Thompson v. Miller et al

Filing 46

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 7/30/2021. (C/M 7/30/2021 bas, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TERRELL L. THOMPSON, # 360-887,
Petitioner,

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v.

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RICHARD E. MILLER, Warden, et al.,

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Respondents.

Civil Action No. GLR-15-878

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MEMORANDUM OPINION

THIS MATTER is before the Court upon Petitioner Terrell L. Thompson’s Motion
for Reconsideration (ECF No. 40).1 The Motion is ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2021). For the reasons explained below, the
Motion will be denied.
I.

BACKGROUND2

Thompson filed his federal Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 on March 26, 2015. (ECF No. 1). Thompson filed an Amended Petition on August
31, 2018, and supplemented it on October 9, 2018. (ECF Nos. 26, 30). Thompson’s
Amended Petition raised two arguments in support of an ineffective assistance of counsel
claim: first, for trial counsel’s failure to request a jury instruction on provocation; and

Thompson’s Motion is styled as a “Motion to Alter and Amend Pursuant to
Fed.R.Civ.P. 59(e), for Reconsideration of this Court’s January 23, 2020 Memorandum
ECF # 38 and ECF # 39 Denying Habeas Corpus Relief Pursuant to 28 U.S.C. § 2254.”
For simplicity, the Court will refer to the filing as a Motion for Reconsideration.
2
The Court sets forth a thorough recitation of the facts and procedural history in its
January 23, 2020 Memorandum Opinion (ECF No. 38).
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second, for trial counsel’s failure to inform Thompson of a plea offer. On January 23, 2020,
the Court issued a Memorandum Opinion and Order rejecting both grounds and dismissing
the Petition. (ECF Nos. 38, 39).
On January 31, 2020, Thompson moved for reconsideration on his first ineffective
assistance of counsel claim only. (ECF No. 40). On February 6, 2020, the government filed
an Opposition. (ECF No. 42). Thompson filed a Reply on March 5, 2020. (ECF No. 45).
II.
A.

DISCUSSION

Standard of Review
Thompson brings his Motion for Reconsideration pursuant to Federal Rule of Civil

Procedure 59(e).3 “Federal Rule of Civil Procedure 59(e) permits the district court to
reconsider a decision in certain circumstances.” Ross v. Early, 899 F.Supp.2d 415, 420
(D.Md. 2012) (citing Fed.R.Civ.P. 56(e)), aff’d, 746 F.3d 546 (4th Cir. 2014). Although
the plain language of Rule 59(e) does not provide a particular standard by which a district
court should evaluate a motion to alter or amend judgment, the United States Court of

3

The Federal Rules of Civil Procedure do not contain an express provision for a
“motion for reconsideration” of a final judgment. Katyle v. Penn Nat’l Gaming, Inc., 637
F.3d 462, 470 n.4 (4th Cir.), cert. denied, 565 U.S. 825 (2011). Nonetheless, to avoid
elevating form over substance, a motion to reconsider may be construed as a motion to
alter or amend judgment under Federal Rule of Civil Procedure 59(e), or a motion for relief
from judgment under Federal Rule of Civil Procedure 60(b). MLC Auto., LLC v. Town of
S. Pines, 532 F.3d 269, 278–80 (4th Cir. 2008). Because the Motion for Reconsideration
was filed within twenty-eight days of the Court’s January 23, 2020 Memorandum Opinion
and Order, Rule 59(e) controls. Bolden v. McCabe, Weisberg & Conway, LLC, No. DKC13-1265, 2014 WL 994066, at *1 n.1 (D.Md. Mar. 13, 2014); see also Fed.R.Civ.P. 59(e)
(stating that “[a] motion to alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment”).

