Thompson v. Stephens
Filing
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ORDER DENYING 23 MOTION for Discovery.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHARLES VICTOR THOMPSON ,
Petitioner,
v.
WILLIAM STEPHENS,
Respondent.
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CIVIL ACTION H-13-1900
ORDER
Charles Victor Thompson, an inmate on Texas’ death row, seeks federal habeas corpus relief.
Thompson was convicted of capital murder and sentenced to death in 1999. After the Texas Court
of Criminal Appeals vacated his sentence, Thompson v. State, 93 S.W.3d 16 (Tex. Crim. App. 2001),
a second penalty phase resulted in another death sentence. After unsuccessfully availing himself of
state appellate and habeas remedies, Thompson filed a federal petition for a writ of habeas corpus.
Dkt. 21. Thompson has moved for discovery. Dkt. 23. Thompson seeks to develop evidence
relating to an informant’s testimony in his second penalty phase. For the reasons discussed below,
the Court will deny Thompson’s discovery motion without prejudice.
I. Background
In his first penalty hearing, an undercover police officer testified that Thompson had
attempted to solicit the murder of witnesses slated to testify against him. The Court of Criminal
Appeals, however, found that the police had used the undercover officer to bypass Thompson’s Sixth
Amendment rights. Thompson, 93 S.W.3d at 22-29. In his second punishment phase, the State
presented testimony about other attempts Thompson had made to arrange murders before his first
trial. Robin Rhodes, who had been incarcerated with Thompson in 1998, testified that Thompson
“had a problem with some people that he wanted to, he said, Just go away. I don’t care how it
happens.” Tr. Vol. 17 at 138. “The deal was that [Rhodes] would do what [he] could do” to keep
them from coming to court. Tr. Vol. 17 at 138. When Rhodes “asked for some descriptions” of the
intended victims, Thompson gave him a list of names. Tr. Vol. 17 at 140-41. Rhodes then contacted
an officer with the Harris County Organized Crime Unit and gave him the list. Tr. Vol. 17 at 141.
The third claim in Thompson’s federal petition alleges various constitutional violations
relating to Rhodes’ testimony. First, Thompson argues that the State used Rhodes to elicit
incriminating statements in violation of Massiah v. United States, 377 U.S. 201 (1964).1 Second,
Thompson asserts that the State of Texas disregarded its duty under Brady v. Maryland, 373 U.S.
83 (1963) to disclose information about its relationship with Rhodes. Finally, Thompson maintains
that his trial, appellate, and state habeas attorneys provided ineffective representation in their
handling of Rhodes’ testimony.
Together, Thompson’s various constitutional arguments complain that the State failed to
divulge important facts about its relationship with Rhodes. Thompson’s petition describes the
information he wishes that the State had disclosed:
•
Rhodes was allegedly employed by the Harris County Organized Crime
Narcotics Task Force, which included the Harris County District Attorney’s
Office;
•
he had been a confidential informant in numerous cases and had twice
testified for the State, including once in a capital murder prosecution;
1
In Massiah v. United States, the Supreme Court held that a criminal defendant may not have “used
against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him
after he had been indicted and in the absence of his counsel.” 377 U.S. 201, 206 (1964). “A Massiah violation has three
elements: (1) the Sixth Amendment right to counsel has attached; (2) the individual seeking information from the
defendant is a government agent acting without the defendant’s counsel being present; and (3) that agent ‘deliberately
elicit[s]’ incriminating statements from the defendant.” Henderson v. Quarterman, 460 F.3d 654, 664 (5th Cir. 2006)
(alteration in original) (quoting Massiah, 377 U.S. at 206).
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•
the Harris County District Attorney’s Office paid him $30,000 for his
participation in the capital murder case;
•
he had previously received other payments for assisting police; and
•
he had helped secure numerous search warrants.
Dkt. 23 at 51-52.
The defense, however, knew most – if not all – that information. Even though the State
apparently did not disclose it to the defense, Thompson’s attorneys learned about Rhodes’ role as
an informant soon before trial.2 The prosecution’s questioning and the defense’s cross-examination
extensively addressed Rhodes’ prior interaction with the State and the manner in which he came to
testify. Rhodes explained that he had “done a lot of work” for the State and had testified in two
trials, including a capital-murder case. Tr. Vol. 17 at 152-54. He explained that he was paid
“somewhere in the neighborhood of between 20 and $30,000” in that case “out of the money that
was seized.” Tr. Vol. 17 at 154, 159. He had also been paid “on many occasions” for being an
informant. Tr. Vol. 17 at 132, 152-53. Rhodes admitted that the State would dismiss several
misdemeanor charges against him in return for his testimony against Thompson. Tr. Vol. 17 at 13233.
Thompson, however, argues that Rhodes was not just an informant, but a state agent.
