Thompson v. Martin

• Decision Date: 31 March 2014
• Docket Number: Case No. 10-CV-738-TCK-TLW
• Citation: Thompson v. Martin, Case No. 10-CV-738-TCK-TLW (N.D. Okla. Mar 31, 2014)
• Parties: WILFORD CARL THOMPSON, JR., Petitioner, v. TERRY MARTIN, Warden, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

WILFORD CARL THOMPSON, JR., Petitioner, v. TERRY MARTIN, Warden,¹ Respondent.

Case No. 10-CV-738-TCK-TLW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

DATED: March 31, 2014

OPINION AND ORDER

Before the Court is the 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1), filed by Petitioner Wilford Carl Thompson, Jr., a state prisoner appearing pro se. Respondent filed a response (Dkt. # 5) and a supplement (Dkt. # 12), as well as the state court records (Dkt. ## 7, 8) necessary for the adjudication of Petitioner's claims. Petitioner filed a reply (Dkt. # 9) and a supplemental reply (Dkt. # 14). For the reasons discussed below, the petition for writ of habeas corpus shall be denied.

BACKGROUND

Petitioner challenges his convictions of First Degree Murder, Possession of a Stolen Vehicle, and First Degree Burglary entered in Tulsa County District Court, Case No. CF-2005-4330. In adjudicating Petitioner's direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) summarized the facts giving rise to Petitioner's convictions. Pursuant to 28 U.S.C. § 2254(e)(1), the historical facts found by a state court are presumed correct unless the applicant rebuts thepresumption by clear and convincing evidence. Following review of the trial transcripts and other materials submitted by the parties, the Court finds the summary by the OCCA, as set forth below, is adequate and accurate. Therefore, the Court adopts this summary as its own. Additional facts, apparent from the record, may be presented throughout this opinion as they become pertinent to the Court's analysis.

On September 13, 2005, 86-year-old Georgia Reeves Sherman was found dead in her home in Tulsa, Oklahoma. Bythelda Drake, a relative, had been trying repeatedly to reach Mrs. Sherman since the end of August. On September 13, she called the police.

When Officer Steven Sanders arrived that evening, he walked around the Sherman house knocking on doors and peering in windows, unable to rouse anyone inside. He discovered an open window with its screen removed, but was unable to climb through it because debris blocked his entry. When he smelled what he believed to be decomposing human remains, police officers forced entry into the house. Paramedics found Mrs. Sherman's body, in an advanced state of decay, in her bedroom.

At trial the medical examiner estimated she had been dead for approximately two weeks before her body was found. The autopsy found Mrs. Sherman had sustained multiple severe linear skull fractures and a broken mandible. The medical examiner, with the help of a forensic anthropologist, reconstructed Sherman's skull from its broken pieces and ruled that blunt force trauma was the cause of her death.

The testimony at Thompson's murder trial showed that one day near the end of August, Mrs. Sherman ran from her house to her neighbors, the Scotts, across the street. She was frightened and told Mrs. Scott a strange man was following her. When Thompson approached the neighbors' house, Mrs. Sherman pointed to him and insisted she didn't know who he was. Thompson responded that she did know him; he was a relative of hers. Mrs. Scott and her grandson, Ferris Vickers, told Thompson to leave because Mrs. Sherman was afraid of him. Thompson walked away, and Mrs. Sherman went home.

Mrs. Scott remembered seeing Mrs. Sherman's red Chevy Malibu in the driveway that day as she watched her walk back across the street. She never saw the car again. Several witnesses testified that for a period of several weeks beginning near the end of August they saw Thompson driving a red Chevy Malibu, the same make, model and color as Mrs. Sherman's car.

On September 20, 2005, Tulsa police officers found Sherman's missing car at an abandoned house near Thompson's home. While the license plates did not match, police confirmed that the vehicle belonged to Sherman through the vehicle identification number. Police executed a search warrant at Thompson's home and found Thompson hiding in a car in the garage. During an interview following hisarrest he admitted that he had been driving Sherman's car for two weeks and that he had switched the license plates. Thompson denied stealing the car or killing Sherman, however. He offered the explanation that he had been given the car by a friend in order to make a drug delivery.

(Dkt. # 5-3).

