     Case: 17-70008       Document: 00515179080         Page: 1    Date Filed: 10/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-70008                     United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                       October 29, 2019
CHARLES VICTOR THOMPSON,
                                                                         Lyle W. Cayce
               Petitioner - Appellant                                         Clerk


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:
       In 1999, Charles Victor Thompson was convicted of murdering Glenda
Dennise Hayslip and Darren Cain and sentenced to death. 1 On direct review,
the Texas Court of Criminal Appeals affirmed Thompson’s conviction but
ordered a retrial on punishment. 2 At the retrial, the State called Robin Rhodes,
who testified that while the two men were detained together in the Harris


       1  Thompson v. State, 93 S.W.3d 16, 18–20 (Tex. Crim. App. 2001).
       2 Id. at 29. The court found that the State had violated Thompson’s Sixth Amendment
right to counsel by sending an undercover investigator, who later testified at the punishment
phase of the trial, to meet with Thompson in jail and obtain information about Thompson’s
plot to have a witness murdered. The solicitation plot discussed in this opinion was a
separate, subsequent effort involving a different intended hitman.
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                                     No. 17-70008
County Jail, Thompson had solicited him to murder a “hit list” of potential
State witnesses. 3 Rhodes also testified that no one from the State had directed
him to obtain information from Thompson; he simply saw an opportunity and
seized it. 4
       On cross-examination, Rhodes explained that he had a longstanding
working relationship with the State and had previously received large sums of
money for his cooperation in other cases, 5 including up to $30,000 for his
testimony in a prior capital murder trial. 6 In fact, Rhodes described himself as
being a “full time informant” for the State at the time of his encounter with
Thompson 7 and stated that he informed on “pretty much whatever situation
[he] stumbled into.” The jury also learned that Rhodes had testified in a 1999
drug case against his fiancée. 8 As part of his testimony in that case, Rhodes
told the jury that he had worked for Harris County law enforcement “as a
confidential informant in over 50 cases, more than 80 percent of which resulted
in convictions; [and] that he had twice testified for the State, including once in
a capital murder prosecution.” 9
       The trial court denied Thompson’s motion to strike Rhodes’s testimony,
and Thompson was again sentenced to death. 10 After his direct appeal and
three state habeas petitions proved unsuccessful, Thompson sought federal
habeas relief in 2014. Also in 2014, Thompson’s counsel received the following
items in response to a Public Information Act (PIA) request for information
related to Robin Rhodes:


       3 Thompson v. Stephens, 2014 WL 2765666, at *1 (S.D. Tex. June 18, 2014).
       4 Thompson v. Davis, 916 F.3d 444, 456 (5th Cir. 2019).
       5 Id.
       6 See Benavides v. State, 992 S.W.2d 511 (Tex. App. 1999).
       7 Thompson, 916 F.3d at 456.
       8 Stephens v. State, 59 S.W.3d 377, 381 (Tex. App. 2001).
       9 Id.
       10 Thompson v. State, No. AP-73,431, 2007 WL 3208755, at *1 (Tex. Crim. App. Oct.

31, 2007).
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1. A 1993 informant contract executed by Rhodes (under the pseudonym
  Robert Lee), his police handler Floyd Winkler, and Assistant District
  Attorney Joan Huffman. The contract, which began in August 1993 and
  was valid for three months, provided that the prosecutor would drop
  Rhodes’s pending theft charge if Rhodes could provide information
  leading to drug arrests and seizures.
2. A 1997 pro se sentence-reduction motion in which Rhodes, then serving
  a two-year state prison term, stated that he “ha[d] cooperated in
  extensive narcotics investigations approximately (20) twenty [to]
  twenty-five (25) in number,” which had led to numerous arrests and
  convictions. Rhodes also stated that he had been cooperating “with the
  Harris County Organized Crime Task Force since 1993.”
3. A memorandum dated August 25, 1998 in which the DA’s investigator
  Mike Kelly reported Rhodes’s statement that he had spoken with
  Thompson about the solicitation plot and obtained Thompson’s “hit list”
  on August 21.
4. A handwritten note from the prosecutor’s file that appears to list
  Rhodes’s contact information and a quote (presumably from Thompson,
  though unattributed) describing a woman who he “thought [was the]
  only witness” as a “bitch” who “had it coming.” The second-to-last line of
  the note says: “contacted Floyd, get in hand.” Presumably, “Floyd” is
  Rhodes’s police handler, Officer Floyd Winkler. Thompson contends that
  this line demonstrates that Winkler “instructed Rhodes to get proof of
  Thompson’s solicitation request.”
5. Another handwritten note from the prosecutor’s file outlining
  Thompson’s interactions with Rhodes. In the left-hand margin near the
  top of the page is a partial date—“/13/98”—with the month missing.
  Thompson claims that the missing month was August, and that the note

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                                        No. 17-70008
       therefore proves Rhodes was talking to authorities about the case before
       he ever interacted with Thompson.
   6. A transcript of Rhodes’s testimony in the Stephens case. In addition to
       the testimony described above, the transcript shows that Rhodes claimed
       that “approximately 80 percent of the cases that [he] participated in . . .
       resulted in arrest and conviction.”
       The district court denied Thompson relief on all fourteen of his claims
and denied his motion for a hearing. This Court granted Thompson a certificate
of appealability on his claim that 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.” 11 Citing Massiah v. United States, 12
Thompson argues that Rhodes was acting on behalf of the State during their
jailhouse conversations, and thus his testimony violated Thompson’s Sixth
Amendment right to counsel. Although the Massiah claim is procedurally
defaulted, Thompson argues he can overcome the procedural bar by showing
that the prosecution violated its Brady 13 obligations by concealing facts that,
if known, would have led to the exclusion of Rhodes’s testimony on Massiah
grounds. And without Rhodes’s testimony, Thompson claims, the jury likely
would not have resentenced him to death.
       Assuming only for the sake of argument that Thompson could prove the
first two elements of a Brady violation—favorability and suppression 14—he
cannot show “a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.” 15 That is,
Thompson cannot show that the PIA-request evidence would have led to the

