     Case: 17-70008    Document: 00514838385     Page: 1   Date Filed: 02/18/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                  No. 17-70008                       FILED
                                                              February 18, 2019
                                                                Lyle W. Cayce
CHARLES VICTOR THOMPSON,                                             Clerk

                  Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                  Respondent - Appellee




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Charles Victor Thompson was convicted by a Texas jury of capital
murder and sentenced to death. After direct appeal and collateral review in
state court, he petitioned the federal district court for a writ of habeas corpus,
challenging the constitutionality of his conviction and sentence. The district
court denied relief. Thompson now seeks a certificate of appealability (COA).
We grant a COA on Thompson’s second claim concerning the testimony of a
state witness during his retrial on punishment. We otherwise deny his
application for COAs on all other claims and affirm the district court’s denial
of an evidentiary hearing.
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                                             I.
      In the early hours of April 30, 1998, responding to a call, police arrived
at the apartment of Glenda Dennise Hayslip to find Hayslip’s boyfriend,
Darren Cain, arguing with Thompson, Hayslip’s ex-boyfriend. 1 After calming
the situation, the police let Thompson leave the scene. 2 Three hours later,
however, Thompson returned with a gun. After kicking down the door to the
apartment, Thompson confronted Cain and shot him four times in the neck
and chest, killing him. Thompson then turned to Hayslip. After reloading the
gun, he told Hayslip “I can shoot you too, bitch,” and fired into her cheek. 3 The
bullet passed through Hayslip’s face, blowing the dentures out of her mouth
and nearly severing her tongue. 4 Thompson left the apartment, threw the gun
into a creek, and went to the house of a friend, Diane Zernia, where he fell
asleep. 5
      Hayslip was alive, but bleeding profusely, and sought help from
neighbors. 6 Emergency responders arrived at the apartment and airlifted
Hayslip to a hospital. During surgery, doctors were unable to secure an airway
for Hayslip’s breathing, and, while they were preparing for emergency surgery,
she fell into a coma. 7 A few days later, Hayslip’s family took her off of life




      1 Thompson v. State, No. AP-73,431, 2007 WL 3208755, at *1 (Tex. Crim. App. Oct.
31, 2007).
      2   Id.
      3   Thompson v. State, 93 S.W.3d 16, 19–20 (Tex. Crim. App. 2001).
      4   Id. at 20.
      5   Id. at 19.
      6   Id.
      7   Id. at 20.


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support, and she died. 8 Hayslip’s autopsy report describes her cause of death
as a gunshot wound to the face.
      Awaking later in the morning, Thompson described the shootings to
Zernia, including how he had disposed of the murder weapon. 9 He then called
his father, who brought him to the police station where he turned himself in. 10
The State indicted Thompson for capital murder for intentionally or knowingly
causing Cain and Hayslip’s deaths. The state court appointed counsel on May
19, 1998.
      Thompson was active during his pretrial detention at the Harris County
Jail. A few days after the shooting, he called Zernia asking what she had told
the police. Thompson called again a few weeks later, again seeking details on
what Zernia had told investigators, and clarifying that she was the only
witness who could link him to Cain and Hayslip’s murders. During this second
call, Thompson asked Zernia for her home address, purportedly so that his
attorney “could send her some documents and talk with her.” Weeks later,
Zernia told investigators that she “ha[d] not heard from his attorney as of yet.”
      During the same period, Thompson also discussed his case with fellow
inmates Jack Reid and Max Humphrey, contemplating Zernia’s status as a
potential state witness and looking to arrange for her death. 11 According to
Reid, Thompson engaged Humphrey, an Aryan Brotherhood gang member, to
murder Zernia after his release on June 30th. Thompson also arranged
retrieval of the murder weapon for delivery to Humphrey, to be used to




      8   Id.
      9   Id.
      10   Id.
      11   Id. at 22.


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                                    No. 17-70008
dispatch Zernia. 12 Thompson drew a map of the weapon’s location, and asked
Reid to pass the information to a contact outside the Jail for retrieval of the
weapon.
      Reid instead relayed the information to the police, 13 who attempted to
recover the weapon. But their divers were unable to locate it. Although
Thompson’s right to counsel had attached, officers instructed the informant
Reid to tell Thompson his contact had been unable to find the weapon, and
would visit for better directions. 14 Posing as Reid’s outside contact,
Investigator Gary Johnson visited Thompson at the Jail, wearing a wire to
record their conversation. 15 Thompson told Johnson he believed Humphrey
had betrayed him, and offered Johnson $1,500 to retrieve the weapon and
murder Zernia. 16 During the meeting, Thompson pressed a hand-drawn map
against the glass of the visitor’s booth, one similar to the map the police already
held, depicting the weapon’s location, as well as Zernia’s address. Thompson
then described Zernia’s husband, daughter, her home and vehicles, and
discussed the best times to carry out the murder. 17
      Relying on the recording of Johnson’s meeting, the district attorney
charged Thompson with solicitation of capital murder. Police visited Thompson
in his cell and notified him of the charge; they searched his cell but were unable
to recover the map displayed to Johnson. Police also apprehended Humphrey,
who corroborated Reid’s account of the murder arrangement, but denied that


