United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller United State District Judge
Victor Thompson (“Thompson”), an inmate on
Texas's death row, has filed a federal petition for a
writ of habeas corpus. Respondent Lorie Davis
(“Respondent”) has answered. After considering
the record, the pleadings, and the applicable law, the Court
finds that Thompson has not shown an entitlement to habeas
started dating Dennise Hayslip, who was twelve years his
senior, around June of 1997. Thompson soon moved in with her.
Thompson rarely worked, but relied on Hayslip and another
roommate for support. Thompson became increasingly jealous,
possessive, angry, and abusive. Thompson eventually moved
began dating Darren Cain, but still occasionally saw
Thompson. On April 30, 1998, Thompson was at Hayslip's
apartment when Cain called at around 2:30 a.m. Thompson told
Cain “to come over there and he would beat his
ass.” RR1 Vol. 11 at 76. When Cain arrived, Thompson
answered the door with a stick. A fight ensued. Thompson lost
and Hayslip exited the apartment. Thompson walked out also,
yelling, cussing, and calling Hayslip a “whore.”
RR1 Vol. 11 at 53. As Cain told Thomson to “chill,
” Thompson responded: “do you want to die, mother
fucker?” RR1 Vol. 11 at 54.
time, the police had been called. The responding officer
encountered Thompson, Hayslip, and Cain standing outside.
Thompson's eye was blackened from the fight he had
started. Because no one wanted to press criminal charges, a
police officer allowed Thompson to leave after threatening
him with criminal trespass should he return. After the
responding officer escorted him from the premises, Thompson
went to get a gun.
later described to a friend, Diane Zernia, how he returned to
Hayslip's apartment and shot both Hayslip and Cain.
Thompson kicked down the door to Hayslip's apartment and
encountered Cain inside. As Cain grabbed the end of the gun,
Thompson began firing. Thompson shot Cain four times, and two
bullets missed. After Cain fell to the ground, Thompson
reloaded the gun, put it up to Hayslip's cheek, and said,
“I can shoot you too, bitch.” RR1 Vol. 11 at 132.
The gun fired. The bullet traveled through Hayslip's
cheek, into her tongue, and out the other side. Thompson
later claimed that he also tried to shoot himself, causing a
wound on his arm.
heard the gunshots. Shortly thereafter, Hayslip began
knocking on neighbors' doors. A neighbor found her
sitting on the ground, gasping for breath as she leaned
forward to prevent drowning in her own blood. When emergency
responders arrived, they found Cain dead. Hayslip was
bleeding profusely. Responders took her by life flight to a
hospital where she later died.
the apartment, Thompson threw his gun in a nearby creek.
Thompson then went to Zernia's house and fell asleep on a
couch. When he woke up, he described the murders to Zernia.
then called his father, who picked him up and took him to the
State of Texas charged Thompson with capital murder for
intentionally or knowingly causing the death of more than one
person in the same criminal transaction. See Tex.
Penal Code Ann. § 19.03(a)(7). Specifically, the
indictment required the prosecution to prove that Thompson
“unlawfully, during the same criminal transaction,
intentionally and knowingly caused the death of” Cain
by “shooting [him] with a deadly weapon” and also
“intentionally and knowingly caused the death” of
Hayslip by “shooting [her] with a deadly weapon . . .
.” CR at 51; RR1 Vol. 11 at 4-5. Thompson stood trial
in 1999. The prosecution presented testimony and
evidence showing that Thompson shot both Cain and Hayslip.
The prosecution particularly emphasized Thompson's
confession to Zernia that he shot both victims. The main
defensive argument at the guilt/innocence phase was that
medical malpractice, not the gunshot through Hayslip's
mouth, was the primary cause of her death. The jury convicted
Thompson of capital murder. He was sentenced to death.
direct appeal, Thompson raised issues relating to both the
guilt/innocence and punishment phases of trial. In 2001, the
Court of Criminal Appeals found that the State violated
Thompson's rights by relying in the punishment phase on
the tape recording of an undercover police officer's
jailhouse conversation with him. The Court of Criminal
Appeals remanded for a new sentencing hearing. Thompson
v. State, 93 S.W.3d 16 (Tex. Crim. App. 2001).
trial court held a new sentencing hearing in
2005. A Texas jury decides a capital
defendant's sentence by answering two special-issue
questions: (1) will the defendant be a future danger to
society and (2) do sufficient circumstances mitigate against
a death sentence? See Tex.