The record reflects that Petitioner was charged by Third Amended Felony Information with Murder - First Degree and/or in the alternative Felony Murder (Count I), Possession of a Stolen Vehicle (Count II), and Burglary - First Degree (Count III). (Dkt. # 7-10, O.R. at 2). A jury found Petitioner guilty of both Murder - First Degree and Felony Murder (Count I), and guilty of Counts II and III. See Dkt. # 7-8, Tr. Vol. V at 980-81. The jury recommended a sentence of life imprisonment without parole for Count I and life imprisonment for each of Counts II and III. Id. The trial court sentenced Petitioner in accordance with the jury's recommendation, advising Petitioner that First Degree Burglary "is an 85% crime," and ordering the sentences to be served consecutively. See Dkt. # 7-9, Tr. Sentencing at 7-8. At trial, Petitioner was represented by Assistant Public Defender David Phillips.

Petitioner, represented by Assistant Public Defender Curtis M. Allen, appealed to the OCCA. He raised three (3) propositions of error:

Proposition I: The trial court failed in its duty to instruct the jury on the lesser related offenses of second degree murder, and in the alternative, second degree felony murder and first degree heat of passion manslaughter, which were supported by the evidence, even absent a request from Appellant.

Proposition II: The trial court erred in permitting the State to introduce evidence of prior convictions in a sentencing proceeding for first degree malice murder and first degree felony murder.

Proposition III: It was error to deny defense counsel's request to provide the jury with an instruction defining "reasonable doubt."

(Dkt. # 5-1). On July 24, 2009, in an unpublished opinion, the OCCA affirmed the judgment and sentence on Counts II and III, but modified the sentence for Count I from life imprisonment without the possibility of parole to life imprisonment with the possibility of parole "[b]ecause Thompson's jury was erroneously instructed to consider prejudicial information in the form of prior convictions in reaching a sentence for the count of First Degree Murder." (Dkt. # 5-3 at 9).

On April 8, 2010, Petitioner filed an application for post-conviction relief in the trial court. (Dkt. # 5-6). Petitioner raised four (4) propositions of error:

Proposition I: As a result of petitioner's appellate counsel['s] failure to raise trial counsel's failure to examine readily mitigating records and argue the issue of legal insufficiency of evidence presented by prosecution at petitioner's trial, petitioner received ineffective assistance of counsel at his trial and on his direct appeal and appellate counsel rebutted petitioner's request that this crucial evidence be brought forward on his direct appeal. Ratliff v. U.S., 999 F.2d 1023, 1026 (6th Cir. 1993).

Proposition II: As a result of appellate counsel's failure to investigate and argue readily available mitigating records that indicated the ineffectiveness of trial counsel who failed to argue the illegal arrest of petitioner which brought forth an illegally obtained "statement," which was called a "confession," petitioner received ineffective assistance of trial counsel at his trial and appellate counsel on his direct appeal.

Proposition III: As a result of appellate counsel and trial counsel's failure to raise issue of prosecutorial misconduct at petitioner's trial and on his direct appeal, petitioner received ineffective assistance of counsel.

Proposition IV: The cumulative effective of errors discussed above requires the reversal of my conviction and/or an evidentiary hearing and granting of a new trial.

(Dkt. # 5-6). On May 19, 2010, the trial court denied Petitioner's application for post-conviction relief. (Dkt. # 5-8). The court found that "Petitioner's trial counsel acted as a reasonably competent attorney under the facts and circumstances of this case." Id. at 4. It also found that "Petitioner'sappellate counsel carefully selected legal issues to be raised on appeal" and that "Petitioner's allegations of error fail to establish that the results of petitioner's direct appeal or the jury verdict of guilt beyond a reasonable doubt would have been changed." Id. at 5. The OCCA affirmed the district court. (Dkt. # 5-11 at 2).

On November 19, 2010, Petitioner timely filed his petition for a writ of habeas corpus. He raises seven (7) grounds of error, the same raised on direct appeal and in his application for post-conviction relief. See Dkt. # 1. Grounds I - III are those raised on direct appeal and Ground IV - VII are those raised in his application for post-conviction relief. Respondent argues that Ground I is a matter of state law; Ground II is a matter of state law, but is also moot because the OCCA reduced Petitioner's sentence to the minimum under the statute; Grounds IV - VII are procedurally barred from review or, in the alternative, have no merit; and the OCCA's decision on Ground III is not contrary to or an unreasonable application of federal law as determined by the Supreme Court. (Dkt. # 5). Respondent also argues, in the alternative, that Grounds IV - VII fail on the merits. Id. at 21.

ANALYSIS

A. Exhaustion/Evidentiary hearing

As an initial matter, the Court must determine whether Petitioner meets the exhaustion requirements of 28 U.S.C. § 2254(b). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner presented his claims to the OCCA on direct appeal and post-conviction appeal. However, in response to Ground II, Respondent argues, "[t]o the extent that the petitioner now claims that the OCCA should have reversed his conviction for First Degree Murder due to a sentencing error...