Thomas v. Houston

Filing 24

MEMORANDUM AND ORDER - Attorney David Stickman and the Federal Public Defender's Office's Motion to Withdraw as Attorney (Filing No. 23 ) is granted. James McGough is appointed to represent Thomas in this matter pursuant to 18 U.S.C.
67; 3006A(a)(2)(B). James McGough shall promptly enter his appearance as counsel in this matter. No later than August 10, 2012, McGough shall file an amended petition for writ of habeas corpus. Following the filing of the amended petition, the court will enter an order progressing this matter to disposition. Although counsel has been appointed, this matter will remain assigned to the pro se docket and the pro se staff will remain responsible for the case management of this matter. Mag istrate Judge Zwart will remain the magistrate judge assigned to this matter. The clerks office shall provide James McGough, the Federal Public Defenders Office, Petitioner, the Nebraska Attorney General, and Magistrate Judge Zwart with a copy of this Memorandum and Order. In his capacity as administrator of the Criminal Justice Act panel, the Federal Public Defender shall provide James McGough with a CJA voucher. Ordered by Judge Joseph F. Bataillon. (Copies provided as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
L.T. THOMAS,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

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4:11CV3161

MEMORANDUM
AND ORDER

This matter is before the court on Attorney David R. Stickman and the Federal
Public Defender’s Office’s Motion to Withdraw. (Filing No. 23.) Upon
consideration, the court will grant the Motion, and appoint James McGough to
represent Petitioner L.T. Thomas (“Thomas”). The Court thanks Mr. McGough for
accepting this appointment.
As set forth in the court’s May 1, 2012, Memorandum and Order, the court has
carefully reviewed Thomas’s Petition for Writ of Habeas Corpus, the State Court
Records, and the parties’ Briefs. In light of the complicated procedural and legal
issues involved, the court finds that counsel should be appointed to represent Thomas
in this matter. See McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997) (“There is
neither a constitutional nor statutory right to counsel in habeas proceedings; instead,
[appointment] is committed to the discretion of the trial court.”). The court will
appoint James McGough to represent Thomas.
Counsel for Thomas and Respondent should note that the court’s decision to
appoint counsel in this matter is particularly driven by the issue involving the
testimony of the State’s eye-witnesses, Aybar Crawford (“Crawford”).1 Specifically,

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While the court calls attention to this issue, there may be others raised, or not raised, by
Thomas requiring further briefing and/or an evidentiary hearing. This Memorandum and Order
is not intended to limit Thomas’s claims.

whether Crawford (who was awaiting sentencing on a Class III felony at the time of
Thomas’s trial) and the Douglas County Attorney’s Office had an understanding or
agreement about Crawford’s future sentencing that should have been disclosed to the
jury. Here, the parties should consider whether the Douglas County District Court’s
October 9, 2008, order addressing the merits of this issue was contrary to or involved
an unreasonable application of clearly established federal law, or resulted in a
decision what was based on an unreasonable determination of the facts in light of the
evidence. (Opinion available at Filing No. 12-14, Attach. 14, at CM/ECF pp. 84-86.)
As this court understands it, the evidence before the Douglas County District
Court was as follows:
1.
At Thomas’s trial, Crawford testified that he was receiving
no benefit from testifying against Thomas, that he had never spoken to
the prosecutor in Thomas’s case about his pending criminal case, and
that no one from the county attorney’s office had promised him anything
in return for his testimony.
2.
Following trial, the prosecutor stated in deposition
testimony that he had informed Crawford that if he cooperated in
testifying against Thomas, his cooperation would be made known to the
sentencing judge. (Filing No. 12-13, Attach. 13, at CM/ECF p. 28)
(“I’m sure - - I’m sure I told Mr. Crawford that if he cooperated, that it
would be made known to his judge.”).)
3.
Crawford did receive benefits from the State in return for
his cooperation. The record reflects that Crawford’s sentencing was
intentionally postponed until after he testified against Thomas, and that
he received probation as a result of his cooperation. During a hearing
on Crawford’s probation violation, Crawford’s sentencing judge stated,
“[t]hat’s what I thought, that we waited until about a year until we saw
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what your co[o]peration was like and it was fine. And that’s the main
reason I put you on probation.” (Filing No. 12-13, Attach. 13, at
CM/ECF p. 17.)
In reaching its decision on this issue, the Douglas County District Court cited
state and federal law. It relied primarily on the Nebraska Supreme Court’s decision
in State v. Robinson, 715 N.W.2d 531 (2006). In Robinson, the Nebraska Supreme
Court determined that an expectation of leniency on the part of a witness need not be
revealed to the jury, absent evidence of any expressed or implied agreement. 715
N.W.2d at 552. Based on the evidence before it, the Douglas County District Court
determined that Thomas had not shown that an express or implied agreement between
Crawford and the State existed. (Filing No. 12-14, Attach. 14, at CM/ECF p. 85.)
Here, there is some question regarding whether the Douglas County District
Court’s decision on the issue of Crawford’s testimony was unreasonable in light of
the evidence before it, and unreasonable in light of clearly established federal law.
As such, the court finds that the appointment of counsel is necessary.
IT IS THEREFORE ORDERED that:
1.
Attorney David Stickman and the Federal Public Defender’s Office’s
Motion to Withdraw as Attorney (Filing No. 23) is granted.
2.
James McGough is appointed to represent Thomas in this matter
pursuant to 18 U.S.C. § 3006A(a)(2)(B).
3.
matter.

James McGough shall promptly enter his appearance as counsel in this

4.
No later than August 10, 2012, McGough shall file an amended petition
for writ of habeas corpus. The amended petition must address the issue set forth by
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the court above, and must also address (1) whether any of Thomas’s claims are
procedurally defaulted, (2) whether there is cause and prejudice to excuse the default
of Thomas’s claims, and (3) for those claims that the Nebraska state courts have
adjudicated on the merits, whether the Nebraska state courts’ decisions were an
unreasonable application of law or facts in light of clearly established federal law.
5.
Following the filing of the amended petition, the court will enter an order
progressing this matter to disposition.
6.
Although counsel has been appointed, this matter will remain assigned
to the pro se docket and the pro se staff will remain responsible for the case
management of this matter.
7.
matter.

Magistrate Judge Zwart will remain the magistrate judge assigned to this

8.
The clerk’s office shall provide James McGough, the Federal Public
Defender’s Office, Petitioner, the Nebraska Attorney General, and Magistrate Judge
Zwart with a copy of this Memorandum and Order.
9.
In his capacity as administrator of the Criminal Justice Act panel, the
Federal Public Defender shall provide James McGough with a CJA voucher.
DATED this 15th day of May, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for
the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services
or products they provide on their Web sites. Likewise, the court has no agreements with any of these third
parties or their Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect
the opinion of the court.

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