      12   Id.
      13   Id.
      14   Id.
      15   Id. at 22–23.
      16   Id. at 23.
      17   Id.


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he agreed to carry out the hit on Zernia. The police recovered the murder
weapon on July 18, 1998 in Cypress Creek.
      Undeterred by the solicitation charge, on August 21, 1998, Thompson
spoke with another inmate, Robin Rhodes, again seeking help in persuading
“some people not to [come] or be able not to come” to testify at his trial. 18
Thompson provided a list of names including Zernia’s, 19 advising that Rhodes
“either kill them or persuade them not to be there.” Rhodes, it turned out, was
a long time police informant. He gave the list to the police and expressed his
willingness to testify against Thompson. 20
      Thompson was tried for capital murder in 1999. The guilt stage of the
trial centered on Hayslip’s injuries, and whether Thompson’s shooting—as
opposed to medical malpractice—caused her death. Thompson called an expert
witness, Dr. Pat Radalat, who initially testified Hayslip would have survived
the gunshot had she received proper medical care. Radalat opined that
Hayslip’s medical team failed to correctly place a nasotracheal tube, and then
failed to monitor Hayslip’s breathing while preparing for surgery, allowing her
to experience bradycardia, a condition in which the heart slows due to low
oxygen. On cross examination, however, Radalat backtracked, conceding
Hayslip would have died in the absence of medical intervention. The State
introduced the murder weapon and called a firearms expert to explain that,
given the weapon’s capacity and the number of shots fired, Thompson must
have reloaded during the shooting. 21 The State also introduced the autopsy




      18   Thompson v. Stephens, 2014 WL 2765666, at *1 (S.D. Tex. June 18, 2014).
      19   Id.
      20   Id.
      21   Thompson, 93 S.W.3d at 20.


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report certified by Dr. Paul Shrode, describing Hayslip’s cause of death as a
gunshot wound to the face. The jury found Thompson guilty of capital
murder. 22
       During the punishment phase of the trial, the State introduced
Johnson’s recording of his jailhouse meeting with Thompson, and Johnson
himself took the stand. 23 Based on the jury’s answers to the questions
regarding punishment—whether Thompson would be a future danger to
society and whether there were sufficient circumstances mitigating against a
death sentence—the court imposed the death penalty. 24
       In 2001, on direct appeal, the Texas Court of Criminal Appeals affirmed
Thompson’s conviction, 25 but found the punishment phase of the trial tainted
by the admission of Johnson’s testimony, solicited after Thompson’s right to
counsel had attached, in violation of the Sixth Amendment. 26 It vacated and
remanded for a retrial on punishment. 27 The court also denied Thompson’s pro
se motion for rehearing, which argued the entirety of his trial was tainted by
the Sixth Amendment violation and that his conviction should be vacated and
remanded for retrial. 28
       In 2005, Thompson’s case returned to the trial court for a retrial on
punishment before a new jury. 29 During a pre-trial hearing, the State disclosed


       22   Id. at 18.
       23   Id. at 23.
       24   Thompson, 2007 WL 3208755, at *1.
       25   Thompson, 93 S.W.3d at 29.
       26   Id.
       27   Id.
       28   Thompson v. State, 108 S.W.3d 269, 270 (Tex. Crim. App. 2003).
        Thompson’s application makes no claim of error that the retrial on punishment was
       29

impermissibly presented to a new jury different than that which decided guilt. See Powell v.

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                                     No. 17-70008
that it would call Robin Rhodes to testify, and that the prosecution had reached
an agreement with Rhodes involving dismissal of outstanding “hot check cases”
and a misdemeanor in exchange for his testimony. Four days before the start
of testimony, however, Thompson’s counsel overheard a conversation
disclosing Rhodes’s extensive history as an informant for the State. The trial
court ordered the prosecution to turn over all information required under
Brady v. Maryland by 5 p.m. the day before testimony was to begin, and denied
Thompson’s request for a continuance. The State committed on the record to
“mak[ing] sure [Thompson’s] counsel has everything.”
      On retrial, the State presented evidence of Thompson’s past criminality,
beginning in his childhood. 30 The State called Rhodes, who recounted his
jailhouse discussions with Thompson. On cross examination, Rhodes explained
that he had a longstanding working relationship with the State and had
previously served as a paid informant. The trial court denied Thompson’s
motion to strike Rhodes’s testimony. The jury answered the two-part inquiry
on punishment as before, and the court again imposed the death penalty. 31 In
2007, on direct appeal of the retrial, the Texas Court of Criminal Appeals
affirmed. 32
      Thompson had originally filed a state habeas petition in 2000 following
his first trial presenting seventeen grounds for relief, and amended this
application in 2007 following the retrial on punishment to raise fourteen




Quarterman, 536 F.3d 325, 334 (5th Cir. 2008) (holding that “no clearly established law
decided by the Supreme Court” requires “the same jury to determine guilt and punishment”).
      30   Thompson, 2007 WL 3208755, at *2.
      31   Id. at *1.
      32   Id. at *6.


