Thompson v. People of the State of Colorado, The et al
Filing
41
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Petitioner Larry Allen Thompson's 2 Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 is DENIED. No certificate of appealability will issue because Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk of the Court shall close this case, by Judge Marcia S. Krieger on 06/27/2011. (wjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 10-cv-00571-MSK
LARRY ALLEN THOMPSON,
Petitioner,
v.
KEVIN MILYARD, Warden, Sterling Correctional Facility, and
JOHN SUTHERS, Attorney General of the State of Colorado,
Respondents.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
THIS MATTER comes before the Court on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (“Petition”) (#2) filed by pro se Petitioner Larry Allen Thompson.
Respondents have filed an Answer (#26), and Petitioner has filed two documents, “Applicant’s
Response to Respondents’ Answer” (#29-1) and a “Brief in Support of Applicant’s Response”
(#30), that collectively will be considered Petitioner’s Reply to the Answer. After reviewing the
record in this case including the Petition, the Answer, Petitioner’s Reply, and the state court
record, the Court FINDS and CONCLUDES that the Petition should be denied.
I. Background
Petitioner is challenging the validity of his conviction in Denver District Court case
number 93CR2979. Following a jury trial, Petitioner was convicted of first degree murder and
sentenced to life in prison without the possibility of parole. The facts pertinent to Petitioner’s
conviction and his claims in this action are set forth in the decision of the Colorado Court of
Appeals on Petitioner’s postconviction appeal from the denial of his motion for a new trial.
In 1994, a jury convicted [Petitioner] of first degree murder
for the killing of a drug dealer in Denver. The police found the
victim’s body on November 10, 1991. The victim had been
stabbed over forty times, wrapped in a mattress cover, and dumped
in a Denver alley. This murder was unsolved until 1993.
[Petitioner] lived in Portland with his wife in 1993, when
she called the Portland police to tell them that [Petitioner] had
abused her. She then told the police that [Petitioner] had confessed
to her that he had murdered the victim. [Petitioner] was arrested,
and he was brought to Colorado to stand trial.
Although [Petitioner] normally resided in Portland in 1991,
he visited Denver at the time of the murder to care for his ailing
mother. He stayed with his brother in the same apartment complex
in which the victim lived. [Petitioner] and his brother regularly
purchased crack cocaine from the victim, and the victim’s
girlfriend testified that animosity existed between [Petitioner] and
the victim because of their drug dealing.
At trial, the jury heard from four witnesses who testified
that [Petitioner] confessed to murdering the victim. [Petitioner’s]
wife testified that in 1992, while the two were living in Portland,
[Petitioner] told her that he and his brother had become upset with
the victim for selling them diluted crack cocaine and decided that
the victim had “to die today.” The brother held the victim down
while [Petitioner] stabbed him. During this stabbing, the victim
tried to free himself, resulting in [Petitioner] cutting himself on the
wrist. [Petitioner], enraged by the cut, stabbed the victim “over
and over.” [Petitioner] and his brother “rolled the victim up in
something,” put the body in the brother’s truck, and dumped him
in an alley.
The jury also heard from three men from Portland to whom
[Petitioner] made admissions. The first man, one of [Petitioner’s]
friends, testified that [Petitioner] said that he had stabbed a drug
dealer in Denver, and then later asked the first man to keep that
information confidential. The second man, who rented a room
from [Petitioner’s] wife, also testified that [Petitioner] had
admitted murdering someone. The third man, another of
[Petitioner’s] friends, testified that [Petitioner] admitted that while
he was in Denver, he had to kill the person who had cut him on the
wrist.
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In addition to the testimony of these four witnesses, the
jury also considered, as pertinent here, two other pieces of
evidence. First, on November 10, 1991, [Petitioner] was treated at
Denver General Hospital for a cut on his wrist consistent with a
stab wound.
