United States District Court, W.D. Louisiana, Monroe Division
JOHNNY THOMPSON, JR.
A. DOUGHTY MAG. JUDGE
REPORT AND RECOMMENDATION
L. Hayes United States Magistrate Judge
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.
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
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
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.
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)].
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). 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.
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.
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;
(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).
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.
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.
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.
Ineffective Assistance of Counsel
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.
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.
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).
Failure to Investigate the Accusations Against Thompson;
Failure to Question Witnesses; Failure to Review Police
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).
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.
Failure to Inform Thompson of a Plea Agreement
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).
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.
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
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 ...