Thompson v. Denney
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. Section 2254 is DENIED and DISMISSED as SUCCESSIVE, withou prejudice. IT IS FURTHER ORDERED that no certiticate of appealability will issue. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on July 26, 2013. (MCB) Modified on 7/26/2013 (MCB).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:13CV1241 TIA
MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The Court will summarily dismiss the petition
because it is successive.
Petitioner has had an extensive post-conviction history in this Court. The
Court has reviewed no less than four of petitioner’s applications for post-conviction
relief, in addition to several of petitioner’s pre-trial applications for writs. All of
petitioner’s briefs before this Court relate to the shooting deaths of two men that
occurred in March of 1961, during petitioner’s escape from a California prison.
In 1961, Thompson went on a crime spree that ended in Missouri after he killed
a police officer, Herbert Goss, and another man, Raymond Glover, in separate
incidents in separate counties. See State v. Thompson, 723 S.W.2d 76, 78-81
(Mo.Ct.App. 1987). Thompson was first tried in 1961 for Glover’s murder, convicted
in Butler County, Missouri, and sentenced to life. He appealed this conviction,
abandoned the appeal, and then fifteen (15) years later filed a Missouri Supreme
Court Rule 27.26 motion. Thompson’s motion was initially denied, but on appeal
that determination was reversed, and the case was remanded for an evidentiary
Thompson v. State, 569 S.W.2d 380 (Mo.Ct.App. 1978). After an
evidentiary hearing the trial court again denied the motion, and this time the lower
court was affirmed. Thompson v. State, 651 S.W.2d 657 (Mo.Ct.App. 1983).
In addition to the Butler County conviction, Thompson was tried three times
for the first-degree murder of Officer Goss, a Cape Girardeau, Missouri policeman,
a crime that occurred in Scott County, Missouri. Each time a jury found him guilty.
After his first trial he was sentenced to death. After an unsuccessful direct appeal of
his conviction, State v. Thompson, 363 S.W.2d 711 (Mo. 1963), Thompson’s family
secured counsel and succeeded in obtaining a new trial through Missouri Supreme
Court Rule 27.26, based on the state’s suppression of material ballistic evidence.
State v. Thompson, 396 S.W.2d 697 (Mo. 1965).
A new trial was held in 1966, in Mississippi County, Missouri. Thompson was
again convicted in December 1966, but this time he was sentenced to a life term. He
did not file a direct appeal of his conviction. On September 10, 1975, Thompson
filed for relief in the Missouri state court under Supreme Court Rule 27.26. In his
motion he alleged several grounds for relief, not the least of which was a double
jeopardy claim and the unconstitutional selection of the jury panel. The motion was
denied without a hearing. The Missouri Court of Appeals affirmed the denial on all
issues except the matters relating to the jury instructions and empaneling, remanding
that issue for an evidentiary hearing. Thompson v. State, 576 S.W.2d 541
In October of 1977, before the state ruled on the remanded issue of the matter
relating to the jury selection, Thompson filed an application for habeas corpus in this
Court. The Court dismissed Thompson’s petition for failure to exhaust his state
remedies. Thompson v. White, 442 F.Supp. 1269 (E.D. Mo. 1978) (No. 771122C(4)). The Eighth Circuit affirmed the dismissal of the jury selection claim for
failure to exhaust, Thompson v. White, 591 F.2d 441, 443 (8th Cir. 1979), but
reversed and remanded the other issues in Thompson’s petition in light of the
Missouri Court of Appeals’ intervening opinion in Thompson v. State, supra, 576
S.W.2d 541, which was rendered after this Court’s opinion and which dealt with the
On February 26, 1979, Thompson filed an amended habeas corpus petition in
this Court restating his claims concerning the use of perjured testimony, lack of
credible evidence and double jeopardy violations. On March 10, 1980, before this
Court could render an opinion, Thompson moved for removal of the jury selection
issue from state to federal court on the grounds that the state court had deliberately
stalled and delayed progress on the case. Although this Court allowed consideration
of the jury selection issue, it dismissed all of petitioner’s claims for relief after
reviewing them on the merits.
