Thomas v. State

• Decision Date: 20 March 2014
• Docket Number: No. CR–10–545.,CR–10–545.
• Court: Arkansas Supreme Court
• Parties: Mickey David THOMAS, Appellant v. STATE of Arkansas, Appellee.

2014 Ark. 123

431 S.W.3d 923

Mickey David THOMAS, Appellant

v.STATE of Arkansas, Appellee.

No. CR–10–545.

Supreme Court of Arkansas.

March 20, 2014.

Harrelson Law Firm, P.A., by: Jeff Harrelson, for appellant.

Dustin McDaniel, Att'y Gen., by: Nicana C. Sherman, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Justice.

On September 28, 2005, a Pike County jury convicted appellant, Mickey David Thomas, of two counts of capital murder and sentenced him to death. We affirmed his conviction and sentence in Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007).

On April 16, 2009, Thomas filed his initial, unverified Rule 37.5 petition in the Sevier County Circuit Court and a motion to amend his petition. On November 6, 2009, Thomas filed an amended Rule 37.5 petition, and on that same day the circuit court conducted a hearing on Thomas's petition. On February 1, 2010, the circuit court denied Thomas's petition. Thomas asserts proper jurisdiction and now brings this appeal. He presents two issues for review: (1) the circuit court erred when it denied Thomas's claim that he had received ineffective assistance of counsel when his counsel did not object to a change of venue to Pike County, Arkansas, and (2) the circuit court erred when it denied Thomas's claim that he had received ineffective assistance of counsel when his counsel failed to secure and present the testimony of Lieutenant Alex Mathis.

Jurisdiction

Prior to reaching the merits of Thomas's appeal, we must first address jurisdiction because jurisdiction is a threshold issue, as well as the basis of the order being appealed. Gilliland v. State, 2011 Ark. 480, 2011 WL 5437539 (per curiam).

Thomas contends that the circuit court maintained jurisdiction and his appeal is ripe for review. The State responds that the we do not have jurisdiction to hear this case because the circuit court did not have jurisdiction to hear Thomas's Rule 37.5 petition. The State contends that the circuit court lacked the authority to grant extensions of time for the filing of Thomas's petition. The State further asserts that the circuit court was without jurisdiction to entertain Thomas's belated and improperly filed Rule 37.5 petition, and therefore, we are without jurisdiction.

Rule 37.5(e) addresses the timeliness of the filing of petitions for relief pursuant to Rule 37.5. Subsection (e) of the Ark. R.Crim. P. 37.5 (2013), entitled “Time for Filing Post–Conviction Petition” provides: “A petition for relief under this rule shall be filed in the circuit court that imposed the sentence of death within ninety (90) days after the entry of the order required in subsection (b)(2) of this rule.” In reviewing the time limitations contained in Rule 37.5 cases, in Engram v. State, 2013 Ark. 424, at 6, 430 S.W.3d 82, 86, we explained:

[T]his court has never held that the ninety-day time limitation of Rule 37.5(e) is an absolute jurisdictional bar.

...

This court in Jackson [v. State, 343 Ark. 613, 37 S.W.3d 595 (2001) ] refused to hold that the time limits of Rule 37.5(e) create an absolute procedural bar to the belated filing of a postconviction petition in a capital case. The court in Jackson further explained as follows:

Porter [v. State, 339 Ark. 15, 2 S.W.3d 73 (1999) ], and the cases that follow suggest that Rule 37.5 requires a heightened standard of review of capital cases because the State has undertaken, via Act 925 of 1997 and Rule 37.5, to provide collateral relief so as “to eliminate the need for multiple federal habeas corpus proceedings in death cases.” Again, while there is no constitutional right to a postconviction proceeding, when the State undertakes the role of providing such, as it has done here, it must comport with due process and be fundamentally fair.