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grounds. 33 In 2013, the state trial court entered findings of fact and conclusions
of law recommending denial of all relief. 34 In April 2013, the Texas Court of
Criminal Appeals adopted the trial court’s findings and conclusions, denying
relief. 35
         Thompson first filed a habeas petition with the federal district court in
2014, fifteen years after his conviction. During this same period, Rhodes’s
counsel submitted a Public Information Act request to the Harris County
District Attorney’s office for information related to Robin Rhodes. The State’s
responsive disclosures indicated that Rhodes went by several pseudonyms in
his transactions with the State, and that there was a signed contract from 1993
between Rhodes and Assistant District Attorney Joan Huffman. Citing these
new sources—undisclosed in the state trial court—Thompson moved
unopposed in federal court for limited discovery from Harris County, the
Houston Police Department and the City of Baytown regarding Rhodes’s status
as an informant. The district court granted the motion, and also ordered the
District Attorney’s office to produce its files relating to Rhodes for in camera
review. Thompson moved to stay and abet proceedings while the state habeas
court resolved a third application for post-conviction relief, and the district
court granted the stay. After the Texas Court of Criminal Appeals dismissed
Thompson’s third application as an abuse of the writ in March 2016, Thompson
filed an amended petition with the federal district court raising fourteen
grounds for relief, and requested an evidentiary hearing. On March 23, 2017,




         33   Ex Parte Thompson, No. WR-78,135-01, 2013 WL 1655676 (Tex. Crim. App. Apr. 17,
2013).
         34   Id.
         35   Id.
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the district court denied Thompson relief on all claims and denied the motion
for a hearing. This application followed.
                                               II.
      We have jurisdiction over the district court’s final decision denying post-
conviction relief and a hearing under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a).
      A state prisoner does not have “an absolute right to appeal” from a
federal district court decision denying a petition for a writ of habeas corpus. 36
Instead, the prisoner must obtain a COA. 37 We issue a COA upon a
“substantial showing of the denial of a constitutional right” 38—that “jurists of
reason could disagree with the district court’s resolution of [the applicant’s]
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” 39 This determination
is a threshold inquiry, not a full-fledged merits analysis. 40 Any doubts as to
whether a COA should issue must be resolved in the applicant’s favor. 41
      Thompson’s petition is “also subject to the deferential standards of
AEDPA.” 42 Where Thompson seeks a COA on claims denied on the merits by
the state habeas court, he must show that the state court’s decision was
“contrary to” or “involved an unreasonable application of” clearly established
federal law, or that it “was based on an unreasonable determination of the




      36   Buck v. Davis, 137 S. Ct. 759, 773 (2017).
      37   28 U.S.C. § 2253(c); Miller–El v. Cockrell, 537 U.S. 322, 335 (2003).
      38   28 U.S.C. § 2253(c)(2).
      39   Buck, 137 S. Ct. at 773 (quoting Miller-El, 537 U.S. at 327).
      40   See id. at 773–74.
      41   Young v. Davis, 835 F.3d 520, 523–24 (5th Cir. 2016).
      42   Charles v. Stephens, 736 F.3d 380, 387 (5th Cir. 2013) (per curiam).


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                                         No. 17-70008
facts” given the record before the state court. 43 Where Thompson seeks a COA
on claims that the state court deemed procedurally defaulted, he must show
cause to excuse his failure to comply with the state procedural rule, as well as
actual prejudice resulting from the alleged constitutional violation. 44
                                                A.
       Thompson first seeks a COA arguing that the guilt phase of his trial was
tainted by the State’s introduction of the murder weapon in violation of right
to counsel. Massiah v. United States held that the Government violated a
criminal defendant’s Sixth Amendment right to counsel “when there was used
against him at his trial evidence of his own incriminating words, which federal
agents had deliberately elicited from him after he had been indicted and in the
absence of his counsel.” 45 The rule from Massiah applies not only to
interrogation by identified officials, but also to “indirect and surreptitious”
meetings during which the indicted individual may not “even know that he was
under interrogation by a government agent.” 46 Where state actors have
obtained incriminating statements in violation of individual’s right to counsel,
“the defendant’s own incriminating statements, obtained by federal agents
under the circumstances here disclosed, could not constitutionally be used by
the prosecution as evidence against him at his trial.” 47 To bring a Massiah
claim, the claimant must establish that his Sixth Amendment right to counsel



       43   Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C. § 2254(d)(1)–(2)).
       44 Davila v. Davis, 137 S. Ct. 2058, 2064–65 (2017) (“A state prisoner may overcome
the prohibition on reviewing procedurally defaulted claims if he can show cause to excuse his
failure to comply with the state procedural rule and actual prejudice resulting from the
alleged constitutional violation.” (internal quotation marks omitted)).
       45   377 U.S. 201, 206 (1964).
       46   Id.
       47   Id. at 207.


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had attached when a government agent sought information from the defendant
without his counsel’s presence, and deliberately elicited incriminating
statements from the defendant. 48 Massiah claims are subject to harmless error
analysis. 49
       At the outset, Thompson argues the district court erred in treating the
issue as resolved by the Texas Court of Criminal Appeals and thus entitled to
AEDPA deference. Jurists of reason would not debate the district court's
granting of deference to the Court of Criminal Appeals’ opinion on this issue.
When Thompson raised the issue on direct appeal, the Court of Criminal
Appeals granted a retrial on punishment, but, without stating its reasons,
denied retrial on guilt. “When a federal claim has been presented to a state
court and the state court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” 50 We presume that the state
court adjudicated the claim on the merits, and Thompson has presented no
indication or state-law procedural principles to overcome that presumption.
Jurists of reasons would not debate the district court’s application of AEDPA
deference to this claim.
       Thompson’s argument hinges on the assertion that “the police only
recovered the gun based on statements illegally obtained.” Given the
deferential AEDPA review standards, jurists of reason would not debate the
state court’s denial of relief in light of the lack of factual support for this



