Opposition Brief — Mickey Thomas, Petitioner v. Dexter Payne, Director, Arkansas Department of Correction

Supreme Court briefJun 15, 2021

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No. 20-7480

In the Supreme Court of the United States

MICKEY THOMAS,

Petitioner,

DEXTER PAYNE, Director,

Arkansas Division of Correction,

Respondent.

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Eighth Circuit

BRIEF IN OPPOSITION

LESLIE RUTLEDGE

Arkansas Attorney General

NICHOLAS J. BRONNI

Arkansas Solicitor General

VINCENT M. WAGNER

Deputy Solicitor General

Counsel of Record

CHRISTIAN HARRIS

Assistant Attorney General

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL

323 Center Street, Suite 200

Little Rock, Arkansas 72201

(501) 682-8090

vincent.wagner@arkansasag.gov

QUESTIONS PRESENTED

1. Whether the decision below should have extended the holdings of Wood v.

Milyard, 566 U.S. 463 (2012), and Day v. McDonough, 547 U.S. 198 (2006), to apply

to cases like this one, where Arkansas indisputably pleaded an affirmative defense

(here, procedural default) and never deliberately waived that defense.

2. Whether the decision below correctly held that Petitioner fairly presented his

penalty-phase ineffective-assistance-of-counsel claim to the state courts.

TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

Table of Contents ........................................................................................................... ii

Table of Authorities ...................................................................................................... iii

Statement ....................................................................................................................... 1

Reasons for Denying the Petition................................................................................ 14

Because the Eighth Circuit did not raise sua sponte an affirmative

defense Arkansas had chosen not to raise, the decision below does

not implicate Wood and Day. ............................................................................ 14

II. Citing a putative split this Court has twice refused to review in

recent years, Thomas overstates the conflict among the lower

courts. ................................................................................................................ 18

III. The decision below is not manifestly erroneous. ............................................. 26

Conclusion .................................................................................................................... 28

TABLE OF AUTHORITIES

Cases

Abdullah v. Groose,

75 F.3d 408 (8th Cir. 1996) .................................................................................... 21

Anderson v. Kelley,

938 F.3d 949 (8th Cir. 2019) .................................................................................. 21

Arcadia, Ohio v. Ohio Power Co.,

498 U.S. 73 (1990) .................................................................................................. 17

Daniels v. Kelley,

881 F.3d 607 (8th Cir. 2018) ............................................................................ 21, 22

Dansby v. Hobbs,

766 F.3d 809 (8th Cir. 2014) .................................................................................. 21

Day v. McDonough,

547 U.S. 198 (2006) ................................................................................................ 15

Dickens v. Ryan,

740 F.3d 1302 (9th Cir. 2014) (en banc) .................................................... 19, 24, 25

Escamilla v. Stephens,

749 F.3d 380 (5th Cir. 2014) .................................................................................. 20

Flieger v. Delo,

16 F.3d 878, 884 (8th Cir.1994) ....................................................................... 21, 23

Fink v. State,

658 S.W.2d 359 (Ark. 1983) ................................................................................... 11

House v. Bell,

547 U.S. 518 (2006) ................................................................................................ 26

Krimmel v. Hopkins,

56 F.3d 873 (8th Cir. 1995) .................................................................................... 21

Martinez v. Ryan,

566 U.S. 1 (2011) .................................................................................................... 11

Picard v. Connor,

404 U.S. 270 (1971) ................................................................................................ 20

Runnels v. Davis,

746 F. App’x 308 (5th Cir. 2018) ............................................................................ 26

Sasser v. Payne,

No. 18-1678, 2021 WL 2212590 (8th Cir. June 2, 2021) ................................. 22, 23

iii

Thomas v. State,

257 S.W.3d 92 (Ark. 2007) ....................................................................................... 7

Thomas v. State,

431 S. W.3d 923 (Ark. 2014) .................................................................................. 11

Trevino v. Thaler,

569 U.S. 413 (2013) .......................................................................................... 11, 16

Tyler v. Gunter,

819 F.2d 869 (8th Cir. 1987) .................................................................................. 21

Vandross v. Stirling,

986 F.3d 442 (4th Cir. 2021) .................................................................................. 20

Vasquez v. Hillery,

474 U.S. 254 (1986) .................................................................................... 18, 20, 21

Ward v. Stephens,

777 F.3d 250 (5th Cir. 2015) .................................................................................. 25

Wong v. Belmontes,

558 U.S. 15 (2009) .................................................................................................. 13

Wood v. Milyard,

566 U.S. 463 (2012) .................................................................................... 13, 15, 16

Rules

28 U.S.C. 2254 Rule 5 .................................................................................................. 17

Other Authorities

Wright & Miller, Federal Practice and Procedure

(3d ed. Apr. 2021 update) ....................................................................................... 17

STATEMENT

1. On the morning of June 14, 2004, Mickey Thomas drove his Ford Mustang

with a distinctive, metallic paintjob from his hometown of Broken Bow, Oklahoma,

across the border to DeQueen, Arkansas. As the jury heard, Thomas confessed to his

mother that, a few hours later, he murdered two women in the Cornerstone Monument Company: Mona Shelton, the proprietor, and Donna Cary, a customer. Thomas

took their purses and calmly left, when he was seen by a delivery driver. On the

driver’s tip, law enforcement pursued Thomas, who led them on a high-speed chase

back to his mother’s house in Oklahoma. Later, they would find at that house clothing covered with Ms. Shelton’s blood, and in Thomas’s pocket the murder weapon.

One of Thomas’s victims, Ms. Shelton, was a mother of two who owned the Cornerstone Monument Company with her husband. Thomas severely beat Ms. Shelton,

then shot her once in her right temple. C.A. App. 2234-36.1 Based on her defensive

wounds, it was clear that Thomas struggled with her before he shot her. C.A. App.

