Thompson v. Miller et al

Filing 38

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 1/22/2020. (c/m 1/23/2020 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TERRELL L. THOMPSON,

*

Petitioner,

*

v.

*

Civil Action No. GLR-15-878

WARDEN RICHARD E. MILLER, et al., *
Respondents.

*
***
MEMORANDUM OPINION

THIS MATTER is before the Court on Petitioner Terrell L. Thompson’s Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). The Petition is ripe,
and no hearing is necessary. See R. Govern. § 2254 Cases U.S. Dist. Ct. 8(a); 28 U.S.C. §
2254(e)(2) (2018). For the reasons set forth below, the Court will dismiss the Amended
Petition and decline to issue a Certificate of Appealability.
I.

BACKGROUND

On July 25, 2008, Thompson was indicted in the Circuit Court for Charles County,
Maryland for first-degree murder, attempted first-degree murder, and various related
firearm offenses and assault counts arising from events that took place on June 28, 2008.
(Resp. Am. Pet. [“2d Answer”] Ex. 1 [“State Court Record”] at 6, 26–27, ECF No. 33-1).1
After a three-day trial in September 2009, a jury convicted Thompson of first-degree
murder, attempted first-degree murder, first-degree assault, and several firearm offenses.

1

Citations to the State Court Record refer to the page numbers assigned by the
Court’s Case Management/Electronic Case Files (“CM/ECF”) system.

(Mem. L. Supp. Am. Pet. Ex. 3 [“Excerpts from Trial & Sentencing Trs.”] at 37–38, ECF
No. 30-3). On December 29, 2009, Thompson was sentenced to life imprisonment with an
additional fifty years to be served consecutively. (Id. at 42).
At trial, evidence was presented by the State to establish the following. On June 28,
2008, between 12:30 a.m. and 2:00 a.m., Thompson was at the Elk’s Lodge in Newburg,
Maryland. (Trial Tr. vol. I at 176:10–15, ECF No. 33-2). Around closing time, people
began to leave the building and a crowd gathered outside in the parking lot. (Trial Tr. vol.
II at 72:6–10, ECF No. 33-3). As the crowd gathered, an altercation began between
Thompson and Calvin Ross. (Trial Tr. vol. I at 177:9–12). Witnesses presented several
conflicting accounts as to who initiated the altercation. (Id. at 154:1–155:6, 185:10–20,
194:14–20). At some point during the fight, someone in the crowd fired multiple gun shots
into the air. (Id. at 187:2–14). Michael Beverly, a bystander, eventually pulled Ross off
Thompson and walked away with Ross to calm him down. (Id. at 145:6–9). Thompson then
took the gun from the individual who had fired the shots into the air and walked over to
Beverly and Ross. (Id. at 145:11–147:5). Thompson reached over Beverly’s shoulder to
fire multiple shots into Ross, and then fired at Beverly, killing him. (Id. at 202:15–204:19).
Ross sustained injuries but survived. Thompson immediately left the scene and was
ultimately arrested several months later on December 2, 2008. (Id. at 179:22; Trial Tr. vol.
II at 35:22–36:2).
After his sentencing, Thompson brought a series of challenges to his conviction. On
direct appeal, the Maryland Court of Special Appeals affirmed his conviction, and the
Maryland Court of Appeals denied Thompson’s petition for a writ of certiorari. (State
2

