Jay Thompson v. Frank Vanihel

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2571
JAY R. THOMPSON,
Petitioner-Appellant,
v.
FRANK VANIHEL,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:16-cv-00244-JRS-MJD — James R. Sweeney II, Judge.
____________________
ARGUED APRIL 2, 2021 — DECIDED MAY 25, 2021
____________________
Before WOOD, HAMILTON, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. In 1982, an Indiana jury convicted
Jay R. Thompson of two counts of murder and one count of
conspiracy to commit burglary for his role in the home inva-
sion and killing of William and Mary Hilborn. The Indiana
Supreme Court affirmed Thompson’s conviction on direct ap-
peal but vacated his death sentence; after a remand for resen-
tencing, in 1990 the Indiana Supreme Court affirmed his new
sentence of two consecutive 60-year terms for the murders
2 No. 20-2571
and a consecutive 30-year term for the conspiracy to commit
burglary. Two years later, Thompson filed a post-conviction-
relief petition in Indiana state court. For various reasons not
germane to this appeal, Thompson’s petition languished until
2015. Ultimately, Thompson’s petition was denied, and the
Indiana Court of Appeals affirmed. See Thompson v. State, 31
N.E.3d 1002 (Ind. Ct. App.), transfer denied, 34 N.E.3d 1234(Ind. 2015). In 2016, Thompson petitioned in federal district
court for a writ of habeas corpus alleging ineffective assis-
tance of counsel. The district court dismissed Thompson’s pe-
tition, holding that the Indiana state court’s application of
laches was an adequate and independent state-law ground
upon which to deny relief. We disagreed, and remanded. See
Thompson v. Brown, 901 F.3d 851 (7th Cir. 2018). On remand,
the district court dismissed the petition because counsel’s al-
leged errors did not prejudice Thompson. We agree with the
district court, and thus affirm.
We draw the facts from the district court’s thorough and
careful recitation, relying also on the Indiana Supreme
Court’s decision from Thompson’s direct appeal. See Thomp-
son v. State, 492 N.E.2d 264, 267 (Ind. 1986). And we begin with
the day the Hilborns were murdered in their Petersburg, In-
diana home. The state’s evidence at trial showed that on
March 8, 1981, Thompson and Richard Dillon planned to rob
the Hilborns. Sometime around 6:00 p.m., Thompson and Dil-
lon drove Thompson’s car to Petersburg, parking some dis-
tance from the Hilborn’s house. They walked several blocks
to the house; Thompson was armed with a folding knife, Dil-
lon with a hunting knife. An eyewitness would later testify
that he saw Dillon as he walked toward the home—Thomp-
son had ducked behind some bushes along the sidewalk.
Once at the Hilborn’s door, Mr. Hilborn let Thompson and
No. 20-2571 3
Dillon in on the pretense that Dillon needed to use the phone.
The ruse did not last long. Shortly after entering the home,
Dillon pulled the hunting knife and demanded money. He
then chased Mr. Hilborn into a bedroom; after Mr. Hilborn
retrieved a billy club in the room, Dillon stabbed him in the
stomach. At about the same time, Thompson was keeping
Mrs. Hilborn from calling the police. After Dillon cut the tel-
ephone line, Mrs. Hilborn handed over what money was in
her purse and in Mr. Hilborn’s wallet. Money in hand, Dillon
stabbed Mrs. Hilborn in the stomach and cut her throat. But
Thompson and Dillon worried that the Hilborns might not be
dead. Just to be sure, Thompson stabbed both with the folding
knife. Thompson and Dillon then drove back to Thompson’s
house for Dillon to change clothes before traveling to Prince-
ton, Indiana, to wash Dillon’s bloody clothes at a laundromat.
Another eyewitness testified to seeing Thompson and Dillon
at the laundromat. After finishing the wash, Thompson pro-
vided $110 to buy drugs, and Thompson and Dillon went to
an arcade.
A few days after the grisly murders, law enforcement’s at-
tention turned to Thompson and Dillon. On March 10, 1981,
police spoke to Dillon. He admitted to being with Thompson
on March 8, but said that they had not been to Petersburg that
day. The following day, law enforcement approached
Thompson. He told the officers a very similar story to the one
Dillon had told one day earlier.
On March 12, 1981, law enforcement again asked to speak
with Thompson. He agreed and drove himself to the police
station, where his mother met him. (Thompson was 17 years
old.) Before beginning the interview, Thompson and his
mother signed a “Juvenile Warnings and Waiver Advice of
4 No. 20-2571
Rights,” which, among other things, included the familiar Mi-
randa warnings. Then questioning began. Initially, Thompson
repeated the story he had told law enforcement the day be-
fore. But law enforcement had new evidence from an eyewit-
ness that contradicted that story. One of the officers con-
fronted Thompson with it, and another officer joined in,
pressing Thompson to “tell the truth.” Thompson eventually
responded: “I think we better get a lawyer, mom. That’s what
I think.” The officers continued to press Thompson, but
Thompson did not say anything. Finally, after one officer
asked directly whether Thompson “would talk,” Thompson
interjected: “Better talk to a lawyer first. That’s all I’ve got to
say.” Thompson’s mother added, “I guess we better [talk to a
lawyer].” The officers then ended the interview and stopped
the recording. But shortly after the recording ended, Thomp-
son asked a question. The officers restarted the recording and
Thompson asked, “I just wanted to know—you guys said
somethin’—I just want to know. You, you say you have wit-
ness [sic] that I dropped him off; that’s all I want to know.