Second, the jury heard about a carpet, seized after
[Petitioner’s] arrest in 1993, that was found in the truck in which
[Petitioner] and his brother supposedly transported the victim’s
body to the site where it was discovered. A blood stain was found
on the carpet that was analyzed by two different genetic methods.
When combined, these yielded a result that excluded all but 4% of
the relevant population as being possible sources of the blood. The
victim fell within the 4% that was included as a possible source.
[Petitioner] presented evidence indicating that the truck
was being serviced in a shop at the time of the murder, and that the
carpet had been installed in the truck after the murder. Therefore,
he contended that the blood stain could not have come from the
victim.
He supported this theory with testimony indicating that
another person had cut himself in the truck, after the carpet had
been installed, and had bled on the carpet. The defense obtained a
blood sample from the other person, and had it tested by only one
of the same methods used by the prosecution. The result of this
test, being less precise than the combination of tests used by the
prosecution, only excluded 82% of the population as being
possible sources of the blood, but it included both defendant [sic]
and the other person as possible sources.
People v. Thompson, No. 06CA2270 (Colo. App. Sept. 10, 2009) (#13-3 at 3-6) (unpublished).
Petitioner’s conviction was affirmed on direct appeal. See People v. Thompson, 950 P.2d 608
(Colo. App. 1997). On February 2, 1998, the Colorado Supreme Court denied Petitioner’s
petition for writ of certiorari on direct appeal. (See id.)
Following his direct appeal, Petitioner wrote a letter to the trial court complaining that
trial counsel had been ineffective and requesting appointment of counsel to assist him in seeking
postconviction relief under Rule 35(c) of the Colorado Rules of Criminal Procedure. The trial
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court denied Petitioner’s request without a hearing, but the Colorado Court of Appeals reversed
and remanded, concluding that Petitioner was entitled to appointment of counsel and an
evidentiary hearing on the ineffective assistance of counsel claims. See People v. Thompson,
No. 98CA1842 (Colo. App. Jan. 27, 2000) (#9 at 7-14) (unpublished).
Before that evidentiary hearing took place, [Petitioner]
conducted DNA testing on the stain from the carpet. This testing,
which was more sophisticated and precise than the testing
available at the time of trial, eliminated the victim as the source of
the blood, and indicated there was a very high probability that the
blood came from the other person. As a result of these improved
tests, the prosecution stipulated, for the purposes of the
postconviction hearing, that the blood stain on the carpet did not
come from the victim.
(#13-3 at 7.)
Petitioner then filed motions for a new trial based on newly discovered evidence and for
postconviction relief based on ineffective assistance of counsel. The trial court denied the
motions on September 25, 2006. (See #2 at 32-33.) With respect to the motion for a new trial,
the trial court concluded that a new trial was not warranted because Petitioner failed to establish
“that the effect of the newly discovered evidence when considered with all other evidence in the
case is such that a reasonable jury would probably conclude that a reasonable doubt existed
concerning [Petitioner’s] guilt and therefore would reach a not guilty verdict.” (Id. at 33.) The
Colorado Court of Appeals subsequently affirmed the trial court’s order. (See #13-3.) On
January 19, 2010, the Colorado Supreme Court denied Petitioner’s petition for writ of certiorari
in the postconviction proceedings.
The Petition was filed on March 11, 2010. Petitioner asserts the following three claims
for relief:
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1.
His Sixth Amendment right to a fair trial by an impartial jury was violated
because he was found guilty by a jury that had considered false blood stain
evidence.
2.
Counsel was ineffective by failing to conduct a reasonable pretrial investigation
that included a comparison of the blood stain evidence with the blood sample
obtained from a possible source other than the victim.
3.
His Fourteenth Amendment right to a fair trial was violated by the use of false
blood stain evidence to obtain his conviction.
Respondents concede that the application is timely and that Petitioner’s claims are exhausted.
