Thompson v. Cain

• Decision Date: 27 October 1998
• Docket Number: No. 97-30514,97-30514
• Parties: John THOMPSON, Petitioner-Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary, Angola, Louisiana, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 802

161 F.3d 802

John THOMPSON, Petitioner-Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary, Angola Louisiana, Respondent-Appellee.

No. 97-30514.

United States Court of Appeals Fifth Circuit.

Oct. 27, 1998.

As Revised Nov. 24, 1998.

J. Gordon Cooney, Michael L. Banks, Morgan, Lewis & Bockius, Philadelphia, PA, Nicholas Joseph Trenticosta, Loyola Death Penalty Resource Center, New Orleans, LA, for Petitioner-Appellant.

Val Michael Solino, New Orleans, LA, for Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Louisiana state prisoner John Thompson appeals his first degree murder conviction and death sentence. Specifically, Thompson alleges that at trial: (1) the government withheld critical evidence; (2) the government offered false or misleading testimony; (3) the trial court facilitated the coercion of a hold-out juror; (4) the government used its peremptory strikes to exclude blacks from the jury; (5) the trial court charged the jury with an improper reasonable doubt instruction; and (6) defense counsel was ineffective during both the guilt and sentencing phases of trial. For the reasons assigned, we AFFIRM the judgment of the district court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 8, 1985, an Orleans Parish, Louisiana jury convicted John Thompson of first degree murder and sentenced him to death. At trial, the state established that on the morning of December 6, 1984, at around 12:30 a.m., Kevin Freeman was driving home from his sister's house, when Thompson stopped him and requested a ride. Though running low on gasoline, Freeman agreed to give Thompson a ride as the two knew each other, lived in the same neighborhood, and were thus going to the same general destination. Shortly after Thompson entered the car, the vehicle ran out of gasoline. Freeman parked the car on the street and he and Thompson began walking home. Freeman inquired if Thompson had any money. Thompson responded by asking Freeman if he wanted to make some money and stated, "I got the heat with me," presumably to mean that he was carrying a gun. Thompson then reportedly spotted the victim, thirty-four year old Raymond T. Liuzza, Jr., who was returning to his home and had parked his car nearby. Referring to Liuzza, Thompson told Freeman, "I'm going to hit him." Once Liuzza exited the car, Thompson drew his .357 magnum revolver. Freeman watched as Thompson crossed the street, grabbed Liuzza from behind, and threw him to the ground. As Freeman was fleeing the scene, he heard several shots, looked back, and saw Thompson running away.

At about the same time, Pamela Staab--a neighbor of Liuzza's--was awakened by the sound of Liuzza's voice outside her bedroom window. She heard Liuzza offer his watch and wallet to his assailant. She then heard several gunshots. Staab heard nothing to suggest that Liuzza struggled or wrestled with his assailant. At about the same time, another neighbor heard five gunshots and then saw a man fitting Thompson's description fleeing the scene with a gun in his hand. At approximately 12:30 a.m. that morning, Police Officer David Carter received a call dispatching him to the crime scene. Carter reported that upon his arrival at the scene, he found Liuzza lying on the sidewalk. Liuzza remained conscious until the ambulance arrived to transport him to the hospital. Carter indicated that Liuzza said that he had been robbed by a black male. Liuzza repeatedly asked Carter, "Why did he have to shoot me?" Liuzza died at 2:17 a.m. An autopsy revealed that two of the five gunshot wounds suffered by Liuzza were fatal.