       48   United States v. Bates, 850 F.3d 807, 810 (5th Cir. 2017).
       49 Arizona v. Fulminante, 499 U.S. 279, 307 (1991); Satterwhite v. Texas, 486 U.S. 249,
257 (1988) (“We have permitted harmless error analysis in both capital and noncapital cases
where the evil caused by a Sixth Amendment violation is limited to the erroneous admission
of particular evidence at trial.”).
       50   Richter, 562 U.S. at 99.
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contention. There is only a tenuous inference drawn from the timing of the
meeting and discovery of the weapon: that police recovered the weapon two
weeks after the meeting with Johnson does not attribute the gun’s discovery to
the meeting. According to the State, information regarding the gun conveyed
during Johnson’s jailhouse meeting was duplicative of the police’s existing
knowledge, namely the hand-drawn map provided to Reid and Zernia’s account
of Thompson’s confession. Thompson does not dispute these contentions.
       Moreover, even if the murder weapon was recovered based on Johnson’s
meeting, jurists of reason would not debate the harmlessness of its
introduction during the guilt phase of Thompson’s trial. 51 The murder weapon
was introduced during testimony of a firearms expert, who explained that
Thompson had reloaded during the shooting. 52 Thompson argues that but for
the Massiah violation, the State would have introduced no evidence of
reloading, vitiating its showing that Thompson intentionally killed Hayslip.
This is farfetched. Taken together with the evidence properly before the jury—
not least facts showing Thompson shot Zernia in the face and left her drowning
in her own blood and suffocating on the swollen remnants of her severed
tongue—the introduction of the murder weapon was not crucially important,
let alone dispositive. The district court thus found that the state habeas court
was not unreasonable to reject this claim. We agree that jurists of reason could
not debate this conclusion, and that the claim does not deserve encouragement
to proceed further. We deny a COA on this claim.
       \



       51 Milton v. Wainwright, 407 U.S. 371, 377–78 (1972) (“[W]e do not close our eyes to
the reality of overwhelming evidence of guilt fairly established in the state court years ago
by use of evidence not challenged here; the use of the additional evidence challenged in this
proceeding and arguably open to challenge was, beyond reasonable doubt, harmless.”).
       52   Thompson, 93 S.W.3d at 20.
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                                              B.
      Second, Thompson seeks a COA arguing the State violated his rights to
due process and counsel when it introduced the testimony of fellow inmate
Robin Rhodes during the retrial on punishment. Though these claims were
procedurally defaulted, Thompson argues he overcomes the procedural bar.
Thompson also appeals the district court’s denial of an evidentiary hearing on
the Rhodes-related claims, which we review for an abuse of discretion. 53
      A Brady violation can provide cause and prejudice to overcome a
procedural bar on a habeas claim. 54 Under Brady, a defendant is denied due
process where the State fails to disclose evidence favorable to the accused and
that evidence is material, meaning there is a reasonable probability that, had
the evidence been disclosed, the outcome of the trial would be different. 55 To
determine whether an informant was a government agent for purposes of a
Massiah claim, the court asks whether the informant was promised,
reasonably led to believe, or actually received a benefit in exchange for
soliciting information from the defendant; and whether he acted pursuant to
instructions from the State, or otherwise submitted to the State’s control. 56
                                               1.
      Thompson raised this claim in his third state habeas petition, which the
Court of Criminal Appeals dismissed as an abuse of the writ. 57 The district
court found the claim procedurally defaulted. Thompson argues, however, that
the State’s Brady violation in failing to disclose the full nature of Rhodes’s


      53   Hall v. Quarterman, 534 F.3d 365, 367 (5th Cir. 2008).
      54   Banks v. Dretke, 540 U.S. 668, 691 (2004).
      55   Id.
      56   Creel v. Johnson, 162 F.3d 385, 393 (5th Cir. 1998).
      57 Ex Parte Thompson, No. WR-78,135-03, 2016 WL 922131, at *1 (Tex. Crim. App.
Mar. 9, 2016).
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relationship with the State until 2014 provides cause and prejudice, allowing
him to overcome the procedural bar.
      Days before his 2005 retrial on punishment, Thompson’s trial counsel
overheard a conversation suggesting Rhodes had previously worked as an
informant. Thompson then probed Rhodes’s relationship with the State during
the retrial: specifically, during his cross examination, Rhodes self-described as
a “full time informant” for the State at the time of his encounter with
Thompson. The meaning of this description is not self-evident. While during
the same testimony Rhodes explained that he had not solicited Thompson on
the instructions of any state official, this does not preclude the possibility of
more general open-ended instruction or guidance from his government
“handler,” nor even the possibility that Rhodes was performing general
information-gathering duties. Thompson learned further that Rhodes not only
served repeatedly as an informant for the State—in some cases paid tens of
thousands of dollars for his services—but was even at some point an employee
of the Harris County Organized Crime Task Force. 58 Aspects of Rhodes’s
history with the State were discoverable in public records, specifically the
Texas Court of Appeals’ published decision in Stephens v. State. That opinion
describes Rhodes as an employee of the Organized Crime Task Force and
“confidential informant in over 50 cases.” 59 But that opinion does not
necessarily describe the State’s relationship with Rhodes exhaustively,
particularly with respect to his status at the time he engaged Thompson in the
Harris County Jail.