II. Legal Standards
The Court must construe the Petition and other papers filed by Petitioner liberally
because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below,
the Court will dismiss the action.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with
respect to any claim that was adjudicated on the merits in state court unless the state court
adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). Petitioner bears the burden of proof under § 2254(d). See Woodford v.
Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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A claim may be adjudicated on the merits in state court even in the absence of a
statement of reasons by the state court for rejecting the claim. Harrington v. Richter, 131 S. Ct.
770, 784-85 (2011). In particular, “determining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from the state
court explaining the state court’s reasoning.” Id. at 784. Furthermore, “[w]hen 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 in the absence of any indication or state-law
procedural principles to the contrary.” Id. at 784-85. Even “[w]here a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing
there was no reasonable basis for the state court to deny relief.” Id. at 784. In other words, the
Court “owe[s] deference to the state court’s result, even if its reasoning is not expressly stated.”
Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, the Court “must uphold the
state court’s summary decision unless [the Court’s] independent review of the record and
pertinent federal law persuades [the Court] that its result contravenes or unreasonably applies
clearly established federal law, or is based on an unreasonable determination of the facts in light
of the evidence presented.” Id. at 1178. “[T]his ‘independent review’ should be distinguished
from a full de novo review of the petitioner’s claims.” Id.
The Court reviews claims of legal error and mixed questions of law and fact pursuant to
28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold
question the Court must answer under § 2254(d)(1) is whether Petitioner seeks to apply a rule of
law that was clearly established by the Supreme Court at the time his conviction became final.
See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law “refers to the
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holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the
relevant state-court decision.” Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in
cases where the facts are at least closely-related or similar to the
case sub judice. Although the legal rule at issue need not have had
its genesis in the closely-related or similar factual context, the
Supreme Court must have expressly extended the legal rule to that
context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008).
If there is no clearly established federal law, that is the end of the Court’s inquiry
pursuant to § 2254(d)(1). See id. at 1018. If a clearly established rule of federal law is
implicated, the Court must determine whether the state court’s decision was contrary to or an
unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S.
at 404-05.
A state-court decision is contrary to clearly established
federal law if: (a) “the state court applies a rule that contradicts the
governing law set forth in Supreme Court cases”; or (b) “the state
court confronts a set of facts that are materially indistinguishable
from a decision of the Supreme Court and nevertheless arrives at a
result different from [that] precedent.” Maynard [v. Boone], 468
F.3d [665,] 669 [(10th Cir. 2006)] (internal quotation marks and
brackets omitted) (quoting Williams, 529 U.S. at 405). “The word
‘contrary’ is commonly understood to mean ‘diametrically
different,’ ‘opposite in character or nature,’ or ‘mutually
opposed.’” Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application
of clearly established federal law when it identifies the correct
governing legal rule from Supreme Court cases, but unreasonably
applies it to the facts. Id. at 407-08. Additionally, we have
recognized that an unreasonable application may occur if the state
court either unreasonably extends, or unreasonably refuses to
extend, a legal principle from Supreme Court precedent to a new
context where it should apply.
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House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an objective
inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly. Rather that
application must also be unreasonable.” Id. at 411. “[A] decision is ‘objectively unreasonable’
when most reasonable jurists exercising their independent judgment would conclude the state
court misapplied Supreme Court law.” Maynard, 468 F.3d at 671. Furthermore,
[E]valuating whether a rule application was unreasonable requires
considering the rule’s specificity. The more general the rule, the
more leeway courts have in reaching outcomes in case-by-case
determinations. [I]t is not an unreasonable application of clearly
established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by [the
Supreme] Court.
Richter, 131 S. Ct. at 786 (internal quotation marks omitted). In conducting this analysis, the
Court “must determine what arguments or theories supported or . . . could have supported[] the
state court’s decision” and then “ask whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme]
Court.” Id. In addition, “review under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011).
Under this standard, “only the most serious misapplications of Supreme Court precedent
will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also Richter, 131 S. Ct.
at 786 (stating that “even a strong case for relief does not mean the state court’s contrary
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conclusion was unreasonable”).