Court Record at 48–49). On April 9, 2012, Thompson filed a petition for post-conviction
relief, raising several arguments, including ineffective assistance of both trial and appellate
counsel. (Mem. L. Supp. Am. Pet. Ex. 2 [“Post-Conviction Cir. Ct. Op.”] at 1–8, ECF No.
30-2). After a hearing, the Charles County Circuit Court denied the post-conviction petition
on December 16, 2013. (Id. at 1, 8). Thompson then filed an application for leave to appeal
the decision, which the Court of Special Appeals summarily denied. Thompson v. State,
No. 2652, Sept. Term 2013 (Md.Ct.Spec.App. Sept. 30, 2014).
On July 10, 2015, Thompson filed a motion to reopen his post-conviction
proceedings, presenting two grounds for relief, including an ineffective assistance of
counsel claim based on evidence that trial counsel allegedly failed to inform Thompson of
a plea offer. After the Circuit Court initially denied the motion without a hearing, the Court
of Special Appeals remanded the case to the Circuit Court with an order to conduct an
evidentiary hearing. (Mot. Ext. Time Ex. 2 [“June 23, 2018 Md.Ct.Spec.App. Order”] at 1,
ECF No. 22-2). On December 13, 2017, the Circuit Court held a hearing on Thompson’s
motion to reopen, which the court denied. (Mot. Reopen Hr’g Tr. at 55:13–15, ECF No.
22-1). Thompson filed an application for leave to appeal this second denial of the motion
to reopen, which was denied by the Court of Special Appeals on April 4, 2018. Thompson
v. State, No. 2187, Sept. Term 2017 (Md.Ct.Spec.App. Apr. 4, 2018).
On March 26, 2015, Thompson filed his federal Petition for Writ of Habeas Corpus
in this Court pursuant to 28 U.S.C. § 2254. (ECF No. 1). In his initial Petition, Thompson
raised several grounds for relief, the majority of which concerned the alleged ineffective
assistance of counsel throughout his trial and appeal. In their Answer, Respondents argued
3

that Thompson’s claims based on the alleged failure of trial counsel to communicate a plea
offer and the ineffective assistance of appellate counsel were not properly raised and
exhausted in state court. (Answer at 10, ECF No. 5). Because Thompson asserted that these
claims were based upon newly-discovered evidence, the Court ordered a stay of this case
pending exhaustion of those claims. (Jul. 13, 2015 Order at 5, ECF No. 8). The Court lifted
the stay after the state court denied Thompson’s motion to reopen his post-conviction
proceedings, thereby exhausting his remaining claims. (Sept. 5, 2018 Order at 1, ECF No.
29).
Thompson, proceeding with counsel, then filed an Amended Petition, withdrawing
many of his previously raised grounds for relief. (See ECF Nos. 26, 30). Thompson’s two
remaining claims assert ineffective assistance of counsel based on trial counsel’s failure to
request a jury instruction for voluntary manslaughter and failure to inform Thompson of a
plea offer. (Am. Pet. at 5, ECF No. 26). On January 7, 2019, Respondents filed an Answer
to the Amended Petition, arguing that both of Thompson’s claims should be dismissed on
the merits. (ECF No. 33). Thompson filed a Reply on February 22, 2019. (ECF No. 36).
II.
A.

DISCUSSION

Standard of Review
A federal district court may only grant a habeas petition for a person who is in

custody pursuant to the judgment of a state court if the state court decision violates the
Constitution or laws of the United States. 28 U.S.C. § 2254(a) (2018). A federal court may
not grant a writ of habeas corpus unless the state court’s adjudication on the merits: (1)
“resulted in a decision that was contrary to, or involved an unreasonable application of,
4

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).
Under the first prong, a state court adjudication is “contrary to” clearly established
federal law under § 2254(d)(1) where the state court “arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law” or “confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to [the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405 (2000). As
for the “unreasonable application” analysis, a “state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, “a federal
habeas court may not issue the writ simply because [it] concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Williams,
529 U.S. at 411). Rather, “that application must be ‘objectively reasonable.’” Id. (quoting
Williams, 529 U.S. at 409).
Under the second prong of § 2254(d), “a state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Indeed, “even
if ‘[r]easonable minds reviewing the record might disagree’ about the finding in question,”
that does not suffice for a federal court to conclude that the state court decision was based
5

on an unreasonable determination of the facts. Id. (alteration in original) (quoting Rice v.
Collins, 546 U.S. 333, 341–42 (2006)). Further, “a determination of a factual issue made
by a State court shall be presumed to be correct,” and the petitioner bears “the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1). “Where the state court conducted an evidentiary hearing and explained its
reasoning with some care, it should be particularly difficult to establish clear and
convincing evidence of error on the state court’s part.” Sharpe v. Bell, 593 F.3d 372, 378
(4th Cir. 2010).
B.

