Thomas v. Payne

• Decision Date: 22 May 2020
• Docket Number: Nos. 17-1833/17-2380,s. 17-1833/17-2380
• Citation: 960 F.3d 465
• Parties: Mickey THOMAS, Petitioner - Appellee/Cross-Appellant v. Dexter PAYNE, Director, Arkansas Department of Correction, Respondent - Appellant/Cross-Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

960 F.3d 465

Mickey THOMAS, Petitioner - Appellee/Cross-Appellant

v.Dexter PAYNE, Director, Arkansas Department of Correction, Respondent - Appellant/Cross-Appellee

Nos. 17-1833/17-2380

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2020

Filed: May 22, 2020

Scott Braden, John Charles Williams, Assistant Federal Public Defenders, Jason Phillip Kearney, Federal Public Defender's Office, Little Rock, AR, for Petitioner-Appellee.

Mickey Thomas, Arkansas Department of Corrections-Varner Supermax, Grady, AR, Pro. Se.

Christian Harris, Kent G. Holt, Assistant Attorney General, Rachel Marie Kemp, Attorney General's Office, Little Rock, AR, for Respondent-Appellant.

Before BENTON, GRASZ, and STRAS, Circuit Judges.

GRASZ, Circuit Judge.

Mickey Thomas applied for habeas relief after the Arkansas Supreme Court affirmed his capital-murder death sentence. The district court granted Thomas partial relief. Both Thomas and the State of Arkansas appealed. We affirm in part and reverse in part.

I. Background

Mickey Thomas was charged with capital murder after allegedly killing two women at the Cornerstone Monument Company in DeQueen, Arkansas. Two lawyers ("Trial Counsel") from the Arkansas Public Defender Commission provided Thomas’s legal defense. Ultimately, the jury found Thomas guilty of capital murder and sentenced him to death.

Thomas appealed, but the Arkansas Supreme Court affirmed both his conviction and sentence. Thomas v. State , 370 Ark. 70, 257 S.W.3d 92, 104 (2007).

Thomas then filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.5. The petition claimed, among other things, that Trial Counsel provided ineffective assistance by "failing to properly investigate the underlying allegations[,] .... failing to properly investigate and present mitigation evidence[,] .... failing to properly investigate and present mental health issues[,] .... [and] informing the Jury that [Thomas] was guilty or that [he] was going to prison." In addition, Thomas claimed the trial court violated the Sixth and Fourteenth Amendments by refusing to draw a jury from Arkansas’s more expansive list of registered drivers instead of its list of registered voters. The Circuit Court of Sevier County, after reviewing Thomas’s Rule 37 petition, denied relief. For simplicity’s sake, we will refer to the Circuit Court of Sevier County as the "Rule 37 court."

Thomas appealed the denial of his Rule 37 petition to the Arkansas Supreme Court. In his appeal, Thomas raised only two ineffective-assistance claims. First, he contended Trial Counsel should have objected to the trial court’s change of venue. And second, he argued Trial Counsel should have introduced additional witness testimony. His appeal omitted any discussion (relevant for our purposes) of Trial Counsel’s investigation and presentation of exculpatory, mitigating, or mental-health evidence. Nor did Thomas continue to argue that Trial Counsel provided ineffective assistance by conceding guilt. The Arkansas Supreme Court affirmed the denial of Thomas’s Rule 37 petition. Thomas v. State , 2014 Ark. 123, 431 S.W.3d 923, 930 (2014).

Turning to federal courts, Thomas then applied for relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Arkansas. Thomas attempted to renew his claims that Trial Counsel provided ineffective assistance by failing to investigate and present exculpatory, mitigating, and mental-health evidence.¹ He also introduced new claims; for example, that Trial Counsel provided ineffective assistance by not effectively moving for an expanded jury pool.²

As the district court pointed out, the procedural default rule was a major hurdle for both Thomas’s guilt-and-penalty ineffective-assistance claims and his jury-pool ineffective-assistance claim. The procedural default rule, the court explained, typically forbids introducing new claims and resurrecting old, previously-abandoned claims in federal habeas applications.

If Thomas’s claims were procedurally defaulted, he could only bring them before a federal court if he "demonstrate[d] cause for the default and actual prejudice." Coleman v. Thompson , 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). According to Thomas, his lawyer in the Rule 37 proceeding ("Rule 37 Counsel") was ineffective, which in turn caused the procedural default. Because Thomas thought his underlying claim was meritorious, he believed Rule 37 Counsel’s ineffectiveness prejudiced him. Thus, Thomas maintained, he could demonstrate both cause and prejudice, which would permit a federal court to consider his procedurally defaulted claims.