2233-2239, 4243-69. His other victim, Ms. Cary, a wife and grandmother of two, was

apparently attempting to comply with Thomas’s instructions when he killed her. She

was found face-down in a pool of blood near the front door. C.A. App. 4257. In her

left hand were the gravestone inscriptions she intended to deliver that day. Id. Next

to her sat a soft drink from Sonic, suggesting she set it down to lower herself to the

ground just before Thomas murdered her. C.A. App. 4257, 4259. She died from a

contact gunshot wound to the back of her head. C.A. App. 2620-22, 4270.

1 Citations designated “C.A. App.” are to Arkansas’s appendix filed in the court of appeals.

The trial evidence overwhelmingly proved Thomas’s guilt. A security camera recorded him buying gloves at the DeQueen Wal-Mart minutes before the murders. C.A.

App. 1975-79. Several witnesses on lunch breaks saw Thomas and his distinctive

Mustang with Oklahoma license tags at the Cornerstone Monument Company late in

the morning on the day of the double murder. C.A. App. 1990-2022. And a FedEx

delivery man saw Thomas come out the door of the business, walk to his car “at a

leisurely pace,” and drive away. C.A. App. 2031-34. The delivery man then entered

and discovered Ms. Shelton’s and Ms. Cary’s bodies. C.A. App. 2035.

Acting on the delivery man’s report, police came upon Thomas’s Mustang shortly

before it crossed the border into Oklahoma, at which point Thomas led them on a

high-speed chase to Broken Bow at speeds exceeding 128 miles an hour. C.A. App.

2055-57. Police eventually disabled Thomas’s Mustang with spike strips, but Thomas

was still able to drive to his mother’s house on its destroyed wheels. See C.A. App.

2079-80, 2083-89. Before fleeing into the woods, Thomas told his mother that he had

killed two women. C.A. App. 2108-09.

Thomas next appeared at the nearby home of Claudette Stevens, where he stole

her car at gunpoint. C.A. App. 2098-99. The stolen-vehicle report led police to set up

a roadblock, where they finally stopped Thomas by shooting out the tires of his vehicle. C.A. App. 2122-27. In Thomas’s pockets they found a loaded .38-caliber, twoshot Derringer pistol, two spent shell casings, money, an unused condom, a brochure

from Cornerstone Monument Company, and orange twine. C.A. App. 2135, 2140-41.

The physical evidence collected at the monument store also linked Thomas to the

double murder. Investigators found one .38-caliber bullet at the crime scene that

they were able to determine had been fired from Thomas’s Derringer. C.A. App. 21992220, 2287-88, 2290. Additionally, they recovered a bullet from Ms. Cary’s head

which, although too damaged to be linked to a particular firearm, was also .38 caliber.

C.A. App. 2287-88. They found one of Thomas’s gloves in the parking lot. C.A. App.

2175. And they found Ms. Shelton’s pink press-on fingernails scattered around the

floor, including in an adjacent work room, which contained a mixture of DNA profiles

that were consistent with Thomas and Ms. Shelton. C.A. App. 2192, 2276-77.

At Thomas’s mother’s house, police found still more evidence that he committed

the murders. In her laundry room, they found Ms. Shelton’s and Ms. Cary’s purses,

a pullover shirt and pair of jeans stained with Ms. Shelton’s blood, and the other glove

that Thomas bought at Wal-Mart that morning. C.A. App. 1977-78, 2153, 2214-20,

2273-74. The blood on Thomas’s shirt and jeans belonged “with all scientific certainty” to Ms. Shelton. C.A. App. 2274.

2. After hearing this evidence, the jury deliberated for just over two hours before

finding Thomas guilty of two counts of capital murder for killing Ms. Shelton and Ms.

Cary. See C.A. App. 2395-2402. Following the guilty verdict, Thomas’s counsel called

ten witnesses in the penalty phase. These witnesses told the jury of Thomas’s childhood and adolescence, an early life filled with abuse.

Thomas’s mother testified about his birth and infancy. Not even 17 when she

became pregnant, Thomas’s mother then lived in Texas in a series of rat-infested

houses that “didn’t have windows, doors, no water, no electric, nothing.” C.A. App.

2471; see C.A. App. 2474-75. She saw no doctor during pregnancy and engaged in

extensive substance abuse, which continued once Thomas was born. See C.A. App.

2472 (testifying that she “did acid, smoked weed . . . sniffed gas and stuff like that . . .

every day”). Thomas—only about three pounds—was immediately hospitalized upon

birth. C.A. App. 2473. And once he came home, the situation was so dire that

Thomas’s mother “didn’t even have milk, diapers, or nothing.” C.A. App. 2473-74.

The jury heard that, given the circumstances, Thomas’s mother chose to leave his

father and relocate to her parents’ house in Oklahoma.

C.A. App. 2475, 2477.

Thomas spent “a lot” of time around her parents, who “fought all the time themselves

and [were] drunk.” C.A. App. 2477-78, 2484. Thomas’s father never provided any

child support for Thomas and his younger brother. Consequently, his mother “had to

work two jobs by [herself] to try to keep feeding them.” C.A. App. 2476. And at some

point during his childhood, Thomas began to struggle with substance abuse. According to his mother, once—when “he was little”—she found him unconscious from “sucking gas.” C.A. App. 2488.

Sometime after Thomas’s mother moved back to Oklahoma, she told the jury how

she began living with a new boyfriend, who regularly beat her. C.A. App. 2479-80.

She testified: He “would beat me when I was pregnant, kicked me in my stomach

when I was pregnant with my two girls,” and “made our life hell.” C.A. App. 2480.

The abuse was also directed at Thomas. At least once, his mother’s boyfriend beat

him with an automotive fan belt. C.A. App. 2480-82, 2518. She would go on to leave

this boyfriend, at which point Thomas became “the man of the house,” doing “things

so we could have food and the lights would stay on or we could have—my other kids

could have shoes to go to school in.” C.A. App. 2482-83. Thomas eventually turned

to theft to provide for his family, which led the State to place him in foster care. C.A.

App. 2484.