Code art. 37.071 § 2(b). In addition to the evidence
underlying Thompson's conviction, the Court of Criminal
Appeals summarized the State's evidence for a death
sentence as follows:
A few hours after committing the murders, [Thompson] went to
the home of Diane Zernia and confessed to her. After calling
his father, [Thompson] surrendered to authorities. [Thompson]
later phoned Zernia from jail and tried to persuade her to
lie about what he had told her, but she refused. [Thompson]
also attempted, from prison, to solicit someone to kill
Zernia and was later indicted for solicitation to commit
capital murder. The State also presented evidence that
[Thompson] was associated with the Aryan Brotherhood gang in
prison. A fellow jail inmate testified that [Thompson] gave
him a list of people who [Thompson] believed were potential
witnesses and told the inmate that he would pay him to
“eliminate” the witnesses or otherwise make sure
that they would not appear in court. The inmate turned the
list over to the police.
The State also presented evidence that [Thompson] began
committing crimes as a juvenile. In 1984, while living with
his parents in an upper-middle-class neighborhood in
Colorado, [Thompson] committed a string of crimes that
resulted in over $60, 000 of damage to homes and property.
While on probation from the youth center, [Thompson] stole
his father's motorcycle, ran away, and committed a
variety of crimes. He was arrested again in 1987 and
sentenced to a juvenile facility. [Thompson] had problems
with drugs and alcohol from an early age. He married, but
later abandoned his wife and two children. In 1996,
[Thompson] was arrested for transporting illegal immigrants
Thompson v. State, No. AP-73, 431, 2007 WL 3208755,
at *1-2 (Tex. Crim. App. Oct. 31, 2007). The jury again
answered Texas's special-issue questions in a manner
requiring imposition of a death sentence. The Court of
Criminal Appeals affirmed Thompson's sentence in a second
direct appeal in 2007. Thompson v. State, No. AP-73,
431, 2007 WL 3208755 (Tex. Crim. App. Oct. 31, 2007).
filed two state applications for a writ of habeas corpus.
Thompson filed a state habeas application during the pendency
of his first direct appeal. Thompson filed a second state
habeas application after receiving his second death sentence.
In 2013, the trial-level state habeas court entered findings
of fact and conclusions of law recommending that the Court of
Criminal Appeals deny both habeas applications. On April 17,
2013, the Court of Criminal Appeals adopted the lower
court's recommendation and also provided additional
reasons for denying Thompson's habeas applications.
Ex Parte Thompson, No. WR-78, 135-01, 2013 WL
1655676 (Tex. Crim. App. Apr. 17, 2013).
review followed. Thompson filed an initial federal petition
raising unexhausted issues. Dkt. 21. On Thompson's
motion, the Court stayed the instant proceedings to allow
state court review of Thompson's unexhausted claims.
Texas only allows successive state habeas proceedings in
narrowly defined circumstances. See Tex. Code Crim.
Pro. art. 11.071 § 5. On March 9, 2016, the Court of
Criminal Appeals found that Thompson's successive habeas
application did not meet the statutory criteria and dismissed
that action as an abuse of the writ. Ex parte
Thompson, No. WR-78, 135-03, 2016 WL 922131, at *1 (Tex.
Crim. App. Mar. 9, 2016).
filed an amended federal habeas petition raising the
following grounds for relief:
1. Insufficient evidence supports Thompson's
capital-murder conviction because intervening medical care
was the direct cause of Dennise Hayslip's death.
2. The prosecution violated Thompson's right to counsel
by using a state agent to secure incriminating statements
from Thompson while he was incarcerated before trial.
3. The State's punishment-phase case relied on
incriminating statements secured by a career informant.
4. The indictment unconstitutionally omitted any facts
pertaining to the Texas's special-issue questions.
5. The State adduced impermissible victim-impact evidence in
violation of Thompson's constitutional right to be free
from cruel and unusual punishment.
6. Texas's use of lethal injection to effectuate a death
sentence does not comply with Eighth Amendment standards.
7. Texas's post-conviction procedure does not afford due
8. Texas's statute defining concurrent causation is
9. Thompson's attorneys provided ineffective assistance
in both phases of trial.
10. The trial court violated Thompson's rights by denying
the request for a continuance before the second punishment
11. The State violated the Eighth Amendment by presenting
evidence at the second penalty phase of Thompson's
12. The Constitution requires that jurors consider the
mitigation special issue under a beyond-a-reasonable-doubt
13. The mitigation special issue unconstitutionally sends
mixed signals to jurors.
14. The State's testimony and evidence relating to the
autopsies of the victims violated Thompson's due process
rights, his right to confront the witnesses against him, and
right to counsel.
