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Thompson v. Goodwin

United States District Court, W.D. Louisiana, Monroe Division

March 29, 2019

JOHNNY THOMPSON, JR.
v.
JERRY GOODWIN

          TERRY A. DOUGHTY MAG. JUDGE

          REPORT AND RECOMMENDATION

          Karen L. Hayes United States Magistrate Judge

         Pro se Petitioner Johnny Thompson Jr., an inmate in the custody of Louisiana's Department of Corrections, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 9, 2018. [doc. # 1]. Thompson attacks his 2014 felony theft conviction and the resulting 36-year sentence imposed by Louisiana's 4th Judicial District Court, Morehouse Parish. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.

         Background

         The underlying facts in this case have been set forth by the Louisiana Second Circuit Court of Appeal as follows:

On the morning of October 3, 2013, Tammy Fatheree, the manager of the Family Dollar store in Bastrop, Louisiana, followed her normal procedure for opening the store. She counted the petty cash, put the tills in the registers, and moved certain items from the store out onto the sidewalk. Fatheree counted $900 in petty cash, including $715 in bills and the remainder in coins. She placed the bills in a bag and put the bag and coins in the bottom of a safe located at the front of the store. Contrary to store policy, Fatheree did not close the safe door because if she needed access to petty cash to make change she would have to wait five minutes for the safe to open if it was locked. Fatheree opened the store at 9:00 a.m. and began stocking groceries at the back of the store.
About 20 minutes later, Fatheree heard a clicking sound which she perceived to be the safe door closing. She immediately returned to the front of the store and saw that the safe had been closed. She entered the code to the safe and waited five minutes until the safe opened. The bag containing $715 was missing. She called the assistant store manager and asked her to come to the store to view the surveillance videotapes while she watched over the store. Fatheree also viewed the surveillance videotapes and saw an African-American male wearing a white shirt with the words “Fast Tax” on the front, retrieve something from the safe. Fatheree called the police, who responded to the store.
Sergeant Marvin Holmes, of the Bastrop Police Department, who assisted with the investigation of the theft, viewed the surveillance videotapes and recognized the defendant, Johnny Thompson, Jr., as the man taking the money from the safe. Thompson was subsequently charged with the felony theft of the cash from the Family Dollar store. The state offered Thompson a plea deal whereby it would agree to dismiss other pending charges (including forgery and domestic abuse) in exchange for his guilty plea for felony theft with a five-year hard labor sentence, and the state would not file an habitual offender bill. The prosecutor noted that if Thompson rejected the plea offer and was convicted, it would file an habitual offender bill.
Thompson rejected the offer in open court, and trial proceeded. . . . .
Following the defendant's testimony, the trial court found him guilty of theft in the amount of $715 and ordered a presentence investigation report (PSI).
Subsequently, the state filed an habitual offender bill of information charging the defendant as a fourth or subsequent felony offender.

State v. Thompson, 50, 392 (La.App. 2 Cir. 2/24/16), 189 So.3d 1139, 1140-41. On March 27, 2015, the court conducted a habitual offender hearing, and the State presented evidence that Thompson had previously been convicted of seven felonies. On April 2, 2015, the trial court sentenced Thompson to 36 years at hard labor without the benefit of probation or suspension of sentence. Id. at 1142.

         Thompson filed a direct appeal in the Second Circuit Court of Appeal, arguing that there was insufficient evidence to sustain his conviction and his sentence was excessive. On February 24, 2016, the Second Circuit affirmed Thompson's conviction and sentence. Id. at 1147. On March 31, 2017, the Louisiana Supreme Court denied Thompson's subsequent application for writ of certiorari and/or review. State v. Thompson, 2016-0535 (La. 3/31/17), 217 So.3d 358. Thompson did not file a petition for certiorari in the United States Supreme Court. [doc. # 1 ¶ 9(h)].

         On December 7, 2017, Thompson filed an application for post-conviction relief in the state district court arguing: (1) his trial counsel was ineffective for failing to (a) investigate the accusations against Thompson; (b) question any witnesses in the matter; (c) review the police reports; (d) inform Thompson of a possible plea agreement; (e) retain Thompson's right to a jury trial; and (f) file a motion for reconsideration of sentence; and (2) his conviction was obtained in violation of the Fourteenth Amendment to the United States Constitution because Thompson did not waive his right to a jury trial. (R. at 387-92).[1] The district court denied his application on January 30, 2018. (Id. at 424-25). The Second Circuit Court of Appeal denied his application on May 31, 2018. (Id. at 426-27). Thompson sought a supervisory and/or remedial writ, which the Louisiana Supreme Court denied on August 3, 2018. State ex rel. Thompson v. State, 2017-0600 (La. 8/3/18), 248 So.3d 1289.

         On November 9, 2018, Thompson filed the instant federal habeas corpus petition raising the same claims that he raised in his state court application for post-conviction relief. (See Mem., [doc. # 1-2]). The State filed its response on March 1, 2019. (Opp. Mem., [doc. # 10]). Thompson filed a reply on March 14, 2019. (Reply. Mem., [doc. # 11]). This matter is ripe.