As an adult, Thomas’s criminal behavior intensified. In 1993 he robbed a motel

clerk in Broken Bow. See C.A. App. 2432-39. After having the clerk hand him the

cash from the register, C.A. App. 2434, Thomas took a shotgun that he found on a

bookshelf in the office, loaded and unloaded it several times, and then loaded it once

more and pointed it at the motel clerk, C.A. App. 2436-37. He instructed her to remove her clothes. C.A. App. 2437. She refused and soon escaped—“decid[ing] at that

point [she] would rather take a bullet than go with him”—when she called the police

who were able to arrest Thomas. C.A. App. 2437-38. For this, Thomas was convicted

of “robbery with firearms” and sentenced to 15 years in prison. C.A. App. 4294.

After Thomas was released from prison, he got married, although he and his wife

would eventually separate. At sentencing, Thomas’s mother testified that this separation “hurt him because” his wife and stepchildren “were his world and his family.”

C.A. App. 2490. He began to change, drinking more and telling his mother “[s]omething is wrong . . . I need some help.” C.A. App. 2491.

Other family members, including Thomas’s four siblings, testified during the penalty phase and corroborated his mother’s testimony. See, e.g., C.A. App. 2502-05,

2506-11, 2510 (testimony of Thomas’s two brothers that Thomas did what he could to

support the family); C.A. App. 2513-15, 2518-19 (testimony of his two sisters that he

was the “backbone” of the family); C.A. App. 2534-35 (testimony of girlfriend of

Thomas’s father about father’s substance abuse and lack of involvement with

Thomas). One of his sisters recounted “the last fight” their mother had with her onetime boyfriend: “[H]e pretty much beat her and she had knots and blood pretty much

everywhere, head butted her and had her down choking her and he tried to drown

her.” C.A. App. 2518. And Thomas’s paternal aunt reiterated the abuse that he suffered from a young age—how his father once “whipped” him until he passed out, how

relatives “gave [Thomas] whiskey . . . and blew cigar smoke all in his face . . . trying

to get him to go to sleep.” C.A. App. 2530-31.

Dr. Richard Livingston, a psychiatrist, also testified during the trial’s penalty

phase about Thomas’s medical history. Livingston highlighted Thomas’s low birth

weight—indicative of drug exposure in utero—which placed him “at risk for almost

everything developmentally,” including “severe mental retardation” and “severe behavioral problems.” C.A. App. 2553-54. Livingston also explained the wide-ranging

damage that inhalation of gas fumes could cause a toddler’s brain. See C.A. App.

2555 (testifying that exposure to “volatile inhalants” at an “early age” meant that the

“lists of bad effects is broader and it is much harder to predict exactly what bad effects

you’ll see, but you can almost always count on there being some”). Indeed, Livingston

explained to the jury that Thomas had a “specific learning disability in the area of

language,” which might have resulted from his exposure to toxins at a young age.

C.A. App. 2558.

Livingston also testified about problems Thomas faced in adulthood. He described Thomas’s paranoid tendencies. C.A. App. 2559.

He also discussed how

Thomas’s separation from his wife and step-children caused him “anxiety and fretfulness and depression.” C.A. App. 2559-60. He explained how the absence of a father

figure in Thomas’s life would be “associated with a high statistical risk of all kinds of

behavior problems,” and how because Thomas “gr[e]w up with adults who [were] in

abusive and difficult relationships,” he likely did not “learn how to relate to people

right.” Id.

Based on this extensive penalty-phase testimony, the jury unanimously found

that 13 out of Thomas’s 32 enumerated mitigating circumstances probably existed,

and it nonunanimously found that 12 more probably existed. C.A. App. 1126-36,

1141-51. Yet the jury also unanimously found that three aggravating circumstances

existed: (1) Thomas had “previously committed another felony an element of which

was the use or threat of violence to another person or creating a substantial risk of

death or serious physical injury to another person”; (2) Thomas knowingly killed both

Ms. Shelton and Ms. Cary “in the same criminal episode”; and (3) Thomas killed the

women “for pecuniary gain.” C.A. App. 1125, 1140. And the jury unanimously found

that the aggravating circumstances outweighed, beyond a reasonable doubt, the mitigating circumstances found by any juror to exist. C.A. App. 1138, 1153.

The Arkansas Supreme Court affirmed on direct review. Thomas v. State, 257

S.W.3d 92 (Ark. 2007).

3. Thomas then filed a petition for postconviction relief under Arkansas Rule of

Criminal Procedure 37.5. Pet. App. 92a-100a. Much of his petition to this Court

hinges on his characterization of this state postconviction petition as “fact-free.” See

Pet. 5, 16-17, 25. But that characterization focuses solely on the language of his postconviction petition itself, see Pet. App. 95a, and the state court’s order denying it on

the merits, see Pet. App. 88a. Thomas omits any discussion whatsoever of the evidence presented during the state-court postconviction hearing. Indeed, he summarizes the substance of that hearing in a single sentence. See Pet. 3-4. That summary

understates the efforts of postconviction counsel.

On state postconviction review, Thomas claimed that his “[t]rial counsel was ineffective for failing to properly investigate and present mitigation evidence.” Pet.

App. 95a. And at the evidentiary hearing held on Thomas’s petition for state postconviction relief, both his guilt- and penalty-phase lead attorneys testified. Llewellyn

Marczuk, who led the guilt phase of Thomas’s trial, was an experienced criminaldefense attorney. At the time of Thomas’s trial, Marczuk had been exclusively representing capital defendants for nearly a decade and had defended between 50 and

70 capital-murder trials. C.A. App. 2813-15.

Importantly, Marczuk testified that Thomas confessed to the trial team that he

murdered Ms. Shelton and Ms. Cary. At that point, Marczuk viewed his job as, in

part, to mitigate the circumstances of the crime during the guilt phase. C.A. App.

2839-40. Thus, his overarching strategy was to admit that Thomas killed the two

women to build credibility with the jury. C.A. App. 2828-29.