Dkt. 57. Thompson has also filed a motion for an
evidentiary hearing. Dkt. 56. Respondent has filed an answer
arguing that substantive and procedural law limits federal
review and forecloses habeas relief. Dkt. 66. Thompson has
filed a reply. Dkt. 69. This Court has reviewed
Thompson's grounds for relief and has determined that an
evidentiary hearing is not necessary to a full and fair
review of his claims. This matter is ripe for adjudication.
Standard of Review
habeas review is secondary to the state court process and is
limited in scope. The States “possess primary authority
for defining and enforcing criminal law. In criminal trials
they also hold the initial responsibility for vindicating
constitutional rights.” Engle v. Isaac, 456
U.S. 107, 128 (1982). How an inmate has litigated his claims
in state court determines the course of federal habeas
adjudication. Under 28 U.S.C. § 2254(b)(1), “[a]n
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a state court shall
not be granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the
State[.]” Exhaustion “reflects a policy of
federal-state comity designed to give the State an initial
opportunity to pass upon and correct alleged violations of
its prisoners' federal rights.” Anderson v.
Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (internal
citations and quotations omitted).
corollary to exhaustion, the procedural-bar doctrine requires
inmates to litigate their claims in compliance with state
procedural law. See Dretke v. Haley, 541 U.S. 386,
392 (2004); Lambrix v. Singletary, 520 U.S. 518, 523
(1997); Coleman v. Thompson, 501 U.S. 722, 729
(1991). When an inmate fails to follow well-established state
procedural requirements for attacking his conviction or
sentence, and the state court finds that he has procedurally
defaulted his claims, federal habeas adjudication is barred.
See Lambrix, 520 U.S. at 523; Coleman, 501
U.S. at 732. A federal court may review an inmate's
unexhausted or procedurally barred claims only if he shows:
(1) cause and actual prejudice or (2) that “a
constitutional violation has ‘probably resulted' in
the conviction of one who is ‘actually
innocent[.]'” Haley, 541 U.S. at 393
(quoting Murray v. Carrier, 477 U.S. 478, 496
inmate has presented his federal constitutional claims to the
state courts in a procedurally proper manner, and the state
courts have adjudicated the merits, the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”) allows
federal review but limits its depth. “[A] habeas
petitioner has the burden under AEDPA to prove that he is
entitled to relief.” Montoya v. Johnson, 226
F.3d 399, 404 (5th Cir. 2000); see also DiLosa v.
Cain, 279 F.3d 259, 262 (5th Cir. 2002). A petitioner
cannot meet this burden by merely alleging constitutional
error. Instead, “focus[ing] on what a state court knew
and did, ” Cullen v. Pinholster, 563 U.S. 170,
182 (2011), an inmate must show that the state court's
adjudication of the alleged constitutional error “was
‘contrary to, or involved an unreasonable application
of, clearly established Federal law.'” Berghuis
v. Thompkins, 560 U.S. 370, 380 (2010) (quoting 28
U.S.C. § 2254(d)(1)); see also Thaler v.
Haynes, 559 U.S. 43, 47 (2010); Bell v. Cone,
535 U.S. 685, 698 (2002); Early v. Packer, 537 U.S.
3, 7-8 (2002); Williams v. Taylor, 529 U.S. 362, 413
(2000). A federal habeas court must presume the underlying
factual determinations of the state court to be correct,
unless the inmate “rebut[s] the presumption of
correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1); see also Miller-El v.
Cockrell, 537 U.S. 322, 341 (2003); Young v.
Dretke, 356 F.3d 616, 629 (5th Cir. 2004) (“As a
federal habeas court, we are bound by the state habeas
court's factual findings, both implicit and
petitioner's compliance with 28 U.S.C. § 2254 does
not alone create an entitlement to habeas relief. No Supreme
Court case “ha[s] suggested that a writ of habeas
corpus should automatically issue if a prisoner satisfies the
AEDPA standard[.]” Horn v. Banks, 536 U.S.
266, 272 (2002); see also Robertson v. Cain, 324
F.3d 297, 306 (5th Cir. 2003) (finding that 28 U.S.C. §
2254(d) “does not require federal habeas courts to
grant relief reflexively”). Other judicial doctrines,
such as the harmless-error doctrine and the non-retroactivity
principle, bridle federal habeas relief. See Thacker v.
Dretke, 396 F.3d 607, 612 n.2 (5th Cir. 2005). Any trial
error cannot require habeas relief unless it “ha[d] a
‘substantial and injurious effect or influence in
determining the jury's verdict.'”
Robertson, 324 F.3d at 304 (quoting Brecht v.