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Appeals for the Fourth Circuit has clarified “that Rule 59(e) motions can be successful in
only three situations: (1) to accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.” Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007) (internal
quotation marks and citation omitted); see also U.S. ex rel. Carter v. Halliburton Co., 866
F. 3d 199, 210–11 (4th Cir. 2017), cert. denied, 138 S.Ct. 2674 (June 25, 2018).
As indicated, a district court may amend a judgment under Rule 59(e) to “prevent
manifest injustice.” Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). Another
purpose of Rule 59(e) is to “permit[ ] a district court to correct its own errors, ‘sparing the
parties and the appellate courts the burden of unnecessary appellate proceedings.’” Pac.
Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (quoting Russell v.
Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995)), cert. denied,
525 U.S. 1104 (1999). “Mere disagreement [with a court’s ruling] does not support a Rule
59(e) motion.” Hutchinson, 994 F.2d at 1082. Indeed, “reconsideration of a judgment after
its entry is an extraordinary remedy which should be used sparingly.” Pac. Ins. Co., 148
F.3d at 403 (citation omitted).
B.

Analysis
Thompson argues that reconsideration is warranted because the Court’s dismissal

of his habeas petition was “clearly erroneous.” (Mot. Alter & Amend Pursuant Fed. R. Civ.
P. 59(e) [“Mot.”] at 2, ECF No. 40). Specifically, Thompson contends the Court’s
“conclusion is contradicted by the facts cited in the Opinion . . . and the Opinion does not

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apply the low ‘some evidence’ standard[4] [for] granting a requested jury instruction in
Maryland.” (Id.).
This criticism is misplaced. On review of Thompson’s habeas petition, the Court
was not required to make factual findings or apply the “some evidence” standard. Instead,
the Court was required to evaluate the post-conviction court’s denial of Thompson’s
ineffective assistance of counsel claim “through the dual lens of the [Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”)] standard and the standard set forth by
the Supreme Court in [Strickland v. Washington, 466 U.S. 668 (1984)].” Valentino v.
Clarke, 972 F.3d 560, 579 (4th Cir. 2020) (quoting Richardson v. Branker, 668 F.3d 128,
144 (4th Cir. 2012)). Notably, when evaluating an ineffective assistance of counsel claim
in the context of AEDPA, the Court’s review is “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). “Thus, ‘[t]he question is not whether a federal court
believes the state court’s determination under the Strickland standard was incorrect but
whether that determination was unreasonable—a substantially higher threshold.’”
Valentino, 972 F.3d at 580 (internal quotation marks and citation omitted) at 123 (internal
quotation marks and citation omitted)). “This double-deference standard effectively cabins
our review to determining whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.’” Id. (emphasis added) (internal quotation marks and
citation omitted).

As discussed in more detail below, Maryland follows the “some evidence”
standard for jury instructions, which provides that a defendant is entitled to a jury
instruction even if the “claim is overwhelmed by evidence to the contrary” so long as there
is “some evidence” to support it. See Dykes v. State, 571 A.2d 1251, 1257 (Md. 1990).
4