Marczuk detailed the trial team’s efforts to defend Thomas. He recalled that,

because one of their retained mental-health experts was delayed in getting to the

courthouse, the trial team got the court to “delay[] the trial for a short period of time

so that he could get [t]here.” C.A. App. 2819. In the end, the defense expert had to

be “helicopter[ed] in and given a special police escort to get him [t]here on time.” Id.

Marczuk told the state court about how his team had spoken to as many witnesses as

possible—the majority of whom they interviewed in person. C.A. App. 2826.

Thomas’s postconviction counsel also elicited testimony from Marczuk about

weaknesses in the investigation. For instance, although Thomas told his defense

team that he had a girlfriend in DeQueen (the site of Thomas’s double murder), Marczuk looked for the girlfriend but never located her. C.A. App. 2827. Marczuk testified that the girlfriend was relevant to their investigation because Thomas had an

unused condom in his pocket when he was apprehended, and the fact that he may

have had a girlfriend in DeQueen would help explain why. That, in turn, would be

useful to discount any prosecutorial claim of sexual motive in the DeQueen murders.

C.A. App. 2827.

Thomas’s penalty-phase counsel, Tammy Harris, also testified at the postconviction hearing. See C.A. App. 2845. Harris prepared for the penalty phase with help

from a mitigation specialist, who collected information from expert and lay witnesses,

including family members, and assisted with record collection. C.A. App. 2846-47.

Harris testified the team obtained as many records as they could. C.A. App. 2847-48.

Early on, the trial team investigated whether “Thomas met the definition of mental

retardation.” C.A. App. 2849. But “the state hospital found his IQ up in the 90s,”

and the defense mental-health “expert didn’t find anything to rebut or refute that.”

Id.

Harris detailed the scope of the mitigation investigation. The defense team spoke

to Thomas’s brothers, sisters, stepmother, aunts, uncles, foster parents, and “as many

people as they were made aware of,” in addition to multiple experts. C.A. App. 285152. Harris said the defense team strove to track Thomas’s life from before he was

born until the time up to his trial. She agreed that, “from the time before [Thomas]

was born until the time up to his trial,” she had “used every factor he could have

possibly used”—“every factor [she] could have possibly asserted.” C.A. App. 2852-53.

The local public defender who served as Thomas’s local counsel and assisted with

voir dire, also testified. Postconviction counsel asked the public defender whether he

had noticed “anything unusual about the behaviors of any of the lawyers,” or whether

“any of them were somehow distracted.” C.A. App. 2857. His answer was unequivocal: “Absolutely not,” he said. “They were so dedicated I was amazed.” Id.

After hearing this evidence regarding trial counsel’s performance, the state court

denied Thomas’s penalty-phase ineffectiveness claim on the merits. It found “no evidence in support of th[is] claim[].” Pet. App. 88a. “To the contrary, the court f[ound]

that petitioner’s attorneys did in fact adequately investigate the issues petitioner

cites and adequately cross-examine witnesses.” Id.

Thomas appealed the trial court’s denial of his postconviction petition in general.

But he chose not to appeal its rejection on the merits of his penalty-phase ineffectiveness claim. See Thomas v. State, 431 S. W.3d 923, 925 (Ark. 2014). Under longstanding Arkansas law, this failure to appeal the trial court’s ruling on this point resulted

in a procedural default of it. See, e.g., Fink v. State, 658 S.W.2d 359, 360 (Ark. 1983)

(treating an ineffectiveness claim as defaulted due to failure to press it on appeal).

4. Thomas then filed a federal habeas petition. Among the host of claims he

brought, Thomas attempted to revive the penalty-phase ineffectiveness claim that he

had defaulted on appeal to the Arkansas Supreme Court. See Pet. App. 78a. The

district court below denied all of Thomas’s claims except for this one. Pet. App. 76a77a.

Arkansas argued in the district court that Thomas could not use this Court’s decisions in Martinez v. Ryan, 566 U.S. 1 (2011), and Trevino v. Thaler, 569 U.S. 413

(2013), to show cause for his appellate default of this claim. Although they were

“clearly defaulted on appeal of” Thomas’s state postconviction preceding, Martinez

and Trevino do “not apply to evidentiary or appellate defaults.” Pet. App. 58a. But

the district court refused to apply this principle to Thomas’s penalty-phase ineffectiveness claim. It did not acknowledge that, based on the evidence presented at the

postconviction hearing, the state court had expressly said it “f[ound] that petitioner’s

attorneys did in fact adequately investigate” evidence relevant to Thomas’s mitigation case. See Pet. App. 59a. Instead, it focused on the preceding sentence from the

state court’s order, which said Thomas has “introduced no evidence” to support his

claims. Id. Despite the state court’s characterization of its decision as ruling on the

merits of Thomas’s claims, the district court ruled that Thomas had in fact procedurally defaulted his penalty-phase ineffectiveness claim during the initial postconviction proceeding in the state trial court. Pet. App. 60a.

The district court therefore proceeded to consider whether the Martinez/Trevino

exception allowed Thomas to revive this defaulted claim. See Pet. App. 60a-62a, 64a68a. To determine that Thomas had presented a “substantial” ineffective-assistance

claim—one of the four requirements for relying on Martinez/Trevino, see Trevino, 569

U.S. at 423—the district court identified additional evidence introduced by federal

habeas counsel. See Pet. App. 66a-68a. But the evidence it identified closely resembled the mitigation evidence introduced at Thomas’s trial: of a “dysfunctional” family,

surrounded by “[a]lcohol abuse, drug abuse, physical abuse, and violence”; of a troubled man who “began huffing gas as a toddler” and who, “on occasion, stole food, clothing, and shoes to provide for his mother and siblings.” Pet. App. 66a. The district

court pointed to Thomas’s own marital problems after he was released from prison.

Pet. App. 67a. And the district court noted that additional expert testimony might

have been offered, including from Dr. Livingston, who testified at Thomas’s trial. Pet.