That you, is that [sic].” The officers described that a witness
saw Thompson and Dillon together at the laundromat, and
Thompson did not make any more substantive statements.
Around the time Thompson left the station, he consented
to a search of his car. Law enforcement found his hunting
knife, cleaned and oiled, in the trunk. On the same day, offic-
ers re-questioned Dillon, and he confessed to the murders and
robbery. Thompson was later arrested and charged with the
Hilborn murders.
At trial, the government introduced evidence tying
Thompson to the murders as detailed above, some of which
Dillon provided as a government witness. Thompson’s March
No. 20-2571 5
12 interview with law enforcement was played in its entirety.
Two eyewitnesses testified, one to seeing Thompson with Dil-
lon at the laundromat in Princeton, Indiana, and another to
seeing Dillon walking toward the Hilborn’s home on the day
of the murders. There was also testimony that Thompson
jumped into the bushes as the car in which the eyewitness was
riding approached. The government introduced the hunting
knife law enforcement recovered from Thompson’s car. Also
introduced were two items of clothing recovered from
Thompson’s closet during a search of Thompson’s home: a
pair of jeans with human blood on them, and a glove with
human blood “similar to” that of one of the Hilborns. And a
forensic pathologist testified it was likely that two different
knives were used to murder the Hilborns. The pathologist
also testified that the fatal wound to Mr. Hilborn was not
made by a hunting knife but by a knife like the folding knife
Thompson carried, and that Mrs. Hilborn’s wounds to her
back were made by a knife smaller than a hunting knife.
Thompson took the stand in his defense and offered an al-
ibi. He claimed that Dillon took his car on March 8 around
6:00 p.m. and kept it until about 7:30 p.m. During that time,
Thompson said that he was at home taking a nap. Thompson
explained further that when Dillon returned, he told Thomp-
son that he was involved in a burglary. Thompson also noted
that Dillon’s clothes were muddy, requiring a trip to the laun-
dromat. After making the trip, Thompson admitted to provid-
ing $110 to buy drugs, money he stated that he had saved for
weeks for that purpose. No witness corroborated Thompson’s
alibi. Thompson also testified that he had cleaned and oiled
the hunting knife at some point after the murders.
6 No. 20-2571
Two of the prosecutor’s remarks in closing argument are
the focus of Thompson’s habeas petition. Both concern
Thompson’s March 12 interview with law enforcement:
[The interviewing officers] say also we know
Richard Dillon was seen in the laundrymat [sic]
in Princeton, Indiana, washing clothes. And
what does Richard Dillon do, I mean what does
Jay R. Thompson do in response to that? He
turns and says, “Momm [sic], I think I need a
lawyer.”
…
Two people have been murdered, but what
does he come forth and say, well here’s [sic] the
facts? Does he say I didn’t do it, I was at home
sleeping, but I happen to know Richard Dillon
did do it because he told me? No, he doesn’t say
a thing. He wants a lawyer.
Thompson’s lawyer did not object to either remark.
In the district court, Thompson argued that three of coun-
sel’s decisions, each related to Thompson’s statements in the
March 12 interview with law enforcement, rendered counsel’s
assistance constitutionally ineffective: (1) counsel’s failure to
move pre-trial to suppress Thompson’s request for a lawyer
and his post-request statements; (2) counsel’s failure to object
to the prosecutor’s remarks in closing argument referencing
Thompson’s request for a lawyer in violation of Doyle v. Ohio,
426 U.S. 610 (1976); and (3) counsel’s failure to present the
No. 20-2571 7
prosecutor’s remarks in Thompson’s direct appeal in state
court. Thompson presses these three issues on appeal. 1
The district court rejected Thompson’s ineffective assis-
tance claim and denied Thompson’s petition. In short, the dis-
trict court noted that the prosecutor’s comments in closing
“implicate[d]” Doyle, but held that—even if counsel’s perfor-
mance was deficient—there was “no reasonable probability
that suppression of Mr. Thompson’s statements or striking
the prosecutor’s arguments would have changed the trial’s
outcome” in light of the “overwhelming” evidence against
Thompson. Preliminarily, the district court observed that
Thompson made only one arguably inculpatory statement af-
ter invoking his right to counsel, asking the officers about the
eyewitness who saw Thompson and Dillon together on the
day of the murders. The district court then walked through
the evidence of guilt it found “overwhelming”: (1) the blood
discovered on Thompson’s jeans and gloves; (2) Thompson’s
admission in the March 12 interview that he was with Dillon
for the entire evening on March 8; (3) Dillon’s testimony at
trial implicating Thompson; (4) the two different-sized stab
wounds that suggested two different-sized knives were used
to murder the Hilborns; (5) eyewitness testimony placing Dil-
lon walking toward the Hilborn’s home on March 8; (6) eye-
witness testimony placing Thompson and Dillon at a laundro-
mat just after the murders; and (7) the implausibility of
Thompson’s alibi. This appeal followed.