      58   Thompson, 2014 WL 2765666, at *2.
      59   59 S.W.3d 377, 381–82 (Tex. App. 2001).


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      Thompson learned more of Rhodes’s history with the State in mid-2014,
after the Court of Criminal Appeals had denied post-conviction relief, 60 and he
was before the district court. Pursuant to the district court’s discovery order,
the State produced a 1993 contract executed by Rhodes (under his pseudonym
“Robert Lee”), his handler Floyd Winkler, and Harris County Assistant District
Attorney Joan Huffman. Under the agreement, in exchange for dismissal of
one theft charge and probation on another, Rhodes agreed to “cooperate with
Officer Winkler . . . in the investigation of narcotics trafficking in the Harris
County area of which he has knowledge,” and to “follow the directions and
instructions of Winkler or his fellow law enforcement officers.” Thompson
learned during retrial that Rhodes previously served as an informant. But the
1993 contract at least arguably clarifies the nature of his past work: Rhodes’s
duties to the State at times involved an open-ended information-gathering
enterprise, in which the State would compensate Rhodes with without ex ante
knowledge of the specific targets or subjects of his gathering. The agreement
terminated in November 1993, and therefore does not cover the period during
which Rhodes encountered Thompson in the Harris County Jail. But it does
raise the possibility that, even if Rhodes had no specific instruction to solicit
information from Thompson, he might have acted pursuant to a reasonable
understanding that when he relayed the murder solicitation information to
Winkler he would receive a benefit, such as payment or leniency on pending
charges. Although the question is close, 61 jurists of reason could debate
whether the State’s delay in disclosing the 1993 contract suppressed material
information regarding its history with Rhodes and caused Thompson’s



      60   Ex Parte Thompson, 2013 WL 1655676, at *1.
      61Young, 835 F.3d at 523–24 (5th Cir. 2016) (any doubts as to whether a COA should
issue must be resolved in the applicant’s favor).
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                                     No. 17-70008
procedural default. Jurists of reason could also debate whether the
introduction of Rhodes’s testimony was a Massiah violation that prejudiced the
retrial. Here, jurists of reason might debate whether on the basis of repeated
transactions and the 1993 contract the State “reasonably led” Rhodes to believe
that “benefits would follow” from a successful solicitation of useful information
from Thompson. 62
      We therefore grant COAs on two questions arising from this claim: first,
whether Thompson has established a Brady violation in the State’s non-
disclosure of its past relationship with Rhodes that would allow Thompson to
overcome the procedural bar and entitle him to habeas relief; second, if the
procedural bar is overcome, whether the introduction of Rhodes’s testimony at
the retrial on punishment constituted a Massiah violation under which
Thompson is entitled to habeas relief.
                                          2.
      Thompson was unable to develop the facts underlying the Rhodes-
related Brady and Massiah claims in state habeas court. When he got to federal
district court, Thompson moved for limited discovery—which was granted—
and then for an evidentiary hearing—which was not. Considering documents
turned over by the State pursuant to its discovery order, including privileged
documents reviewed in camera, the district court found an evidentiary hearing
not “necessary to a full and fair adjudication of [Thompson’s] claims.” In so
deciding, the district court downplayed the toll of time. By 2014, the Harris
County Organized Crime Task Force, the government entity with which
Rhodes had interacted, had dissolved, and Rhodes’s handler Floyd Winkler no
longer worked with the State. In response to the subpoena for Rhodes-related
documents, the City of Baytown, which had taken possession of the Task


      62   Creel, 162 F.3d at 393.
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Force’s files, disclosed that relevant retention periods had expired, and it had
destroyed relevant documents from that time. As a result, no records exist from
the time to document the nature of Rhodes’s relationship to the State in July
and August 1998. For this reason, Thompson sought to question witnesses,
specifically, Gary E. Patterson, Rhodes’s attorney and intermediary with the
Task Force; former Assistant District Attorney Joan Huffman, with whom
Rhodes had executed the 1993 agreement; Rhodes’s handler, Officer Floyd
Winkler; Vic Wisner and Kelley Sigler, the prosecutors at Thompson’s retrial;
and Investigator Mike Kelley, who investigated Thompson’s solicitation of
murder in 1998. Thompson’s factual development of these claims has been
potentially hampered by the State’s nine-year delay in disclosing key aspects
of its history with Rhodes. As a result, the district court may not have been
provided sufficient facts to make an informed decision as to the merits of the
Rhodes-related claims. 63
      Even so, the district court did not err in denying Thompson an
evidentiary hearing. Under 28 U.S.C. § 2254(e)(2), an applicant who has failed
to develop the factual basis of a claim in the state habeas court may not obtain
an evidentiary hearing in federal habeas proceedings unless two conditions are
met. First, the petitioner’s claim must rely on a new rule of constitutional law,
or on a factual predicate that could not have been previously discovered
through the exercise of due diligence. 64 Second, the facts underlying the claim
must be “sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the applicant




      63   See McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998).
      64   28 U.S.C. § 2254(e)(2)(A)(ii).


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                                         No. 17-70008
guilty of the underlying offense.” 65 Here, the disputed factual predicate
concerns potential error during Thompson’s punishment retrial. Even if
Thompson were to prevail on the claim, his guilty verdict would remain
untouched. Under the statute, the district court did not have discretion to
grant him a hearing. We affirm the district court’s denial of the motion for an
evidentiary hearing.
                                              C.
       Third, Thompson seeks a COA arguing that the guilt phase of his trial
was tainted by the State’s failure to disclose that the Hayslip autopsy report
was false and improperly certified by an incompetent, unqualified medical
examiner. This claim was only raised in Thompson’s third state habeas
application, which the state habeas court deemed an abuse of the writ. 66 To
overcome the procedural default, Thompson must establish cause and
prejudice. 67
       Thompson argues that the State committed a Brady violation that allows
him to overcome the procedural default. We need not proceed past the first
Brady element. Thompson begins from the premise that the autopsy report
mischaracterized Hayslip’s cause of death, and that the medical examiner, Dr.
Paul Shrode, and by imputation the State, knew this was so. In support,
Thompson relies on the opinion of another expert, pathologist Dr. Lloyd White,