As a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.
Richter, 131 S. Ct. 786-87.
The Court reviews claims asserting factual errors pursuant to 28 U.S.C. §2254(d)(2). See
Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2) allows the
Court to grant a writ of habeas corpus only if the relevant state court decision was based on an
unreasonable determination of the facts in light of the evidence presented to the state court.
Pursuant to § 2254(e)(1), the Court must presume that the state court’s factual determinations are
correct and Petitioner bears the burden of rebutting the presumption by clear and convincing
evidence. “The standard is demanding but not insatiable . . . [because] ‘[d]eference does not by
definition preclude relief.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003)).
If a claim was not adjudicated on the merits in state court, and if the claim also is not
procedurally barred, the Court must review the claim de novo and the deferential standards of §
2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).
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III. Analysis
A. Claims One and Three
Petitioner’s first and third claims are similar and will be addressed together. Both claims
arise out of the fact that post conviction DNA testing demonstrated that the victim’s blood was
not that found on the carpet of the vehicle that the prosecution alleged had been used to transport
the victim’s body. Petitioner asserts in his first claim that his Sixth Amendment right to a fair
trial by an impartial jury was violated because the jury that found him guilty had considered false
blood stain evidence. He asserts in his third claim that his Fourteenth Amendment right to a fair
trial was violated by the use of false blood stain evidence to obtain his conviction.
First, the Court pauses with regard to the reference “false evidence”. The Petitioner uses
this term to describe the DNA evidence presented at his trial. Although the state trial court used
similar terminology, it is not accurate. The Petitioner does not contend that the prosecution
knowingly presented false evidence at his trial; he objects to the inference that the prosecution
drew from the evidence that was presented and that post conviction DNA evidence disproved
such inference. As explained below, the originally admitted DNA evidence was not false or
even inaccurate; it simply was not as precise as the DNA testing obtained post conviction.
According to the state court record, at trial DNA evidence with regard to the blood found
in the carpet of the vehicle allegedly used to transport the victim’s body was presented. The
issue was whether the blood came from the victim or a defense witness, Lane Barnett. Based
upon DNA testing results, the prosecution argued that it was likely that the blood came from the
victim. The defense contended that the blood came from Mr. Barnett, who testified that he had
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cut himself and bled inside the vehicle. The defense also presented evidence that the subject
vehicle was being repaired at the time of the murder, and that the carpet in the vehicle had been
installed after the date of the murder.
The initial DNA tests of the blood excluded eighty-two percent of the African-American
population, but both the victim and Mr. Barnett fell within the eighteen percent of the population
who could not be excluded. The prosecution offered more precise DNA test results that
excluded ninety-six percent of the African-American population. The victim remained in the 4%
of the population that could not be excluded. Because Mr. Barnett’s blood was not tested by the
prosecution, there was no evidence as to whether he fell within the 4% group, as well.
The post-conviction DNA evidence was even more precise; it excluded the victim as a
source of the blood in the carpet. Thus, at trial, the evidence did not conclusively resolve
whether the blood in the carpet belonged to the victim or Mr. Booker or someone else.
However, the post-conviction DNA testing excluded the victim, leading to a reasonable
inference that the victim was not transported in the vehicle.
The Petitioner claims that he was entitled to a new trial based upon the new DNA
evidence and therefore his constitutional rights were denied. Respondents argue that Petitioner’s
first and third claims should be dismissed because “[t]he existence merely of newly discovered
evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas
corpus.” Townsend v. Sain, 372 U.S. 293, 317 (1963) (overruled on other grounds). The Court
agrees with the Respondents for several reasons.
First, the Petitioner has not identified any constitutional violation with respect to the
DNA evidence presented at his trial.