Analysis
In his Amended Petition, Thompson argues that he received constitutionally

ineffective assistance from his trial counsel. Ineffective assistance of counsel claims are
grounded in the Sixth Amendment, which provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S.
Const. amend. VI. This guaranteed assistance of counsel must be “effective.” Strickland v.
Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970)). To establish ineffective assistance of counsel, a petitioner must show
both: (1) that counsel’s performance was deficient; and (2) that the deficient performance
prejudiced his defense. Id. at 687.
To satisfy the first prong of the Strickland standard, a petitioner must demonstrate
that counsel’s performance was not “within the range of competence normally demanded
of attorneys in criminal cases.” Id. at 687 (citation omitted). The standard for assessing
such competence is “highly deferential” and includes a “strong presumption that counsel’s
6

conduct falls within a wide range of reasonable professional assistance.” Id. at 669. “The
lawyer has discharged his constitutional responsibility so long as his decisions fall within
the ‘wide range of professionally competent assistance.’” Buck v. Davis, 137 S.Ct. 759,
775 (2017) (quoting Strickland, 466 U.S. at 690).
The second prong requires the court to consider whether counsel’s errors were so
serious that there was a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. See Strickland, 466 U.S. at 690–
94. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied upon as having produced a just result.” Id. at 686. It is not enough “to
show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at
693. Rather, counsel’s errors must be “so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.” Id. at 687. The Court need not appraise the attorney’s
performance if it is clear that no prejudice would have resulted had the attorney been
deficient. See id. at 697.
A federal court’s consideration of ineffective assistance of counsel claims arising
from state criminal proceedings is limited on habeas review due to the deference accorded
trial attorneys and the state appellate courts reviewing their performance. See 28 U.S.C. §
2254(d)(1). A petitioner must overcome the “‘strong presumption’ that counsel’s strategy
and tactics fall ‘within the wide range of reasonable professional assistance.’” Burch v.
Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). “There
is a ‘strong presumption’ that counsel’s attention to certain issues to the exclusion of others
7

reflects trial tactics rather than ‘sheer neglect.’” Harrington, 562 U.S. at 109 (quoting
Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam)). “The standards created by
Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem,
review is ‘doubly’ so.” Id. at 105 (citations omitted); see also Cullen v. Pinholster, 563
U.S. 170, 190 (2011). “When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105.
1.

