Thompkins v. Pfister, 10–2467.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation698 F.3d 976
Docket NumberNo. 10–2467.,10–2467.
PartiesWillie Marshall THOMPKINS, Jr., Petitioner–Appellant, v. Randy PFISTER, Respondent–Appellee.
Decision Date29 November 2012

698 F.3d 976

Willie Marshall THOMPKINS, Jr., Petitioner–Appellant,
Randy PFISTER, Respondent–Appellee.

No. 10–2467.

United States Court of Appeals,
Seventh Circuit.

Argued Nov. 1, 2011.
Decided Oct. 23, 2012.

Rehearing and Rehearing En Banc Denied Nov. 29, 2012.

[698 F.3d 979]

Jason J. Green (argued), Terri L. Mascherin, Attorney, Jenner & Block LLP, Chicago, IL, for Petitioner–Appellant.

Retha Stotts (argued), Attorney, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.

Before BAUER, FLAUM, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

On December 23, 1980, a patrolling police officer found the body of Gerald Holton lying facedown in a ditch in an unincorporated area of Cook County, Illinois. Holton's hands were tied with telephone

[698 F.3d 980]

cord, and he was shot in the head. The officer discovered the body of Arthur Sheppard nearby, hidden in a clump of trees, similarly executed with his hands bound. For about three months, investigators had no leads in the murders. A break came when an informant implicated Pamela Thompkins in the killings. Pamela Thompkins was arrested and immediately confessed her role in assisting her former brother-in-law and their mutual friend in a robbery that got out of hand and became a double murder.

The police then arrested Pamela's former brother-in-law Willie Thompkins, Jr., and he too agreed to talk after receiving Miranda warnings. At some point during the interrogation, he took a phone call from an attorney who had been contacted by his wife, but continued to talk to police without invoking his right to counsel. The next morning Thompkins was taken to court for a bond hearing. Before the hearing took place, he confessed his involvement in the murders of Holton and Sheppard. A jury convicted him of two counts of murder based on his confession, the testimony of eyewitnesses, and evidence from the scene of the crime. He was sentenced to death. After an unsuccessful direct appeal and more than a decade and a half of state postconviction proceedings, the Governor of Illinois commuted the sentences of all death-row inmates, and Thompkins was resentenced to life. He exhausted his remaining postconviction claims and then sought federal habeas relief on multiple grounds. The district court denied the petition.

We authorized an appeal on two issues: (1) whether Thompkins's confession should have been suppressed because it was taken in violation of his Sixth Amendment right to counsel; and (2) whether trial counsel was constitutionally ineffective for failing to interview several potential witnesses. On the first issue, the Illinois Supreme Court held that the right to counsel had not yet attached when Thompkins confessed, so the trial court properly declined to suppress the confession. On the second, the court rejected the claim of ineffective assistance of counsel based on procedural default and lack of factual support. On federal habeas review, these decisions are entitled to substantial deference. Because the state supreme court did not unreasonably determine the facts or unreasonably apply federal law, see28 U.S.C. § 2254(d), we affirm the denial of habeas relief.

I. Background

Thompkins's case was tried in Cook County Circuit Court more than three decades ago in June 1982. See People v. Thompkins (Thompkins I), 121 Ill.2d 401, 117 Ill.Dec.927, 521 N.E.2d 38, 42–45 (1988) (direct appeal); People v. Thompkins (Thompkins II), 161 Ill.2d 148, 204 Ill.Dec.147, 641 N.E.2d 371, 374–76 (1994) (first postconviction appeal). The key witnesses for the prosecution were Keith Culbreath and Sandra Douglas. Our account of the facts is based primarily on their testimony as described in the Illinois Supreme Court's opinions in Thompkins I and Thompkins II.

On December 22, 1980, Willie Thompkins and Ronnie Moore were at Douglas's home in Harvey, Illinois, in southern Cook County, hatching a plan to rob a couple of cocaine dealers. Culbreath stopped by around noon. Thompkins took him into a bedroom and asked if he wanted to make some money by helping him “stick-up” a “couple guys.” He agreed to participate but told Thompkins he wanted to go home first and get a ski mask so he couldn't be identified. Thompkins told him, “don't worry about it, [I'll] take care of that.” Culbreath saw two guns on the bed, got cold feet, and left Douglas's house.