In its investigation, the police discovered that after the incident, Thompson had sold On May 8, 1985, Thompson was convicted of first degree murder and sentenced to death. His conviction and sentence were confirmed on direct appeal, State v. Thompson, 516 So.2d 349 (La.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988). On February 14, 1989, Thompson filed an application for post-conviction relief with the trial court. This application remained pending for 45 months. Finally, on November 10, 1992, the state trial court denied appellant's application. In December 1992, Thompson filed a writ application with the Louisiana Supreme Court challenging the trial court's judgment. With regard to the writ, the Louisiana Supreme Court denied in part and granted in part. Thompson's case was remanded to the trial court for an evidentiary hearing on appellant's claim that the state knew or should have known that Richard "Funk" Perkins lied at trial about his knowledge of, or the benefit he hoped to derive from, the reward offered by the victim's family and that the state did nothing to correct the witness' testimony disavowing any motive or bias in the case. Thompson's application was denied in all other respects. Pursuant to the Louisiana Supreme Court's remand order, the trial court held an evidentiary hearing on June 23, 1995. The trial court issued written reasons denying appellant's post-remand application for post-conviction relief on September 19, 1995. Appellant again sought relief from the Louisiana Supreme Court and again was denied in April 1996. Thompson then filed a federal habeas petition. The district court denied his application on February 24, 1997 and his subsequent request for reconsideration on April 17, 1997. Thompson filed a notice of appeal and was granted a certificate of appealability by the district court. Thompson timely appeals his conviction and sentence.

the murder weapon to one Junior Lee Harris. A warrant search of Harris' home led to the discovery of Liuzza's gold pinky ring. Police also learned that Harris had, in turn, sold the murder weapon to Jessie Harrison, from whom the police later recovered it. Bullets recovered from the Liuzza murder scene subsequently were linked to the gun in question. In addition, Thompson later made incriminating statements about the crime to Freeman and government witness Richard "Funk" Perkins, and police recovered a letter in which Thompson had requested the help of an individual named "Big Daddy Red" in concealing his (Thompson's) involvement in the crime. Finally, government witness Kenneth Carr testified that he had overheard a conversation of Thompson's in a bar in which Thompson expressed concern about the reward being offered for information about the Liuzza crime.

DISCUSSION

I

In a habeas corpus appeal, we review the district court's findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court's decision as the district court. Gochicoa v. Johnson, 118 F.3d 440, 444 (5th Cir.1997) (citing Spence v. Johnson, 80 F.3d 989, 993 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 519, 136 L.Ed.2d 407 (1996)). Pursuant to the amendments to 28 U.S.C. § 2254 by the Antiterrorism and Effective Death Penalty Act ("AEDPA") Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court should not grant relief on any claim adjudicated on the merits by a state court unless the state decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, or if the state court's determination of facts was unreasonable in light of the evidence. AEDPA § 104(3) (codified at 28 U.S.C. § 2254(d)). Because Thompson's petition for federal habeas corpus relief was filed with the district court after AEDPA was signed into law, this court accordingly must afford great deference to state court judgments on federal collateral review pursuant to the statute's amendments. See Gochicoa, 118 F.3d at 444.

II

Thompson first argues that the government withheld critical evidence in his case. He claims that he requested favorable evidence from the state in presenting his defense; specifically, he alleges that he sought evidence relating to the payment or

                promise of a reward for information leading to the capture of Liuzza's assailant and that such evidence was withheld from him in violation of the Supreme Court's holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).  Under Brady, the prosecution's action in withholding material evidence favorable to the accused upon request amounts to a violation of due process.  Id. at 86-87, 83 S.Ct. at 1196-97.   Thompson asserts that it is without dispute that the state had this type of evidence in its possession and failed to produce it, despite the state's affirmative representations to defense counsel that it did not have such information.  Thompson insists that the state possessed no fewer than nine specific items of evidence regarding the reward which were favorable to his defense.  He alleges that these items included:  (1) a police report which revealed that (a) Carr requested the reward from Crime Stoppers, (b) the police originally concluded that Perkins offered information only in the hope of receiving a reward, and (c) Perkins met with the Liuzza family representatives who had offered the reward;  (2) Crime Stoppers questionnaires from Perkins and Carr;  and (3) witness statements from Perkins and Carr indicating their knowledge of and interest in the reward.  Thompson implies that Perkins and Carr colluded with the state to hide such information and that such information could have been used by the defense to impeach the testimony of state witnesses Perkins and Carr
                

A

We first turn to Thompson's Brady claims regarding Richard "Funk" Perkins. The record discloses that Perkins testified at trial that he obtained a gun from Thompson that subsequently was identified as the murder weapon, and that Thompson told Perkins that he had accidentally shot Liuzza. Thompson argues that Perkins conspired with the state in order to conceal a Crime Stoppers questionnaire revealing Perkins' knowledge of...