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UNITED STATES DISTRICT COURT for the EASTERN DISTRICT of TEXAS, SHERMAN DIVISION ANDRE LEE THOMAS, § Petitioner, § § V. § NO

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UNITED STATES DISTRICT COURT for the EASTERN DISTRICT of TEXAS, SHERMAN DIVISION ANDRE LEE THOMAS, § Petitioner, § § V. § NO UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, SHERMAN DIVISION ANDRE LEE THOMAS, § Petitioner, § § v. § NO. 4:09-CV-644 MHS § RICK THALER, DIRECTOR § TEXAS DEPARTMENT OF CRIMINAL § JUSTICE, INSTITUTIONAL DIVISION § Respondent. § ______________________ PETITION FOR A WRIT OF HABEAS CORPUS ______________________ THIS IS A DEATH PENALTY CASE Maurie Levin Don Bailey Texas Bar No. 00789452 Texas Bar No. 01520480 University of Texas School of Law 309 N. Willow 727 East Dean Keeton Sherman, TX 75090 Austin, TX 78705 903.892.9185 512.232.7795 903.891.8304 (fax) 512.232.9171 (fax) Gregory M. Weyandt MN State Bar No. 116324 Surya Saxena MN State Bar No. 339465 Marilyn Clark MN State Bar No. 386615 DORSEY & WHITNEY LLP 50 South Sixth Street, Suite 1500 Minneapolis, Minnesota 55402 612.340.2600 612.340.2868 (fax) Counsel for Andre Lee Thomas TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 PROCEDURAL HISTORY.............................................................................................................3 STATUS OF CONFINEMENT .......................................................................................................4 STATEMENT OF FACTS ..............................................................................................................5 I. Mr. Thomas‘s History ........................................................................................5 II. Pleas for Help Before the Murders ....................................................................9 III. The Murders and Their Aftermath ...................................................................10 IV. Defense Counsel ..............................................................................................16 V. The Issues for and the Parties‘ Retention of Experts for Trial ........................18 VI. The Trial...........................................................................................................18 THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT ....................................25 I. The Structure and Function of 28 U.S.C. §2254(d). ........................................25 II. Evaluation of State Court Factual Findings Under AEDPA. ...........................31 STRICKLAND V. WASHINGTON .............................................................................................33 CLAIMS FOR RELIEF .................................................................................................................36 I. Mr. Thomas Was Deprived Of His Right To A Fair Trial Under The Due Process Clause Of The Fourteenth Amendment To The United States Constitution Because He Was Not Competent To Stand Trial. .......................................................................................................36 II. Defense Counsels‘ Failure to Move for a Competency Hearing Following Mr. Thomas‘s Return from Vernon State Hospital was Constitutionally Ineffective. ............................................................................39 III. Race Dynamics Pervaded Every Aspect of Mr. Thomas‘s Trial in Violation of the Sixth and Fourteenth Amendments. ......................................45 IV. Mr. Thomas‘s Jury was Selected in a Racially Discriminatory Manner in Violation of his Rights under the Sixth and Fourteenth Amendments to the United States Constitution. ..............................................53 V. The Defense‘s Failure to Challenge the State's Jury Shuffle and Disparate Questioning of the only African American Venire Member to Make It to Voir Dire Constituted Ineffective Assistance of Counsel under the Sixth and Fourteenth Amendments. ..............................63 VI. The Presence of Jurors Opposed to Interracial Relationships Deprived Mr. Thomas of a Fair Trial and Violated His Right to Equal Protection under The Sixth and Fourteenth Amendments. ....................82 i VII. Defense Counsel‘s Failure to Inquire into Racial Prejudice Deprived Mr. Thomas of His Constitutional Right to Effective Assistance of Counsel. .....................................................................................85 VIII. The State Withheld Evidence that Undermined Its Theory of Substance-Induced Psychosis in Violation of Brady v. Maryland. ...............100 IX. Defense Counsels‘ Failure to Hire an Expert in Neuropharmacology was Constitutionally Ineffective. .................................111 X. Defense Counsel‘s Failure to Obtain a Neuropsychological Examination and the Testimony of a Neuropsychologist was Constitutionally Ineffective. ..........................................................................117 