Jury Instruction

Thompson first asserts that he received ineffective assistance when his trial counsel
failed to request a jury instruction for voluntary manslaughter on provocation. Specifically,
Thompson argues he was entitled to a hot-blooded manslaughter instruction as to both the
first-degree murder charge for the death of Beverly and the attempted first-degree murder
charge with respect to Ross.
Under Maryland law, “[k]illing in hot blooded response to legally adequate
provocation is a mitigating circumstance,” which “reduces the level of guilt from murder
to manslaughter.” Maryland Criminal Pattern Jury Instructions (“MPJI-Cr.”) 4:17.4. For a
jury to find this mitigating circumstance exists, five factors must be present:
(1) the defendant reacted to something in a hot[-]blooded rage, that is, the
defendant actually became enraged;
(2) the rage was caused by something the law recognizes as legally adequate
provocation, that is, something that would cause a reasonable person to
become enraged enough to kill or inflict serious bodily harm . . . ;
(3) the defendant was still enraged when [he] killed the victim, that is, the
defendant’s rage had not cooled by the time of the killing;
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(4) there was not enough time between the provocation and the killing for a
reasonable person’s rage to cool; and
(5) the victim was the person who provoked the rage.
Id.; see also State v. Rich, 3 A.3d 1210, 1219 (Md. 2010). “Mutual combat” has been
recognized as legally adequate provocation where “persons enter into angry and unlawful
combat with a mutual intent to fight.” Rich, 3 A.3d at 1219 (quoting Sims v. State, 573
A.2d 1317, 1322 (Md. 1990)). In Maryland, a criminal defendant is entitled to a requested
jury instruction so long as the defendant produces “some evidence” to support the
instruction. Bazzle v. State, 45 A.3d 166, 171 (Md. 2012); see also Marquardt v. State, 882
A.2d 900, 921 (Md.Ct.Spec.App. 2005) (“There must be ‘some evidence,’ to support each
element of the defense’s legal theory before the requested instruction is warranted.”)
(citation omitted).
At the hearing on Thompson’s state post-conviction petition, Thompson’s trial
counsel explained that he did not request the hot-blooded manslaughter instruction because
he did not believe “there was any adequate provocation to justify the shooting” and “[i]t
appeared from the evidence that Mr. Thompson was the aggressor from the very inception,
according to the witness.” (Post-Conviction Hr’g Tr. at 26:10–18, ECF No. 33-6). The
State argued that there was no evidence, direct or circumstantial, that Thompson was
subjectively enraged, which is the first element of the provocation defense. (Id. at 66:25–
67:9). The State also asserted that the evidence established there was time to cool between
Thompson’s initial fight with Ross and the shooting. (Id. at 68:10–25). Finally, the State
argued that even if there had been sufficient evidence for an instruction on the attempted
9

murder of Ross, the provocation defense did not apply to Beverly’s murder because the
evidence depicted Beverly as the “peacekeeper” who “never took any aggressive actions
toward Thompson.” (Id. at 69:13–21) Thus, the State contended there was no evidence to
support the final element of the provocation defense, which requires the victim to be the
person who provoked the rage.
In a written opinion denying Thompson’s post-conviction petition, the state court
expressly rejected the applicability of the provocation instruction for the murder of
Beverly. The state court explained that the “provocation must have come at the instance of
the homicide victim before instigation is recognized.” (State Court Record at 66). Finding
“not a scintilla of evidence” that Beverly did anything other than try to break up the fight,
the state court found Thompson was not entitled to such a jury instruction. (Id.).
Accordingly, the state court found no error in the failure of Thompson’s trial counsel to
request the provocation instruction. (Id.). With respect to the attempted murder of Ross,
the state court did not explicitly address this claim. However, at the end of its opinion, the
state court summarily stated that “the petitioner’s several contentions are without merits,”
apparently capturing any claim not individually addressed. (Id. at 67).
Thompson asserts that the state court’s decision was an unreasonable application
of clearly established federal law. Counsel’s failure to request a jury instruction can form
the basis of an ineffective assistance claim. Lee v. Clarke, 781 F.3d 114, 129 (4th Cir.
2015), as amended (Apr. 15, 2015). Such claims are analyzed under the two-prong
Strickland test, requiring a court to find that counsel’s performance was deficient and that
the deficiency prejudiced the defendant. Id. at 122. Regarding the prejudice prong, a court
10

