Petition for Writ of Certiorari — Tremond Thomas, Petitioner v. Tim Hooper, Warden

Supreme Court briefJan 11, 2024

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FILED

JAN 1 1 2024

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IN THE

SUPREME COURT OF THE UNITED STATES

□□□□□□□□□□□□□□□□□□□

TREMOND THOMAS — PETITIONER

vs.

TIM HOOPER, WARDEN — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

TREMOND THOMAS

624530, CAMP C BEAR—3

LOUISIANA STATE PENITENTIARY

ANGOLA LOUISIANA 70712

QUESTIONS PRESENTED

During an interrogation, Thomas, fifteen-years-old at the time, began

to make inculpatory statements. After hearing the statements, Thomas’

mother tried to stop the interview. Instead of stopping, the detective

coaxed Thomas’ mother into allowing her to continue:

Is a juvenile’s right to stop an interrogation violated when the

interrogator refuses and insists that the questioning continues?

Did the detective violate Thomas’ right, asserted through his

mother, to stop the police officer’s interrogation?

Trial counsel filed a motion to suppress statements arguing that

Thomas’ confession was the product of fear, duress, intimidation,

menaces, threats, inducements and/or promises. Counsel did not argue

that Thomas’ right to cut off questioning was contravened.

Did counsel render ineffective assistance when he failed to

inform the trial court of the police officer’s failure to end the

interrogation when asked?

Appellate counsel argued the trial court should have granted his motion

to suppress because Thomas’ confession was the product of fear,

duress, intimidation, menaces, threats, inducements and/or promises.

Counsel did not brief the appellate court about his failure to argue the

violation of Thomas’ right to cut off questioning in the trial court.

Did appellate counsel render ineffective assistance when he

failed to argue that Thomas’ right to cut off questioning was not

scrupulously honored?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

PAGE NO.

QUESTIONS PRESENTED..,,,

LIST OF PARTIES

,,..,,.111

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED

INDEX TO APPENDICES.

Vll

OPINIONS BELOW.

JURISDICTION.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

[Question 1] This Court should decide if Thomas' right to bring the

investigating detective’s questioning to an end was scrupulously

honored or if his right to cut off questioning was violated..,.,..,,, .... 7

Thomas’ right to cutoff questioning was not scrupulously

honored when his mother unambiguously said she wanted the

interview to end. Thomas was 15-years-otd when the Detective

conducting the interview itemized the choices Thomas' mother

could make butfailed to mention—or respect—the right to bring

the questioning to an end.......... ............ .

::::::::::::: .1

The Right to Cut Off Questioning is not the same as an

Involuntary Waiver.........................................................

[Question 2] Thomas’ trial counsel rendered ineffective assistance—

and caused actual prejudice—when he argued an involuntary and

coerced waiver instead of arguing that Thomas’ right to cut off

questioning was not scrupulously honored.............",...............

......17

[Question 3] Thomas’ appellate counsel rendered ineffective

assistance—and caused actual prejudice—when he argued an

involuntary and coerced waiver instead of arguing that Thomas’ right

to cut off questioning was not scrupulously honored

CONCLUSION.......................

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Charles v. Smith, 894 F.2d 718....................................

8,10,16

Evitts v. Lucey, 469 U.S. 387, 105 S.Ct, 830 (1985).,..

.....25

Gochicoa v. Johnson, 238 F.3d 278 (C.A. 5 2000).......

.....18,25

Holm v. United States, 524 U.S. 236,253 (1998)..........,

Hughes v. Vannoy, 7 F.4th 380,386-92 (5th Cir. 2021).

McCoy v. Court of Appeals Wisconsin, Dist. 1, 486 U.S. 429 108 S Ct

1895 (1988)

24,25

Michigan v, Mosley, 423 U.S. 96, 96 S.Ct. 321 (1975)...1,7,8,11,12,14,19,28

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).7,10,11,12,14,15,16,27,28

Moreno v. Dretke, 450 F.3d 158 (C.A. 5 2006)..............................

Nebraska v. Bauldwin, 283 Neb. 678, 811 N.W.2d267 (Ne. 2012)

Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746 (2000),............... .

......,26

State ex rel Bernard v. Orleans Criminal District Court Section J,

94-2247 (La. 4/28/95); 653 So.2d 1174........................................

State v. Birklett, 32,261 (La. 2 Cir. 12/8/99); 749 So.2d 817..........