       65 Id. § 2254(e)(2)(B); Oliver v. Quarterman, 254 F. App’x 381, 390 n.6 (5th Cir. 2007)
(unpublished) (noting in dicta “subsection (B) requires the habeas applicant to show that ‘no
reasonable factfinder would have found the applicant guilty of the underlying offense,’ not
that no reasonable factfinder would have imposed the same sentence.” (emphasis in the
original)); see also In re Webster, 605 F.3d 256, 258 (5th Cir. 2010) (holding that the plain
meaning of similar language governing successive motions in 28 U.S.C. § 2255(h)(1) is limited
to determinations of guilt, and not the petitioner’s eligibility for a death sentence); Hope v.
United States, 108 F.3d 119, 120 (7th Cir. 1997) (same).
       66   Ex Parte Thompson, 2016 WL 922131, at *1.
       67   Davila, 137 S. Ct. at 2064–65.
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                                    No. 17-70008
attributing Hayslip’s death to “therapeutic misadventure” rather than to the
shot she sustained. Assuming arguendo White is correct, an inaccurate report
is not enough to sustain Thompson’s claim. Rather Thompson must show that
the State suppressed the inaccuracy. Here, Thompson resorts to speculation.
He invokes instances in which the State medical examiner, Dr. Shrode lied.
With this past, he insists Shrode “had to know” he was unqualified to certify
the autopsy report. By imputation, the State “must have known” about
Shrode’s shortcomings as a medical examiner and inferred that the report was
unreliable.   These    inferences    are    unsubstantiated.     Perhaps     medical
professionals could debate which of the two opinions—White’s or Shrode’s—is
more accurate. But Thompson has not established that jurists of reason could
debate whether there was evidence of the State’s suppression of exculpatory or
impeaching facts. Additionally, Thompson assumes rather than establishing
that the nondisclosure was material. He mentions that the jury specifically
requested the autopsy report during its deliberations, and infers the report was
dispositive in the verdict. Given the plethora of other evidence probative of
Thompson’s role in Hayslip’s death—not least testimony from Dr. Radalat that
the gunshot wound would have been fatal—he has not shown a basis for jurists
of reason to debate whether he established a reasonable probability that more
information on Shrode would have turned the verdict. We agree that jurists of
reason could not debate the district court’s conclusion that Thompson fails to
establish cause and prejudice and does not overcome the procedural default.
We deny a COA on this claim.
                                           D.
      Fourth, Thompson seeks a COA arguing he received ineffective
assistance of counsel during the guilt stage of his trial, describing five separate
deficiencies. To prevail on such a claim, Thompson must establish that
“counsel's representation fell below an objective standard of reasonableness”
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                                       No. 17-70008
and that the deficient representation caused prejudice, meaning “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” 68 Our scrutiny of counsel’s
performance is “highly deferential” 69—“doubly” so when the ineffective-
assistance claim is raised on federal review of a state-court decision rejecting
the claim on the merits. 70 With these standards in mind, we must assess
whether Thompson has established that jurists of reason would debate his
ineffective assistance of counsel claims.
                                            1.
      Thompson argues his trial counsel provided ineffective assistance by
failing thoroughly to question potential jurors about their reactions to his
potential parole eligibility if sentenced to life imprisonment and about their
likely reactions to victim-impact evidence. He also faulted trial counsel for
failing to exercise preemptory strikes of jurors Harrell Rogers and Maria
Blassingame. The state habeas court found that trial counsel acted “to select
jurors that would give the defense the best possible chance at trial,” and that
“counsel strategically conducted voir dire, including the use of peremptory
strikes, to achieve that goal.” With some potential jurors, counsel did not ask
about parole eligibility because the State had already touched on the subject.
With respect to victim-impact evidence, no such evidence was presented during
the guilt phase of the trial (the only phase subject to this claim) and so
Thompson could show no prejudice. The decisions not to strike Rogers and
Blassingame were “reasonable strategic decision[s],” taken considering their
circumstances and attitudes relative to other potential jurors’.



      68   Richter, 562 U.S. at 104.
      69   Id.
      70   See id. at 105.
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                                  No. 17-70008
      The district court did not find these conclusions unreasonable. With
respect to the parole and victim-impact evidence questioning, the district court
pointed out that these questions pertained to jurors’ attitudes towards
punishment—but the punishment phase of the first trial was overturned.
Thompson cannot establish prejudice from the lack of such questions with
respect to the guilt phase of his trial. Moreover, Thompson’s reliance on trial
counsel’s statements that the ability to ask such questions was “necessary” for
intelligent evaluation of potential jurors concerns trial counsel’s thoughts on
the option of pursuing such questioning, not his detailed views on questioning
as applied to any particular potential juror. Viewing trial counsel’s choices with
the benefit of hindsight, the district court noted that Thompson might have
provided reasons why another attorney might have questioned and exercised
preemptory strikes. But the district court found it not unreasonable for the
state habeas court to conclude that trial counsel’s performance did not fall
below the objective standard of reasonableness. We agree that jurists of reason
could not debate this conclusion, and that this claim does not deserve
encouragement to proceed further. We deny a COA on this claim.
                                        2.
      Thompson argues his trial counsel failed to object to a state witness’s
references to his prior bad acts—namely instances in which Thompson lost his
temper and destroyed property at Hayslip’s house. Under Texas law, evidence
of these bad acts was admissible as probative of the previous relationship
between the accused and the deceased. Thompson argues that because the
State had not provided notice of these prior bad acts, they were clearly
inadmissible under state law. This argument does not appear to have been