The Eighth Circuit Court of Appeals reversed this Court’s finding, Thompson
v. White, 661 F.2d 103 (8th Cir. 1981), and the State of Missouri appealed. The
Supreme Court, granted certiorari, vacated the judgment, and remanded the case to
the Court of Appeals for further consideration. White v. Thompson, 456 U.S. 941
(1982). The Eighth Circuit again reversed and remanded, finding that the conviction
should be overturned based on the jury selection issue. Thompson v. White, 680 F.2d
1173 (8th Cir. 1982).
Before the sentence was actually vacated, in 1980, the Missouri Parole Board
released Thompson on parole to a detainer placed upon him by the State of California
so that he could complete his 1961 California sentence. Although the California
sentence was five years to life, Thompson served only a few months in California
before he was successful in yet another petition for habeas relief, this time filed in
California, and was released from California custody in March of 1981. After his
release, Thompson remained under the supervision of the Missouri Parole Board.
See Thompson v. Missouri Bd. of Parole, 929 F.2d 396, 397 (8th Cir.1991). (It
appears that after his second conviction was vacated he was still under parole
supervision for Raymond Glover's murder. See State v. Thompson, 723 S.W.2d 76,
In 1984, Thompson was retried in Missouri a third time for the killing of
Officer Goss and was found guilty and again sentenced to life in prison. After bring
free for three years, he returned to Missouri state prison to serve his sentence.
Immediately upon his return to prison, Thompson requested release on parole. His
request was denied without a hearing. He then petitioned for a writ of habeas corpus
on the grounds that the Board of Probation and Parole’s refusal to grant parole was
vindictive. Thompson v. Armontrout, 647 F.Supp. 1093 (W.D. Mo. 1986). The
District Court granted the writ and the Eighth Circuit affirmed. Thompson v.
Armontrout, 808 F.2d 28 (8th Cir. 1986). The Western District of Missouri ordered
Thompson’s release on parole, and he was released in December of 1986. In June of
1987 he informed the Parole Board that he would no longer report to his parole
officer, claiming he had served the maximum five-year parole term.
In 1988, Thompson was arrested in Minnesota on bank robbery and firearms
charges. He pled guilty and was sentenced to a twenty-year prison term. Missouri
officials lodged a detainer with the State of Minnesota claiming Thompson was
subject to the supervision of the Missouri Parole Board upon completion of his
federal term. On December 8, 1988, while in jail in Minnesota awaiting sentencing
on his bank robbery charges, Thompson filed a petition for writ of habeas corpus in
the District of Minnesota. In his petition, Thompson alleged that the Missouri
detainer was “the product of vindictiveness,” and that Missouri officials were
attempting to punish him for successfully challenging his Missouri conviction.
The Minnesota District Court denied Thompson’s petition and Thompson
appealed. The Eighth Circuit found that the detainer was not vindictive, and
Thompson was not entitled to an unconditional release from Missouri custody.
However, the Court found that Thompson was eligible for discretionary parole
consideration by the Missouri Parole Board. Thompson v. Missouri Bd. of Parole,
929 F.2d 396, 401–02 (8th Cir.1991).
In May of 1992, the Court received by transfer from the Western District of
Missouri, a petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254,
filed by Thompson relating to both of his murder convictions - his life sentence,
received in 1961, for killing Randy Glover in Butler County, Missouri, and his life
sentence, received in 1984, for killing Officer Goss in Scott County, Missouri. See
Thompson v. Mo. Board of Probation and Parole, No. 4:92CV888 GFG (E.D.Mo.
