Thompson v. Parker

Filing 30

MEMORANDUM OPINION & ORDER granting 23 Motion for Hearing; Evidentiary Hearing set 6/14/2012 at 1:00 p.m. Signed by Senior Judge Thomas B. Russell on 5/1/2012. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:11-CV-31
WILLIAM EUGENE THOMPSON

PETITIONER

V.
PHILIP W. PARKER, WARDEN

RESPONDENT

MEMORANDUM OPINION & ORDER
Petitioner, a prisoner sentenced to death by the Commonwealth of Kentucky, has a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 currently pending before this
Court. Petitioner has filed a motion for an evidentiary hearing (DN 23). The Respondent has
objected to Petitioner’s motion for an evidentiary hearing (DN 24). This matter is now ripe for
adjudication. For the following reasons, Petitioner’s motion for an evidentiary hearing is
GRANTED IN PART.
I. INTRODUCTION
Petitioner, William Eugene Thompson, asserts that an evidentiary hearing is necessary on
his first and second claims for relief in his § 2254 petition. Specifically, Thompson seeks a
hearing on his claim that extrinsic influence upon the jury’s sentencing deliberation violated his
constitutional rights to an impartial jury and to confront the witnesses against him under the
Sixth and Fourteenth Amendments. Thompson also seeks an evidentiary hearing on his claim
that his counsel was ineffective for explaining to the jury in closing arguments that Thompson
would be eligible for release on parole in 25 years, despite the fact that the parole board had
ordered Thompson to serve out a life sentence while he was awaiting trial in the present case.
II. FACTS

1

In May of 1986, while serving a life sentence for murder,1 Thompson killed Charles Fred
Cash, a Department of Corrections (DOC) Officer. At Thompson’s first trial, he was convicted
and received a death sentence, which was reversed by the Kentucky Supreme Court. Thompson
v. Commonwealth, 862 S.W.2d 871, 872 (Ky. 1993). On remand, Thompson pled guilty to
murder, robbery in the first degree, and escape in the first degree. A sentencing trial for the
murder conviction was held in Graves County to determine a new sentence.
At the sentencing trial, Thompson testified on his own behalf. In response to a question
asked by his attorney, Thompson responded that “I will die in prison. I have been in now for
almost twenty-seven years. I have no chance of ever getting out. I finally went up for parole on
the life sentence that I was originally doing in November of 1993 and at that time, the Parole
Board give me a serve-out on a life sentence which means that I will die in prison.” There was
no follow-up question to this response, and the DOC documents evidencing the serve-out order
were not introduced into evidence. During closing arguments, Thompson’s counsel stated as
follows:
We have a case now where it is not necessary to take a life. He is going to die in
prison in maximum security and as I said the first day, the question is: is the State
going to do it or is God going to take him ? Because he doesn't even think about
the P word-the Parole Board-until he is about seventy-five years of age. That is
twenty-five New Years. Twenty-five Thanksgivings. Twenty-five Christmases.
I'd like to think and I will be retired by then, we may have a colony on Mars by
then. Twenty-five years.
The jury returned a sentence of death, finding two of the statutory aggravating circumstances
presented to them.
Thompson then appealed his sentence, raising a number of issues including his
competency to enter a guilty plea. Because the trial court did not hold an evidentiary hearing on