Thompson alleges that “the state failed to disclose to the defense that Rhodes was essentially a state
employee – a full-time, and fully paid, snitch.” Dkt. 23 at 12. Thompson bases this argument on
inferences from Rhodes’ trial testimony. After Thompson described how he had acted as a police
2
The State discussed Rhodes’ anticipated testimony in a pre-trial hearing, but did not mention his prior
work as an informant. Tr. Vol. 2 at 27-29, 47-50.
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informant while incarcerated, trial counsel asked Thompson to describe his “employment at that
time[.]” Tr. Vol. 17 at 153. Rhodes responded: “I was a full-time – basically I was a full-time
informant for the Harris County Organized Crime Task Force.” Tr. Vol. 17 at 153.
Thompson wants to bolster his Massiah and Brady claims with broad discovery relating to
Rhodes from numerous state and federal agencies, including: the Harris County District Attorney’s
Office,3 at least nine enumerated police departments of various municipalities and counties, the
Texas Highway Patrol, the Texas Rangers, and the Federal Bureau of Investigation. Dkt. 23,
Appendix #2 at 2. Thompson asks for “[a]ll documents related to the forming, function, document
retention policies, members, and subsequent closing of the Harris County Organized Task Force.”
Dkt. 23, Appendix #2 at 2. Thompson also wants disclosure of all documents pertaining to Rhodes’
involvement in three cases, including his own. Dkt. 23, Appendix #2 at 5-6.
II. Procedural Impediments to Discovery
“[A] habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997); see also
Reed v. Quarterman, 504 F.3d 465, 471 (5th Cir. 2007). Under Rule 6 of the Rules Governing
Section 2254 Cases in the United States District Courts, a court may authorize discovery only when
a petitioner demonstrates “good cause.” A court may authorize discovery only when a petitioner’s
substantive claims “establish[] a prima facie claim for relief,” and his factual allegations are specific,
“as opposed to merely speculative or conclusory[.]” Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir.
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Thompson has sought evidence under Texas’ public information act to verify Rhodes’ relationship with
the prosecution, but the Harris County District Attorney’s Office has no record of employing Rhodes. Dkt. 23 at 8, n.2.
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2000).4 As a threshold matter, however, a court must also take into account the procedural posture
of an inmate’s claims. A petitioner cannot show good cause if a federal court cannot reach the merits
of the disputed claims. See Rucker v. Norris, 563 F.3d 766, 771 (8th Cir. 2009); Williams v. Bagley,
380 F.3d 932, 975 (6th Cir. 2004).
Thompson acknowledges that he has not presented his constitutional arguments, and
particularly the Massiah and Brady claims, in state court. Dkt. 23 at 10-11.5 Federal law prohibits
consideration of unexhausted issues except under limited circumstances. 28 U.S.C. § 2254(b).
Thompson argues that he can overcome the default of his claims by “demonstrat[ing] cause for the
default and actual prejudice as a result of the alleged violation of federal law[.]” Coleman v.
Thompson, 501 U.S. 722, 750 (1991) (emphasis added).
Thompson makes two arguments to show cause. First, Thompson relies on Martinez v. Ryan,
___ U.S. ____, 132 S. Ct. 1309 (2012), where the Supreme Court recently held that ineffective
assistance of state habeas counsel under certain circumstances could forgive the procedural bar of
ineffective-assistance-of-trial-counsel claims. See also Trevino v. Thaler, ___ U.S. ____, 133 S. Ct.
1911, ___ (2013) (applying Martinez to cases arising from Texas courts). However, “[t]he Martinez
exception is a narrow one[.]” In re Threadgill, 522 F. App’x 236, 237 (5th Cir. 2013). By its own
terms, the Martinez exception applies only to defaulted ineffective-assistance-of-trial-counsel claims.
Any deficiency in state habeas counsel’s representation, therefore, cannot allow federal habeas
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Thus, for this Court to grant Thompson’s discovery motion, (1) he must have “stated a prima facie case
for relief based on the evidence sought to be discovered” and (2) he must premise his prima facie case on “specific
allegations rather than speculative and bald accusations.” Shelton v. Quarterman, 294 F. App’x 859, 864 (5th Cir. 2008).
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Thompson has not discussed whether an avenue of successive state habeas review remains open to him
under T EX . C O DE C RIM . P RO . art. 11.071 §5.
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review of any issue unrelated to trial counsel’s representation, such as Thompson’s Massiah and
Brady arguments.
Second, Thompson argues that the suppression of evidence under Brady should permit
plenary federal review. See Banks v. Dretke, 540 U.S. 558, 691 (2004) (finding that evidence of a
Brady violation shows cause and prejudice under the procedural bar doctrine). Three essential
elements compose a valid Brady claim: “‘The evidence must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently; and prejudice must have ensued.’” Id. (quoting Strickler
v. Greene, 527 U.S. 263, 281-82 (1999)). Cases often add a fourth requirement: “nondiscovery of
the allegedly favorable evidence was not the result of a lack of due diligence.” United States v.
