Thomas v. Lumpkin

• Decision Date: 23 April 2021
• Docket Number: No. 17-70002,17-70002
• Citation: 995 F.3d 432
• Parties: Andre Lee THOMAS, Petitioner - Appellant v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

995 F.3d 432

Andre Lee THOMAS, Petitioner - Appellant

v.Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee

No. 17-70002

United States Court of Appeals, Fifth Circuit.

FILED April 23, 2021

Maurie Levin, Philadelphia, PA, Donald Lee Bailey, Sherman, TX, Catherine M. A. Carroll, Danielle Mary Spinelli, Derek Woodman, Wilmer Cutler Pickering Hale and Dorr, L.L.P., Washington, DC, for Petitioner - Appellant.

Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Respondent - Appellee.

Before JONES, SOUTHWICK, and HIGGINSON, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Andre Lee Thomas, an inmate on death row in Texas, filed a federal habeas application, arguing that his counsel was constitutionally ineffective in numerous ways at trial and sentencing. We granted a certificate of appealability on four of Thomas's issues. We now AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

On March 27, 2004, Andre Lee Thomas broke into the Sherman, Texas apartment of his estranged wife, Laura Christine Boren. He stabbed his wife; their four-year-old son, Andre Lee Boren; and one-year-old Leyha Marie Hughes, Thomas's stepdaughter. All three were killed. He then used separate knives on each victim and attempted to remove their hearts, leaving gaping wounds in their chests. He believed that by taking their hearts he would "set them free from evil." He also stabbed himself three times, but his injuries were not fatal. Thomas left the apartment shortly thereafter. Later that day, he went to the Sherman police station and confessed.

In June 2004, Thomas was indicted for the capital murder of Leyha Marie Hughes, his stepdaughter. He was assigned R.J. Hagood and Bobbie Peterson as counsel. While awaiting trial, Thomas removed one of his eyeballs. Years later, he would remove the other and eat it. At trial, Thomas pled not guilty by reason of insanity, arguing that his actions were because of an acute psychosis resulting from lifelong mental illness. The State agreed that Thomas was psychotic but argued his psychosis was voluntarily induced just before the killings through ingestion of the cough medicine Coricidin. The State presented expert testimony that high doses of Coricidin can cause irrational behavior. There is no doubt that Thomas has significant emotional and mental problems. Their effect on his conviction is a central issue in this appeal.

In March 2005, an all-white jury found Thomas guilty of capital murder and sentenced him to death. Another significant issue for us is the sufficiency of the questioning of jurors on their views about interracial marriage, relevant because Thomas is a black man and his wife was a white woman.

Greater detail about Thomas's killing of his wife and the children, and about the trial, is in the opinion affirming his conviction on appeal. Thomas v. State , No. AP-75,218, 2008 WL 4531976 (Tex. Crim. App. Oct. 8, 2008).

While his first appeal was pending, Thomas also brought claims under state habeas corpus procedures. As required under Texas law, Thomas's application for relief was filed in the court of conviction. On March 28, 2008, that court recommended findings and conclusions for consideration by the Texas Court of Criminal Appeals. See TEX. CODE CRIM. PROC. art. 11.071, §§ 9(f), 11. On March 18, 2009, the Court of Criminal Appeals "adopt[ed] the trial judge's findings and conclusions" and denied all relief. Ex parte Thomas , No. WR–69,859-01, 2009 WL 693606, at *1 (Tex. Crim. App. Mar. 18, 2009).

Thomas filed a federal habeas application under 28 U.S.C. § 2254. On September 19, 2016, the United States District Court, in a 128-page opinion, analyzed and rejected all claims. Thomas v. Director , TDCJ-CID , No. 4:09-cv-644, 2016 WL 4988257, at *1 (E.D. Tex. Sept. 19, 2016) (on Westlaw, the entire opinion is 86 pages). The district court also denied Thomas's application for a certificate of appealability ("COA"). Id. at *86. Thomas filed a timely motion under Rule 59(e) to alter or amend judgment, but the motion was denied on December 13, 2016. On January 11, 2017, Thomas filed a notice of appeal.

