosecution at Arthur's trial. Her testimony recounted the facts described above. Other evidence showed that Arthur had the opportunity and means to kill Troy Wicker. And, evidence—including Arthur's possession of a large amount of cash after the murder—substantiated Judy Wicker's testimony that she hired Arthur to kill her husband. Other evidence also substantiated Judy Wicker's testimony, including her actions on the day of the murder, Arthur's “afro” wig and dark makeup disguise, and Arthur's efforts to dispose of the murder weapon. Expert witnesses testified that the cartridge casings and bullets at the murder scene were consistent with the type of ammunition that Green obtained for Arthur the day before Arthur murdered Troy Wicker.

C. First Wicker Murder Conviction (19821985)

In three separate state jury trials, Arthur was convicted and sentenced to death for the capital murder of Troy Wicker.

In 1985, the Supreme Court of Alabama reversed Arthur's first murder conviction and death sentence. Ex parte Arthur, 472 So.2d at 669 (holding that details of Arthur's 1977 murder of West were improperly admitted for identification purposes).

D. Second Wicker Murder Conviction (19851991)

In 1990, the Alabama Court of Criminal Appeals reversed Arthur's second murder conviction and death sentence. Arthur v. State, 575 So.2d 1165 (Ala.Crim.App.1990) (holding that the trial court improperly admitted a statement that Arthur made to a police officer in the absence of counsel).

E. Third Wicker Murder Conviction (1991)

On June 6, 1991—after the reversal of Arthur's second conviction and sentence—the trial court appointed Harold Walden and William Del Grosso as counsel for Arthur's third trial. The trial court scheduled Arthur's third trial for December 1991.

Immediately before his third trial, Arthur advised the trial court that he was concerned about his appointed counsel, Del Grosso. Although Walden and Del Grosso visited Arthur several times at the prison, Arthur claimed that they had not responded to his many letters and phone calls.

After two complete trials and successful appeals and because of his concerns regarding Del Grosso, Arthur requested leave to participate as co-counsel during his third trial. The trial court permitted Arthur to act as “co-counsel with his appointed attorney, Harold Walden, and appointed Joseph Walden as additional co-counsel. The trial court assigned Del Grosso to serve as “stand-by counsel.”

During his third trial, Arthur—in consultation with his court-appointed co-counsel Harold Walden and Joseph Walden—actively conducted much of the voir dire, examinations, and arguments. Arthur cross-examined all of the prosecution witnesses and presented four defense witnesses. Arthur did not testify. Arthur's appointed counsel also actively participated in examining witnesses, delivering opening and closing statements, and making objections.

In December 1991, for a third time, Arthur was convicted for Troy Wicker's murder.

F. Third Death Sentence (19911992)

During the sentencing phase of Arthur's third trial, Arthur asked the trial court to allow him to personally argue for a capital sentence. Arthur gave multiple reasons for why he wanted to request a capital sentence. Arthur believed that, with a capital sentence, he would receive better prison accommodations, more access to the law library, more time to devote to his appeal, a more extensive appeals process, and—based on his prior experience with the capital appellate process—an increased chance for a third reversal. Arthur also believed that, if he received a capital sentence, the sentence would not actually be carried out.

The state trial court cautioned Arthur against this course of action but, ultimately, allowed Arthur to proceed. However, the trial court refused to exclude mitigating evidence from the sentencing phase of Arthur's trial. To that end, the trial court allowed Arthur's court-appointed counsel to argue against a capital sentence. Arthur's counsel argued for mitigation based on (1) Arthur's good conduct while in prison, (2) Arthur's participation in a program to deter crimes by speaking at high schools, and (3) the disproportionate punishment Arthur faced as compared to the other persons involved in Wicker's murder.

After his counsel argued against a capital sentence, Arthur personally addressed the jury and asked that he be sentenced to death. Arthur clarified that he did not have a “death wish” and did not believe that he would be executed. In support of his request for a death sentence, Arthur explained that his two prior murder convictions and death sentences for Wicker's murder were reversed on appeal. Arthur claimed that a death sentence would give him more time to spend with his children during their prison visits, provide him with a more private cell, and afford him more control over his appeal.

The jury returned an advisory verdict of death. The trial court found that the aggravating factor (i.e., Arthur's 1977 conviction for West's murder) outweighed the mitigating factor (i.e., the culpability of Arthur's un-prosecuted accomplices in Wicker's murder).

On January 24, 1992, the trial court sentenced Arthur to death. Arthur's trial counsel orally noticed Arthur's appeal.

G. Post–Trial Motions (1992)

Although Arthur initially filed an oral pro se motion for a new trial raising ineffective-trial-counsel claims, Arthur and his new appellate counsel ultimately decided not to pursue those claims and proceeded to direct appeal. 3 Arthur's trial counsel, Harold Walden, also timely filed a motion for a new trial.4

At Arthur's request, Arthur's court-appointed trial counsel Harold Walden and ...

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