App. 67a-68a.

As discussed above, however, the jury in fact heard these disturbing details about

Thomas’s background. “It is hard to imagine expert testimony and additional facts

about [Thomas’s] difficult childhood outweighing the facts of [the] murder[s]”—let

alone the facts of Thomas’s prior armed robbery. Wong v. Belmontes, 558 U.S. 15, 27-

28 (2009). Nevertheless, the district court granted Thomas habeas relief on his penalty-phase ineffectiveness claim.

5. Arkansas appealed the district court’s partial grant of Thomas’s habeas petition. See Pet. App. 1a. From the first page of Arkansas’s brief below, it was clear

that it challenged the district court’s procedural-default ruling. See Appellant’s Br. i,

Thomas v. Payne, 960 F.3d 465 (8th Cir. 2020) (describing how the district court “excused [Thomas’s] procedural default” and relied on “evidence adduced in the Martinez

hearing” to grant the writ). Regardless of whether Arkansas did or “did not press the

procedural default issue on appeal,” Pet App. 7a n.3, at no point did it “deliberate[ly]

waive[]” its procedural-default defense, Wood v. Milyard, 566 U.S. 463, 466 (2012).

Disagreeing with the district court’s procedural-default ruling, the Eighth Circuit

reversed the grant of habeas relief to Thomas. See Pet. App. 6a-11a, 19a-20a. Specifically, the Eighth Circuit concluded that it was Thomas’s “failure to appeal that

resulted in the default.” Pet. App. 11a. The state postconviction court “did not decline

to hear Thomas’s guilt-and-penalty ineffective-assistance claims” but rather “clearly

ruled on the merits of the claim.” Pet. App. 8a; see id. (recounting state court’s finding

“that Thomas’s ‘[trial] attorneys did in fact adequately investigate the issues petitioner cites’” (alteration in original)). The state court’s remark about the lack of evidence “speaks to the weakness of Thomas’s claims on the merits”—not to his failure

to follow state procedures. Pet. App. 9a.

To cement the conclusion that the state trial court rejected the merits of Thomas’s

penalty-phase ineffectiveness claim, the Eighth Circuit recounted the proceedings in

that court. “Thomas presented the [state] court with ten different, specific, ineffective-assistance-at-trial allegations.” Pet. App. 10a. These included allegations that

his trial counsel “fail[ed] to properly investigate and present mitigation evidence.”

Id. And his postconviction counsel “specifically questioned Trial Counsel about the

scope of the mitigation and mental health investigation.” Id. While the Eighth Circuit did “not question the district court’s finding that” postconviction counsel “only

‘skimmed’ the issues at the [postconviction] hearing,” it nevertheless concluded that

“no procedural default was triggered in the initial [postconviction] proceedings.” Pet.

App. 10a & n.6.

Thus, “it was his failure to appeal that resulted in the default.” Pet. App. 11a.

Because of that, the Eighth Circuit concluded that the Martinez/Trevino exception

could not provide cause to excuse Thomas’s procedural default. Id.

REASONS FOR DENYING THE PETITION

Because the Eighth Circuit did not raise sua sponte an affirmative defense Arkansas had chosen not to raise, the decision below does not implicate Wood and Day.

A. From the outset of this habeas proceeding, one of the key issues has been

whether Thomas procedurally defaulted his claim that his trial counsel ineffectively

presented mitigation evidence during the penalty phase of his trial. In the district

court, Arkansas argued that Thomas defaulted this claim during the state postconviction proceedings by failing to appeal the trial court’s rejection of it on the merits.

See Pet. App. 58a. Though the district court disagreed about the timing of the default,

it nonetheless agreed that Thomas had defaulted this claim. Pet. App. 59a-60a. The

Eighth Circuit, for its part, rejected the district court’s position and adopted Arkansas’s. Pet. App. 10a-11a.

Because Arkansas pleaded a procedural-default defense in the district court, this

case falls outside the concerns of Wood and Day v. McDonough, 547 U.S. 198 (2006).

Each of those cases concerned a lower court’s “authority, on its own initiative, to dismiss a habeas petition” based on limitations or some other threshold, procedural defense, even after “the State has answered the petition without contesting its” compliance with the relevant procedural requirement. Day, 547 U.S. at 202; see Wood, 566

U.S. at 466. In other words, Wood and Day are concerned about cases where the State

fails in the district court to plead an affirmative defense based on a procedural requirement, not about the requirements for preserving arguments on appeal.

Here, Thomas never claims that Arkansas answered without placing procedural

default at issue. Just the opposite: The petition concedes that Arkansas argued in

the district court that Thomas had procedurally defaulted his penalty-phase ineffectiveness claim, among others. See Pet. 2, 13. Indeed, although he claims that “the

Eighth Circuit disregarded the State’s intentional abandonment of a procedural-default defense,” Pet. 13, he cites nowhere in the proceedings below—neither in a brief

nor in a transcript—to support Arkansas’s supposedly “textbook waiver,” Pet. 14.

Contrast Wood, where “the State twice informed” the district court “that it ‘[would]

not challenge’” the petition’s timeliness. 566 U.S. at 465. This case does not present

the same scenario. Because Thomas does not claim that “the State failed to raise”

the “threshold bar” of procedural default “in answering [his] habeas petition,” id. at

466, this case does not implicate Wood and Day.

Instead, Thomas contends that Arkansas waived procedural default on appeal by

“focus[ing] only on the merits.” Pet. 14. As just discussed, however, neither Wood

nor Day addressed a claim that a State had waived or forfeited an argument on appeal. So what Thomas calls a conflict with those decisions is, at most, a refusal to

extend their rule as far as Thomas wishes it went.

In any event, procedural default remained at issue in Arkansas’s appeal. Its

briefing below discussed the merits of Thomas’s underlying ineffectiveness claim, but

under Martinez and Trevino, the merits of that claim are central to the proceduraldefault question. To rely on those decisions to show cause, Thomas needed to show,

among other requirements, that his “claim of ‘ineffective assistance of counsel’ was a

‘substantial’ claim.” Trevino, 569 U.S. at 423 (quoting Martinez, 566 U.S. at 14).

