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Thompson v. Davis

United States Court of Appeals, Fifth Circuit

October 29, 2019

CHARLES VICTOR THOMPSON, Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

          Opinion Filed Date- October 30, 2019

          Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

         In 1999, Charles Victor Thompson was convicted of murdering Glenda Dennise Hayslip and Darren Cain and sentenced to death.[1] On direct review, the Texas Court of Criminal Appeals affirmed Thompson's conviction but ordered a retrial on punishment.[2] At the retrial, the State called Robin Rhodes, who testified that while the two men were detained together in the Harris County Jail, Thompson had solicited him to murder a "hit list" of potential State witnesses.[3] Rhodes also testified that no one from the State had directed him to obtain information from Thompson; he simply saw an opportunity and seized it.[4]

         On cross-examination, Rhodes explained that he had a longstanding working relationship with the State and had previously received large sums of money for his cooperation in other cases, [5] including up to $30, 000 for his testimony in a prior capital murder trial.[6] In fact, Rhodes described himself as being a "full time informant" for the State at the time of his encounter with Thompson[7] and stated that he informed on "pretty much whatever situation [he] stumbled into." The jury also learned that Rhodes had testified in a 1999 drug case against his fiancée.[8] As part of his testimony in that case, Rhodes told the jury that he had worked for Harris County law enforcement "as a confidential informant in over 50 cases, more than 80 percent of which resulted in convictions; [and] that he had twice testified for the State, including once in a capital murder prosecution."[9]

         The trial court denied Thompson's motion to strike Rhodes's testimony, and Thompson was again sentenced to death.[10] After his direct appeal and three state habeas petitions proved unsuccessful, Thompson sought federal habeas relief in 2014. Also in 2014, Thompson's counsel received the following items in response to a Public Information Act (PIA) request for information related to Robin Rhodes:

1. A 1993 informant contract executed by Rhodes (under the pseudonym Robert Lee), his police handler Floyd Winkler, and Assistant District Attorney Joan Huffman. The contract, which began in August 1993 and was valid for three months, provided that the prosecutor would drop Rhodes's pending theft charge if Rhodes could provide information leading to drug arrests and seizures.
2. A 1997 pro se sentence-reduction motion in which Rhodes, then serving a two-year state prison term, stated that he "ha[d] cooperated in extensive narcotics investigations approximately (20) twenty [to] twenty-five (25) in number," which had led to numerous arrests and convictions. Rhodes also stated that he had been cooperating "with the Harris County Organized Crime Task Force since 1993."
3. A memorandum dated August 25, 1998 in which the DA's investigator Mike Kelly reported Rhodes's statement that he had spoken with Thompson about the solicitation plot and obtained Thompson's "hit list" on August 21.
4. A handwritten note from the prosecutor's file that appears to list Rhodes's contact information and a quote (presumably from Thompson, though unattributed) describing a woman who he "thought [was the] only witness" as a "bitch" who "had it coming." The second-to-last line of the note says: "contacted Floyd, get in hand." Presumably, "Floyd" is Rhodes's police handler, Officer Floyd Winkler. Thompson contends that this line demonstrates that Winkler "instructed Rhodes to get proof of Thompson's solicitation request."
5. Another handwritten note from the prosecutor's file outlining Thompson's interactions with Rhodes. In the left-hand margin near the top of the page is a partial date-"/13/98"-with the month missing. Thompson claims that the missing month was August, and that the note therefore proves Rhodes was talking to authorities about the case before he ever interacted with Thompson.
6. A transcript of Rhodes's testimony in the Stephens case. In addition to the testimony described above, the transcript shows that Rhodes claimed that "approximately 80 percent of the cases that [he] participated in . . . resulted in arrest and conviction."

         The district court denied Thompson relief on all fourteen of his claims and denied his motion for a hearing. This Court granted Thompson a certificate of appealability on his claim that the State violated his "rights to due process and counsel when it introduced the testimony of fellow inmate Robin Rhodes during the retrial on punishment."[11] Citing Massiah v. United States, [12]Thompson argues that Rhodes was acting on behalf of the State during their jailhouse conversations, and thus his testimony violated Thompson's Sixth Amendment right to counsel. Although the Massiah claim is procedurally defaulted, Thompson argues he can overcome the procedural bar by showing that the prosecution violated its Brady[13] obligations by concealing facts that, if ...


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