Thompson first raised his Sixth Amendment ineffective
assistance claim in state post-conviction proceedings, but
1Thompson made other arguments to the district court but does not ad-
vance those arguments on appeal.
8 No. 20-2571
both parties agree that the state court did not “actually adju-
dicate[]” the merits of his claim. Adorno v. Melvin, 876 F.3d
917, 921 (7th Cir. 2017) (quotation omitted); see 28 U.S.C.
§ 2254(d). 2 As we discussed in Thompson’s previous appeal,
Thompson’s post-conviction-relief petition was dismissed
due to laches, and the Indiana Court of Appeals affirmed on
that ground. See Brown, 901 F.3d at 853. Therefore, we assume
without deciding that the Antiterrorism and Effective Death
Penalty Act of 1996’s (AEDPA) deferential standard of review
under § 2254(d) does not apply, and we review Thompson’s
petition de novo applying the pre-AEDPA standard of 28
U.S.C. § 2243. See Adorno, 876 F.3d at 921.
To establish that trial or appellate counsel was constitu-
tionally ineffective, Thompson must demonstrate: (1) “that
counsel’s performance was deficient,” and (2) “that the defi-
cient performance prejudiced the defense.” Strickland v. Wash-
ington, 466 U.S. 668, 687 (1984); see Makiel v. Butler, 782 F.3d
882, 897 (7th Cir. 2015) (noting Strickland’s two-prong test ap-
plies to ineffective assistance claims concerning both trial and
appellate counsel). And “[f]ailing to prove either” prong of
Strickland’s test “defeats a petitioner’s claim.” Dunn v. Jess, 981
F.3d 582, 591 (7th Cir. 2020) (quotation omitted). Because we
can decide Thompson’s appeal on Strickland’s prejudice
prong, as did the district court, we do not address whether
counsel’s performance was deficient. See, e.g., Thill v. Richard-
son, — F.3d —, 2021 WL 1726824, at *5 (7th Cir. May 3, 2021).
To show prejudice, Thompson must demonstrate that
“there is a reasonable probability that, but for counsel’s
2 The State does not argue that Thompson failed to comply with 28 U.S.C.
§ 2244(d)’s timeliness requirement, so we do not address the issue.
No. 20-2571 9
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694; see also Hicks
v. Hepp, 871 F.3d 513, 526 (7th Cir. 2017) (“To successfully ad-
vance a claim of ineffective assistance of counsel based upon
the failure to file a motion to suppress, a petitioner must
demonstrate … a reasonable probability that, if his confes-
sions were suppressed, he would have been acquitted.” (quo-
tation omitted)). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strick-
land, 466 U.S. at 694. Thompson does not have to prove that
“counsel’s deficient conduct more likely than not altered the
outcome in the case.” Id. at 693. But he must demonstrate that
the “likelihood of a different result [is] substantial, not just
conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011); see
Jess, 981 F.3d at 595. We analyze whether Thompson meets
that showing “by evaluating the trial as a whole, not one slip
at a time.” Cook v. Foster, 948 F.3d 896, 901 (7th Cir. 2020).
It is not likely, much less “substantially” so, that the result
of Thompson’s trial or appeal would have been different but
for his counsel’s failure to act in the three ways Thompson
identifies. Both the physical evidence and the eyewitness tes-
timony was consistent with Dillon’s testimony implicating
Thompson, including the blood on Thompson’s jeans and
glove that law enforcement recovered from his closet shortly
after the murders; the hunting knife found in Thompson’s
trunk, freshly cleaned and oiled; Thompson’s presence with
Dillon at a laundromat just after the murders; and the forensic
pathologist’s testimony that the stab wounds on the Hilborns
were consistent with two different knives. Thompson’s un-
corroborated alibi was not supported by the evidence. Cf. Tay-
lor v. Bradley, 448 F.3d 942, 950 (7th Cir. 2006). And Thomp-
son’s question after telling his mother that he thought they
10 No. 20-2571
should get a lawyer did not prejudice Thompson (and he has
not argued otherwise on appeal). We agree with the district
court that the evidence against Thompson was “overwhelm-
ing.” Viewed as a whole, it is not substantially likely that the
result of Thompson’s trial would have been different but for
the errors he identifies.
AFFIRMED