1

Petitioner was convicted in 1974 in Pike County for murder for hire.
2

the issue of competency, the Kentucky Supreme Court remanded for a retrospective competency
hearing and “abate[d] consideration of the remaining issues on appeal.” Thompson v.
Commonwealth, 56 S.W.3d 406, 407 (Ky. 2001). After a hearing, the trial court determined that
Thompson had been competent to plead guilty. The Kentucky Supreme Court affirmed the trial
court’s competency finding along with Thompson’s judgment and sentence. Thompson v.
Commonwealth, 147 S.W.3d 22 (Ky. 2004).
After Thompson’s conviction was affirmed on direct appeal, Thompson filed a postconviction RCr 11.42 Motion in the Lyon Circuit Court. In that motion, Thompson argued that
his attorney was ineffective and that the jury considered extra-judicial evidence. With respect to
his ineffective assistance of counsel claim, Thompson argued that when his trial counsel referred
to the possibility that he could be paroled in 25 years, he left the jury with the false impression
that he could someday be released on parole and thus made it more likely that the jury would
give him the death penalty. Thompson filed an affidavit of one the jurors in the record in 2005.
In that affidavit, the jury foreperson, Roger Dowdy, stated:
I was the jury foreman in the case of Commonwealth v. William Eugene
Thompson.
In determining Mr. Thompson’s sentence, the jury was afraid that Mr. Thompson
might be released from prison if he was to receive anything less than a death
sentence.
During the time of the trial, there was another case in the news that the jury
discussed during deliberations. A seventy year old man who committed a murder
in California had been released from prison on parole. This man, despite his age,
then committed another murder in Florida. The jury was afraid that Mr.
Thompson, even as an old man, would be a danger to society if released.
An article about that other case is attached to this affidavit. Similar news pieces
ran in the media available in Graves County.

3

The Lyon Circuit Court denied Thompson’s claims without an evidentiary hearing, and the
Kentucky Supreme Court affirmed on appeal.2 Thompson v. Commonwealth, 2010 WL 4156756
(Ky. October 21, 2010). Petitioner then filed a petition for habeas corpus pursuant to 28 U.S.C.
§ 2254 in this Court. Petitioner now moves for an evidentiary hearing.
III. ANALYSIS
Thompson is seeking an evidentiary hearing on claims one and two of his petition. The
first claim is based upon the consideration of extra-judicial evidence and the second claim is
based upon ineffective assistance of counsel.
1. Claim One – Extra-Judicial Evidence in Jury Room
Thompson asserts that extrinsic influence upon the jury’s sentencing deliberation violated
his constitutional rights to an impartial jury and to confront the witnesses against him under the
Sixth and Fourteenth Amendments. Specifically, Thompson alleges that the jury was exposed to
media accounts of another capital trial (the “Singleton trial”) being held around the same time as
his trial. The defendant in that trial was a 70-year old man who committed a murder in Florida
after being released from prison on parole. The foreman of the jury in Thompson’s trial stated in
an affidavit that the jury discussed the Singleton case and was afraid that Thompson might be
released from prison if he were to receive anything less than the death penalty. Now, Thompson
seeks an evidentiary hearing in order to prove that the jurors were exposed to media coverage
about the Singleton trial: “if the jury was exposed to this extraneous information, a reasonable

2

The Kentucky Supreme Court found that Petitioner’s claim that the jurors considered improper
outside information in deliberating Thompson’s sentence was not a proper ground for a RCr
11.42 motion, as issues that could have been raised on direct appeal cannot be raised in a motion
pursuant to RCr 11.42. 2010 WL 4156756 at *5.
4

juror would have likely considered the extraneous information in deciding Thompson’s
sentence.”
The Kentucky Supreme Court refused to consider Thompson’s claim that the jurors
considered improper outside information in deliberating Thompson’s sentence, finding that such
a claim was not a proper ground for a RCr 11.42 motion, as issues that could have been raised on
direct appeal cannot be raised in a motion pursuant to RCr 11.42. 2010 WL 4156756 at *5.
Thompson contends, and Respondent acknowledges, that this claim was not procedurally
defaulted because the Kentucky Supreme Court does not regularly follow the procedural rule it
applied to deny Thompson’s claim without reaching the merits. Thompson’s claim is not a claim
that he could have and should have raised on direct appeal, and Kentucky courts do allow such
claims to be brought in a RCr 11.42 motion. See Bowling v. Commonwealth, 168 S.W.3d 2, 9-10
(Ky. 2004). Therefore, Thompson’s claim is not procedurally defaulted. See Maupin v. Smith,
785 F.2d 135, 138 (6th Cir. 1986). Because Thompson’s claim was not adjudicated on the merits
in State court, the deference due under § 2254(d) does not apply. Maples v. Stegall, 340 F.3d
433, 436 (6th Cir. 2003).
Pursuant to 28 U.S.C. § 2254(e)(2), “If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that :
(A)