Abrahamson, 507 U.S. 619, 629 (1993)); see also
Aleman v. Sternes, 320 F.3d 687, 690-91 (7th Cir. 2003)
(“Nothing in the AEDPA suggests that it is appropriate
to issue writs of habeas corpus even though any error of
federal law that may have occurred did not affect the
outcome.”). Also, under the jurisprudence flowing from
Teague v. Lane, 489 U.S. 288 (1989), a habeas court
cannot grant relief if it would require the creation and
retroactive application of new constitutional law. See
Horn, 536 U.S. at 272.
Analysis A.Sufficiency of the Evidence
State of Texas indicted Thompson for causing the death of
both Cain and Hayslip. CR at 51; RR1 Vol. 11 at 4-5. Thompson
complains that insufficient evidence supports his
capital-murder conviction because intervening medical care
was the direct cause of Hayslip's death. As previously
discussed, when Thompson shot Hayslip in the cheek, the
bullet traveled through her mouth and nearly severed her
tongue. The wound left Hayslip bleeding profusely. Her tongue
swelled up and threatened to close off her throat. Responders
tried to keep her airway free. Life Flight transported
Hayslip to a major trauma center. At one point in surgery
Hayslip became unable to breathe, resulting in brain death.
She died sometime later in the hospital.
argues that incompetent medical care intervened in the chain
of causation and resulted in her death. Thompson argues:
“The death of Ms. Hayslip was the sole result of her
loss of oxygen to the brain, which in turn caused her family
to terminate her life one week after she was shot. This event
was produced by the physicians' respective inability to
properly provide competent medical assistance by way of a
commonly performed hospital procedure.” Dkt. 57 at 52.
Because the indictment required the State to prove that he
was the agent of both victims' death, Thompson contends
that medical malpractice rendered his own actions
insufficient to support a capital conviction.
claims come before a federal habeas court under a standard of
review that gives heavy deference to state-court
adjudications. Under Jackson v. Virginia, 443 U.S.
307 (1979), a reviewing court affirms a jury's conviction
if, considering all of the evidence in a light most favorable
to the prosecution, a rational trier of fact could have
returned a verdict unfavorable to the defendant. This
demanding inquiry is highly deferential to, and resolves any
conflicting evidence in favor of, the jury's verdict.
See United States v. Harris, 293 F.3d 863, 869 (5th
Cir. 2002); United States v. Duncan, 919 F.2d 981,
990 (5th Cir. 1990). AEDPA augments the deferential
Jackson analysis, creating an enhanced barrier to
federal habeas relief. See Coleman v. Jackson, 132
S.Ct. 2060, 2062 (2012); Perez v. Cain, 529 F.3d
588, 599 (5th Cir. 2008). Together, Jackson and the
AEDPA create a “double dose of deference that can
rarely be surmounted.” Boyer v. Belleque, 659
F.3d 957, 964 (9th Cir. 2011). A federal habeas court focuses
only on whether the state court reasonably applied the
reviewing the trial evidence, the Court of Criminal Appeals
determined that the evidence sufficiently proved that
Thompson's actions caused Hayslip's death. Texas law
on causation framed the Court of Criminal Appeals's
review of Thompson's insufficiency-of-the-evidence claim.
Texas Penal Code § 6.04(a) provides: “A person is
criminally responsible if the result would not have occurred
but for his conduct, operating either alone or concurrently
with another cause, unless the concurrent cause was clearly
sufficient to produce the result and the conduct of the actor
clearly insufficient.” “An accused may be
exonerated under [§6.04] only if his conduct alone was
clearly insufficient to produce the result and the concurrent
cause clearly sufficient, operating alone, to do so.”
Felder v. State, 848 S.W.2d 85, 90 (Tex. Crim. App.
1992) (quotation omitted). The Court of Criminal Appeals
The shot to Hayslip's face went through her cheek and
nearly severed her tongue. According to the State's
medical evidence, because the tongue is especially
“well vascularized” (contains more blood per gram
of tissue than other parts of the body), Hayslip was at risk
of bleeding to death or of bleeding down into her lungs which
also could have resulted in death similar to drowning. The
doctor in charge of Hayslip's care further testified
that, without any medical attention, the swelling of
Hayslip's tongue could have eventually obstructed her
airway entirely, resulting in suffocation. He stated that
without medical intervention, Hayslip would not have survived
her injuries. [Thompson's] medical expert agreed that the
injury to Hayslip's tongue was life threatening and also
agreed that Hayslip “probably” would have died
without medical intervention.
