Thomas v. Fuchs
| Decision Date | 01 February 2022 |
| Docket Number | 21-CV-942-SCD |
| Parties | KENNETH J. THOMAS, Petitioner, v. LARRY FUCHS, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
KENNETH J. THOMAS, Petitioner,
v.
LARRY FUCHS, Respondent.
No. 21-CV-942-SCD
United States District Court, E.D. Wisconsin
February 1, 2022
DECISION AND ORDER
STEPHEN C. DRIES, UNITED STATES MAGISTRATE JUDGE
Kenneth J. Thomas challenges his 2016 Wisconsin convictions for robbing a convenience store and murdering a gas station clerk. Thomas confessed, testified against one of his co-actors, pled guilty to both crimes, and received a sixty-five-year sentence. During Thomas' direct appeal-and while serving his own lengthy prison sentence-Thomas' older brother came forward saying he was the one who committed the robbery and the shooting. The Wisconsin state courts declined to remand the matter to allow Thomas' appellate lawyer to further investigate the brother's claim; the courts also denied Thomas' appeal.
Thomas subsequently sought additional relief in state court, alleging that his appellate lawyer erred in handling the newly discovered evidence and that he should be allowed to withdraw his pleas because he is innocent. While still pursuing those actions, Thomas filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he raises the same two claims alleged in state court. Larry Fuchs, the warden of Columbia Correctional Institution (where Thomas is confined), moved to dismiss the federal petition for failure to exhaust state remedies. After Thomas voluntarily dismissed his state-court actions because he
thought federal court would be a more favorable forum, Fuchs filed a brief arguing that Thomas' deliberate default also warranted dismissal of his petition. Thomas requests that I review the merits of his federal habeas claims, arguing that his showing of innocence excuses any default.
Thomas is not entitled to relief under § 2254. He has not exhausted available state remedies as to any of his federal claims, and his attempt to invoke the narrow actual-innocence exception to disregard that default is not persuasive. Accordingly, I will grant Fuchs' motion, deny Thomas' petition, and dismiss this action.
BACKGROUND
At approximately 10:40 p.m. on January 13, 2015, a masked man robbed a Waukesha gas station and shot and killed the store clerk. See ECF Nos. 28-2, 28-3; see also State v. Malone, No. 2017AP680-CR, 2018 WL 4656878, 2018 Wisc. App. LEXIS 789 (Wis. Ct. App. Sept. 26, 2018). Some evidence pointed to Kenneth J. Thomas as the shooter, and he eventually confessed to the crimes. See ECF No. 28-3 at 83-106. After initially charging Thomas with armed robbery and first-degree intentional homicide (as well as several other offenses he allegedly committed that same month), the State of Wisconsin offered to amend the homicide charge to felony murder and recommend a forty-year sentence if Thomas pled guilty and testified truthfully against one of his co-actors, Darrin Malone. See ECF No. 24-1 at 5, 26; see also ECF No. 28-3 at 81-82, 98-100. Thomas took the deal.
Thomas testified for the State at Malone's trial and explained in detail the events leading up to, during, and after the robbery and shooting. See ECF No. 28-3 at 34-126. Thomas told the jury that on the night of January 13, he and Malone planned the robbery at Thomas' apartment in West Allis. Several others were present during the planning session,
including Thomas's brothers, Deyontae and Lavontae Stinson (who lived at the apartment too). Thomas indicated that Malone's girlfriend, Jerica Cotton, drove him and Malone to the robbery. He stated that Cotton waited in the car while he and Malone entered the gas station wearing green masks over their faces and gloves on their hands; Thomas also had a Hi-Point 9-millimeter gun. Thomas told the jury that he walked in the store first (with Malone behind him), shot the clerk during a tussle, grabbed some money, and ran out of the store to Cotton's car. The three then drove back to Thomas's apartment. Along the way, Thomas threw his coat out the window, and Cotton later got rid of the masks, gloves, and hats Thomas and Malone wore during the robbery. Thomas indicated that back at the apartment, they celebrated the robbery by getting high and drunk. Also, Lavontae hid the 9-millimeter gun inside his son's diaper box. Thomas also testified that he, Malone, and Cotton had robbed a convenience store in similar fashion on January 10, 2015.[1]
After testifying at Malone's trial, Thomas pled guilty to the January 10 armed robbery and the amended charge of felony murder. See ECF No. 24-1 at 1, 5, 17-18; ECF No. 28-2. The circuit court sentenced Thomas to a total of forty-five years of initial confinement and twenty years of extended supervision. ECF No. 24-1 at 2, 4, 15-16. Thomas subsequently moved to withdraw his guilty pleas, alleging that his learning disability and errors made by his trial lawyer rendered his pleas invalid. See ECF No. 24-2 at 16, 21. The circuit court denied the motion following an evidentiary hearing. See Id. at 21. Thomas appealed, arguing that the judge who presided over the evidentiary hearing was biased in favor of Thomas' trial lawyer. See Id. at 21-22.