The claim relies on –
(i) A new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) A factual predicate that could not have been previously discovered
through the exercise of due diligence; and

5

(B)
The facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
This section does not apply unless the initial conditional clause is met: “[i]f the applicant has
failed to develop the factual basis of a claim.” The phrase “failed to develop” implies “some
lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”
Williams v. Taylor, 529 U.S. 420, 432 (2000). The Supreme Court has defined a prisoner’s
diligence as “a reasonable attempt, in light of the information available at the time, to investigate
and pursue claims in state court; it does not depend . . . on whether those efforts could have been
successful.” Id. at 435. This will typically require “that the prisoner, at a minimum, seek an
evidentiary hearing in state court in the manner prescribed by state law.” Id. at 437.
If the petitioner did not fail to develop the facts in state court, then the district court may
hold an evidentiary hearing. Id. at 433. However, “‘bald assertions and conclusory allegations
do not provide sufficient grounds to warrant requiring . . . an evidentiary hearing.’” Washington
v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (quoting Stanford v. Parker, 266 F.3d 422, 460 (6th
Cir. 2001)), cert denied, 127 S. Ct. 1877 (2007). The decision of whether or not to hold an
evidentiary hearing is within the discretion of the district court. Schriro v. Landrigan, 550 U.S.
465, 474 (2007). However, the Supreme Court has instructed the reviewing court to “consider
whether such a hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Id. at 468. “[I]f the record
refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is
not required to hold an evidentiary hearing.” Id.

6

Although Thompson has submitted an affidavit of a juror regarding his claim, the Court
must first establish what evidence it may properly consider in determining whether Thompson
may be entitled to habeas relief. RCr 10.04 reads that “[a] juror cannot be examined to establish
a ground for a new a trial, except to establish that the verdict was made by lot.” However,
despite this strict wording, the Kentucky Supreme Court has explained that the rule must give
way to various constitutional requirements, such as due process. Taylor v. Commonwealth, 175
S.W.3d 68, 74 (Ky, 2005). The Kentucky Supreme Court, in Bowling, held that “an
interpretation of RCr 10.04 that would exclude evidence of outside influence obviously would
implicate a defendant’s Sixth Amendment right to confrontation.” 168 S.W.3d at 9-10.
Likewise, in Commonwealth v. Woods, the Kentucky Court of Appeals held that despite the plain
wording of RCr 10.04, a trial court could consider the merits of a claim that juror consulted a
dictionary during their deliberations for the definition of the word ‘rape.’ 230 S.W.3d 331. The
courts in Bowling and Wood both rely upon Doan v. Brigano, 237 F.3d 722 (6th Cir. 2001) and
its interpretation of Federal Rule of Evidence 606.
The Wood court noted the Sixth Circuit’s delineation in Doan “between those jury
matters that can, and those that cannot, be used to set aside a jury verdict.” Wood, 230 S.W.3d at
333. In Doan, the Sixth Circuit construed that Supreme Court’s decision in Mattox v. United
States, 146 U.S. 140 (1892) to distinguish when courts should consider juror testimony:
[In Mattox, the Supreme Court] held that a matter “resting in the personal
consciousness of one juror” may not be used to upset a jury's verdict “because,
being personal, it is not accessible to other testimony.” [ Mattox, 146 U.S.] at 148,
13 S.Ct. 50, 36 L.Ed. 917. The Court stated that it would not give the “secret
thought[s] of one [juror] the power to disturb the expressed conclusions of
twelve.” Id. In sharp contrast to the secret thoughts of jurors, the Court held that
juror testimony as to “overt acts” of misconduct can be considered because the
remaining members of the jury can testify as to whether or not those acts of
misconduct actually occurred. Id. at 148–49, 13 S.Ct. 50. The Court recognized
that, by drawing this distinction, verifiable evidence of a jury's consideration of
7

