Thompson, Dennis v. McCann, Terry

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3110
DENNIS THOMPSON, JR.,
Petitioner-Appellant,
v.
DEIRDRE BATTAGLIA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 2601—Wayne R. Andersen, Judge.
____________
ARGUED NOVEMBER 9, 2005—DECIDED AUGUST 14, 2006
____________
Before POSNER, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. In a fit of rage provoked by his
father’s beating of his stepmother a day earlier, nineteen-
year-old Dennis Thompson, Jr., shot and killed his father
and his father’s girlfriend, Don Renee Rouse. Thompson
was convicted of first-degree murder for the two killings
and, although he faced the death penalty, was sentenced to
life in prison. After the Illinois courts affirmed his convic-
tion and rejected his post-conviction appeal, he turned to
the federal district court, which denied his petition for a
writ of habeas corpus. We now affirm that denial.
2 No. 04-3110
I
Dennis Thompson, Sr. (“Thompson Sr.”), the father and
one of the victims of the petitioner in this case, was by
all accounts a violent and contemptible man. Thompson’s
mother, Darlene Henderson, divorced Thompson Sr. when
her son was just an infant because he was physically
abusive toward her and the children. Among other things,
Thompson Sr. punched his wife and broke her jaw in a
courtroom during a child custody proceeding. The record
also contains allegations that Thompson Sr. sexually
abused Thompson and his sister.
On March 25, 2004, Thompson Sr. (who apparently
remarried at some point, although the record is not clear)
severely beat his wife, Thompson’s stepmother. The follow-
ing day, Thompson borrowed his cousin’s car and went to
his father’s house with a loaded gun. There, he found his
father drinking and taking drugs with a woman he did not
know, Rouse. Thompson followed his father into the kitchen
of the house, where an argument ensued. As Thompson Sr.
bent over to look into the refrigerator, Thompson fatally
shot him in the head at close range. Rouse, hysterical,
entered the kitchen, at which point Thompson shot her as
well. He then fled the scene. Rouse, badly injured, managed
to call police. She later died of her wounds.
The police quickly apprehended Thompson, who confessed
to the killings and informed authorities where he had
disposed of the gun. He was charged with two counts of
first-degree murder. Following a bench trial (at which he
did not testify), Thompson was convicted of both counts and
sentenced to life imprisonment. In a series of unpublished
dispositions, an Illinois appellate court affirmed the
convictions and the Illinois Supreme Court denied his
petition for leave to appeal. Thompson then filed a post-
conviction appeal in state court, which was similarly
unsuccessful. Finally, Thompson filed this petition for a
No. 04-3110 3
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
district court denied the petition.
II
We granted a certificate of appealability (CA) on two
issues: “whether [Thompson’s] counsel rendered ineffective
assistance in violation of the Sixth Amendment due to a
failure to seek a mental health examination and present
evidence as to Thompson’s state of mind at the time of the
crime” and “whether [Thompson] was denied his Sixth
Amendment right to testify in [sic] his own behalf.” Thomp-
son has nevertheless briefed two additional issues: whether
his counsel was ineffective for failing adequately to consult
with him prior to trial and for failing to move to suppress
his confession. The state argues that we cannot reach these
theories of ineffectiveness at all, because they were not
mentioned in the CA that we granted. Setting aside the fact
that it is possible for this court to expand a CA, see Ouska
v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001),
there is a more fundamental reason why the state’s ap-
proach is wrong. We have held that “ineffective assistance
of counsel is a single ground for relief no matter how many
failings the lawyer may have displayed. Counsel’s work
must be assessed as a whole; it is the overall deficient
performance, rather than a specific failing, that constitutes
the ground of relief.” Peoples v. United States, 403 F.3d 844,
848 (7th Cir. 2005). That said, however, it is also the case
that under the Rules Governing Section 2254 Cases in the
United States District Courts, a petitioner is obliged to
specify all the grounds for relief available to him and the
facts supporting each ground. See Rule 2(c)(1), (2). We need
not concern ourselves too much with Thompson’s procedural
problems here, however, as we conclude that he cannot
prevail on either of these claims.
We must address one further point before turning to the
merits. Our review of this case is hampered by the fact that
4 No. 04-3110
the trial transcript was never made part of the record. A
respondent to a habeas corpus petition brought under
28 U.S.C. § 2254 “must attach to the answer parts of the
transcript that the respondent considers relevant.” Rules
Governing Section 2254 Cases, Rule 5(c). The district
court may then order the respondent to furnish addi-
tional parts of the transcript “upon the request of the
petitioner or upon the court’s own motion.” Rules Governing
Section 2254 Cases, Rule 5, Advisory Committee Notes.
Here, the state did not attach any part of the transcript
to its answer, explaining instead that it “believes that the
issues raised can be disposed of based upon the filed plead-
ings.” Thompson’s counsel and the district court apparently
agreed, since neither asked the state to take any further
action. (Prior to the appointment of counsel, Thompson did
file a pro se letter with the district court clerk inquiring
whether he was required to file the trial transcript. Counsel
did not follow up on this letter with the court itself, how-
ever, nor did he move to supplement the record on appeal.)