[698 F.3d 981]

Later that day, Thompkins, Moore, and Douglas drove to the home of Thompkins's former sister-in-law Pamela Thompkins (“Pamela”). Pamela arranged for Gerald Holton and Arthur Sheppard to come over on the pretense of doing a cocaine deal. When Holton and Sheppard arrived, the group moved to the basement where there was a small kitchen and recreation area. Holton and Sheppard produced a baggie of cocaine and placed it on the kitchen table. Thompkins then stood in the door frame, pointed a gun at the two men, and demanded that they put their hands on the table. They did as they were told. Moore and Thompkins then searched Holton and Sheppard, taking a gun, their wallets, and a beeper. Moore and Thompkins bound the hostages' hands with telephone cord and dragged them by their feet from the kitchen to the recreation area. Douglas retreated upstairs.

A few hours passed. At some point Pamela joined Douglas upstairs. While the two women were talking, Douglas heard a loud banging sound in the basement, followed by two gunshots. Pamela blurted out that she “told them not to do it here, she knew it wouldn't go according to plans.” Douglas ventured part way down the stairs and got a glimpse of a body she assumed was Holton's because she recognized his shoes. She then saw Moore, holding a knife, lead Sheppard—alive but still bound—in the direction of the garage. She watched as the others dragged Holton's body to the garage. Thompkins, Moore, and Pamela then drove off in two separate cars, with Sheppard as their hostage and Holton's body in the trunk of one of the cars. Douglas estimated that this took place at around 8 or 9 p.m.

About 35 minutes later, Douglas received a phone call from Thompkins telling her to “clean up a little bit” in the basement. She was so repulsed by the scene that she couldn't do it. The next day, however, she went with Pamela and Thompkins to the home of Delmar Watkins. Thompkins ordered Douglas to help Watkins wash the blood from the trunk of the car where Holton's body had been. The following day, Douglas stood guard while Watkins sprayed the trunk of the car with water.

In the meantime on December 23, a patrol officer found the bodies of Holton and Sheppard, hands bounds and shot in the head, lying about 65 feet apart in an unincorporated area of Cook County near Markham, Illinois. Investigators initially had no leads. A break in the investigation came on March 13, 1981, when Doris Ferguson told the police about a December 23 phone call she received from Pamela Thompkins asking for advice about how to remove bloodstains from her basement and garage. When Ferguson pressed for an explanation of how the bloodstains got there, Pamela spilled the entire story. Police used Ferguson's statement to obtain a search warrant for Pamela's home. At the scene the officers saw bloodstains in the basement and arrested Pamela, who gave a detailed confession describing the entire sequence of events, including Willie Thompkins's involvement in the murders.

Based on Pamela's statement, police arrested Thompkins on March 17, 1981. That same day, a complaint for a preliminary examination was filed against him. Late that afternoon, Assistant States Attorney Paul Perry met with Thompkins, gave him Miranda warnings, and asked if he was willing to talk. Thompkins said he understood his rights and agreed to talk to Perry. At some point during the interrogation, an officer interrupted to say that Attorney George Howard had called asking to speak to Thompkins. Perry stopped the interview and Thompkins left the room to return the attorney's call. Thompkins's wife, Barbara, had contacted Howard to

[698 F.3d 982]

ask for his help, but Howard later testified that he was never actually retained.

When Thompkins returned to the interview room, Perry asked him if he “still want[ed] to talk to us after talking to George Howard?” Thompkins said that he did. Perry reminded him of his right to have an attorney present during the interview. Thompkins replied: “No, that's all right; I'll talk to you now.” The interview resumed, but Thompkins did not make any inculpatory statements on March 17.

The next morning, March 18, the police took Thompkins to court for a bond hearing and placed him in a lockup near the courtroom where the hearing would be held. Thompkins and Pamela were to appear in court at the same time. The presiding judge called and passed the case twice, apparently awaiting the arrival of a private attorney for Thompkins; Pamela was represented by a public defender. On the third go-round, Thompkins consented to representation by Pamela's public defender for the limited purpose of the bond hearing. On this understanding, the judge went ahead with the hearing that day, though the evidence conflicts about whether it took place in the late morning or early afternoon.

At some point during the morning court session, Investigators Jim Houlihan and Ronald Bennett consulted with ASA Perry about whether they could interview Thompkins. Perry authorized the interrogation. After fresh Miranda warnings, Thompkins confessed his involvement in the murders. He agreed to repeat his statement to Perry, so Houlihan left the lockup to summon the prosecutor. Thompkins maintains in his habeas petition that the interrogation occurred after the bond hearing. However, Perry testified at the suppression hearing that he saw the investigators enter the lockup sometime between 11:30 a.m. and 1 p.m., before the bond hearing was held. See Thompkins I, 117 Ill.Dec. 927, 521 N.E.2d at 50. It is undisputed that when Perry came back to the lockup, Thompkins was...

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