We granted Thomas's motion for a COA on four issues. Thomas v. Davis , 726 F. App'x 243 (5th Cir. 2018). We will analyze each of them. After the initial briefing and just before oral argument, the State submitted notice to the court of a possible jurisdictional defect in the appeal. We must address jurisdiction and do so first.

DISCUSSION

I. Potentially late notice of appeal

This appeal fails if the State's late-discovered possible defect in our jurisdiction proves valid. The question posed was whether Thomas's notice of appeal was untimely. Our answer depends on whether Thomas's earlier Rule 59(e) motion, which was filed before the deadline for a notice of appeal, tolled the time for filing the appeal. The answer to that is governed by whether it is appropriate for the court to examine a Rule 59(e) motion to alter or amend a judgment with the same attention to detail as is required for examining a Rule 60(b) motion. We must review Rule 60(b) motions to see if they are in fact though not in form successive applications under Section 2244(b), in which new claims are presented instead of alleged mistakes, or fraud, or new evidence, or some other valid basis under Rule 60(b). See Gonzalez v. Crosby , 545 U.S. 524, 532–34, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). We extended the Supreme Court's reasoning to motions under Rule 59(e). See Williams v. Thaler , 602 F.3d 291, 302–04 (5th Cir. 2010). Based on Williams , the State in a Rule 28(j) letter argued that we lacked jurisdiction because Thomas's Rule 59(e) motion to alter or amend the district court's judgment was in fact a successive habeas application and did not suspend the time to file the notice of appeal. FED. R. APP. P. 4.

We were wrong in Williams . After the Rule 28(j) letter was submitted, the Supreme Court held that Rule 59(e) motions should not be recategorized as successive applications regardless of their contents. Banister v. Davis , ––– U.S. ––––, 140 S. Ct. 1698, 1711, 207 L.Ed.2d 58 (2020). Thomas's notice of appeal was timely, and we have jurisdiction.

II. Federal court review of state court decisions

To obtain habeas relief, the prisoner must show that the state court's decision "(1) ... 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) ... 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). A state court's decision is contrary to clearly established precedent if the rule it applies "contradicts the governing law set forth in the Supreme Court's cases," or if the state court confronts facts that are materially indistinguishable from a decision of the Supreme Court yet reaches a different result. Wooten v. Thaler , 598 F.3d 215, 218 (5th Cir. 2010) (brackets omitted). If fair-minded jurists could disagree about whether the state court's decision was correct, deference under the Antiterrorism and Effective Death Penalty Act ("AEDPA") precludes federal habeas relief. Harrington v. Richter , 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). This deference has also been said to require that a state court's legal conclusion "must be more than merely incorrect in order to constitute an unreasonable application of federal law; it must be objectively unreasonable." Miller v. Dretke , 420 F.3d 356, 360 (5th Cir. 2005). We presume the state court's factual findings are correct unless rebutted with clear and convincing evidence. Wooten , 598 F.3d at 218.

The standard of review becomes doubly deferential when, as in most of the claims raised here, the petitioner is seeking habeas relief for ineffective assistance of counsel. Richter , 562 U.S. at 105, 131 S.Ct. 770. "The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland ’s standard." Id. at 101, 131 S.Ct. 770. "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102, 131 S.Ct. 770. To obtain federal habeas relief, the petitioner must prove that the state court's decision "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for" reasonable disagreement. Id. at 103, 131 S.Ct. 770.

The prisoner must prove both deficient performance and prejudice to succeed on a claim for ineffective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An attorney's performance is deficient if it falls "below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. A petitioner is prejudiced if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. There is a strong presumption that defense counsel's strategic and tactical decisions are "within the wide range of reasonable professional assistance." Id . at 689, 104 S.Ct. 2052.

III. Claims allowed by the certificate of appealability

We granted a COA on four claims, which we will discuss in the following order: (A) the jury was tainted with racial bias, and the state court unreasonably held that defense counsel provided effective assistance during voir dire ; (B) the state court unreasonably held that defense counsel provided effective assistance despite their failure to challenge Thomas's competency to stand trial; (C) the state court unreasonably held that defense counsel provided effective assistance despite their failure to present an expert in pharmacology to rebut the State's...