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Thompson’s habeas claim was three-fold: (1) he was entitled to a jury instruction
on the basis of hot-blooded provocation because there was at least “some evidence” to
support it; (2) trial counsel performed deficiently by failing to request this instruction, and
Thompson was prejudiced by that deficiency; and (3) as a result, the state post-conviction
court’s denial of his ineffective assistance claim was “erroneous” and “involved an
unreasonable application of the law.” (Mem. L. Supp. Pet. Writ Habeas Corpus [“Habeas
Pet.”] at 11, ECF No. 30). Upon its habeas review, the Court found that Thompson’s claim
could not satisfy the heightened AEDPA standard because he could not show that the postconviction court’s determination was unreasonable. To the extent its prior opinion was not
clear, the Court will attempt to rectify any deficiencies here by expanding on its reasoning.
At the outset, although the state post-conviction court did not specifically refer to
the Strickland standard in denying Thompson’s ineffective assistance claim, this Court was
nonetheless required to apply the deferential standard of review. See Valentino, 972 F.3d
at 580. Indeed, where “the state court has not specified the precise reasons for its decision,
‘the habeas petitioner must show there was no reasonable basis for the state court to deny
relief.’” Id. (quoting Harrington v. Richter, 562 U.S. 86, 98 (2011)). In such cases, “[a]
state court’s decision is unreasonable where it is ‘so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. (quoting Harrington, 562 U.S. at 103). Thus, to succeed on
his habeas claim, Thompson needed to show there was no reasonable basis for the postconviction court to deny Thompson’s claim for ineffective assistance of counsel. See
Valentino, 972 F.3d at 580.
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A criminal defendant seeking a new trial on the ground that counsel was
constitutionally ineffective must satisfy the familiar two-pronged test set forth in
Strickland. The first prong requires a showing that defense counsel performed deficiently.
Id. at 687. “Deficient performance [ ] requires a showing ‘that counsel’s representation fell
below an objective standard of reasonableness,’ as measured by ‘prevailing professional
norms’ and in light of ‘all the circumstances’ of the representation.” Owens, 967 F.3d at
412 (quoting Strickland, 466 U.S. at 688). Additionally, when evaluating counsel’s
performance under Strickland, the reviewing court must begin with the “strong
presumption that counsel made all significant decisions in the exercise of reasonable
professional judgement.” Valentino, 972 F.3d at 581 (internal quotation marks and citation
omitted). This requires a court to not only “give the attorneys the benefit of the doubt, but
[also] affirmatively entertain the range of possible reasons that [Thompson’s] counsel may
have had for proceeding as [he] did.” Id. (first and third alterations in original) (quoting
Cullen, 563 U.S. at 196) (internal quotation marks and citations omitted); see also
Harrington, 562 U.S. at 110 (“Strickland . . . calls for an inquiry into the objective
reasonableness of counsel’s performance, not counsel’s subjective state of mind.”); United
States v. Vyner, 846 F.3d 1224, 1227 (D.C. Cir. 2017) (“[T]he presumption may only be
rebutted through a showing that no sound strategy . . . could have supported the conduct.”
(internal quotation marks and citations omitted)). Then, the court must ask whether the
defendant “has overcome this presumption by showing that no fair-minded jurist could find
one of those reasons to be sound trial strategy.” Valentino, 972 F.3d at 581 (citing 28 U.S.C.