Thus, by challenging the substance of Thomas’s ineffectiveness claim, Arkansas was

challenging the district court’s ruling that Thomas’s procedural default was excused.

See Pet. App. 50a-51a, 68a-73a.

At worst, Arkansas abandoned a particular argument for procedural default on

appeal—not the affirmative defense itself. Wood focused only on the scope of an appellate court’s authority to address “a forfeited affirmative defense,” not a forfeited

argument supporting an affirmative defense. 566 U.S. at 470. That is because the

Rules Governing Section 2254 Cases in the District Courts, just like the general

pleading rules, are quite strict regarding the presentation of affirmative defense. See

28 U.S.C. 2254 Rule 5(b) (requiring respondent to “state whether any claim in the

petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations”); see also Wright & Miller, Federal Practice and

Procedure sec. 1278 (3d ed. Apr. 2021 update) (“It is a frequently stated proposition

of virtually universal acceptance by the federal courts that a failure to plead an affirmative defense as required by Federal Rule 8(c) results in the waiver of that defense and its exclusion from the case . . . .”). The same is not true regarding particular

arguments. See, e.g., Arcadia, Ohio v. Ohio Power Co., 498 U.S. 73, 77, 85 (1990)

(reversing on the basis of “question antecedent” to the question addressed by the court

of appeals and the parties); id. at 86 (Stevens, J., concurring) (noting that “neither

the parties, the interested agencies, nor the Court of Appeals considered the construction of [the relevant statute] that the Court adopts today”).

Thomas’s real claim is that Arkansas abandoned one particular argument regarding procedural default—that Thomas’s default happened as a result of his failure to

appeal the state postconviction court’s ruling on the merits of his penalty-phase ineffectiveness claim. But neither Wood nor Day is concerned with the particular arguments a party makes, as long as the affirmative defense itself was not deliberately

waived in the trial court, which it was not in this case. There is thus no conflict

between the decision below, and Wood and Day. This Court should not grant review

on this question.

B. For similar reasons, the Court should not grant review on what Thomas terms

the second question presented. See Pet. i, 13. This question is premised on the idea

that the decision below implicates Wood and Day’s rules for sua sponte adjudication

of procedural defenses that were deliberately waived in the district court. But as just

explained, the Eighth Circuit did not raise sua sponte a procedural-default defense.

Instead, Arkansas presented it in the district court. And though Arkansas’s arguments changed somewhat on appeal, procedural default remained in issue. Because

there was no sua sponte injection of this defense into the proceedings below, there

was no need for additional briefing. This Court should deny the petition as to questions one and two, because Thomas has not shown any conflict between the decision

below and this Court’s precedent.

II. Citing a putative split this Court has twice refused to review in recent

years, Thomas overstates the conflict among the lower courts.

Besides pointing to Wood and Day, Thomas makes one other attempt to sidestep

the consequences of his procedural default on appeal on state postconviction review.

He argues that the evidence he presented in the Martinez/Trevino hearing below

“fundamentally alter[ed]” his penalty-phase ineffectiveness claim, so as to render it

a new claim that he never fairly presented to the state courts. Vasquez v. Hillery,

474 U.S. 254, 260 (1986); see Pet. 16. Rejecting this argument, the Eighth Circuit

held that “Thomas presented the [state] court with ten different, specific, ineffectiveassistance-at-trial allegations,” including the penalty-phase claim he presses before

this Court. Pet. App. 10a.

Thomas improbably claims that the decision below places the Eighth Circuit in

conflict with every regional circuit, except for the First and D.C. Circuits. See Pet.

17-23. But his argument in support of this claimed split largely amounts to a four18

page string of quotations of general legal propositions, uncontroversial in the Eighth

Circuit and elsewhere. The only decision he analyzes in any depth is Dickens v. Ryan,

740 F.3d 1302 (9th Cir. 2014) (en banc). Yet this Court has twice recently refused to

grant certiorari to petitioners who sought review of a decision they claimed conflicted

with Dickens. See Pet. for Writ of Cert. 15-17, Smith v. Mays, 139 S. Ct. 2693 (cert.

den. Jun. 10, 2019) (No. 18-1132), 2019 WL 1014177, at *15-17; Pet. for Writ of Cert.

20, Pouncy v. Palmer, 138 S. Ct. 637 (cert. den. Jan. 8, 2018) (No. 17-160), 2017 WL

7688381, at *20. Nothing has changed since June 2019 to warrant this Court’s intervention now. The petition should be denied.

A. To give an appearance of depth to the putative division among the lower

courts, Thomas claims that the Eighth Circuit’s analysis of the “fair presentation”

requirement splits with the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth,

Tenth, and Eleventh Circuits. Pet. 17-23. In support of this sweeping claim, Thomas

largely offers out-of-context quotations from those other courts stating general legal

principles. He argues that, unlike the Eighth Circuit, those other courts follow a rule

that “a federal claim that significantly strengthens a state claim with new facts transforms the claim and creates a procedural default.” Pet. 18. But he identifies nowhere

in the decision below or any other decision by the Eighth Circuit where that court has

disagreed with this rule. That is because the Eighth Circuit does not disagree with

this rule. Thomas just disagrees with the Eighth Circuit’s application of this rule to

his case. There is no need for this Court’s review.

As an initial matter, some of the decisions that Thomas cites do not discuss exhaustion and procedural default. Instead, they analyze the distinct question of when

a federal habeas court may consider evidence outside the state-court record. See

Vandross v. Stirling, 986 F.3d 442, 450 (4th Cir. 2021) (refusing to “carry the Martinez exception to procedural default over to this case to provide an exception to the

distinct rule” that a federal habeas court may consider only material in the statecourt record); Escamilla v. Stephens, 749 F.3d 380, 395 (5th Cir. 2014) (denying certificate of appealability because Cullen v. Pinholster, 563 U.S. 170 (2011), “bars [petitioner] from presenting new evidence to the federal habeas court with regard to this

already-adjudicated claim”).