Walters, 351 F.3d 159, 169 (5th Cir. 2003); see also Graves v. Cockrell, 351 F.3d 143, 153-54 (5th
Cir. 2003). “When evidence is equally available to both the defense and the prosecution, the
defendant must bear the responsibility for failing to conduct a diligent investigation.” Kutzner v.
Cockrell, 303 F.3d 333, 336 (5th Cir. 2002).
The record shows that the defense knew much of the allegedly suppressed information before
trial. The only information that trial court apparently lacked was a full disclosure of Rhodes’
extensive interaction with state actors. Respondent argues that Thompson can only speculate that
Rhodes’ interaction meant that he “acted as a government agent.” Dkt. 25 at 10. In response,
Thompson points to a published decision by a Texas appellate court that discussed the extent of
Rhodes’ involvement with the State. Dkt. 26 at 3. In Stephens v. State, 59 S.W.3d 377, 381-82
(Tex. App.–Houston [1 Dist.] 2001), a Texas appellate court explained that Rhodes had:
testified before the jury that he was currently employed by the Harris County
Organized Crime Narcotics Task Force, which included the Harris County District
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Attorney’s Office, as a confidential informant in over 50 cases, more than 80 percent
of which resulted in convictions; that he had twice testified for the State, including
once in a capital murder prosecution; and that the State had not doubted him.
Stephens, 59 S.W.3d at 381. However, the Texas appellate court issued its Stephens opinion years
before Thompson’s second punishment phase; Thompson has not shown how the State could have
suppressed information in a published judicial decision. See Parr v. Quarterman, 472 F.3d 245, 254
(5th Cir. 2006) (“[T]he prosecution is not required to disclose evidence that could be discovered by
exercising due diligence.”).
Importantly, Thompson’s briefing to date is not sufficient to show that the State suppressed
evidence that would support a Massiah challenge. At its core, Thompson’s third habeas claim raises
two separate questions: (1) was Rhodes the equivalent of a state actor and (2) did the State
deliberately use him to elicit incriminating statements? See Kuhlmann v. Wilson, 477 U.S. 436, 459
(1986) (finding that a defendant must show that “the police and their informant took some action,
beyond merely listening, that was designed deliberately to elicit incriminating remarks.”); Creel v.
Johnson, 162 F.3d 385, 394 (5th Cir. 1998) (separating the question of whether an inmate was a
government agent from the question of whether the inmate deliberately secured statements).
Thompson’s briefing extensively discusses Rhodes’ interaction with State actors, including the
payment of a large sum derived from forfeiture in another capital murder case. Yet Thompson’s
claims depend on showing that Rhodes “was acting under instructions as a paid informant for the
Government[.]” United States v. Henry, 447 U.S. 264, 270 (1980) (emphasis added); see also
Wilson, 477 U.S. at 459 (“[T]he primary concern of the Massiah line of decisions is secret
interrogation by investigatory techniques that are the equivalent of direct police interrogation.”). The
question is not just Rhodes’ interaction with the State, but “whether the challenged statements had
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been deliberately elicited” and “whether the government had directed or steered the informant toward
the defendant.” United States v. York, 933 F.2d 1343, 1356 (7th Cir. 1991). Rhodes’ testimony,
however, indicated that he did not act pursuant to any State instruction or order:
The State:
When you went back in jail did anybody from any law enforcement
agency ask you to target Charles Victor Thompson and help us gather
evidence against him?
Rhodes:
No, not at all.
Tr. Vol. 17 at 134-35. Even accepting Thompson’s argument that “there is no doubt that [Rhodes’]
aim, once in jail, was to get information and relay it to the government,” Dkt. 21 at 57, Thompson’s
briefing does not make a prima facie showing that the State instructed Rhodes to do so. As it now
stands, Thompson only speculates that Rhodes “was charged with obtaining information” from him.
Henry, 447 U.S. at 272 n.10.
For the reasons discussed above, Thompson has not shown good cause for discovery.
III. Overly Broad Discovery Request
The Court additionally observes that Thompson’s discovery motion is overly broad.
Thompson asks for discovery from numerous police departments and other agencies without a strong
showing that they possess information relating to Rhodes’ involvement in this case. The breadth of
his discovery request leads Respondent to accuse Thompson of engaging in a “prohibited fishing
expedition.” Dkt. 25 at 13. The Court cannot authorize such wide-ranging discovery without good
cause relating to each request. See Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997) (stating that
Rule 6 does not “sanction fishing expeditions based on a petitioner’s conclusory allegations”).
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IV. Conclusion
For the reasons discussed above, the Court will DENY Thompson’s motion for discovery
WITHOUT PREJUDICE.
The Clerk will provide copies of this Order to the parties.
Signed at Houston, Texas on June 18, 2014.
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Gray H. Miller
United States District Judge
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