Whether Thomas could demonstrate cause depended on when he experienced procedural default. An Arkansas prisoner applying for federal habeas relief can "demonstrate cause for the default" by proving Rule 37 Counsel’s ineffective assistance resulted in the failure to raise an ineffective-assistance-at-trial claim in the initial Rule 37 proceeding. See Sasser v. Hobbs , 735 F.3d 833, 853 (8th Cir. 2013) (following Trevino v. Thaler , 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013) ). But an applicant cannot demonstrate cause for default by proving ineffective assistance resulted in the failure to appeal a Rule 37 court’s ruling on an ineffective-assistance-at-trial claim. Martinez v. Ryan , 566 U.S. 1, 16, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Thomas’s argument — that Rule 37 Counsel’s ineffectiveness caused the procedural default — therefore turned on whether the procedural default was triggered at the initial Rule 37 proceeding or on its subsequent appeal.

The parties briefed and argued their respective positions on procedural default before the district court, which concluded procedural default was triggered at the initial Rule 37 proceeding. As the district court explained, while "evidence presented at the [Rule 37] hearing possibly skimmed the issues," Thomas’s Rule 37 petition set forth only "bare bones, boilerplate allegations." This, when coupled with the Rule 37 court’s finding that Thomas "introduced no evidence in support of [his] claims," led the district court to hold that Thomas never really claimed ineffective-assistance for guilt-and-penalty investigation and presentation in the first place. Therefore, the district court concluded, the failure to raise the guilt-and-penalty ineffective-assistance claims in the first instance (and not the failure to appeal their rejection) triggered the procedural default.

Under the district court’s analysis, if Thomas could show Rule 37 Counsel provided ineffective assistance by failing to properly raise the guilt-and-penalty ineffective-assistance claims, and Thomas was prejudiced thereby, it could excuse procedural default. Citing the Supreme Court’s Trevino decision, the district court provided Thomas an opportunity to demonstrate cause and prejudice by expanding the record and holding a hearing. See 569 U.S. at 429, 133 S.Ct. 1911. But the district court only allowed Thomas to argue some of his procedurally-defaulted claims at the hearing. Many of his claims, the district court found, were not "potentially meritorious," including the jury-pool ineffective-assistance claim. The district court therefore refused to consider them.

During the hearing, Thomas introduced mitigation and mental-health evidence not previously introduced at the trial or the Rule 37 proceedings. The district court, after viewing this evidence and extensive live testimony, concluded that Thomas was not prejudiced by Trial Counsel’s alleged shortcomings during the trial’s guilt phase. However, it found that Trial Counsel was "dysfunctional and disjointed" and "failed to conduct a thorough investigation with respect to mitigation." Given the evidence introduced at the federal hearing, the district court found a "reasonable probability" the jury would have sentenced Thomas to life imprisonment rather than death, if only Trial Counsel had conducted a constitutionally adequate mitigation investigation and presentation.

The district court also found Thomas’s Rule 37 Counsel ineffective. It concluded Rule 37 Counsel’s ineffectiveness caused the procedural default by failing to raise the guilt-and-penalty ineffective-assistance claims in the initial Rule 37 proceedings. And because Trial Counsel provided ineffective assistance with respect to Thomas’s mitigation case, Rule 37 Counsel’s failure prejudiced Thomas. Therefore, the district court held, Thomas had shown both cause and prejudice for his failure to raise the penalty-phase ineffective-assistance claim; he could bring it in federal court. Because Trial Counsel was ineffective at mitigation, the court continued, relief was appropriate. The state must either re-try the penalty phase of Thomas’s trial, or else it must stipulate to a life sentence.

Both Thomas and the state appeal the district court’s order. Thomas maintains that Trial Counsel was ineffective during both the guilt phase of the trial and the penalty phase. He also appeals the district court’s rejection of his jury-pool ineffective-assistance claim, requesting a federal hearing. Finally, he asks for a hearing on a dismissed guilt-phase sub-claim in light of the Supreme Court’s recent McCoy v. Louisiana decision. ––– U.S. ––––, 138 S. Ct. 1500, 200 L.Ed.2d 821 (2018). The state resists each of these arguments and further maintains that Trial Counsel provided constitutionally adequate assistance in its investigation and presentation of Thomas’s mitigation case.

II. Analysis

A. Guilt-and-Penalty Ineffective Assistance

The district court found that Trial Counsel’s inadequate preparation for the penalty phase of the trial deprived Thomas of his Sixth Amendment rights. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."). "On appeal from a district court’s grant of a habeas petition, we review the district court’s...