Thompson, 93 S.W.3d at 20-21. Thompson raises two
primary criticisms of the Court of Criminal Appeals's
ruling. Dkt. 57 at 44. First, Thompson faults the state court
for relying on a false premise by looking at whether the
victim “would not have survived her injuries” if
she went “without medical attention.” Dkt. 57 at
contends that “there was no chance that Hayslip would
go without medical attention.” Dkt. 57 at 44. Testimony
from medical experts laid out the risks caused by
Hayslip's bleeding and diminished breathing
ability. The Court of Criminal Appeals has
interpreted Texas law to include asking whether the initial
injury would have been fatal without medical attention.
Thompson has not pointed to any law definitely disallowing
the state court to factor into its causation review the
question of what would have happened to the victim without
medical care. See Patrick v. State, 906
S.W.2d 481, 487 (Tex. Crim. App. 1995) (rejecting the
argument that a defendant lacked a specific intent to kill
because the victim did not seek medical attention). This
Court must defer to a state court's interpretation of its
own law. See Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (“We have repeatedly held that a state
court's interpretation of state law, including one
announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.”).
Trial testimony sufficiently established that Thompson
inflicted a life-threatening injury, one which required
urgent medical attention in order to preserve Hayslip's
life. “Thus, viewing the evidence in the light most
favorable to the verdict, even assuming, arguendo,
that the conduct of the doctors was ‘clearly
sufficient' to cause Hayslip's death, the conduct of
[Thompson] was not ‘clearly insufficient' so as to
absolve him of criminal responsibility under §
6.04.” Thompson, 93 S.W.3d at 20-21.
second criticism is that the state court incorrectly
characterized his expert's trial testimony. The Court of
Criminal Appeals described defense witness Dr. Pat
Radalat's testimony as “agree[ing] that the injury
to Hayslip's tongue was life threatening and also
agree[ing] that Hayslip ‘probably' would have died
without medical intervention.” Thompson, 93
S.W.3d at 21. Even though Thompson disputes the Court of
Criminal Appeals's interpretation of the defensive
testimony, Dr. Radalat testified that, without medical
intervention, the wound “would probably be
fatal.” RR1 Vol. 12 at 232. Thompson's own expert
would not testify that the medical efforts to save
Hayslip's life caused her death. RR1 Vol. 12 at 256.
the trial evidence and testimony in a light most favorable to
the jury's verdict, the Court of Criminal Appeals could
reasonably find that a rational jury could convict Thompson.
Thompson shot the victim in the mouth, causing a wound that
nearly severed her tongue. The wound was serious and
threatened her ability to breathe. Care had to be taken so
that Hayslip would not drown in her own blood. Tr. Vol. 15 at
84. Surgical efforts to save the victim failed. Whether
medical errors played some part in her death is not a
question before this Court. This Court's sole inquiry is
whether the state court unreasonably found that, construing
the evidence in favor of the jury's verdict, sufficient
evidence existed to support Thompson's conviction. The
doubly deferential nature of federal review precludes habeas
relief on this claim.
Use of Information Derived from a State Actor at the
Court of Criminal Appeals ordered a new sentencing hearing
after finding that the State had unconstitutionally admitted
into evidence a recording of Thompson's jailhouse
conversation with undercover police officer Gary Johnson. In
Thompson's first appellate proceeding, the Court of
Criminal Appeals provided the following background:
Deputy Max Cox of the Harris County Sheriff's Department
testified at punishment that he was approached by an inmate,
Jack Reid, who told him that [Thompson] was attempting to
solicit the murder of Diane Zernia, who was slated to be a
witness in his capital murder case. Reid shared a cell with
[Thompson]. Reid told Cox that [Thompson] had already
arranged for the murder by another inmate, Max Humphrey, who
had also shared a cell with [Thompson] and had recently been
discharged, but was looking for someone to retrieve a gun and
give it to Humphrey in order for him to carry out the
murder. Cox told Reid that if he was approached by
[Thompson] again, he should tell him that he knew someone who
could retrieve the gun for him. Reid called Cox the next day
and indicated that he had complied with Cox's
instructions. Cox then arranged for Gary Johnson, an
investigator with the Harris County District Attorney's
Office, to meet with [Thompson] in an undercover capacity to
discuss the retrieval of the weapon and record their
conversation. Johnson was to assume the identity of
Reid's friend, who had supposedly been contacted by Reid
about retrieval of the gun. Cox further testified that he
gave Johnson a map that presumably identified where the gun
could be located. Johnson testified that he had been
contacted by Cox and had agreed to assume an undercover
identity for the purpose of meeting with [Thompson] to
discuss retrieving a weapon to be used in a murder that had
possibly already been arranged. Johnson testified that he was
wired for recording throughout their meeting. He further
testified that [Thompson] brought a hand-drawn map to the
meeting, similar to the one Cox had given him, and held it up
to the glass for him to see. At that point during
Johnson's testimony, the State offered the tape into
[Thompson] was given permission to question Johnson on voir
dire. Johnson admitted to having been aware that [Thompson]
was represented by counsel on the capital murder charge at
the time of their meeting. He conceded that he had not
notified counsel of their meeting, had not informed
[Thompson] that he was an officer of the State, and had not
given [Thompson] any warnings. See Tex. Code Crim.