must specifically ask: “(1) whether the instruction, if requested, should have been given;
and (2) if the instruction had been given, was there a reasonable probability that the
outcome of the proceedings would have been different.” Id. at 125 (quoting United States
v. Luck, 611 F.3d 183, 189 (4th Cir. 2010)).
Thompson primarily relies on the United States Court of Appeals for the Fourth
Circuit’s decision in Lee v. Clarke to support his claim. In Lee, the habeas petitioner raised
an ineffective assistance claim based on his trial counsel’s failure to request a heat-ofpassion instruction in his first-degree murder prosecution. 781 F.3d at 123. Undisputed
testimony at trial revealed that the victim initiated a fight with Lee, punching him in the
face multiple times before Lee stabbed the victim. Id. While the Virginia trial court
provided a jury instruction on the difference between murder and manslaughter, the jury
did not receive an instruction defining heat of passion. Id. Although there was no dispute
that Lee was in fact entitled to a heat-of-passion instruction, the state habeas court rejected
Lee’s ineffective assistance claim, finding no prejudice. Id. at 122. On appeal, the Fourth
Circuit found the state court’s decision to be an unreasonable application of Strickland. As
to the deficiency prong, the Fourth Circuit emphasized that “Lee’s trial counsel had no
strategic reason” for failing to request the instruction and that “it was error to fail to do so
in any event under the facts of the case.” Id. at 125. As to prejudice, the court noted that
Lee was in fact entitled to the heat of passion instruction under Virginia law. Id. Finally,
the Fourth Circuit found that the instruction had a reasonable probability to alter the
outcome of the trial, given the evidence established the victim had struck Lee first in “an
attack [that] would engender anger, rage, fear or similar emotions.” Id. at 126. Accordingly,
11

the court granted Lee habeas relief.
Respondents argue that, unlike the Fourth Circuit’s decision in Lee, which turned
primarily on the prejudice prong, Thompson’s claim fails on the deficiency prong of
Strickland. By contrast to Lee, where there was no real dispute that the petitioner was
entitled to a heat-of-passion instruction, Respondents contend Thompson did not even meet
the relatively low threshold of “some evidence” necessary to receive a hot-blooded
manslaughter instruction. Thus, Respondents assert that the state post-conviction court’s
finding that no instruction was warranted is a reasonable application of law.
As a preliminary matter, with respect to the attempted murder of Ross, the Court
notes that it is of no consequence that the state court did not explain its reasoning in denying
the application of the hot-blooded instruction to this offense. 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.” Harrington,
562 U.S. at 98. Under such circumstances, a “court must determine what arguments or
theories . . . could have supported[] the state court’s decision; and then it must 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. at 102.
Respondents assert Thompson could not satisfy the first element of the hot-blooded
instruction for both the murder and attempted murder charges because there was no
evidence that Thompson was actually enraged. While evidence of a defendant’s facial
expressions or speech may provide sufficient evidence for a hot-blooded instruction,
“under some circumstances only the hot-blooded killer can attest” to state of mind. Sims,
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573 A.2d at 1323. At the hearing on Thompson’s state post-conviction petition,
Thompson’s trial attorney testified that his client never said he acted in a “fit of passion”
at the time he shot Ross and Beverly. (Post-Conviction Hr’g Tr. at 23:5–9). The evidence
at trial was similarly lacking to support Thompson’s subjective rage. One witness who was
with Thompson at Elk’s Lodge recalled him pacing back and forth with a gun after she
heard shots fired. (State Court Record at 188). However, when asked if Thompson seemed
upset, the witness replied that “[h]e didn’t seem upset really.” (Id. at 190).
Moreover, with respect to the murder of Beverly, Respondents maintain there was
no evidence at trial that Beverly provoked Thompson’s alleged rage. Multiple witnesses
testified to Beverly’s role as a bystander to the fight between Thompson and Ross. (See
Trial Tr. vol. I at 156:2–17, 196:7–197:2). Beverly intervened to pull Ross off Thompson
and then attempted to move Ross away from the fight to calm down. (See id.; Trial Tr. vol.
II at 10:15–16). Thompson responds that “some evidence” at trial established that Beverly
was the person who provoked Thompson’s rage because one witness stated that Beverly
was throwing punches at the time he was shot. (Trial Tr. vol. I at 210:19–211:2). This
alleged provocation from Beverly, however, came after he had broken up the fight between
Thompson and Ross, which Thompson himself identifies as the source of his rage. Further,
the witness explained that Beverly threw this punch as he “was trying to push [Thompson]
away.” (Id. at 217:7–11). Rather than provoking Thompson’s rage, which under
Thompson’s own theory was incited by his fight with Ross, the only evidence of aggression
from Beverly came as he was attempting to get away from Thompson to avoid being shot.
Under clearly established federal law, failing to request a jury instruction to which
13