         Standard of Review

         Federal courts may provide habeas corpus relief of a state prisoner in accordance with 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under Section 2254(d), after a state court has adjudicated a prisoner's claims on the merits, an application for a writ of habeas corpus may be granted only if the petitioner shows that the adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, 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)(1)-(2).

         A decision is “contrary to” clearly established law if the state court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” or “confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A decision involves an “unreasonable application” of clearly established law “if the state court applies [the Supreme Court's] precedents to the facts in an objectively unreasonable manner.” Id. (citing Williams, 529 U.S. at 407-08). “Clearly established law” refers to “the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.

         Section 2254(d)(2) involves a challenge to factual determinations made by state courts. Hoffman v. Cain, 752 F.3d 430, 437 (5th Cir. 2014). Federal courts presume such determinations to be correct; however, a petitioner can rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         The AEDPA has put into place a deferential standard of review, and a federal court must defer to a state court adjudication on the merits. Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir. 2001). An adjudication is “on the merits” when “the state court resolves the case on substantive grounds, rather than procedural grounds.” Id. at 946-47. A federal court reviews de novo a claim not adjudicated on the merits in state court. Hoffman, 752 F.3d at 437.

         Discussion

         I. Ineffective Assistance of Counsel

         Thompson raises six allegations of ineffective assistance of counsel. To prevail on an ineffective assistance claim, a petitioner (1) “must show that counsel's performance was deficient” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to prove either prong defeats the claim. Green v. Johnson, 160 F.3d 1029, 1035 (5th Cir. 1998). A court need not analyze the prongs of this test in any particular order or even address both prongs if the defendant fails to make a sufficient showing on one. Strickland, 466 U.S. at 697. Further, “[m]ere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue.” Green, 160 F.3d at 1042.

         To satisfy the first prong, Thompson must prove his counsel's performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. In applying the first prong, federal courts presume counsel has provided competent professional assistance. Id. at 689-90. A court deciding an ineffectiveness claim must judge the reasonableness of counsel's conduct on the facts of the case, at the time of the conduct, keeping in mind that counsel's function “is to make the adversarial testing process work in the particular case.” Id. at 690.

         To establish prejudice under the second prong, Thompson must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. This requires showing that counsel's actions “were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable, ” Id. at 687, and not merely that the outcome would have been different. Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993).

         A. Failure to Investigate the Accusations Against Thompson; Failure to Question Witnesses; Failure to Review Police Reports

         Thompson claims his trial counsel failed to (1) “investigate the accusations against Petitioner”; (2) “question or investigate any witnesses in this matter”; or (3) “review the Police Reports related to this case.” (Mem. at 3). The State responds that Thompson “sets forth no substantive facts in support of these claims.” (Opp. Mem. at 8). In reply, Thompson states that “he never had the opportunity to meet with Court Appointed Counsel” and “regardless of the State's Opposition, the only concern [his counsel] had, was to make sure a conviction was obtained.” (Reply Mem. at 2).

         The State is correct that Thompson has not provided any support for these claims; Thompson does not explain what his counsel was supposed to investigate or demonstrate that counsel failed to do so. Even if he supplied facts to support a finding that counsel's performance was deficient, he has failed to show prejudice. Thompson testified in his own defense at trial and admitted to the theft. Thus, he has not demonstrated a reasonable probability that the outcome of his trial would have been different. Accordingly, these claims should be DISMISSED.

         B. Failure to Inform Thompson of a Plea Agreement

         Thompson's fourth ineffective assistance claim is that his counsel failed to explain to him the terms of the plea agreement. (Mem. at 3). The State responds:

The record clearly rebuts this contention. The state offered the defendant a plea agreement of five (5) years at hard labor including a waiver of application of the habitual offender law. Defense counsel recommended that he take the offer and expressly requested that petitioner be advised of the terms by the trial court. The trial court restated the agreement in open court and asked Petitioner if he wished to reject the offer. Petitioner rejected the offer.

(Opp. Mem. at 9). Thompson replies that he “rejected the offer” because his counsel never explained to him the effects of his guilty plea. (Reply Mem. at 2).

         In denying Thompson's application for post-conviction relief, the state district court found that Thompson “made no . . . showing” that counsel's performance was deficient and prejudiced his defense. (R. at 424). The undersigned has reviewed the record and does not find that state court's determination was unreasonable.

         On September 29, 2014, Thompson appeared in state court to plead guilty to charges he faced in matters unrelated to the felony theft charge. The parties then discussed a plea offer from the State:

DEFENSE COUNSEL: I want Mr. Thompson . . . to plead to what we've been offered and everything else go away, but he doesn't desire to do that.
PROSECUTOR: You Honor, for the record the state's offer was that he is to plead to the felony theft that is on the trial docket and receive five years at hard labor on that matter and the state decline prosecution on all other matters, and based upon his lengthy record, we still would not file a habitual offender if he pled guilty.
If he is to reject that offer at this time, the state will file a habitual offender bill. COURT: Alright, so has that offer been rejected?
DEFENSE COUNSEL: Yes, sir. He rejects it.
COURT: Alright, so the offer has been rejected. So it's been withdrawn. Is ...

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