Thompson v. Parker

• Decision Date: 01 May 2012
• Docket Number: CASE NO. 5:11-CV-31
• Parties: WILLIAM EUGENE THOMPSON PETITIONER v. PHILIP W. PARKER, WARDEN RESPONDENT
• Court: U.S. District Court — Western District of Kentucky

WILLIAM EUGENE THOMPSON PETITIONER v. PHILIP W. PARKER, WARDEN RESPONDENT

CASE NO. 5:11-CV-31

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY PADUCAH DIVISION

Dated: May 1, 2012

MEMORANDUM OPINION & ORDER

Petitioner, a prisoner sentenced to death by the Commonwealth of Kentucky, has a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 currently pending before this Court. Petitioner has filed a motion for an evidentiary hearing (DN 23). The Respondent has objected to Petitioner's motion for an evidentiary hearing (DN 24). This matter is now ripe for adjudication. For the following reasons, Petitioner's motion for an evidentiary hearing is GRANTED IN PART.

I. INTRODUCTION

Petitioner, William Eugene Thompson, asserts that an evidentiary hearing is necessary on his first and second claims for relief in his § 2254 petition. Specifically, Thompson seeks a hearing on his claim that extrinsic influence upon the jury's sentencing deliberation violated his constitutional rights to an impartial jury and to confront the witnesses against him under the Sixth and Fourteenth Amendments. Thompson also seeks an evidentiary hearing on his claim that his counsel was ineffective for explaining to the jury in closing arguments that Thompson would be eligible for release on parole in 25 years, despite the fact that the parole board had ordered Thompson to serve out a life sentence while he was awaiting trial in the present case.

II. FACTS

In May of 1986, while serving a life sentence for murder,¹ Thompson killed Charles Fred Cash, a Department of Corrections (DOC) Officer. At Thompson's first trial, he was convicted and received a death sentence, which was reversed by the Kentucky Supreme Court. Thompson v. Commonwealth, 862 S.W.2d 871, 872 (Ky. 1993). On remand, Thompson pled guilty to murder, robbery in the first degree, and escape in the first degree. A sentencing trial for the murder conviction was held in Graves County to determine a new sentence.

At the sentencing trial, Thompson testified on his own behalf. In response to a question asked by his attorney, Thompson responded that "I will die in prison. I have been in now for almost twenty-seven years. I have no chance of ever getting out. I finally went up for parole on the life sentence that I was originally doing in November of 1993 and at that time, the Parole Board give me a serve-out on a life sentence which means that I will die in prison." There was no follow-up question to this response, and the DOC documents evidencing the serve-out order were not introduced into evidence. During closing arguments, Thompson's counsel stated as follows:

We have a case now where it is not necessary to take a life. He is going to die in prison in maximum security and as I said the first day, the question is: is the State going to do it or is God going to take him ? Because he doesn't even think about the P word-the Parole Board-until he is about seventy-five years of age. That is twenty-five New Years. Twenty-five Thanksgivings. Twenty-five Christmases. I'd like to think and I will be retired by then, we may have a colony on Mars by then. Twenty-five years.

The jury returned a sentence of death, finding two of the statutory aggravating circumstances presented to them.

Thompson then appealed his sentence, raising a number of issues including his competency to enter a guilty plea. Because the trial court did not hold an evidentiary hearing onthe issue of competency, the Kentucky Supreme Court remanded for a retrospective competency hearing and "abate[d] consideration of the remaining issues on appeal." Thompson v. Commonwealth, 56 S.W.3d 406, 407 (Ky. 2001). After a hearing, the trial court determined that Thompson had been competent to plead guilty. The Kentucky Supreme Court affirmed the trial court's competency finding along with Thompson's judgment and sentence. Thompson v. Commonwealth, 147 S.W.3d 22 (Ky. 2004).