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Second, Petitioner’s only constitutional challenge with regard to the DNA evidence is in
the context of the denial of his request for a new trial. His contention is that the post-conviction
DNA establishes his actual innocence and that the failure to grant him a new trial was a
“fundamentally unfair” and a “denial of due process”.
Generally, claims of innocence based on newly discovered evidence do not constitute
grounds for federal habeas relief absent an independent constitutional violation occurring in the
underlying state criminal proceeding. Herrera v. Collins, 506 U.S. 390, 400 (1993). “This rule
is grounded in the principle that federal habeas courts sit to ensure that individuals are not
imprisoned in violation of the Constitution – not to correct errors of fact.” Id. Thus, the issue of
whether a new trial should be granted is a matter of state law rather than federal law. See
Herrera, 506 U.S. at 408 (“[t]he Constitution itself, of course, makes no mention of new trials”).
Matters of state law may not be reviewed in a federal habeas corpus action. see Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions. In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States”). Therefore, in the absence of an alleged violation of Petitioner’s
constitutional rights with respect to his trial, the first and third claims for relief should be
dismissed.
Finally, in affirming the denial of a new trial, the Colorado Court of Appeals identified
seven reasons why the more accurate post conviction DNA testing of the blood in the vehicle
would not have had any appreciable effect on the outcome of the trial. (These reasons are set out
verbatim, below, in conjunction with Petitioner’s Second Claim.) The Court finds these reasons
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supported by the record and concludes that to the extent that there was a constitutional error
associated with the DNA evidence, it was harmless because it did not have a “substantial and
injurious effect” on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
B. Claim Two
Petitioner’s second claim is that his representation was ineffective because his counsel
failed to conduct a reasonable pretrial investigation comparing the blood stain evidence with the
blood sample obtained from Mr. Barnett. Actually, as the state court record demonstrates, and
the Colorado Court of Appeals found, the defense presented DNA evidence comparing Mr.
Barnett’s blood to the blood stain on the carpet. It simply wasn’t as refined a test as that
presented by the prosecution.
Thus, the Court assumes that Petitioner is contending that his counsel should have
submitted Mr. Barnett’s blood sample for additional, unspecified DNA testing using the
parameters used by the prosecution. In his Reply, he argues that
[i]n this case, Counsel had a duty to test [Petitioner’s] (Factual)
theory that the State’s blood-stain evidence was in fact false by
having the State’s evidence genetically tested and compared to the
blood of Lane Barnett[,] Jr.; Also, Counsel had a duty to have the
blood-stained carpet genetically tested and compared to the
mattress cover that the victim’s body was found in to establish
whether or not the two items were ever in contact with each other.
If either of these tests were to have been performed, it could/would
have been conclusively proven prior to trial that the blood-stain
evidence relied upon by the prosecution and the jury was in fact,
False.
(#29-1 at 2-3.)
It was clearly established when Petitioner was convicted that he had a right to effective
assistance by counsel. See Strickland v. Washington, 466 U.S. 668 (1984). To establish that
13
counsel was ineffective, Petitioner must demonstrate both that counsel’s performance fell below
an objective standard of reasonableness and that counsel’s deficient performance resulted in
prejudice to his defense. See id. at 687. If Petitioner fails to satisfy either prong of the
Strickland test, the ineffective assistance of counsel claim must be dismissed. See Strickland,
466 U.S. at 697.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689.
There is “a strong presumption” that counsel’s performance falls within the range of “reasonable
professional assistance.” Id. It is Petitioner’s burden to overcome this presumption by showing
that the alleged errors were not sound strategy under the circumstances. See id. “For counsel’s
performance to be constitutionally ineffective, it must have been completely unreasonable, not
merely wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). And under the prejudice
prong, Petitioner must establish “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
In determining whether Petitioner has established prejudice, the Court must look at the totality of
the evidence presented at trial and not just the evidence that is helpful to Petitioner. See Boyd,
179 F.3d at 914.
The Colorado Court of Appeals applied the Strickland standards and determined that the
various ineffective assistance of counsel claims Petitioner raised in the state court proceedings
lacked merit because he failed to establish he was prejudiced by counsel’s alleged
ineffectiveness. The Colorado Court of Appeals specifically determined “that the exclusion of
all evidence, and the inferences flowing from that evidence, that the victim’s blood stained the
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carpet in the truck would not probably create a reasonable doubt about [Petitioner’s] guilt.”