a defendant is not entitled does not amount to ineffective assistance of counsel. Lee, 781
F.3d at 125. Rather than request an instruction trial counsel did not believe was supported
by the evidence, counsel’s strategy was to reduce Thompson’s first-degree charges to
second-degree by focusing on the absence of premeditation. (Post-Conviction Hearing Tr.
at 23:13–15; see also Trial Tr. vol. III at 98:17–99:1). Based on the lack of evidence to
support multiple elements of the provocation defense, there is a “reasonable argument that
counsel satisfied Strickland’s deferential standard” with this strategy. Harrington, 562 U.S.
at 105. Under the similarly deferential standard of federal habeas review, the state court’s
finding of no error on the part of trial counsel was a reasonable application of the law.
Accordingly, the Court will deny the Amended Petition as to Thompson’s jury instruction
claim.
2.

Plea Offer

Thompson next claims that trial counsel provided ineffective assistance by failing
to inform Thompson of a plea offer from the State. Thompson contends he first learned of
a plea offer in 2014, after his direct appeal and the denial of his state post-conviction
petition, when he received his case file from his trial counsel. (Mot. Reopen Hr’g Tr. at
4:24–5:5). In contrast to Thompson’s sentence of life plus fifty years, the plea offer would
have resulted in a sentence of forty years imprisonment. (Id. at 5:2–5).
The Sixth Amendment right to counsel “extends to the plea-bargaining process.”
Lafler v. Cooper, 566 U.S. 156, 162 (2012). Thus, defendants have the same right “to the
effective assistance of competent counsel” during plea negotiations as they do at trial, and
the two-part Strickland test applies to such claims. Id. (citation omitted). As “defense
14

counsel has the duty to communicate formal offers from the prosecution to accept a plea
on terms and conditions that may be favorable to the accused,” failure to do so renders
counsel’s performance deficient. Missouri v. Frye, 566 U.S. 134, 145 (2012). To establish
prejudice in the context of plea offers, defendants “must demonstrate a reasonable
probability that (1) ‘they would have accepted the earlier plea offer had they been afforded
effective assistance of counsel,’ and (2) ‘the plea would have been entered without the
prosecution canceling it or the trial court refusing to accept it, if they had the authority to
exercise that discretion under state law.’” Merzbacher v. Shearin, 706 F.3d 356, 366 (4th
Cir. 2013) (quoting Frye, 566 U.S. at 147).
Thompson raised this claim for the first time in state court in a motion to reopen his
post-conviction proceedings. Under Maryland law, an inmate is generally entitled to only
one state petition for post-conviction relief. Md. Code Ann., Crim. Proc. § 7-103(a).
However, a state court may reopen a post-conviction proceeding if the court determines
“the action is in the interests of justice.” Id. § 7-104. Thompson asserted that newlydiscovered evidence, which he did not have access to at the time of his earlier petition,
revealed the existence of a plea offer in his case. At the hearing on Thompson’s motion to
reopen, Thompson testified that his trial counsel never informed him of the plea offer and
that he would have accepted the plea had he known of its existence. (Mot. Reopen Hr’g Tr.
at 14:2–11). Thompson attempted to contact his trial counsel prior to the hearing so that
the attorney could testify, but the attorney had retired and could not be located. (Id. at 42:5–
14).
In response to Thompson’s testimony, the State proffered that if the case were
15