.....18

State v. Cage, 87-2778 (La. 2/4/94); 637 So.2d 89..................

.....16

State v. Leger, 2005-0011 (La. 7/10/06); 936 So.2d 108......................

State v. Matthews, 50,838 (La. App. 2 Cir. 8/10/16); 200 So.3d 895....

State v. Matthis, 2007-0691 (La. 11/2/07); 970 So.2d 505...................

State v. Odums, 50,969 (La. App. 2 Cir. 11/30/16); 210 So.3d 850...... .....28

State v. Peart, 621 So.2d 780 (La.1993)......... ....... .................... .

State v. Taylor, 2001-1638 (La. 1/14/03); 838 So.2d 729.....................

8,28

State v. Thomas, 52,929 (2 Cir. 8/10/2016); 201 So.3d 263

Writ denied, 2016-1642 (La. 9/6/17); 224 So.3d 980

4,15,16,22,24,26,27

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)... 17,18,21,25

Thomas v. Vannoy, 2023 WL 3881073 (W.D, La. 4/18/23),......,..

.....1

Thomas v. Vannoy, 2023 WL 3874315 (W.D. La. 6/7/23)...,..

Trass v. Maggio, 731 F.2d 288 (C.A. 5 1984)..................... .

U.S. v. Alvarado-Saldivar, 62 F.3d 697 (C.A. 5 (Tex.) 1995)

7,12,28

U.S. v. Williamson, 183 F.3d458 (C.A, 5 1999).,,,,.....

...18

STATUTES AND RULES

28 U.S.C. § 1254(1).

La. C. Cr. P. art. 927

17,24

La. C. Cr. P. art. 930.4

6,15,26

OTHER

Rule 10 of the United State,? Supreme Court

Rule 13.1

INDEX TO APPENDICES

Appendix

Page

Order Denying COA

District Court’s Memorandum Ruling

Magistrate Judge’s Report and Recommendation

State Supreme Court’s Denial of Post-Conviction Relief

State Appellate Court’s Denial of Post-Conviction Relief

Trial Court’s Denial of Post-Conviction Relief

State Supreme Court’s Denial of Certiorari on Direct Appeal

State Appellate Court’s Opinion on Direct Appeal

IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI

Petitioner Tremond Thomas (“Thomas”) respectfully prays that a writ

of certiorari issue to review the order of the United States Court of Appeals

for the Fifth Circuit denying a Certificate of Appealability (COA) on his

claim under the Fifth Amendment to the United States Constitution, as

interpreted by Michigan v. Mosky, 423 U.S. 96, 96 S.Ct, 321, 46 L.Ed.2d

313 (1975),

Thomas is the defendant and defendant-petitioner in the courts below.

The respondent is Warden Tim Hooper of the Louisiana State Penitentiary

via the State of Louisiana.

OPINIONS BELOW

The order of the Court of Appeals, No. 23-30404, denying a COA

appears at Appendix A to the petition and has not been designated for

publication. The District Court’s order and the Magistrate Judge’s report and

recommendation appear in Appendices B and C, and are published at.

Thomas v, Vannoy, 2023 WL 3874315 (W.D. La. 6/7/23); Thomas v. Vannoy,

2023 WL 3881073 (W.D, La, 4/18/23). The various state court opinions

underlying the federal proceedings appear in Appendix D-H.

JURISDICTION

The Court of Appeals entered final judgment against Petitioner on

November 14, 2023. As such, this Court has jurisdiction under 28 U.S.C. §

1254(1) and Rule 13.1 of the Rules of the Supreme Court of the United

States. See Hohn v. United States, 524 U.S. 236,253 (1998) (holding denial

of COA reviewable).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides

in pertinent part:

No person ... shall be compelled in any criminal case to be a witness

against himself ... without due process of law.

The Sixth Amendment to the United Sates Constitution provides in

pertinent part:

In all criminal prosecutions, the accused shall enjoy the right

have the assistance of counsel for his defense.

? The Fourteenth Amendment to the United Sates Constitution

provides in pertinent part:

No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

Article I § 2 of the Louisiana Constitution:

No person shall be deprived of life, liberty, or property, except by due

process of law.

Article I § 3 of the Louisiana Constitution:

No person shall be denied the equal protection of the laws.

Article I § 13 of the Louisiana Constitution:

When any person has been arrested or detained in connection with the

investigation or commission of any offense, he shall be advised folly

of ... his right to remain silent, his right against self incrimination, his

nght to the assistance of counsel and, if indigent, his right to court

appointed counsel.