After the parties submitted their appellate briefs, but before the Wisconsin Court of Appeals issued its decision, Thomas' appellate lawyer obtained new information suggesting that Thomas may not have committed the robberies or the shooting. See ECF No. 24-2 at 3- 18. He filed a motion to withdraw the appellate briefs and remand the matter to the circuit court for further evidentiary hearings. See ECF No. 24-2 at 3-8. The motion contained the following assertions. After briefs were submitted, Thomas told his appellate lawyer that his brother Deyontae had information relevant to the appeal. Thereafter, on or about May 5, 2018, the lawyer received an affidavit from Deyontae claiming that he was the one who committed the January 13, 2015 robbery and shooting, that Thomas was not involved, and that Thomas confessed to save Deyontae from going back to prison. During a subsequent meeting, Deyontae reiterated that Thomas was not involved in those crimes. On or about May 25, 2018, the lawyer received another affidavit from Deyontae, this one claiming that Thomas did not commit the January 10, 2015 armed robbery either; Deyontae did. Thomas' appellate lawyer further asserted that, after Thomas' conviction, he received a DNA evidence report that could potentially be exculpatory considering Deyontae's recent disclosure. It appears the lawyer attached copies of the two affidavits to the motion.
The Wisconsin Court of Appeals denied the motion in a one-page order, finding that good cause did not exist for the relief requested. See ECF No. 24-2 at 19. The court also denied Thomas' appeal, see ECF No. 24-2 at 20-28, and on February 12, 2019, the Wisconsin Supreme Court denied Thomas' petition for review, see ECF No. 24-2 at 29. Thomas did not file a petition for certiorari in the United States Supreme Court. See ECF No. 24-2 at 31.
More than a year later, Thomas sought additional relief in state court. See ECF No. 24-1 at 6-8. He first filed a state petition for a writ of habeas corpus, alleging ineffective
assistance of appellate counsel for failing to discover evidence of his innocence. See ECF No. 24 at 3; ECF No. 24-1 at 8; ECF No. 24-5. While that state petition was pending, Thomas also filed a collateral attack pursuant to section 974.06 of the Wisconsin Statutes, seeking to withdraw his pleas because he is innocent of the crimes for which he was convicted. See ECF No. 24-6; ECF No. 24-1 at 7. Thomas alleged in support of the motion that he was coerced into confessing to crimes he didn't commit; his DNA was not found on the clothes, mask, or gun used during the robbery (but Lavontae's was); his girlfriend at the time of the shooting, Sadawndra Gasper, had video evidence on her phone proving that Thomas couldn't have committed the January 13 robbery and shooting; and several witnesses had come forward with information showing that Thomas wasn't involved in that incident. Thomas subsequently filed a supplement to the motion. See ECF No. 24-7. Following a status conference, the circuit court took the motion under advisement. See ECF No. 24-1 at 7.
Before the Wisconsin state courts resolved either action, Thomas filed a habeas petition in this court, alleging two potential grounds for relief. See ECF No. 1; see also ECF Nos. 2, 2-1. First, he claims that his appellate lawyer rendered ineffective assistance of counsel with respect to Thomas' direct appeal and the newly discovered evidence allegedly showing Thomas' innocence. ECF No. 1 at 1-3. Second, he claims that the state courts' handling of his actual-innocence claim has violated his rights to due process. See id at 4. Thomas asks the federal district court to vacate his conviction and sentence, or, in the alternative, to order a new trial. Id. at 5.
The clerk of court randomly assigned the matter to me, and I promptly examined the petition in accordance with Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. See ECF No. 11. In the screening order, I noted that Thomas had not
exhausted his state-court remedies on either federal habeas claim and that it was unclear whether the petition was timely. Id. at 3. However, because Thomas appeared to raise a colorable claim of actual innocence that could excuse those procedural issues, I ordered Fuchs to respond to the petition. Id. at 3-4.
In lieu of filing an answer-and consistent with my Rule 4 order-on November 2, 2021, Fuchs timely filed a motion to dismiss Thomas' petition. See ECF No. 17. Fuchs argued that the petition must be dismissed because Thomas was still attempting to exhaust his federal claims in state court. In an apparent attempt to stave off dismissal of his petition for failure to exhaust, on November 5, 2021, Thomas voluntarily dismissed his state petition raising the...
To continue reading
Request your trial