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§ 2254(d)); see also Harrington, 562 U.S. at 105 (“The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.”).
At the post-conviction proceedings, Thompson’s trial counsel explained that he did
not request a jury instruction for the provocation defense because he did not believe there
was adequate evidence in the record to support it. (See Post-Conviction Hrg. Tr. at 25:5–
9, ECF No. 33-6). When asked to elaborate, counsel explained:
[T]he problem, as I recall at the time, was there was an initial
contact between one of the victims and the Defendant. And at
some point in time, there were shots fired by a third person in
the crowd.
The Defendant, as I recall, walked over to that
individual and secured the weapon that that individual had
discharged, presumably. And, and then walked across the
parking lot at the Elk’s Lodge toward a side door that was
locked, apparently. It was not open. This was at closing time.
Everyone had already left, as I recall.
Where Mr. Beverly was acting, I suppose you might
say, as a Good Samaritan or friend, and was in front of Mr.
Ross. And I — The facts seem to suggest that he was trying to
prevent him from being shot. Because Mr. Thompson had
walked across the parking lot, had the gun, reached over, as I
recall, Mr. Beverly, shot Mr. Ross, he was not the individual
who died, and then at some point, Mr. Beverly turned, as I
recall, to walk away and was shot in the abdomen.
So I didn’t see that there was any adequate provocation
to justify the shooting, whatsoever. It appeared from the
evidence that Mr. Thompson was the aggressor from the very
inception, according to the witness. But regardless, there was
not any, I think, sufficient provocation to obtain a firearm and
go over and shoot either one of the individuals.
(Id. at 25:15–26:16). Trial counsel also testified that, although he did not think the evidence
was sufficient to establish the provocation defense, he argued in his closing argument that
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the charges should be reduced from first-degree to second-degree based upon the lack of
premeditation. (Id. at 36:9–22).
In light of trial counsel’s testimony, it cannot be said that the post-conviction court’s
denial of Thompson’s ineffective assistance claim was unreasonable. In evaluating
counsel’s performance, the post-conviction court was required to apply a “highly
deferential” level of scrutiny; in other words, “to avoid the ‘distorting effects of
hindsight,’” the court was required to “‘indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.’” Yarbrough v.
Johnson, 520 F.3d 329, 337 (4th Cir. 2008) (quoting Strickland, 466 U.S. at 689). Given
trial counsel’s explanation for why he declined to request the provocation instruction, the
post-conviction court could have reasonably found that the attorney’s decision was a valid
exercise of his professional judgment. Although Thompson argues that trial counsel’s
conclusion about the insufficiency of the evidence demonstrates the attorney’s
incompetence and unfamiliarity with the record, this argument is misplaced—simply put,
the Court’s role here is to review the state court’s judgment, not to independently assess
the performance of trial counsel.
Finally, although Thompson argued in his habeas petition that the Fourth Circuit’s
decision in Lee v. Clark, 781 F.3d 114 (4th Cir. 2015), was determinative of ineffective
assistance of counsel claim, the facts in Lee are distinguishable from those here. Indeed,
unlike the attorney in Lee, who admitted that he had “no strategic reason for the omission
of the instruction” on the heat of passion defense to manslaughter, id. at 124–25,
Thompson’s trial counsel testified that he considered requesting the provocation jury
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instruction but did not do so because, in his professional judgment, the instruction was not
warranted. Accordingly, the Court cannot say that there was no reasonable basis for the
post-conviction court to deny Thompson relief.
Turning to the second prong of Strickland, a defendant must also prove prejudice—
that is, “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; accord Gray v.
Branker, 529 F.3d 220, 234 (4th Cir. 2008). “The likelihood of a different result must be
substantial, not just conceivable,” Harrington, 562 U.S. at 112 (citation omitted), so as to
“undermine confidence in the outcome” of the trial, Strickland, 466 U.S. at 694. When
reviewing an ineffective assistance claim relating to jury instructions, “the prejudice prong
is twofold: (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.” Lee, 781 F.3d at 125 (quoting United States v.
Luck, 611 F.3d 183, 189 (4th Cir. 2010)).
When determining whether a jury instruction should have been given, state law
controls. In Maryland, the defense of provocation, “commonly referred to as hot-blooded
response to

legally

adequate provocation, typically involves passion-creating

circumstances, those that provoke action, and therefore, those to which the rule of
provocation applies.” Christian v. State, 951 A.2d 832, 841 (Md. 2008) (citing Girouard v.
State, 583 A.2d 718, 721 (Md. 1991)). The defense of provocation applies the following
test: (1) “[t]here must have been adequate provocation”; (2) “[t]he killing must have been
in the heat of passion”; (3) “[i]t must have been a sudden heat of passion—that is, the
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killing must have followed the provocation before there had been a reasonable opportunity
for the passion to cool”; and (4) “[t]here must have been a causal connection between the
provocation, the passion, and the fatal act.” Id. at 842 (quoting Girouard, 583 A.2d at 721).
The Maryland Court of Appeals has recognized that the provocation defense may be raised
in cases involving “mutual affray,” which arises “when persons enter into angry and
unlawful combat with a mutual intent to fight.” Id. at 842 n.13 (quoting Sims v. State, 573
A.2d 1317, 1322 (Md. 1990)). “The rule of provocation will apply in that situation when,
‘as a result of the effect of the combat, the passion of one of the participants is suddenly
elevated to the point where he resorts to the use of deadly force to kill the other solely
because of an impulsive response to the passion and without time to consider the
consequences of his actions.’” Id. (quoting Sims, 573 A.2d at 1322). The provocation
defense may also apply to “anything the natural tendency of which is to produce passion
in ordinary men and women.” Id. at 842 (citing Girouard, 583 A.2d at 721).
The Maryland Pattern Jury Instructions set forth five elements of the provocation
defense: (1) the defendant reacted to something in a hot-blooded rage, i.e., the defendant
actually became enraged; (2) the rage was caused by something the law recognized as
legally adequate provocation, i.e., 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, i.e., the defendant’s rage had not cooled by the time of
the killing; (4) there was not enough time between the provocation and the killing for a