STATEMENT OF THE CASE

On December 10, 2012, the State filed a bill of indictment charging

Thomas with one count of first-degree murder in the shooting death of Iesha

Winbush. On December IS, 2012, Thomas pled not guilty to the offense.

The charge was later amended to second-deg ree murder. On April 5, 2013,

Thomas’ trial counsel filed a motion to suppress and argued Thomas’s

statements were not the product of a knowing, intelligent, or voluntary

waiver instead of arguing Thomas’ right to cut questioning was not

scrupulously honored. The trial court conducted a hearing on the motion

over a three-day span—April 23rd to the 25th. On May 2, 2013, the trial

court denied the motion. On May 8, 2015, Thomas was found guilty of

second-degree murder and aggravated burglary. The state appellate court

affirmed Thomas conviction and sentence for second degree murder but

vacated his conviction and sentence for aggravated burglary. Thomas

unsuccessfully sought a rehearing with the appellate court and the Louisiana

Supreme Court denied his writ application. State v. Thomas, 52,929 (La.

App. 2 Cir. 8/10/2016); 201 So.3d 263; writ denied, 2016-1642 (La. 9/6/17);

224 So.3d 980.

On February 25, 2017, Thomas filed a timely Application for postconviction refief (“APCR”) with a Request for Documents under Particularized

Need, On October 25, 2017, the trial court granted his request. On November

6, ^017, Thomas filed a Motion for Extension of Time and explained he had

been transferred to the Louisiana State Penitentiary after he was granted a

copy of the documents he requested. On December 14, 2017, the court

granted Thomas request and gave him an additional thirty days to file his

supplemental claims.

On January

2018, Thomas, through the Classification Officer assigned

to his unit, filed his supplemental APCR (“SAPCR”). Thomas also mailed a

copy to the Bossier Parish District Attorney’s Office. On June 22, 2018,

Thomas filed an Objection to any Further Continuances and Motion to

Schedule Evidentiary Hearing because the assistant district attorney responded

to the initial APCR and claimed to have not received a copy of Thomas5

SAPCR. Thomas was later informed that the court had denied his SAPCR;

however, the Bossier Parish Clerk’s Office did not provide proof of denial

upon request. Thomas then filed a Motion for Production of Documents

requesting a copy of the criminal case minutes. On January 25, 2019, Thomas

received a copy of the trial court’s January 18, 2019 Order denying his

request for documents. On January IS, 2019, the trial court denied Thomas’

SAPCR, On January 24, 2019, Thomas gave the trial court notice of his intent

to seek writs and requested an extension of time.

On January 29, 2019, Thomas timely filed an application for

supervisory writ of review to the appellate court. On April 18, 2019, citing

La. C. Cr. P. art. 930.4, the appellate court denied Thomas’ writ application

on the showing made. On April 29, 2019, Thomas filed an application for a

writ of certiorari to the Louisiana Supreme Court. The state supreme court

denied his writ application January 22, 2020.

Thomas then filed a timely petition for a writ of habeas corpus that

was denied and dismissed with prejudice on June 7, 2023. The district court

also denied Thomas’s request for a Certificate of Appealability. Thomas also

unsuccessfully sought a Certificate of Appealability in the Fifth Circuit

Court of Appeal. This petition for a writ of certiorari timely foil ows.

REASONS FOR GRANTING THE WRIT

Under Rule 10, the Louisiana courts and the United States Court of

Appeals for the Fifth Circuit has contrarily decided an important question of

federal law that has been settled by this Court and has decided an important

federal question in a way that conflicts with relevant decisions of this Court

as set forth below:

[Question, 1] This Court should decide if Thomas right to bring

the investigating detective’s questioning to an end was scrupulously

honored or if his right to cut off questioning was violated.

Thomas’ right to cutoff questioning was not scrupulously

honored when his mother unambiguously said she wanted the

interview to end. Thomas was 15-years-old when the Detective

conducting the interview itemized the choices Thomas' mother

could make but failed to mention—or respect—the right to bring

the questioning to an end.

Without debate, it is understood that when a person being questioned

by police “indicates in any manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrogation must cease.” Miranda v.