Proc. art. 38.22; Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [Thompson] objected and
sought suppression of the tape on the ground that he had been
denied counsel during the meeting with Johnson. The trial
court overruled the objection and admitted the tape into
evidence. The tape was played for the jury.
During their tape-recorded meeting [Thompson] and Johnson
briefly discussed retrieval of the gun. Then, [Thompson] told
Johnson that there was a witness in his case that he wanted
“taken care of.” [Thompson] stated that he had
already paid Humphrey to kill the witness, but Humphrey had
not gone through with the job. [Thompson] gave Johnson the
witness' address, and described the witness as a mother
with a fourteen year old daughter and a husband. He described
her car, and informed him that she was usually home in the
mornings after her daughter went to school. He described her
house as Victorian and her mailbox as black and white
spotted, like a cow. [Thompson] promised that when he got out
of jail, he would pay Johnson $1, 500 for killing the
witness. After the tape was played for the jury, Johnson
testified further, without objection, that [Thompson] had
brought the map with him to the meeting, and that it had an
address written on it. Johnson stated that [Thompson] had
held it up to the glass for Johnson to read.
Thompson, 93 S.W.3d 1at 22-23 (footnotes in
argued that the State violated his Sixth Amendment rights by
using “against him at his trial evidence from his own
incriminating words, which [state] agents had deliberately
elicited from him after he had been indicted and in the
absence of his counsel.” Massiah v. United
States, 377 U.S. 201, 206 (1964). A Massiah
violation has three elements: “(1) the Sixth Amendment
right to counsel has attached; (2) the individual seeking
information from the defendant is a government agent acting
without the defendant's counsel's being present; and
(3) that agent deliberately elicits incriminating statements
from the defendant.” Henderson v. Quarterman,
460 F.3d 654, 664 (5th Cir. 2006) (quotation omitted). The
Court of Criminal Appeals found that the punishment-phase
introduction of the tape-recorded conversation between
Thompson and Johnson was improper:
The State elicited information from [Thompson] regarding the
solicitation of the murder of a person who was to be a
witness against [him]. The information was elicited by an
agent of the State, without notifying [Thompson's]
counsel, and was then used at [his] capital murder trial to
help the State establish that [he] posed a continuing threat
to society. The State knew the capital murder charges were
pending against [Thompson] at the time, and that any evidence
incriminating [him] in another offense would probably be used
against him in the capital punishment phase. We hold
[Thompson's] Sixth Amendment right to counsel was
violated by the State's actions in soliciting the tape
recorded conversation between [Thompson] and Johnson and
using it against [him] in the punishment phase of his capital
murder trial, the charges of which were pending at the time
of the conversation. The trial court should have granted
[Thompson's] motion to suppress the tape.
Thompson, 93 S.W.3d at 27 (citation omitted). On
that basis, the Court of Criminal Appeals overturned
Thompson's death sentence.
argues that the Court of Criminal Appeals did not ameliorate
all the harm caused by the State's use of an undercover
agent. Thompson's federal petition contends that, because
the information Johnson obtained from him led to evidence the
State presented in the guilt/innocence phase, the Court of
Criminal Appeals should have overturned not just his first
death sentence, but his capital conviction also. Thompson
particularly objects because the discovery of the murder
weapon revealed how many bullets it would hold, which in turn
allowed the State to argue that Thompson reloaded the weapon
during the criminal episode.