(#13-3 at 16.) As a result, “defense counsel’s alleged failures as to the blood stain evidence did
not prejudice [Petitioner] because there is not a reasonable probability that without these errors
the trial’s outcome would have changed.” (Id.)
In reaching this conclusion, the Colorado Court of Appeals relied on the seven reasons
that also supported denial of Petitioner’s motion for a new trial.
First, the evidence established that [Petitioner] and the
victim knew each other well and lived “very close” to each other.
Second, they had a relationship pertinent to the case:
[Petitioner] regularly purchased drugs from the victim. Indeed,
[Petitioner] admitted that he purchased drugs from the victim
during the time frame in which the murder occurred.
Third, [Petitioner] had a motive to kill the victim. The
victim’s girlfriend testified that there was animosity between
[Petitioner] and the victim because of problems arising out of their
drug transactions. According to [Petitioner’s] wife, [Petitioner]
and his brother became upset when the victim sold them diluted
crack cocaine. Because of the victim’s sale of these diluted drugs,
[Petitioner] and his brother agreed that the victim had to “die
today.”
Fourth, while living in Portland after the murder,
[Petitioner] admitted to his wife that he had murdered the victim.
[Petitioner’s] wife testified that [Petitioner] provided explicit
details about the killing, including how his brother held the victim
while [Petitioner] stabbed the victim; how the victim struggled,
causing [Petitioner] to cut himself on the wrist; how this cut
enraged [Petitioner] and led him to stab the victim “over and
over”; and how they disposed of the body.
[Petitioner] argues that, because details of the victim’s
murder were published in Denver newspapers, his wife could have
learned about those details from sources other than his confession,
and then falsely accused [Petitioner] of the murder. [Petitioner]
explored this theme at trial in cross-examination. But, as he
concedes, there is no evidence in the record to suggest that any
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details of the victim’s murder were published in the Portland
newspapers where his wife lived, or that his wife obtained a
Denver newspaper to read about the murder. This absence of
evidence creates the reasonable inference that [Petitioner], not a
Denver newspaper, was the source of his wife’s information about
the murder.
Fifth, while living in Portland, [Petitioner] also made
admissions to three men about the killing. He told the first man
that he had stabbed a drug dealer in Denver, and then later asked
the first man to keep that information confidential. The second
man testified that [Petitioner] informed him that [Petitioner] had
murdered someone. The third man testified that [Petitioner] talked
with him about the cut on [Petitioner’s] wrist. [Petitioner] said that
he had to kill the man who was responsible for giving him that cut.
Sixth, physical evidence corroborates this testimony. On
the same day that the police found the victim’s body, shortly after
the victim was slain, [Petitioner] sought treatment at Denver
General Hospital for the cut on his wrist. This cut was consistent
with the type of wound one might receive from a knife. The victim
was stabbed over forty times.
Seventh, the prosecution’s closing arguments focused on
the testimony from [Petitioner’s] wife, the three men, and the cut
on [Petitioner’s] wrist. The prosecutors mentioned the results of
the tests on the carpet, but that evidence was used to corroborate
[Petitioner’s] various admissions; it did not serve as the
centerpiece of the prosecution’s case. Indeed, reference to these
test results took up only about 6% of the prosecutors’ closing
arguments.
Although [Petitioner] impeached the prosecution’s
witnesses and provided evidence of an alternative suspect, we view
the evidence about the blood stain as corroborative of, but not
crucial to, [Petitioner’s] guilt. Therefore, we concur with the trial
court’s conclusion that the absence of the evidence about the blood
stain probably would not have created a reasonable doubt about
[Petitioner’s] guilt.