After Thompson's conviction was affirmed on direct appeal, Thompson filed a post-conviction RCr 11.42 Motion in the Lyon Circuit Court. In that motion, Thompson argued that his attorney was ineffective and that the jury considered extra-judicial evidence. With respect to his ineffective assistance of counsel claim, Thompson argued that when his trial counsel referred to the possibility that he could be paroled in 25 years, he left the jury with the false impression that he could someday be released on parole and thus made it more likely that the jury would give him the death penalty. Thompson filed an affidavit of one the jurors in the record in 2005. In that affidavit, the jury foreperson, Roger Dowdy, stated:

I was the jury foreman in the case of Commonwealth v. William Eugene Thompson.

In determining Mr. Thompson's sentence, the jury was afraid that Mr. Thompson might be released from prison if he was to receive anything less than a death sentence.

During the time of the trial, there was another case in the news that the jury discussed during deliberations. A seventy year old man who committed a murder in California had been released from prison on parole. This man, despite his age, then committed another murder in Florida. The jury was afraid that Mr. Thompson, even as an old man, would be a danger to society if released.

An article about that other case is attached to this affidavit. Similar news pieces ran in the media available in Graves County.

The Lyon Circuit Court denied Thompson's claims without an evidentiary hearing, and the Kentucky Supreme Court affirmed on appeal.² Thompson v. Commonwealth, 2010 WL 4156756 (Ky. October 21, 2010). Petitioner then filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. Petitioner now moves for an evidentiary hearing.

III. ANALYSIS

Thompson is seeking an evidentiary hearing on claims one and two of his petition. The first claim is based upon the consideration of extra-judicial evidence and the second claim is based upon ineffective assistance of counsel.

1. Claim One - Extra-Judicial Evidence in Jury Room

Thompson asserts that extrinsic influence upon the jury's sentencing deliberation violated his constitutional rights to an impartial jury and to confront the witnesses against him under the Sixth and Fourteenth Amendments. Specifically, Thompson alleges that the jury was exposed to media accounts of another capital trial (the "Singleton trial") being held around the same time as his trial. The defendant in that trial was a 70-year old man who committed a murder in Florida after being released from prison on parole. The foreman of the jury in Thompson's trial stated in an affidavit that the jury discussed the Singleton case and was afraid that Thompson might be released from prison if he were to receive anything less than the death penalty. Now, Thompson seeks an evidentiary hearing in order to prove that the jurors were exposed to media coverage about the Singleton trial: "if the jury was exposed to this extraneous information, a reasonablejuror would have likely considered the extraneous information in deciding Thompson's sentence."

The Kentucky Supreme Court refused to consider Thompson's claim that the jurors considered improper outside information in deliberating Thompson's sentence, finding that such a claim was not a proper ground for a RCr 11.42 motion, as issues that could have been raised on direct appeal cannot be raised in a motion pursuant to RCr 11.42. 2010 WL 4156756 at *5. Thompson contends, and Respondent acknowledges, that this claim was not procedurally defaulted because the Kentucky Supreme Court does not regularly follow the procedural rule it applied to deny Thompson's claim without reaching the merits. Thompson's claim is not a claim that he could have and should have raised on direct appeal, and Kentucky courts do allow such claims to be brought in a RCr 11.42 motion. See Bowling v. Commonwealth, 168 S.W.3d 2, 9-10 (Ky. 2004). Therefore, Thompson's claim is not procedurally defaulted. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Because Thompson's claim was not adjudicated on the merits in State court, the deference due under § 2254(d) does not apply. Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003).

Pursuant to 28 U.S.C. § 2254(e)(2), "If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that :

(A) The claim relies on -

(i) A new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) A factual predicate that could not have been previously discovered through the exercise of due diligence; and(B) The facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

This section does not apply unless the initial conditional clause is met: "[i]f the applicant has failed to develop the factual basis of a claim." The phrase "failed to develop" implies "some lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). The Supreme Court has defined a prisoner's diligence as "a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend . . . on whether those efforts could have been successful." Id. at 435. This will typically require "that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437.

If the petitioner did not fail to develop the facts in state court, then the district court may hold an evidentiary hearing. Id. at 433. However, "'bald assertions and conclusory allegations do not provide sufficient grounds to warrant requiring . . . an evidentiary hearing.'"...