arguments that a Massiah violation harmed him the
guilt/innocence phase depend on his claim that “the gun
was only found based on the information uncovered by
Johnson.” Dkt. 57 at 60. Before Johnson met with
Thompson, the police obtained a map of where Thompson had
discarded the gun. Johnson testified that Cox had received
the map “through an informant in the Harris County
Jail, ” presumably Reid. RR1 Vol. 14 at 156. Thompson
argues that, “because authorities were not able to
recover the gun based on the map alone, ” the police
sent “Johnson in to speak with Thompson with the goal
of recovering the weapon.” Dkt. 57 at 55. Cox testified
that he gave the map to Johnson so he “would have
knowledge in talking with the defendant when the defendant
was wanting him to go recover the weapon.” RR1 Vol. 14
met with Thompson on July 7, 1998. Johnson intended to talk
to Thompson about “the retrieval of the gun” and
“the solicitation” to kill witnesses. RR1 Vol. 14
at 171. After Johnson lied and said he had personally
searched for, but could not find, the gun, Thompson showed a
map that was nearly identical to the first one. RR1 Vol. 14
at 165. The police, however, apparently never took the second
map from Thompson. RR1 Vol. 14 at 165-66, 175. The record
does not elaborate on any information outside of the map that
Thompson may have provided about the gun's location.
police recovered the murder weapon almost two weeks
later. Johnson testified that he did not think
that the police used the information from his conversation
with Thompson to find the gun. RR1 Vol. 14 at 175. Johnson
thought that the recovery of the gun “would have been
from a map they had prior to” his involvement in the
case. RR1 Vol. 14 at 176.
turning to the merits, the Court must clarify what issues
were resolved by the Court of Criminal Appeals on direct
appeal. Thompson contends that this Court can adjudicate the
merits of his claim de novo because the Court of
Criminal Appeals never ruled on his argument that a
Massiah violation tainted the guilt/innocence phase.
Respondent argues that either (1) Thompson never made clear
to the state courts that the Johnson conversation influenced
the guilt/innocence phase, thus rendering the claim in his
federal petition unexhausted or (2) the Court of Criminal
Appeals adjudicated the whole of his claim on the merits,
requiring the application of AEDPA deference.
Litigation of this Claim in State Court
primarily argues that Thompson exhausted his Massiah
claim on direct appeal, but in the alternative asserts that
Thompson did not adequately place the issue before the state
courts. Thompson never asked the trial court to find that the
gun was inadmissible. The Court must decide whether his
arguments on appeal sufficiently put the guilt/innocence
aspects of his claim before the Court of Criminal Appeals.
28 U.S.C. § 2254(b)(1), a federal habeas petitioner must
fully exhaust remedies available in state court before
proceeding to federal court. A federal court may only
adjudicate a claim when the petitioner fairly presents its
substance to the state courts. See Smith v. Dretke,
134 F. App'x 674, 677 (5th Cir. 2005). Then, AEDPA
deference applies if the state court adjudicated the merits
of the inmate's claim. Before turning to the merits, the
Court must ask: Did Thompson sufficiently raise his federal
claim in state court for the purposes of exhaustion? If so,
did the state courts rule on his claim sub silentio
or did they ignore it? If the state courts ruled on his
claim, does AEDPA govern federal review?
appellate brief first introduced his theory that a
Massiah violation tainted both stages of trial:
“The undercover interview was intertwined with the
recovery of the murder weapon and the investigation of a
solicitation of a homicide. The State of Texas did not make
any attempt to delineate between the two events.”
Appellate Brief, at 28. But Thompson's brief still
focused its discussion on the jury's punishment phase
deliberations: “The record clearly demonstrates that
the Defendant's statements on the tape recording and to
Gary Johnson were incriminating both at guilt and punishment
and significantly aided the State of Texas in securing an
affirmative answer to Special Issue Number 1. It created
future dangerousness evidence for the State.” Appellate
Brief, at 28. A supplemental brief emphasized that
“[a]s a direct result of the interview the weapon was
recovered by the State, ” but only generally argued
that “the judgment of the Court should be reversed and
remanded for a new trial or a new punishment hearing.”
Supplemental Appellate Brief, at 3.
Court of Criminal Appeals extensively discussed the effect
that the Massiah violation had on the punishment
phase of trial without mentioning Thompson's allegations
relating to the guilt/innocence phase. Thompson subsequently
filed a pro se motion for rehearing and argued that
the Massiah violation harmed him “throughout
trial, ” including in the guilt/innocence phase. The
Court of Criminal Appeals initially granted Thompson's
motion for rehearing, but subsequently dismissed it as
federal review, the question of whether Thompson fairly
presented his claims to the Texas courts is separate from the
question of whether the Texas courts adjudicated them.
See Smith v. Digmon, 434 U.S. 332, 333 (1978)
(“It is too obvious to merit extended discussion that
whether the exhaustion requirement of 28 U.S.C. §
2254(b) has been satisfied cannot turn upon whether a state
appellate court chooses to ignore in its opinion a federal
constitutional claim[.]”). Thompson did not provide the
same detailed briefing regarding the Massiah
violation as he does in federal court, but still afforded the
state courts an opportunity to consider whether the Johnson
conversation influenced the guilt/innocence phase. The Court
finds that Thompson exhausted his Massiah claim.
record, however, does not clearly indicate whether the Court
of Criminal Appeals intended to adjudicate the
guilt/innocence portion of the Massiah claim,
intentionally ignored it, or neglected to rule on it.
Generally, “[w]hen a state court rejects a federal
claim without expressly addressing that claim, a federal
habeas court must presume that the federal claim was
adjudicated on the merits.” Johnson v.
Williams, 133 S.Ct. 1088, 1096 (2013); see also
Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011)
(“When a federal claim has been presented to a state
court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the
merits [for purposes of § 2254(d) ] in the absence of
any indication or state-law procedural principles to the
contrary.”). The “presumption can in some limited
circumstances be rebutted . . . either by the habeas
petitioner (for the purpose of showing that the claim should
be considered by the federal court de novo ) or by
the State (for the purpose of showing that the federal claim
should be regarded as procedurally defaulted). . . . Thus,
while the . . . presumption is a strong one that may be
rebutted only in unusual circumstances, it is not
irrebuttable.” Williams, 133 S.Ct. at 1096.
pro se motion for rehearing argued that the Court of
Criminal Appeals did not fully adjudicate his claim. The
Court of Criminal Appeals ultimately denied rehearing without
divulging whether it had already adjudicated the claim,
considered it to be meritless, applied Texas procedural law,
or found some other reason for denial. Nevertheless, neither
party has rebutted the presumption that the Court of Criminal
Appeals decided the issue on the merits. The Court,
therefore, presumes that the Court of Criminal Appeals denied
the guilt/innocence aspects of his Massiah claim on
the merits. The Court will apply AEDPA's deferential
scheme to Thompson's Massiah claim.
Court of Criminal Appeals decided on direct appeal that the
State had committed a Massiah violation by sending
an undercover agent to speak with Thompson. Because neither
party questions whether the Court of Criminal Appeals was
correct in finding a constitutional violation, this Court
does not revisit that decision and only considers its impact
on Thompson's conviction.
did not testify in the guilt/innocence phase. Instead,
Thompson objects to derivative evidence and testimony
relating to the murder weapon, which Thompson argues was only
discovered after Johnson's conversation with him.
Information about the gun came before the jury in various
contexts. Thompson argues that “[t]here is
no question that [he] was harmed by the admission of the gun
in his case, and the gun was only found based on the
information uncovered by Gary Johnson in violation of
Thompson's Right to Counsel.” Dkt. 57 at 60.
claims that two doctrines overcome the deterrence rationale
underlying a Massiah violation. The Supreme Court
recognizes an “independent source doctrine” that
allows trial courts to admit evidence when “officers
independently acquired it from a separate, independent
source.” Utah v. Strieff, 136 S.Ct. 2056, 2061
(2016); see also Nix v. Williams, 467 U.S. 431, 442
(1984). Also, Respondent argues that the inevitable-discovery
doctrine, which “asks whether there is a reasonable
probability that the evidence in question would have been
discovered in the absence of the police misconduct, ”
cured the Massiah violation. United States v.
Zavala, 541 F.3d 562, 579 (5th Cir. 2008); see also
Nix, 467 U.S. at 443-44 . Respondent argues that
“it is clear that the gun was discovered either from a
source independent of Johnson or its discovery was
inevitable.” Dkt. 66 at 40. Respondent's arguments
under both the inevitable-discovery and the
independent-source doctrine rely on the absence of a link
between the Johnson conversation and the gun's recovery.
has not shown that his conversation with Johnson was the
predicate for the police recovering the murder weapon.
Thompson assumes that the police recovered the gun
“with the help of Johnson's recording, ”
because they found it afterward. Dkt. 57 at 58. Showing that
the police found the gun after the Johnson conversation does
not mean they found it because of the conversation.
The record does not extensively discuss the discovery of the
murder weapon, likely because trial counsel did not challenge
its admissibility. Still, the record does not suggest that
the police used information from Johnson to find the gun.
Thompson has not pointed to anything in the record showing
that he provided Johnson some detail not already known from
the first map or his statements to Zernia. A previous
informant had already obtained a map showing the location of
the murder weapon, which the police had before sending
Johnson to speak with Thompson. RR1 Vol. 14 at 124-25. That
map indicated the location of the creek in which Thompson
discarded the gun. RR1 Vol. 14 at 126. The police used that
map in searching for the weapon. RR1 Vol. 14 at 127. Despite
having looked before the Johnson conversation, the police did