Here, the record demonstrates that, based on Thomas's counsel's December 26, 2007 appointment, his Rule 37.5 petition was due on March 25, 2008. Thomas's counsel filed six motions for extensions of time to file the Rule 37.5 petition, and the circuit court granted each motion, with the petition ultimately due on April 16, 2009. On April 16, 2009, Thomas filed his initial, unverified petition for relief pursuant to Rule 37.5 and also filed a motion to amend his petition. On November 6, 2009, Thomas filed his amended petition, and on that same day, the circuit court conducted a hearing on Thomas's amended petition.

The issue before us regarding the timely filing of Thomas's Rule 37.5 petition is one of fundamental fairness. When we apply the analysis from Engram, the question becomes whether it is fundamentally fair to require an inmate under a death sentence to abide by the stringent filing deadlines when his counsel timely filed his initial petition, the circuit court granted extensions of time, and Thomas complied with the circuit court's deadlines. The record before us indicates that the approximate eighteen-month extension of time was granted for several reasons: counsel's heavy workload; co-counsel's withdrawal from Thomas's case because co-counsel moved out of state; appointment of new counsel; new counsel's obtaining certification; the circuit judge's recusal in this case; and another circuit judge's recusal because he was the prosecutor in the original trial. We note that none of these delays were within Thomas's control. Further, the delays were not in Thomas's counsel's control. Here, to prohibit Thomas from proceeding on his postconviction petition would be to ignore the well-settled principle that, while there is no constitutional right to a post-conviction proceeding, when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See Engram. Under the facts and circumstances of this case, and considering the finality of the punishment at issue, we hold that the circuit court maintained jurisdiction to consider Thomas's petition, and thus, vests jurisdiction with this court to reach the merits of Thomas's Rule 37.5appeal.¹

Venue

For his first point on appeal, Thomas asserts that the circuit court erred when it denied his claim that he received ineffective assistance of counsel because his counsel did not object to a change of venue to Pike County, Arkansas. The State responds that the argument is without merit and also not cognizable in postconviction proceedings.

On July 21, 2005, the circuit court conducted a pretrial hearing on Thomas's motion to change venue based on pretrial publicity. In that motion, Thomas submitted voluminous information regarding pretrial publicity for the four counties in the district, including Pike County. The pretrial publicity data demonstrated that Pike and Howard Counties had received the least amount of publicity in the four-county district. Thomas also submitted as exhibits “Data Tables for Population Percent by Race and County from the 2000 Census.” The circuit court granted Thomas's motion and moved the trial to Pike County.

On appeal, Thomas alleges that once the circuit court granted his motion and moved his trial to Pike County, his counsel was ineffective for failing to properly object to the transfer to Pike County because Pike County had a very small African American population, and Thomas is African American. Stated differently, according to Thomas, although Pike County was within the judicial district and did receive the least amount of pretrial publicity, which was the basis for the change of venue, his counsel was ineffective for not taking the next step and objecting to the circuit court's choice of county. Thomas further asserts that his counsel should have objected and included claims of systematic exclusion of specific racial groups.

The State responds that Thomas has failed to meet the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing that trial counsel's conduct was so egregious that he was not acting as the counsel guaranteed by the Sixth Amendment, and that Thomas suffered prejudice from the conduct that rendered the outcome of the trial unreliable. Additionally, the State responds that Thomas's venue claim is not cognizable in a postconviction matter because his claim is one of trial strategy.

Turning to our review, “on appeal from a circuit court's ruling on a petitioner's request for Rule 37 relief, this court will not reverse the circuit court's decision granting or denying post-conviction relief unless it is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Mason v. State, 2013 Ark. 492, at 1–2, 430 S.W.3d 759, 761 (internal citations omitted).

Claims of ineffective assistance of counsel are reviewed under the standard of review set forth in Strickland:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.

Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

Thus, Thomas must first show that counsel's performance fell below an objective standard of reasonableness and then that counsel's errors actually had an adverse effect on the defense. Id. Thomas must satisfy both prongs of...