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                                         No. 17-70008
raised in the district court, and is waived. 71 Moreover, while we have suggested
that a failure to object to prejudicial and clearly inadmissible evidence cannot
be attributed to a strategic decision, 72 we are offered no plausible argument
that the evidence of these violent outbursts was prejudicial to Thompson. 73
There was no shortage of other evidence indicating Thompson’s violent
relationship with Hayslip, not least evidence showing that Thompson shot
Hayslip in the face and left her bleeding profusely. The state habeas court
concluded that trial counsel’s choice was sound because Thompson’s
hypothetical objection would have been meritless. The district court did not
find this conclusion unreasonable. We agree that jurists of reason could not
debate the district court’s conclusion, and that the claim does not deserve
encouragement to proceed further. We deny a COA on this claim.
                                                3.
       Thompson argues that his trial counsel failed to object to the
prosecution’s mischaracterization of Dr. Radalat’s testimony. The parties
agree on the substance of Radalat’s testimony: he initially described Hayslip’s
wound as survivable, attributing her death to inadequate medical
intervention, but later conceded on cross examination that Hayslip would have
died in the absence of intervention. In its argument, the prosecution told the
jury that Radalat “finally admitted to you that [Hayslip’s] wounds would be
fatal if left untreated.” Thompson argues this statement mischaracterized
Radalat’s testimony, such that trial counsel’s failure to object falls below the



       71Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999) (“[A] contention not raised by
a habeas petitioner in the district court cannot be considered for the first time on appeal from
that court's denial of habeas relief.”).
       72   Lyons v. McCotter, 770 F. 2d 529, 534 (5th Cir. 1985).
       73   Strickland v. Washington, 466 U.S. 668, 687 (1984).


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                                        No. 17-70008
objective standard of reasonableness. Thompson’s trial counsel had broad
discretion in choosing whether to object during closing arguments, 74 and
decided not to object here—rightly so, because the objection would have had no
merit. The prosecution’s characterization was not inaccurate considering the
totality of Radalat’s testimony. The state habeas court concluded that trial
counsel was not deficient in choosing not to object, because the prosecution had
properly summarized Radalat’s testimony and did not prejudice Thompson.
The district court did not find this conclusion unreasonable. We agree jurists
of reason could not debate the district court’s conclusion, and that this claim
does not deserve encouragement to proceed further. We deny a COA on this
claim.
                                               4.
      Thompson argues that his trial counsel failed to request the inclusion of
lesser included offenses with respect to Hayslip in the jury charge, even though
Thompson had presented evidence suggesting he had not intended to shoot
Hayslip. According to Thompson, the limited set of lesser included offenses
narrowed the jury’s options in the event jurors were determined to convict
Thompson in some way for Hayslip’s death, leaving a capital murder conviction
as their only option. His argument is premised on possibility that jurors would
have found that Hayslip’s shooting was an accident—but the state court found
that there was no evidence that could have supported such a conclusion. Trial
counsel’s decision as to which lesser included offenses to include in instructions
is tactical, and the choice reached here was within the bounds of counsel’s
discretion. Once again, Thompson offers ex post evaluation of how these
strategic decisions could have been better, but this cannot carry his claim. The
state habeas court concluded that trial counsel was not deficient in not


      74   Charles v. Thaler, 629 F.3d 494, 502 (5th Cir. 2011).
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                                        No. 17-70008
requesting additional instructions, because the evidence did not support the
submission of lesser-included offense instructions. The district court did not
find this conclusion unreasonable. We agree jurists of reason could not debate
this conclusion, and that this claim does not deserve encouragement to proceed
further. We deny a COA on this claim.
                                               5.
      Thompson argues that his trial counsel failed to object to the admission
of the murder weapon even though it was discovered as a result of Investigator
Johnson’s unlawful jailhouse interrogation. This claim does not appear to have
been raised before the state habeas court, and therefore is procedurally
defaulted. But even had it not faced the procedural bar, it would fail. We have
already rejected Thompson’s arguments attributing the recovery of the weapon
to the Johnson meeting. Since that attribution is without merit, as the district
court held, counsel’s decision not to object on that basis was sound. We agree
jurists of reason could not debate this conclusion, and that this claim does not
deserve encouragement to proceed further. We deny a COA on this claim.
                                               E.
      Fifth, Thompson seeks a COA arguing the Texas capital murder scheme
under which he was sentenced violates his rights under the Fifth, Sixth, and
Fourteenth Amendments. In the punishment phase, the State has the burden
to prove beyond a reasonable doubt that “there is a probability that the
defendant would commit criminal acts of violence that would constitute a
continuing threat to society.” 75 If the jury finds future dangerousness, the jury
must then consider whether there are sufficient mitigating circumstances to




