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Thompson v. Parker

United States Court of Appeals, Sixth Circuit

August 14, 2017

William Eugene Thompson, Petitioner-Appellant,
v.
Philip W. Parker, Warden, Respondent-Appellee.

          Argued: October 19, 2016

         Appeal from the United States District Court for the Western District of Kentucky at Paducah. No. 5:11-cv-00031-Thomas B. Russell, District Judge.

         ARGUED:

          Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, La Grange, Kentucky, for Appellant.

          Jason Bradley Moore, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

         ON BRIEF:

          Dennis J. Burke, Krista A. Dolan, DEPARTMENT OF PUBLIC ADVOCACY, La Grange, Kentucky, for Appellant.

          James Hays Lawson, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

          Before: BOGGS, GRIFFIN, and WHITE, Circuit Judges.

          OPINION

          BOGGS, Circuit Judge.

          In 1986, Petitioner William Thompson, having served twelve years of a life sentence for an unrelated murder for hire, killed his prison-farm supervisor, stole his wallet, keys, and pocketknife, and fled. Thompson was captured at a bus station in Madisonville, Kentucky, and charged with murder, robbery, and escape, for which he was tried by jury and sentenced to death, twenty years, and ten years, respectively. Because the trial court abused its discretion in refusing to excuse certain jurors from the case and because Thompson's prior conviction for murder was improperly used as an aggravating circumstance, Thompson was granted a retrial on direct appeal. Thompson v. Commonwealth, 862 S.W.2d 871, 877 (Ky. 1993). In 1995, on retrial, Thompson pleaded guilty to all three counts as part of a plea agreement to avoid jury sentencing. The Commonwealth sought jury sentencing anyway, the trial court denied the request, the Commonwealth appealed, and the court of appeals ruled that the Commonwealth was entitled to jury sentencing despite the plea agreement. Commonwealth v. Thompson, No. 95-CA-0136-MR (Ky. Ct. App. June 10, 1996) (unpublished). The jury returned a death-penalty verdict, finding two aggravating factors: (1) Thompson had previously committed a murder, and (2) Thompson committed the present murder against a prison guard while in prison. The trial court accordingly sentenced Thompson to death.

         In state post-conviction habeas corpus proceedings, Thompson succeeded on his claim that the trial court had failed to hold a mandatory competency hearing. Thompson v. Commonwealth, 56 S.W.3d 406, 407, 410 (Ky. 2001). Thompson was unsuccessful on all his other state claims for relief, however, and after the trial court held the required competency hearing and found that Thompson had been competent to plead guilty, the Kentucky Supreme Court affirmed Thompson's convictions and sentences. Thompson v. Commonwealth, 147 S.W.3d 22, 34, 55 (Ky. 2004), reh'g denied (Nov. 18, 2004), cert. denied, 545 U.S. 1142 (2005). The Kentucky Supreme Court also affirmed the denial of Thompson's motion to vacate, set aside, or correct his sentence under Ky. R. Crim. P. 11.42. Thompson v. Commonwealth, No. 2009-SC-000557-MR, 2010 WL 4156756, at *1, *5 (Ky. Oct. 21, 2010, as modified on denial of reh'g, Jan. 20, 2011) ("Rule 11.42 proceedings"). Thompson then filed a federal habeas corpus petition raising seven claims:

(1) the jury considered extraneous evidence;
(2) trial counsel rendered ineffective assistance;
(3) the prosecutor made improper closing arguments to the jury;
(4) the trial court improperly restricted Thompson's voir dire questioning;
(5) in violation of Mills v. Maryland, 486 U.S. 367, 384 (1988), the penalty-phase jury instructions implied that certain mitigators had to be found unanimously to be considered;
(6) the Kentucky Supreme Court's proportionality-review process is unconstitutional; and
(7) the cumulative effect of the errors at trial denied Thompson his constitutional rights.

R. 13 at 12-59.

         The district court heard and denied Thompson's federal habeas petition, from which Thompson now appeals on the first, fifth, and sixth grounds. Thompson claims that (1) the jury improperly considered extraneous evidence when it discussed a news account about another violent criminal who had committed a murder after earning parole at age seventy; (2) the jury instructions violated Mills v. Maryland, 486 U.S. 367 (1988) because they stated that the "verdict" had to be returned unanimously but did not expressly state that unanimity was not required in order for a juror to find a mitigating factor, potentially leading jurors wrongly to infer that finding at least some mitigating factors also required unanimity; and (3) the Kentucky Supreme Court did not adequately conduct a comparative-proportionality review in assessing whether Thompson's death sentence was excessive or disproportionate to the penalty imposed in similar cases. For the reasons that follow, we affirm.

         I

         As a threshold matter, the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, which amended 28 U.S.C. § 2254, governs our review of the Kentucky Supreme Court's denial of post-conviction relief because Thompson filed his federal petition after AEDPA's effective date, even though Thompson's conviction arises out of a 1986 homicide. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). AEDPA sets forth "an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings." Uttecht v. Brown, 551 U.S. 1, 10 (2007). Under AEDPA, for any "claim that was adjudicated on the merits" by Kentucky state courts, we defer to the state courts' factual determinations, we may not expand the record beyond that which the state courts reviewed, Cullen v. Pinholster, 563 U.S. 170, 181 (2011), and we may grant habeas relief only if the adjudication of that claim "(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) (emphases added). "A state court's determination that a claim lacks merit precludes habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are independent of each other: a state-court decision is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court's ruling is an "unreasonable application" of clearly established federal law, on the other hand, "if the state court identifies the correct governing legal rule" or principle from Supreme Court precedent but "applies it to the facts of the particular state prisoner's case" in an unreasonable manner, including by "unreasonably extend[ing]" or "unreasonably refus[ing] to extend" the principle. Id. at 407. In both cases, in ...


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