reopened and Thompson’s trial counsel could testify, he “would testify that he did get a
last minute plea offer from the State, did present it to Mr. Thompson on the morning of his
trial and Mr. Thompson rejected it, stating that he was not interested in pleading to
anything.” (Id. at 39:13–20). Additionally, the State submitted a note from the State’s
Attorney’s Office case file, written by the prosecutor on the first day of Thompson’s 2009
trial, which read: “[Defendant]’s [attorney] says it will be a plea. Plea agreement provided
to counsel. Counsel returns and now says trial.” (Id. at 40; see also State Court Record at
68).
Considering this evidence, the state court found that Thompson’s testimony was not
credible. (Mot. Reopen Hr’g Tr. at 54:16). Further, the state court concluded that the
prosecutor’s note supported a finding that defense counsel had informed Thompson of the
plea offer because it “doesn’t make sense” for defense counsel to indicate there would be
a plea, take the agreement, and then return with news that the trial would proceed, unless
Thompson had in fact been informed of the plea offer and turned it down. (Id. at 54:17–
25). Moreover, the state court found it unlikely that defense counsel, “an experienced
attorney,” would take “it upon himself to circumvent Mr. Thompson’s wishes or right to
make that call.” (Id. at 55:5–12). Accordingly, the state court determined it was not in the
interests of justice to reopen the case and denied Thompson’s motion. (Id. at 13–15).
Thompson argues that the state court’s decision amounts to an unreasonable
determination of the facts on federal habeas review. Under § 2254, a state court’s factual
determination is presumed correct, and the petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
16

Moreover, in reviewing a state court decision, “federal habeas courts [have] no license to
redetermine credibility of witnesses whose demeanor has been observed by the state trial
court, but not by them.” Merzbacher, 706 F.3d at 364 (citation omitted). In Merzbacher,
the Fourth Circuit found that a habeas petitioner’s “self serving assertion that he would
have accepted the plea is . . . the type of testimony . . . subject to heavy skepticism.” Id. at
367 (internal quotation marks and citation omitted). In finding that the “state court did not
act unreasonably in finding Merzbacher not credible when he stated that he would have
taken the plea,” the Fourth Circuit emphasized that “only the state court had the opportunity
to observe the testimony on this critical point.” Id. at 368.
As in Merzbacher, the state court had the opportunity to observe Thompson’s
testimony and determined he was not credible. After making such a credibility
determination, and without any other evidence to support Thompson’s claim, the state court
acted reasonably in denying Thompson’s motion. Based on this record, the Court finds
Thompson has not met his burden of rebutting the presumption of correctness by clear and
convincing evidence and will therefore deny Thompson’s ineffective assistance claim as
to the plea offer.
C.

Certificate of Appealability
A district court “must issue or deny a certificate of appealability when it enters a

final order adverse to the applicant” in habeas cases. R. Govern. § 2254 Cases U.S. Dist.
Ct. 11(a). Because the accompanying Order is a final order adverse to the applicant, the
Court must issue a certificate of appealability before an appeal can proceed. See 28 U.S.C.
§ 2253(c)(1) (2018).
17

A certificate of appealability may issue if the petitioner has made a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district
court rejects constitutional claims on the merits, a petitioner may satisfy the standard by
demonstrating that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
When a district court denies a habeas petition on procedural grounds, the petitioner must
show that reasonable jurists “would find it debatable whether the petition states a valid
claim of the denial of a constitutional right” and “whether the district court was correct in
its procedural ruling.” Id. at 478. Because Thompson fails to satisfy these standards, the
Court declines to issue a certificate of appealability. Thompson may request that the Fourth
Circuit issue such a certificate. See Lyons v. Lee, 316 F.3d 528, 532 (4th Cir. 2003).
III.

CONCLUSION

For the foregoing reasons, the Court will DISMISS Thompson’s Amended Petition
for Writ of Habeas Corpus and will DECLINE to issue a certificate of appealability. The
Court will direct the Clerk to CLOSE the case. A separate Order follows.

Entered this 22nd day of January, 2020.

/s/
George L. Russell, III
United States District Judge

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