Arizona, 384 U.S. 436,473-474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Relying on Miranda, the Fifth Circuit Court of Appeals reiterated that “[t]he

admissibility of statements obtained after the person in custody has decided

to remain silent depends under Miranda on whether his right to cut off

questioning was ‘scrupulously honored.5” U.S. v. Alvarado-Saldivar, 62 F.3d

697,699 (C.A. 5 (Tex.) 1995); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct .321,

46 L.Ed.2d 313 (1975). Likewise, the Louisiana Supreme Court, relying on

Michigan v. Mosley said: “When a defendant exercises his privilege against

self-incrimination the validity of any subsequent waiver depends upon

whether police have ‘scrupulously honored’ his right to

remain silent.” State

v. Taylor, 2001-1638 (La. 1/14/03); 838 So.2d 729,739; Michigan v. Mosley,

supra. The process of determining if “the police have

scrupulously honored

a defendant’s right to cut off questioning is a determination made

on a case-

by-case basis under the totality of the ci

circumstances.” Charles v. Smith, 894

F.2d 718,725-26 (5th Cir. 1990).

In this case, Thomas, who was fifteen-years-old

by a homicide detective for his involvement im a

was being questioned

burglary; however, as the

investigation continued, the detective began to suspect Thomas

was involved

in the murder of Iesha Winbush. Sensing the shift i

m the interrogation,

Thomas mother tried to end the interrogation. It is worth

noting that

Thomas’ mother, contrary to Thomas’ appointed counsel and the lower

courts, did not request counsel. She simply tried to

stopped the questioning.

Instead of immediately concluding the interview, the detective

Thomas’ mother into allowing her to finish her questioning:

Mother:

Excuse me.

Detective: Yes ma’am.

Mother:

Is he fixing to go to jail?

Detective: I can’t answer that question.

Mother;

Cause I can’t stand to hear anymore of this.

Detective; Can I continue to talk to him?

talked

Mother:

I need to help him (crying).

Detective; Can I continue to talk to him?

Mother:

If he s going to jail, can he go?

Detective: I don’t have that answer yet for you ma’am. Mrs Thomas I I'm

being honest with you. I don’t have that answer because- ’

Mother:

I don’t want to hear anymore of this. It’s—

Detective: Can I, okay, can I continue to talk to him?

Mother:

CanhTgo?0 g° and g6‘ 8Way fr°“ h6re if he’s Boing to jail.

Detective: I, I just need you to tell

me if I can keep talking to him

Mother:

Unintelligible.

He i okay" ^ eX‘remely hdpfUl

Detective: now

that is what 1

right

Mother;

ive: loZuZ

wha* you’re saym®- °ka>', I

Mother:

I was sitting here trying to hold back

so he could finish but I

just, I mean I—

Detective: U Ml*, .h.,

way

■»« a* and if

Mother:

I just want it to be over with so T ran

too murt "ain’t tantZte T" ^

it to be over With

^ ^‘’ITis

"d °Ut5,de the door when I want

Detective: But, but, I, I still need to get a few I need 1 r

th^s'ihvlm Tll°maS’ i need some more

him pTease Xd

Mother:

I don’t want to sit outside the door.

Detective. Okay then I I don’t know what other choice, because I stili

mom , , tarknt0, h‘m V 8et where

cominS from as a

™)j’, do be?f»se.1.1 can’t imagine. My heart goes out to

you. And I mean that sincerely. And 1 don’t care how old they

are, they will always be our babies. But, but what comes out of

his mouth right now is gonna determine a lot Mrs. Thomas

it s gonna determine a lot. Which road we go down from here

because he s either gonna be an accomplice or he’s gonna be a

witness. And it all depends on what comes out of his mouth right

now, okay. So you may, those are your choices. I, I can have

you, if you want to sit outside my door you can. If you want to

sit m here. But I, please, please let me talk to him. Please let

him finish his story.

Mother:

Okay.

Appendix D, pp. 44-45 to Original Habeas Petition (emphasis added)

The detective used evasive tactics, and lied so she could continue her

interrogation contrary to this Court’s reminder that justice frowns upon the

cruel and simple expedience of compelling evidence

against Thomas from

his own mouth. Miranda v. Arizona, 384 U.S. at 460. She told Ms. Thomas

she did not know if Thomas was going to jail or not. She invited her to leave

the room if she did not want to hear what Thomas would

say. The detective

also played on Ms. Thomas’s emotions and ignorance when she told her that

what came out of Thomas’s mouth would determine if “he’s either gonna be

an accomplice or he’s gonna be a witness.” