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Thompson v. Davis

United States District Court, S.D. Texas, Houston Division

March 23, 2017

Charles Victor Thompson, Petitioner,
Lorie Davis, Respondent.


          Gray H. Miller United State District Judge

         Charles 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 relief.

         I. Background

         Thompson 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 out.

         Hayslip 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.[1] When Cain arrived, Thompson answered the door with a stick. A fight ensued. Thompson lost the fight.

         Cain 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.

         By that 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.

         Thompson 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.

         Neighbors 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.

         Leaving 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.

         Thompson then called his father, who picked him up and took him to the police station.

         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.[2] 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.

         On 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).

         The trial court held a new sentencing hearing in 2005.[3] 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.

         Penal 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 from Mexico.

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).

         Thompson 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).

         Federal 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).

         Thompson 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 process.
8. Texas's statute defining concurrent causation is unconstitutional.
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 phase.
11. The State violated the Eighth Amendment by presenting evidence at the second penalty phase of Thompson's youthful misconduct.
12. The Constitution requires that jurors consider the mitigation special issue under a beyond-a-reasonable-doubt standard.
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.[4] 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.

         II. Standard of Review

         Federal 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).

         As a 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 (1986)).

         If the 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 explicit.”).

         A 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.

         III. Analysis A.Sufficiency of the Evidence

         The 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.

         Thompson 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.

         Insufficiency-of-the-evidence 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 Jackson standard.

         After 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 found:

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 44.

         Thompson 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.[5] 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.

         Thompson's 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.

         Viewing 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.

         B. Use of Information Derived from a State Actor at the Guilt/innocence Phase

         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.[6] 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.[7] 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 evidence.
[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 original).

         Thompson 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.

         Thompson 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.

         Thompson's 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.[8] 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 at 125.

         Johnson 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.

         The police recovered the murder weapon almost two weeks later.[9] 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.

         Before 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.

         1. Litigation of this Claim in State Court

         Respondent 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.

         Under 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?

         Thompson's 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.

         The 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 improvidently granted.[10]

         On 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.

         The 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.

         Thompson's 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.

         2. The Merits

         The 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.[11]

         Johnson 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.[12] 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.

         Respondent 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.

         Thompson 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.[13] 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 ...

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