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reasonable person’s rage to cool; and (5) the victim was the person who provoked the rage.
See Md. Pattern Jury Instructions 4:17.4.5
“Each of [these] elements is [an essential component] for a defense of mitigation
based upon hot-blooded response to legally adequate provocation.” Tripp v. State, 374
A.2d 384, 394 (Md. 1977), holding modified by Sparks v. State, 603 A.2d 1258 (Md.
1992). “Thus, in order for instruction regarding heat of passion to be required, evidence
must be introduced from which the jury could have found each of the . . . elements.” Id.
(quoting Lang v. State, 250 A.2d 276, 277 (Md. 1969)). In Maryland, a defendant is entitled
to a jury instruction even if the claim is “overwhelmed by evidence to the contrary” so long
as there is at least “some evidence” to support each element of the claim. See Dykes v.
State, 571 A.2d 1251, 1257 (Md. 1990).
Importantly, in the context of this Court’s review, this standard does not simply
mean that Thompson was required to prove there was some evidence of each element in
order to prevail on his habeas claim. Rather, it means Thompson needed to show there was
no reasonable basis for the state court to deny his Strickland claim, such that the state
court’s decision went beyond any possibility for fair-minded disagreement. See Valentino,
972 F.3d at 580. But there are several reasons why the post-conviction court could have
reasonably denied Thompson’s Strickland claim on the second prong. In particular, there
is a reasonable argument that Thompson was not entitled to the provocation instruction
because he could not show at least “some evidence” of each element.

5

Thompson incorrectly attempts to present the requirements of the provocation
defense as “factors.” (See Mot. at 3 n.2).
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First, there was a reasonable basis for the state post-conviction court to have found
that there was no evidence that Beverly was the one who provoked Thompson’s rage. At
the state post-conviction hearing, Thompson’s counsel raised the following argument:
So, again, the issue of voluntary manslaughter for hot-blooded
response to legally adequate provocation. Again, we have all
this testimony that this is a bar fight. Hard to say exactly who
threw the first punch, but even if Mr. Thompson threw the first
punch, Ross was on top of him, Beverly pulls him off, all of
this melee is going on. There was clearly plenty of evidence
for that. And that certainly fits the Dykes[6] test for some
evidence rule.
And the rules of provocation, obviously, met them. The
provocation was adequate. Calvin Ross was drunk, rowdy, on
top of Terrell during the fight, had to be pulled off, there was
mutual combat. . . .
The killing was in the heat of passion. There was no reasonable
time to cool. There was a matter of not even a minute,
according to some testimony. And there was a causal
connection. There wasn’t any, anything intervening between
the fight and the shooting. It all went down within a matter of
seconds. There was no intervening cause there.
So it did meet the elements of legally adequate provocation.
And the jury should’ve heard that instruction, because it would
have reduced the crime from murder to manslaughter.
(Post-Conviction Hrg. Tr. at 46:10–47:7).
Notably, although Thompson’s counsel described the altercation generally as a “bar
fight” and “melee,” she did not raise any arguments regarding provocation by Beverly in
particular. Counsel for the government picked up on this deficiency:
And the last element, which I think is the one most fatal
because, again, they have to generate some evidence as to each
6

Dykes v. State, 571 A.2d 1251 (Md. 1990).
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and every element of the defense, is the victim was the person
who provoked the rage.
...
Any counts related to Michael Beverly would not qualify.
Michael Beverly didn’t provoke anyone. By Mr. Martucci’s
own admission, and by what was argued at trial, by what was
stated at sentencing, Michael Beverly was the peacekeeper. He
was holding Calvin Ross back. And the testimony was he was
holding his shoulders. Somebody said Calvin Ross was rowdy
and jumping around. Calvin said he was drunk. Beverly never
took any aggressive actions toward Thompson. There’s no
testimony as to that. Mr. Beverly was standing in between
Calvin Ross and Terrell Thompson. . . . Beverly turned to run
away, and he shot Mr. Beverly twice.
(Post-Conviction Hrg. Tr. 69:4–70:1).
In its written opinion denying his claims for ineffective assistance of counsel, the
state court concluded that Thompson was not entitled to the provocation defense because
there was “not a scintilla of evidence that Michael Beverly did other than remove Calvin
Ross from the fight with [Thompson] and, in the instant before being shot himself, attempt
to keep [Thompson] and Ross apart.” (State Post-Conviction Ct. Op. & Order at 7, ECF
No. 5-7). Under AEDPA, “[f]actual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary, and a decision adjudicated on the
merits in a state court . . . will not be overturned on factual grounds unless objectively
unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003) (citations omitted); see also Roach v. Sizer, No. RWT07-1136, 2009 WL 2151716, at *7 (D.Md. July 14, 2009) (noting that a state court
determination of a factual issue is presumed correct and the presumption may be rebutted