       11 Thompson, 916 F.3d at 455.
       12 377 U.S. 201 (1964).
       13 See Brady v. Maryland, 373 U.S. 83, 87 (1963).
       14 See Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
       15 United States v. Bagley, 473 U.S. 667, 675 (1985); see Banks v. Dretke, 540 U.S. 668,

691 (2004).
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                                       No. 17-70008
exclusion of Rhodes’s testimony on Massiah grounds, much less to a more
favorable sentence. To establish a Massiah violation, a defendant must show:
“(1) a Sixth Amendment right to counsel had attached; (2) an individual
seeking the information was a government agent acting without the
defendant’s counsel being present; and (3) that the agent deliberately elicited
incriminating statements from the defendant.” 16
       It may be debatable whether Thompson’s right to counsel had attached
when he spoke to Rhodes, but it is plain that Rhodes was not acting as a
government agent. To prove an agency relationship between the government
and a jailhouse informant, a defendant must show that “the informant: (1) was
promised, reasonably led to believe [that he would receive], or actually received
a benefit in exchange for soliciting information from the defendant; and (2)
acted pursuant to instructions from the State, or otherwise submitted to the
State’s control.” 17 Thompson has not met his burden as to either element. To
the contrary, the evidence supports the State’s contention that “although
Rhodes saw an opportunity to help himself if Thompson discussed the
solicitation plot, he did not elicit information from Thompson at the behest of
the State.” After all, an informant cannot be an agent of the State without the
State’s knowledge or consent, 18 and there is no credible evidence that Rhodes
had any contact with the State regarding Thompson until after he had
discussed the solicitation plot with Thompson and obtained his hit list.
       Of the six PIA items identified by Thompson, the sentence-reduction
motion, Mike Kelly memorandum, and Stephens transcript are all cumulative
of testimony presented to the jury at the retrial—namely, that Rhodes, a

       16 United States v. Bates, 850 F.3d 807, 810 (5th Cir. 2017) (citing Henderson v.
Quarterman, 460 F.3d 654, 664 (5th Cir. 2006)).
       17 Id. (emphasis added) (quoting Creel v. Johnson, 162 F.3d 385, 393 (5th Cir. 1998)).
       18 See Karl Rove & Co. v. Thornburgh, 39 F.3d 1273, 1296 (5th Cir. 1994) (“As in the

formation of any contract, the consent of both parties is necessary to establish an agency
relationship.”).
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                                       No. 17-70008
longtime, full-time informant who frequently testified in exchange for money,
spoke with Thompson and obtained his hit list on August 21, 1998. 19 It is well
established that “when the undisclosed evidence is merely cumulative of other
evidence in the record, no Brady violation occurs.” 20
       As for the rest of the evidence, the two handwritten notes from the
prosecution’s files do not support the inferences Thompson would have us draw
from them. Thompson argues that the “get in hand” notation in the first note
and the missing month in the second (which he asserts, without evidence, must
be August) prove that Rhodes approached Thompson in jail at the request of
Officer Winkler. These claims are speculative, and this Court has long
recognized that it is “unwise to infer the existence of Brady material based
upon speculation alone.” 21 Likewise, although the informant contract does
show that Rhodes worked with Officer Winkler as far back as 1993, the
contract only lasted three months and its target was drug dealing, not the
murder-solicitation plot Rhodes uncovered in this case. We cannot conclude
that this contract indicates Rhodes was acting under Winkler’s instructions
when he spoke with Thompson in jail nearly five years after the contract’s 90-
day term had expired.
       Finally, Rhodes’s previous, short-term agency relationship with the DA,
evidenced by the 1993 informant contract, does not turn him into a perpetual
agent. As we stated in United States v. Fields, a jailhouse informant is not a
government agent simply because he has “previously cooperated with the
government” and decides to capitalize on “an opportunity to do so again” by
eliciting incriminating information from a cellmate. 22 Moreover, the fact that

       19  See Thompson, 93 S.W.3d at 18; Thompson, 2014 WL 2765666, at *1.
       20  United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004) (internal alterations
omitted) (quoting Spence v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996)).
        21 United States v. Stanford, 823 F.3d 814, 841 (5th Cir. 2016) (quoting United States

v. Williams-Davis, 90 F.3d 490, 514 (D.C. Cir. 1996)).
        22 761 F.3d 443, 478 (5th Cir. 2014).


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                                        No. 17-70008
Rhodes correctly expected, based on his past interactions with the State, “that
he would receive a benefit for his testimony” does not make him a State agent.
It is not enough for an informant to believe he will receive a benefit in exchange
for his testimony; to be a government agent, he must be “led to believe” he will
receive that benefit. 23
       In short, because Thompson has shown no evidence that the State
controlled—or even consented to—Rhodes’s informant activity, there is no
valid Massiah claim that could have affected the outcome of the punishment
retrial. Accordingly, we affirm the district court’s denial of habeas relief.




      23   Bates, 850 F.3d at 810 (emphasis added) (quoting Creel, 162 F.3d at 393).
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