The somewhat more apt decisions he cites largely comprise uncontroversial applications of this Court’s exhaustion decisions, which require federal habeas petitioners to fairly present their legal claims and supporting evidence to the state courts.

See, e.g., Vasquez, 474 U.S. at 257-60; Picard v. Connor, 404 U.S. 270, 275-76 (1971).

Nearly all of these decisions predate Martinez—many predating even AEDPA. And

like Vasquez itself, these decisions sought to protect the principle that state courts

must have “the first opportunity to hear the claim sought to be vindicated.” Vasquez,

474 U.S. at 257 (quoting Picard, 404 U.S. at 276). Substantially altering a claim after

ostensibly presenting it to the state courts would “evade[] the exhaustion requirement.” Id. at 258. Thomas invokes the fair-presentation requirement for the opposite

purpose, however, attempting to use Martinez and Trevino to frustrate this Court’s

insistence that federal courts “afford the state courts a meaningful opportunity to

consider” the substance of his claims. Id. at 257.

In any event, Thomas is not correct that the Eighth Circuit refuses to “follow a

rule that derives from Vasquez.” Pet. 23. Both before and after Martinez, the Eighth

Circuit has understood the fair-presentation requirement to force habeas petitioners

to exhaust in state court “the same factual grounds and legal theories” brought in a

federal habeas petition. Krimmel v. Hopkins, 56 F.3d 873, 876 (8th Cir. 1995) (emphasis added); see, e.g., Anderson v. Kelley, 938 F.3d 949, 961 (8th Cir. 2019) (holding

that federal claim was not fairly presented to state court because, although it relied

on “the same constitutional rights [the petitioner] claims [were] violated” in his statecourt claim, his federal claim involved new facts); Dansby v. Hobbs, 766 F.3d 809, 823

(8th Cir. 2014) (“A petitioner must present ‘both the factual and legal premises’ of his

claims to the state courts in order to exhaust the claims properly.” (quoting Flieger v.

Delo, 16 F.3d 878, 884 (8th Cir.1994)) (some quotation marks omitted)).

As in the courts that Thomas cites, it does not suffice in the Eighth Circuit to

“present[] a claim to the state courts that is merely similar to the federal habeas claim

. . . to satisfy the fairly presented requirement.” Abdullah v. Groose, 75 F.3d 408, 412

(8th Cir. 1996). Unless “the state court ha[d] a ‘fair opportunity to apply controlling

legal principles to the facts bearing upon his constitutional claim,’” the Eighth Circuit

will not find that “the exhaustion doctrine is satisfied.” Tyler v. Gunter, 819 F.2d 869,

870 (8th Cir. 1987) (some quotation marks omitted) (quoting Anderson v. Harless, 459

U.S. 4, 6 (1982)). Thus, for example in Daniels v. Kelley, 881 F.3d 607 (8th Cir. 2018),

the court held that the petitioner had not fairly presented his federal claim because

of the addition of new facts. The Daniels petitioner presented to the state court a

Sixth Amendment claim challenging “the trial court’s refusal to grant a continuance”

to obtain new, private counsel. Id. at 610. On federal habeas, he bolstered this claim

with additional evidence. Because he had not presented this evidence to the state

courts, the Eighth Circuit found it “doubtful that he fairly presented these factual

premises of his claim to the appropriate state court as required.” Id. at 612.

An Eighth Circuit decision issued two weeks ago makes clear that the court faithfully applies the fair-presentation requirement. See Sasser v. Payne, No. 18-1678,

2021 WL 2212590 (8th Cir. June 2, 2021). In a prior appeal by Sasser, the Eighth

Circuit had remanded four of his habeas claims—all alleging ineffective assistance of

counsel—to the district court for further consideration. Id. at *2. The district court

determined that two of Sasser’s claims “as developed on remand were different from

those raised in the state postconviction proceeding” and thus procedurally defaulted.

Id. Like the decision below, the Eighth Circuit in Sasser addressed the question

whether these two claims were raised in the state trial court but “were then defaulted

on appeal in state court.” Id.

To determine whether Sasser had fairly presented these two claims to the state

court, the Eighth Circuit “compare[d] the claims in Sasser’s federal habeas petition

with those set forth in his petition for postconviction relief ” in state court. Id. at *2.

For both the claims at issue, Sasser’s state-court “petition cited the same alleged

shortcomings advanced in the federal petition.” Id. at *3. Because of the factual

similarity between the state and federal claims, Sasser held that the federal claims

had been fairly presented to the state trial court in Sasser’s petition for postconviction

relief. Id.

At bottom, Thomas really claims that the Eighth Circuit stated the correct standard but simply misapplied it to his case—not that the Eighth Circuit articulated a

one-of-a-kind standard for the fair-presentation requirement. Indeed, the decision

below acknowledged that Thomas needed to “present[] ‘both the factual and legal

premises’ of his claims to the state court.” Pet. App. 9a (quoting Flieger, 16 F.3d at

884). And it held that Thomas had done so. See Pet. App. 10a (reviewing the “ten

different, specific” ineffectiveness claims Thomas made in state court, and the evidence he introduced to support them).

That holding was correct. Thomas claimed in state court that his “[t]rial counsel

was ineffective for failing to properly investigate and present mitigation evidence.”

Pet. App. 95a. At an evidentiary hearing, he presented testimony from the allegedly

ineffective counsel about the scope of their investigation. See supra pp. 8-11. That

testimony, just like the testimony offered in the district court below, went to “the

scope of the mitigation and mental health investigation” of Thomas’s trial counsel.

Pet. App. 10a. And the state court denied Thomas’s penalty-phase ineffectiveness

claim on the merits. Pet. App. 88a.