XI. Defense Counsels‘ Reliance on the State‘s Experts to Prove Key Issues was Constitutionally Ineffective. ........................................................120 XII. Defense Counsel‘s Failure to Elicit Opinions on Sanity from Drs. Harrison and McGirk Further Rendered Its Counsel Constitutionally Ineffective. ..........................................................................124 XIII. Defense Counsels‘ Failure to Present Evidence of or Seek a Jury Instruction on Diminished Capacity Constituted Constitutionally Ineffective Assistance of Counsel. .................................................................128 XIV. Defense Counsels‘ Performance at the Punishment Phase of Mr. Thomas‘ Trial was Constitutionally Ineffective. ..........................................139 XV. The Trial Court Placed Unconstitutional Limitations on Mr. Thomas‘s Presentation of Mitigating Evidence. ............................................220 XVI. Sentencing Mr. Thomas to Death Violates the Prohibition on Cruel and Unusual Punishment Set Forth in The Eighth Amendment to the United States Constitution Because Mr. Thomas is Indisputably and severely mentally Ill. ...............................................................................224 XVII. As Mr. Thomas is no Longer a Future Danger, his Death Sentence Violates the Eighth and Fourteenth Amendments. ........................................234 XVIII. Defense Counsels‘ Copious Failures In Handling Expert Witnesses Further Deprived Mr. Thomas Of Effective Assistance Of Counsel. ............244 XIX. Defense Counsel‘s Repeated Failure to Object to Inadmissible Evidence was Constitutionally Ineffective. ...................................................280 XX. Counsel Was Constitutionally Ineffective for Failing to Object to the Court‘s Erroneous Instruction on, and the Entire Evidence Regarding, Voluntary Intoxication as there was No Intoxication and It Should Have Never Infected the Trial. ................................................287 XXI. The Cumulative Evidence of Counsel‘s Copious Failures at Both Phases of Mr. Thomas‘s Trial Unequivocally Constitutes Constitutionally Ineffective Assistance of Counsel. ......................................299 XXII. The State Violated Mr. Thomas‘s Due Process Rights under the Fifth, Sixth and Fourteenth Amendments when the State ii Knowingly Presented False and Misleading Testimony in Violation of Napue v. Illinois and its Progeny. ..............................................300 XXIII. The Trial Court‘s Refusal to Define ―Reasonable Doubt‖ Denied Mr. Thomas His Right to Due Process under the Fourteenth Amendment. ...................................................................................................310 XXIV. Mr. Thomas was Deprived of his Fifth Amendment Privilege Against Self-Incrimination because the Jury Used Mr. Thomas‘s Decision not to Testify Against Him in Imposing a Sentence of Death. .............................................................................................................315 XXV. Mr. Thomas‘s Death Sentence is Unconstitutional under Roper v. Simmons because the State Used Prior Convictions Based on Acts Committed by Mr. Thomas when he was a Juvenile to Establish an Aggravating Factor. .......................................................................................318 XXVI. Mr. Thomas was Deprived of his Right to a Fair Trial under the Sixth Amendment because his Attorney had a Conflict of Interest that was not Waived. ......................................................................................322 XXVII. Mr. Thomas‘s Appellate Counsel was Constitutionally Ineffective. .............330 CONCLUSION ............................................................................................................................333 PRAYER FOR RELIEF ..............................................................................................................333 iii TABLE OF AUTHORITIES Page(s) CASES Wiggins v. Smith, 123 S. Ct. 2527 (2003) ...........................................................................................................261 Williams v. Taylor, 529 U.S. 362 (2000) ......................................................................................................... passim Abdul-Kabir v. Quarterman, 127 S. Ct. 1654 (2007) ...................................................................................................220, 224 Adams v. Texas, 448 U.S. 38 (1980) ...................................................................................................................85 Ake v. Oklahoma, 470 U.S. 68 (1985) .........................................................................................................262, 270 Alcorta v. Texas, 355 U.S. 28 (1957) .................................................................................................................300
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