(#13-3 at 11-14.)
Based on the Court’s consideration of the totality of evidence presented at Petitioner’s
16
trial, the Court cannot find that the Colorado Court of Appeals’ conclusion that Petitioner failed
to demonstrate prejudice under Strickland is an unreasonable application of clearly established
federal law. It bears repeating that,
[a]s a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.
Richter, 131 S. Ct. 786-87.
Petitioner’s contention that he was prejudiced by counsel’s alleged ineffectiveness is
premised on his argument that the blood-stain evidence was critical to the prosecution’s theory
of the case, part of which involved Petitioner and his brother using the brother’s vehicle to
transport the victim to the location where he was found.
[W]ithout these tests and their results, the prosecution’s use of the
physical evidence was inherently Prejudicial to [Petitioner];
because, without the blood-evidence, the prosecution had no
alleged physical evidence upon which to base their “Theory” of the
crime; that theory being that [Petitioner] committed the murder in
one place, and then transported the body to another place, wrapped
in the mattress cover, laid on the carpet in the utility van, which
they convinced the jury was the transport vehicle.
(#29-1 at 3.)
Petitioner also argues that the absence of the blood-stain evidence eviscerates the
credibility of the testimony from his wife about his confession. “Considering the fact that the
prosecutor conceeds [sic] that their whole case was based upon [Petitioner’s] ex-wife’s
statements, proving that the bloodstain evidence was ‘Wrong/False’ would have crippled their
case, not to mention it would have destroyed their key witnesses [sic] credibility.” (#30 at 13.)
He further argues as follows:
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Again, it is prayed that this Court will give full consideration to the
prosecutor’s own concerns regarding the strength of their case
without the statements of [Petitioner’s] ex-wife, who is the only
person testifying that the bloody corpse of the victim was
supposedly placed on the carpet; which was supposedly in the
van; which was supposedly used to transport the body from the
crime scene to the dump-site where it was discovered.
The “Domino Effect” which the District Court eludes [sic]
to in it’s [sic] ruling of September 25th 2006 is obvious, and should
be compelling to this Court. Without the (False) blood stain
evidence, there’s no way for the prosecution to prove all of the
“Elements” of the crime; especially their “transport theory”; which
in turn creates doubt about how the body ended up at the dumpsite; which, according to the State’s chief witness was transported
in the van; on the carpet; from [Petitioner’s] mother’s apartment
where the murder allegedly took place.
(#30 at 22-23 (citation to record omitted).)
The Court is not persuaded by Petitioner’s logic. The seven reasons articulated by the
Colorado Court of Appeals are supported by the record. They describe a vast amount of
evidence to support the verdict reached by the jury even in the absence of DNA evidence tying
the victim to Petitioner’s brother’s vehicle. The method of transportation of the victim’s body
was only one of many details upon which the prosecution based its case. It was not an element
of the crime that the prosecution was required to prove beyond a reasonable doubt. It was not
unreasonable for the Colorado Court of Appeals to conclude that Petitioner failed to demonstrate
he was prejudiced with regard to the blood-stain evidence.
The Court cannot find that “most reasonable jurists exercising their independent
judgment would conclude the state court misapplied” the prejudice prong of an ineffective
assistance of counsel claim under Strickland. Maynard, 468 F.3d at 671. Therefore, the Court
finds that Petitioner is not entitled to relief on his claim that counsel was ineffective.
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For the reasons discussed above, it is ORDERED that Petitioner Larry Allen
Thompson’s Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (#2) is
DENIED. It is FURTHER ORDERED that no certificate of appealability will issue because
Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk
of the Court shall close this case.
Dated this 27th day of June, 2011
BY THE COURT:
Marcia S. Krieger
United States District Judge
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