1994). The Honorable George F.Gunn, Jr., found that only one conviction could be
challenged in a single petition1, that Thompson had abused the writ and that even if
he had not abused the writ, his claims were procedurally barred and without merit.2
The Eighth Circuit Court of Appeals affirmed the denial of the writ relative to his
1984 conviction. See Thompson v. Missouri Board of Probation and Parole, 39 F.3d
186 (8th Cir. 1994), cert. denied, 514 U.S. 1113 (1995).
In August of 1995, petitioner filed another application for writ of habeas corpus
in this court, pursuant to 28 U.S.C. § 2254, arguing for post-conviction relief relating
to his 1984 conviction of the killing of Officer Goss. Thompson v. Nixon, No.
4:95CV1508 GFG (E.D. Mo. 1997). The Court dismissed petitioner’s claims as
successive, a finding that was affirmed by the Eighth Circuit Court of Appeals.
Thompson v. Nixon, 272 F.3d 1098 (8th Cir. 2001).
On June 28, 1999, Thompson filed an application for writ of habeas corpus in
this Court relative to his Butler County conviction for killing Raymond Glover. The
Court found that his petition was time-barred, pursuant to 28 U.S.C. § 2244(d)(1) and
See 28 U.S.C. § 2254, Rule 2(d) of the Rules Governing Section 2254 Cases.
After fully reviewing the petition, the amended petition, and the second
amended petition, this Court made the determination that petitioner was really
seeking to challenge the 1984 Scott County conviction relating to the killing of
dismissed his request for relief. See Thompson v. Booker, No. 4:01CV1357 CEJ
(E.D. Mo. 2002). The Eighth Circuit affirmed. Thompson v. Booker, 52 Fed.Appx.
317, 2002 WL 31780033 (8th Cir. December 11, 2002).
Petitioner’s Instant Habeas Application
In his current application for habeas relief before the Court, petitioner again
seeks relief pertaining to his 1984 murder conviction in Scott County, Missouri,
relative to the murder of Officer Goss.
Petitioner asserts that he was denied effective assistance of trial and appellate
counsel when his counsel failed to object to the use of the wrong jury instructions
relating to the elements comprising the crime of murder. He claims that the jury
instructions given at his trial were based upon the 1984 statute that had different, and
less stringent, elements than the 1961 statute that was in effect at the time the crime
Petitioner additionally asserts that the trial court’s failure to follow
Mo.Rev.Stat. §§ 556.031 and 565.001 that “mandate that no trial shall be had for
crimes committed under newly amended or enacted statutes not in force when the
alleged crime took place,” was a violation of the Ex Post Fact Clauses of the United
States and Missouri Constitutions.
Last, petitioner claims that the recent Supreme Court ruling in Trevino v.
Thaler, 133 S.Ct. 1911 (2013), excuses any timeliness issues that he might have in
Rule 4 of the Rules Governing § 2254 Cases provides that a district court shall
summarily dismiss a § 2254 petition if it plainly appears that the petitioner is not
entitled to relief.
To the extent that petitioner seeks to relitigate claims that he brought in one of
his prior habeas petitions relative to his 1984 conviction, those claims must be
dismissed pursuant to 28 U.S.C. § 2244(b)(1). To the extent that petitioner seeks to
bring new claims for habeas relief, petitioner must obtain leave from the United
States Court of Appeals for the Eighth Circuit before he can bring those claims in this
Court. 28 U.S.C. § 2244(b)(3)(A).
Petitioner has not been granted leave to file a successive habeas petition in this
Court. And the AEDPA’s restriction on filing successive petitions is retroactively
applicable to cases that were filed before the AEDPA was enacted. See, e.g., Daniels
v. United States, 254 F.3d 1180, 1188 (10th Cir. 2001). As a result, the petition will
be summarily dismissed.
IT IS HEREBY ORDERED that petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED as
SUCCESSIVE, without prejudice.
IT IS FURTHER ORDERED that no certificate of appealability will issue.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 26th day of July, 2013.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?