The decision below correctly held that Thomas fairly presented this ineffectiveness claim in state court. Thomas’s disagreement with that holding is no reason for

this Court’s review.

B. Nothing in the Ninth Circuit’s decision in Dickens justifies granting the petition, either. Since this Court last denied a petition claiming a conflict with Dickens,

there have been no developments that require this Court’s review. See Pet. for Writ

of Cert. 15-17, Smith v. Mays, 139 S. Ct. 2693 (cert. den. Jun. 10, 2019) (No. 18-1132),

2019 WL 1014177, at *15-17. If anything, Thomas’s petition presents a less compelling case for this Court’s review than Mays, because the tension between the Eighth

and Ninth Circuits is less pronounced than the conflict asserted in the petition there.

Much of Thomas’s analogy to Dickens depends on agreeing with him that the penalty-phase ineffectiveness claims he raised in state court were “fact-free state

claim[s].” Pet. 17; see Dickens, 740 F.3d at 1319 (describing the state-court claim

there as a “naked Strickland claim”). But the decision below did not agree with

Thomas on this point. It noted that his state postconviction counsel “specifically questioned Trial Counsel about the scope of the mitigation and mental health investigation.” Pet. App. 10a. State postconviction counsel also “asked about the records Trial

Counsel obtained and failed to obtain, the scope of the investigation into Thomas’s

background, and the results of Thomas’s mental health and competency evaluations.”

Id. In other words, contrary to Thomas’s assertions, the penalty-phase ineffectiveness claim he presented in state court was not devoid of all facts. Thomas’s federal

postconviction counsel presented additional evidence but his state and federal claims

resembled one another. That was not the case in Dickens. See 740 F.3d at 1319

(stating that the federal claim “b[ore] little resemblance to” the state claim).

The factual distinctions between Thomas’s case and Dickens explain the differences in result. Any disagreement between the two reduces at most to an alleged

misapplication of a correctly stated legal standard—not the “direct split” that Thomas

claims. Pet. 17.

Were there a direct conflict between the decision below and Dickens, the Eighth

Circuit’s approach would be the correct one. Three judges dissented from the passage

of Dickens on which Thomas relies. See 740 F.3d at 1324 (Callahan, J., dissenting,

with Kozinski, C.J., and Bybee, J.). To adopt Thomas’s interpretation of this passage,

see Pet. 17, would “encourage[] state defendants to concoct ‘new’ [ineffectiveness]

claims that are nothing more than fleshed-out versions of their old claims supplemented with ‘new’ evidence.” 740 F.3d at 1328 (Callahan, J., dissenting). This runs

contrary to the purposes of the fair-presentation requirement and exhaustion doctrine more generally, which exist to require “that newly discovered evidence . . . be

presented in the first in the state courts. Id. at 1331. Instead, Dickens would treat

“new allegations as fundamentally altering [a prisoner’s] previously exhausted [ineffectiveness] claim precisely to excuse his failure to present those allegations to the

state courts and to allow him to present them for the first time in the federal district

court.” Id. at 1332.

Judges elsewhere have agreed with Judge Callahan’s critique of Dickens.

Thomas’s approach to Dickens and the fair-presentation requirement would “encourage sandbagging in state court to obtain de novo review of a petitioner’s ‘real’ claim

in federal court.” Ward v. Stephens, 777 F.3d 250, 257 n.3 (5th Cir. 2015), unrelated

holding abrogated by Ayestas v. Davis, 138 S. Ct. 1080, 1093-94 (2018). Another Fifth

Circuit panel rejected an argument based on Dickens similar to Thomas’s because

that court “will not permit the use of Martinez ‘to bootstrap factual development in

federal court in search for unexhausted claims.’” Runnels v. Davis, 746 F. App’x 308,

316 n.2 (5th Cir. 2018) (quoting Ward, 777 F.3d at 257 n.3).

Not only has Thomas overstated the disagreement that exists among the lower

courts on the fair-presentation requirement, he relies on a fractured Ninth Circuit

decision that has rightly faced criticism from other courts. This Court should not

grant the petition to consider the second question it presents.

III. The decision below is not manifestly erroneous.

As the Eighth Circuit said, “given the strength of the state’s case against

Thomas,” there is no reason for anything but “confiden[ce] in the result of his trial.”

Pet. App. 11a. Thomas’s is one of “the usual case[s],” where his “presumed guilt” as

“a prisoner convicted in state court counsels against federal review of [his] defaulted

claims.” House v. Bell, 547 U.S. 518, 537 (2006). Indeed, the jury heard Thomas’s

own mother testify that he had confessed to her that he killed Ms. Shelton and Ms.

Cary. The jury also heard that Thomas had previously committed a violent felony—

an armed robbery that included ordering a woman at gunpoint to undress. And the

jury heard extensive mitigation testimony from his mother, his siblings, and others,

about just how horrible his upbringing had been. Despite that mitigation testimony,

the jury sentenced Thomas to death.

In state-court postconviction proceedings, Thomas had his “one fair shot to vindicate his right to effective counsel” by claiming that his penalty-phase counsel was

constitutionally ineffective. Pet. 24. He pleaded in state court that “[t]rial counsel

was ineffective for failing to properly investigate and present mitigation evidence.”

Pet. App. 95a. Represented by new postconviction counsel, Thomas then had the opportunity to develop evidence in support of this penalty-phase ineffectiveness claim

during a state-court evidentiary hearing. See Pet. App. 2a-3a, 10a (summarizing that

evidence). During that hearing, his postconviction counsel questioned all his trial

counsel, including his allegedly ineffective penalty-phase counsel. See supra pp. 810. Having heard that evidence, the state court rejected Thomas’s claim on the merits. See Pet. App. 88a (“[T]he court finds that petitioner’s attorneys did in fact adequately investigate the issues petitioner cites and adequately cross-examine witnesses.”). Thus presenting his claim in state court for an adjudication on the merits,

Thomas was not entitled to relitigate it in federal court simply because he did not like

the outcome.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,