extraneous prejudicial information could be considered by courts while still
respecting the finality of jury verdicts by disallowing testimony as to the
unverifiable thoughts of jurors. See id. at 148–49, 13 S.Ct. 50.
Thus, the Supreme Court in Mattox held that, when addressing a motion for a new
trial, courts should consider juror testimony concerning any overt acts of
misconduct by which extraneous and potentially prejudicial information is
presented to the jury, including juror testimony showing that a newspaper article
relevant to the case was read aloud in the jury room.
237 F.3d at 732-33 (internal footnote omitted). Accordingly, this Court can consider juror
testimony regarding “overt acts” of misconduct, but cannot consider evidence of the subjective
effect of the extra-judicial matter on a juror. See United States v. Jones, 468 F.3d 704 (10th Cir.
2006) (“[Q]uestioning of a juror who has been exposed to extraneous information is limited to
the circumstances and nature of the improper contact, and questions bearing on the subjective
effect of the contact on the juror’s decision making are prohibited.” (internal quotations
omitted)).
The Court must now decide whether, if the jury was improperly exposed to extrajudicial
information, that exposure may entitle Thompsonr to habeas relief. “[E]xtrinsic influence on a
jury’s deliberations violates a defendant’s Sixth and Fourteenth Amendment rights to an
impartial jury, to confront witnesses against him, and to be present at all critical stages of his
trial.” Bauberger v. Haynes, 666 F.Supp.2d 558, 562-63 (M.D.N.C. 2009). Respondent
contends that the jury misconduct alleged in this case does not fall within the sphere of jury
matters that can be used to set aside a jury verdict; therefore, Respondent argues, the truth of the
allegations are not relevant to the resolution of this issue. In Respondent’s Rule 5 Answer,
Respondent argues that the juror exposure to the Singleton trial falls within the scope of general
knowledge and experience that every juror brings into the room.

8

In Waldorf v. Shuta, 3 F.3d 705 (3d Cir. 1993), the Court of Appeals for the Third Circuit
ordered a new trial based upon the jury’s exposure to extrajudicial collateral information. In that
case, the plaintiff was rendered a quadriplegic as a result of a motor vehicle accident involving
the defendants. Id. at 706. During the trial on damages, a defendant moved for a mistrial due to
the jury’s exposure to a news report concerning a $30 million verdict for a high school student
from Queens, New York who was rendered a quadriplegic as a result of a school shooting. Id. at
707. The district court then questioned the jury as a group in order to determine which members
of the jury were exposed to the news coverage of the Queens verdict. Id. When asked if the
Queens case was discussed among the jurors, a juror replied “Not really.” Id. The judge then
examined each juror individually in her chambers and learned that a newspaper article on the
Queens case was brought into the jury room and discussed. Id. at 707-08. Relying on the jurors’
assurances of continued impartiality, the district court denied the defendant’s motion for a
mistrial. Id. at 710. The Third Circuit found that the district court relied too heavily on the
jurors’ assurances of impartiality and did not conduct a sufficiently thorough voir dire. Id. The
Court then noted that, “[n]or do we find that the risk of actual prejudice in this case is reduced
due to the fact that the offending news coverage, involved here, dealt with a factually similar but
nevertheless completely separate, unrelated case.” Id. at 713.
The Court finds that an evidentiary hearing is necessary to determine the circumstances
and nature of the jurors’ exposure to the media coverage of the Singleton trial. An evidentiary
hearing could enable Thompson to prove the jury was improperly exposed to prejudicial
extraneous information, which, if true, may entitle the Thompson to federal habeas relief. See
Waldorf, 3 F.3d 705. The Court acknowledges that the “mere fact of infiltration of some
molecules of extra-record matter” would not entitle Thompson to habeas relief. United States ex