We find this course of proceedings slipshod, at best. The
vastly preferable course would have been for the com-
plete trial transcript to have been included in the record,
since a review of the transcript is helpful (and often essen-
tial) to evaluate whether trial counsel’s performance was
deficient and whether the defendant was prejudiced. That
said, this is the unusual case in which we can resolve these
issues without the transcript. We do so by taking the facts
presented by Thompson in the light most favorable to him.
Even on that generous approach, his ineffectiveness claims
still fail as a matter of law.
No. 04-3110 5
A
Our review of Thompson’s petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254, which permits a federal court
to issue a writ of habeas corpus only if the state court
reached a decision on the merits of a claim, and that
decision was either “contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
§ 2254(d)(1). Of course, to demonstrate ineffective assis-
tance of counsel, Thompson must show that his counsel’s
performance was deficient and that this deficient per-
formance prejudiced his defense. Strickland v. Washington,
466 U.S. 668 (1984).
Defense counsel’s trial strategy was to concede that
Thompson had committed the killings and then to seek to
reduce the charges from first- to second-degree murder by
convincing the court that Thompson had acted under a
sudden and intense passion. Counsel offered little in the
way of evidence, however, to support this theory. Particu-
larly damaging, Thompson argues, was his lawyer’s failure
to commission a mental examination, which Thompson
contends would have supported his theory of the case.
Specifically, Thompson reports that during the argument
that preceded the shootings, Thompson Sr. “began going off,
yelling, cursing, bragging about how he was going to have
sex with this woman and how he didn’t need anybody.”
Thompson says that these statements “really pissed [him]
off” and caused him to “los[e] all sense of control.” As
further evidence of his mental state, Thompson claims that
after the killings he attempted to take his own life, an effort
that was foiled only by the fact that his gun was empty.
Finally, Thompson states that when told of the death of his
father and Rouse by police he became hysterical and
remained in a “semi state of shock” even after being taken
into custody.
6 No. 04-3110
Illinois law defines second-degree murder as a killing
committed under “a sudden and intense passion resulting
from serious provocation by the individual killed.” 720 ILCS
5/9-2. Although the criminal code does not define the term
“serious provocation,” the Illinois Supreme Court has
recognized only four situations where this will exist:
“substantial physical injury or substantial physical assault,
mutual quarrel or combat, illegal arrest, and adultery with
the offender’s spouse.” People v. Garcia, 651 N.E.2d 100,
110 (Ill. 1995); see also People v. Blackwell, 665 N.E.2d 782,
791 (Ill. 1996); People v. Chevalier, 544 N.E.2d 942, 944 (Ill.
1989). Mere words or gestures are not enough: “passion on
behalf of the defendant, no matter how violent, will not
relieve the defendant of culpability for first degree murder
unless it is engendered by provocation which the law
recognizes as reasonable.” Garcia, 651 N.E.2d at 110.
On direct appeal, the Illinois appellate court rejected
Thompson’s argument that the trial court should have
convicted him of second-degree murder, explaining that
Thompson had failed to show legally sufficient provocation.
The court explained that “[w]hile we do not deny that
defendant may have been very angry with his father and
Ms. Rouse when he shot them, he could not have been
acting under a ‘sudden and intense passion’ as defined by
statutory and case law.” On post-conviction review, the
court added that, given that Thompson could not demon-
strate provocation as a matter of law, “trial counsel’s failure
to order a psychological evaluation was not ineffective
assistance because it was not likely to affect [Thompson’s]
trial or his sentence.”
Thompson contends that Illinois courts do not strictly
limit themselves to the four traditional categories of serious
provocation set forth in Garcia, citing several appellate
court decisions that he claims stretch those boundaries and
arguing that his case could fit into either the expanded
adultery or physical injury box. Leaving aside the merits of
No. 04-3110 7
this argument, it is unavailing for the simple reason that it
has already been considered and rejected by the Illinois
Supreme Court. Thompson does not argue that that court’s
interpretation of the second-degree murder statute violates
any federal law; we therefore lack authority under 28
U.S.C. § 2254 to grant his petition on this basis. See Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions.”).
Thus, even if a mental examination would have shown
that Thompson was angry and distraught at the time of the
killings, such a showing would have been insufficient to
reduce the charges against Thompson to second-degree
murder. An attorney is not ineffective for failing to pursue
a doomed line of inquiry, such as evidence that is legally
insufficient to support an argument. See Stone v. Farley, 86
F.3d 712, 717 (7th Cir. 1996); see also King v. Kemna, 266
F.3d 816, 824-25 (8th Cir. 2001) (en banc). On these facts,
there was simply nothing Thompson’s counsel could have
done to prove adequate provocation to merit a second-
degree murder charge. His decision not to order a mental
health exam therefore did not constitute deficient perfor-
mance. A potentially more serious question is whether
counsel was ineffective for pursuing the second-degree
murder theory in the first place—a strategy that required
him to concede that Thompson committed the killings.