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only “by clear and convincing evidence” (citing 28 U.S.C. § 2254(e)(1)); Tucker v.
Ozmint, 350 F.3d 433, 439 (4th Cir. 2003)).
Thompson takes exception to the post-conviction court’s ruling, arguing that there
was at least some evidence in the record that Beverly provoked his rage. Specifically,
Thompson argues that one witness’ trial testimony shows that Beverly was acting
aggressively towards Thompson by “throwing punches” and getting “real close” before
Thompson shot him. But upon review of this testimony in context, the Court cannot say it
constitutes “clear and convincing evidence” to the contrary of the state court’s
determination. See Roach, 2009 WL 2151716, at *7. The witness testified that he did not
know the names of the men who were shot, referring to them interchangeably as the “first
guy,” the “second guy,” or simply “he.” At one point, the witness says: “Well the guy, the
second guy he was shooting he was almost tussling with him, but anybody else, no.” (Sept.
21, 2009 Trial Tr. at 216:19–20, ECF No. 33-2 (emphasis added)). The witness also
testified: “And as the guy got shot the guy that was shooting was walking up real close to
him, almost like speed walking. He got real close again and shot him again. And at that
time they were sitting there tussling and fighting, trying to push him out of the way.” (Id.
at 218:1–7 (emphasis added)). This testimony is obviously not a model of clarity; however,
the Court notes that it could reasonably be read to mean that Thompson, not Beverly, was
the one who was “tussling with” and “walking up real close” to one of the victims. As such,
the Court cannot say that the state court’s determination regarding Beverly’s involvement
in the conflict was “objectively unreasonable.” Miller-El, 537 U.S. at 340.

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Next, there was also a reasonable basis for the state post-conviction court to have
determined that the element of subjective rage was not satisfied. Maryland courts have
repeatedly recognized that, to be entitled to a provocation defense, “[t]he blood . . . must
indeed be hot and, generally speaking, only the hot-blooded killer can attest to that.” Price
v. State, 570 A.2d 887, 890 (Md.Ct.Spec.App. 1990) (quoting Bartram v. State, 364 A.2d
1119, 1153 (Md.Ct.Spec.App. 1976)). In the present case, however, Thompson did not take
the stand to offer testimony that he was hot-blooded at the time of the shooting. Without
this critical testimony, the only evidence on which Thompson could rely was circumstantial
evidence. But as government counsel explained at the post-conviction hearing:
Now there is no evidence whatsoever that the Defendant
subjectively became enraged. None whatsoever. There’s no
testimony from Mr. Thompson. He elected not to testify. And
as Mr. Martucci told you, Mr. Thompson never told him that
he was in a hot-blooded rage. Also there’s no circumstantial
evidence regarding, from what other witnesses said, people
that observed Mr. Thompson, no evidence of his facial
expressions, of his tone of voice, whether he was yelling,
whether he was, you know, pacing around and fist balled and
red faced, nothing like that.
...
Multiple witnesses to the shooting were asking whether they
heard Mr. Thompson yell anything, whether they heard him
say anything, whether, or for that matter, Mr. Ross or Mr.
Beverly say anything. Nobody describes hearing Terrell
Thompson yelling, shouting, doing anything that a fact-finder
could hang their hat on to say he was subjectively experiencing
a fit of rage. There’s no evidence that generates that element of
this defense.
(Post-Conviction Hrg. Tr. at 66:25–68:4).