9

rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970). However, it is the nature of the facts
communicated which determine the likelihood of prejudice. Id. Although an individual juror’s
personal knowledge of the facts of the Singleton trial may fall within the scope of general
knowledge that a juror brings inside the juror room, an evidentiary hearing will help to determine
the nature and extent of the extrajudicial information and its likely effect on the hypothetical
average jury. See id. at 820.
2. Claim Two – Ineffective Assistance of Counsel
As to Thompson’s second claim of ineffective assistance of counsel, the Kentucky
Supreme Court decided the claim on the merits in Thompson v. Commonwealth, 2010 WL
4156756 (Ky. October 21, 2010). Although Thompson was denied an evidentiary hearing in the
state court, because Thompson is challenging the Kentucky Supreme Court’s resolution of this
claim under § 2254(d)(1),3 this Court’s review is limited to the state court record. See Cullen v.
Pinholster, 131 S.Ct. 1388 (2011).
In Pinholster, the Supreme Court held that a federal court’s review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the merits. Id.
at 1398. This is because “review under § 2254(d)(1) focuses on what a state court knew and did.
State-court decisions are measured against this Court's precedents as of ‘the time the state court
renders its decision.’” Id. at 1399 (citing Lockyer v. Andrade, 538 U.S. 63, 71–72, (2003)). “To

3

Under § 2254(d), an application for a writ of habeas corpus on behalf of a state prisoner “shall
not be granted with respect to [such a] claim ... unless the adjudication of the claim:”
(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.

10

determine whether a particular decision is ‘contrary to’ then-established law, a federal court must
consider whether the decision ‘applies a rule that contradicts [such] law’ and how the decision
‘confronts [the] set of facts’ that were before the state court.” Id. (citing Williams v. Taylor, 529
U.S. 362, 405, 406 (2000)). If the federal court determines that the state court identified the
correct governing legal principle in existence as the time, the federal court then must assess
whether the state court unreasonably applied that legal principle to the facts of the petitioner’s
case. Id. “It would be strange to ask federal courts to analyze whether a state court’s
adjudication resulted in a decision that unreasonably applied federal law to facts not before the
state court.” Id. Thus, the Supreme Court held that “[i]f a claim has been adjudicated on the
merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1)
on the record that was before that state court.” Id. at 1400.
The Supreme Court went on to explain that its holding in Pinholster did not render §
2254(e)(2) superfluous. Id. The Supreme Court explained that § 2254(e)(2) continues to have
force when § 2254(d)(1) does not bar federal habeas relief. Id. at 1401. “At a minimum,
therefore, § 2254(e)(2) still restricts the discretion of federal habeas courts to consider new
evidence when deciding claims that were not adjudicated on the merits in state court.” Id.
Here, Thompson is challenging the Kentucky Supreme Court’s resolution of his
ineffective assistance of counsel claims under § 2254(d)(1). Like in Pinholster, Thompson’s
claim of ineffective counsel was decided on the merits without an evidentiary hearing in the state
court. Unlike in Pinholster, where the ineffective assistance of counsel claims were summarily
dismissed as without merit, the Kentucky Supreme Court thoroughly analyzed Thompson’s
claim of ineffective assistance of counsel. Thompson, 2010 WL 4156756 at *1-4. Accordingly,
under Pinholster, this Court’s habeas review of Thompson’s claim of ineffective assistance of

11

counsel is limited to the state court record. Thus, it would be futile to conduct an evidentiary
hearing.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERD that Petitioner’s motion for an
evidentiary hearing is GRANTED IN PART. IT IS FURTHER ORDERED that an evidentiary
hearing is scheduled for June 14, 2012 at 1:00 p.m. (CDT).

May 1, 2012

12