Thompson, however, has never raised this theory and thus
has forfeited it by now. Moreover, even if he had pursued it,
the fact that the evidence, which included Thompson’s
properly admitted confession, was overwhelming shows that
he could not prove prejudice.
8 No. 04-3110
B
Thompson next argues that his trial counsel denied him
the right to testify in his own defense, stating in an affida-
vit that “I [ ] told my attorney I wanted to testify when I
saw how twisted things were coming out [at the trial].” The
Illinois appellate court rejected this claim, stating: “Defen-
dant’s waiver of the right to testify is presumed because he
failed to testify or to notify the court of his desire to do so.”
The district court agreed, citing United States v. Edwards,
897 F.2d 445, 446 (9th Cir. 1990), for the proposition that “a
defendant’s silence at trial effectively waives his right to
testify on his own behalf.” Thompson contends that the
equation of silence with waiver constitutes an error of law.
A criminal defendant’s right to testify is “a fundamental
constitutional right.” Rock v. Arkansas, 483 U.S. 44, 53 n.10
(1987). Whether silence alone should be presumed to be a
waiver is a more difficult question. As we explained
in Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991),
some circuits require a defendant to protest a lawyer’s
refusal to allow her to testify during trial to preserve the
right. Edwards, 897 F.2d at 446-47; United States v.
McMeans, 927 F.2d 162, 163 (4th Cir. 1991) (per curiam).
Illinois follows that rule. People v. Smith, 680 N.E.2d 291,
302-03 (Ill.1997). At the other extreme, several state
courts require judges to inquire of defendants directly
whether they want to testify. See, e.g., People v. Curtis, 681
P.2d 504, 514-15 (Colo. 1984); State v. Neuman, 371 S.E.2d
77, 81-82 (W.Va. 1988). The rule in this circuit “steer[s] a
middle course,” requiring a defendant who wishes to raise
this claim to meet a heightened pleading standard before
the court must hold an evidentiary hearing on the question
of waiver. Underwood, 939 F.3d at 476. In other words, a
“barebones assertion by a defendant, albeit made under
oath, is insufficient”; something more, such as an affidavit
from the lawyer who allegedly forbade his client to testify,
is required. Id. And although we do not require judges to
No. 04-3110 9
question defendants regarding their desire to testify, we
have suggested that prudent counsel may choose to put
such waivers on the record outside the presence of the jury,
as is standard practice in some courts. See Taylor v. United
States, 287 F.3d 658, 662 (7th Cir. 2002).
The variety in practice among the state courts and the
various federal courts shows, unfortunately for Thompson,
that there is no standard clearly established by the Su-
preme Court of the United States that is binding on all.
Even if this were not the case, the denial of Thompson’s
right to testify was harmless, since Thompson’s only
argument is that if allowed to testify he would have ex-
plained his mental state at the time of the shootings. Either
way one approaches the question, Thompson cannot prevail.
C
Finally, Thompson raises two additional arguments not
described in the certificate of appealability in support of his
claim that counsel was ineffective. First, he argues that his
counsel was ineffective for meeting with him only once prior
to trial, citing our decision in White v. Godinez, 301 F.3d
796 (7th Cir. 2002). In that case, we held that defense
counsel’s exceedingly brief consultation was both deficient
and prejudicial because it resulted in the failure to call an
available alibi witness. Id. at 803-04. Although the perfor-
mance of Thompson’s counsel may have left something to be
desired, Thompson claims only that the inadequate consul-
tation caused him “to miss valuable evidence concerning
Thompson’s mental state at the time of the shootings.” We
have already concluded, however, that this evidence was of
no legal consequence. Thus, even if counsel’s performance
was subpar in this particular, Thompson was not prejudiced
by it.
Thompson also contends that his counsel was ineffec-
tive for failing to move to suppress his confession as
10 No. 04-3110
involuntary. Since “counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judg-
ment,” Strickland, 466 U.S. at 690, when a habeas corpus
petitioner such as Thompson claims that his lawyer’s failure
to make a motion to suppress was ineffective, he must
“prove the motion [would have been] meritorious.” United
States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). The
thrust of Thompson’s suppression argument is that his
confession was involuntary because it was the product of
the same mental distress that led to the shootings. This
argument fails as a matter of law because “a defendant’s
mental condition, by itself and apart from its relation to
official coercion,” cannot lead to a finding that a confession
is involuntary. Colorado v. Connelly, 479 U.S. 157, 164
(1986). Although Thompson argues weakly that the officers
coerced him to confess through such tactics as restricting
his access to the bathroom and prohibiting him from
contacting his grandmother during questioning, neither of
these allegations are sufficient to prove that his will was
overborne by the police. This theory, too, is inadequate to
show that Thompson’s Sixth Amendment right to the
effective assistance of counsel was denied.
III
The district court’s judgment denying Thompson’s petition
for a writ of habeas corpus is AFFIRMED.
No. 04-3110 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-14-06