      75   TEX. CRIM. P. CODE §§ 37.071(2)(b)(1), 37.071(2)(c).


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                                        No. 17-70008
warrant a sentence of life imprisonment rather than a death sentence. 76 Unless
the jury returns an affirmative answer to question one and a negative answer
to question two, the court must sentence the defendant to life imprisonment. 77
       Thompson’s challenge addresses the second question. He argues that the
trial court’s death sentence is impermissible where the jury does not find the
absence of sufficient mitigating circumstances beyond a reasonable doubt. The
state habeas court denied relief, finding that the Court of Criminal Appeals
had already rejected the same argument. The district court did not find this
conclusion unreasonable, agreeing that settled precedent foreclosed relief on
the claim.
       We agree jurists of reason could not debate the district court’s conclusion,
and that this claim does not deserve encouragement to proceed further. We
have addressed similar constitutional challenges, concluding that they
“ignore[] the distinction . . . between facts in aggravation of punishment and
facts in mitigation.” 78 As we have stated, “not asking the jury to find an absence
of mitigating circumstances beyond a reasonable doubt is perfectly consistent
with Ring and Apprendi because a finding of mitigating circumstances reduces
a sentence from death, rather than increasing it to death.” 79 Thompson
concedes that this court has already answered the question, but argues that
the situation has changed in light of the Supreme Court’s 2016 decision in



       76   Id. § 37.071(2)(e)(1).
       77   Id. § 37.0712(g).
       78Blue v. Thaler, 665 F.3d 647, 668 (5th Cir. 2011) (quoting Apprendi v. New Jersey,
530 U.S. 466, 490 n. 16 (2000)); see also, Druery v. Thaler, 647 F.3d 535, 546 (5th Cir. 2011)
(“This court has held that ‘[n]o Supreme Court or Circuit precedent constitutionally requires
that Texas’s mitigation special issue be assigned a burden of proof.’” (quoting Rowell v.
Dretke, 398 F.3d 370, 378 (5th Cir. 2005)).
       79   Blue, 665 F.3d at 669 (internal quotation marks omitted).


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                                       No. 17-70008
Hurst v. Florida. 80 Hurst addressed the constitutionality of Florida’s capital
punishment scheme in which the jury rendered an advisory verdict on
sentencing, and then, considering this advice, a judge made the critical factual
findings necessary to impose the death penalty. 81 The Court held that this
procedure violated the Sixth Amendment, which requires that a jury—not a
judge—make all findings that increase a defendant’s punishment. 82 As the
district court noted, the Hurst Court’s holding does not bear on the Texas
procedure, in which a jury reaches findings regarding whether to reduce a
sentence from death. 83 We deny a COA on this claim.
                                              F.
       Sixth, Thompson seeks a COA arguing the trial court’s denial of his
motion for a continuance before the start of the retrial on punishment violated
his right to due process. The state habeas court found no error in the denials
of Thompson’s motions for continuance in connection with his retrial on
punishment. It also rejected Thompson’s premise that he was prejudiced by the
lack of preparation time, and that his trial counsel failed to develop an
adequate mitigation case as a result. The district court observed that “trial
judges enjoy ‘a great deal of latitude in scheduling trials[’] and ‘only an
unreasoning and arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay’ poses constitutional concern.” Additionally, it
agreed that Thompson had not shown that the denials of continuance resulted



       80   136 S. Ct. 616 (2016).
       81   Id. at 620.
       82   Id. at 621–22.
       83  See also Davila v. Davis, 650 F. App’x 860, 873 (5th Cir. 2016)
(unpublished), aff'd, 137 S. Ct. 2058 (2017) (addressing the same argument and concluding
“[o]ur precedent precludes this claim. Reasonable jurists would not debate the district court’s
resolution, even after Hurst.” (internal citation omitted)).
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                                 No. 17-70008
in prejudice: he could not cite specific evidence that “remained unpresented,”
nor demonstrate that trial counsel was in fact unprepared. The district court
held it was not unreasonable for the state habeas court to conclude that there
was no constitutional violation in the denials of continuance.
      On remand for a retrial on punishment, the state trial court appointed
Thompson’s previous trial counsel, Ellis McCullough, as first chair, and in
January 2005 appointed Terrence Gaiser second chair. In June, Thompson
moved pro se to remove McCullough as appointed counsel; the trial court
granted this motion on September 15, 2005. In that interval, Gaiser was active
in Thompson’s representation, including development of a mitigation case for
the upcoming retrial on punishment. That retrial commenced on October 24,
2005. Thompson argues that Gaiser required more time to prepare because of
the transition; he argues Gaiser discovered new information—new evidence
pertaining to Thompson’s treatments, closed head injuries, and documentation
of substance abuse. Also, Gaiser had newly discovered a potential Brady
violation in the State’s plans to call Rhodes to testify. Without a continuance,
he argues, Gaiser was unable adequately to prepare for the retrial in light of
time lost after Hurricane Katrina.
      Gaiser represented Thompson for almost ten months before the retrial,
during which time he investigated and developed a mitigation case for his
client. Thompson provides only conclusory assertions—no specific examples—
in response to the state habeas court’s question regarding specific evidence
that went unpresented or specific instances in which Gaiser was in fact
unprepared during the retrial. While Thompson is correct that denial of a
continuance can violate a defendant’s constitutional rights, the district court
found the state habeas court was not unreasonable to conclude there was no
violation in Thompson’s case. We agree jurists of reason could not debate the


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                                 No. 17-70008
district court’s determination, and that this claim does not deserve
encouragement to proceed further. We deny a COA on this claim.
                                      III.
      We GRANT a COA as to whether Thompson has established a Brady
violation in the State’s non-disclosure of a past relationship with Rhodes,
sufficient to overcome the procedural default of Thompson’s second claim; and,
if so, whether Thompson is entitled to habeas relief on the grounds of the Brady
violation or a Massiah violation in the introduction of Rhodes’s testimony
during the retrial on punishment. We otherwise DENY Thompson’s
application for COAs on all other claims and AFFIRM the district court’s denial
of an evidentiary hearing.




                                      28
