Thomas v. Kelley

• Decision Date: 31 March 2017
• Docket Number: CASE NO. 6:14-CV-6038
• Parties: MICKEY THOMAS, JR. PETITIONER v. WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
• Court: U.S. District Court — Western District of Arkansas

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

CASE NO. 6:14-CV-6038

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION

March 31, 2017

MEMORANDUM OPINION AND ORDER

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 possiblebreak 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 (8^th 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 (8^th 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 tomeet 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 (8^th 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...