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For his part, Thompson points to testimony from Erica Baker, who observed that
Thompson was “pacing back and forth” immediately after the shooting. As government’s
counsel argued at the post-conviction hearing, however, Baker also affirmatively says
Thompson “didn’t look upset.” In light of Baker’s conflicting testimony, it would have
been reasonable for the state court to conclude there was not even “some evidence” that
Thompson was subjectively enraged. Thompson also argues there was some evidence he
was subjectively enraged because the altercation was particularly embarrassing for him,
citing to trial testimony that Thompson was on the ground during most of the fight and
bystanders were kicking him. But the post-conviction court could have reasonably found
that this evidence does not support a finding of subjective rage—in fact, this testimony
could give rise to an inference that Thompson was scared, submissive, or disoriented, for
example. Moreover, any suggestion that Thompson was subjectively enraged because he
felt embarrassed is not supported by the record, as testimony about Thompson’s own state
of mind at the time of the shooting would have had to come from Thompson himself. Once
again, because there is a reasonable argument that there was not even “some evidence” of
Thompson’s subjective rage, the Court cannot say there was no reasonable basis for the
post-conviction court to deny Thompson’s ineffective assistance of counsel claim.
At bottom, Thompson criticizes the Court for “evidently [finding] that there was not
a single piece of evidence to support two of the hot[-]blooded provocation jury instruction
factors: 1.) Petitioner’s subjective rage; and 2.) the fact that victim Michael Beverly (in
addition to victim Calvin Ross) provoked Petitioner’s rage.” (Mot. at 2). Thompson argues
that the Court should have instead considered “whether there is any evidence at all to
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support” the jury instruction. (Id. at 5 (citation omitted)). As such, Thompson asserts that
the Court erred by “focus[ing] on the facts that weighed against [each element] in the
totality, which is not what the ‘some evidence’ standard calls for.” (Id.). Thompson
concludes that he is entitled to habeas relief because “the record itself support[s] the fact
that ‘some evidence’ exists” for each element. (Id. at 6).
Thompson is incorrect. The Court’s job here was not to make its own factual
findings or apply the “some evidence” standard to the evidence in the record—it was to
determine whether there was any reasonable basis for the post-conviction court to have
denied Thompson’s ineffective assistance of counsel claim. Thompson effectively asks the
Court to substitute its judgment for that of the state post-conviction court. Critically,
however, the Court’s role in reviewing Thompson’s habeas petition was not to
independently review the merits of his claims, but rather to “review[] the relevant state
court ruling[s] on the claims.” Rever v. Acevedo, 590 F.3d 533, 536 (7th Cir. 2010). In
other words, the Court’s obligation was to focus on the “state court decision that previously
addressed the claims rather than the petitioner’s freestanding claims themselves.” McLee
v. Angelone, 967 F.Supp. 152, 156 (E.D.Va. 1997).
The Court did exactly that in its prior decision and found that Thompson is not
entitled to habeas relief because he cannot show that there was no reasonable basis for the
post-conviction court to deny his ineffective assistance claim. The Supreme Court has
noted that “[i]f this standard [seems] difficult to meet, that is because it was meant to be.”
Harrington, 562 U.S. at 103. This is because “Section 2254(d) codifies the view that habeas
corpus is a ‘guard against extreme malfunctions in the state criminal justice systems, not a
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substitute for ordinary error correction through appeal.” Valentino, 972 F.3d at 581
(internal quotation marks and citation omitted).
Nothing in Thompson’s Motion for Reconsideration demonstrates that this Court’s
previous determination was erroneous, nor is the Court persuaded by any other arguments
Thompson raises. Accordingly, the Court declines to reconsider its dismissal of
Thompson’s habeas petition.
III.

CONCLUSION

For the foregoing reasons, the Court will deny Petitioner Terrell L. Thompson’s
Motion for Reconsideration (ECF No. 40). A separate Order follows.
Entered this 30th day of July, 2021.

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

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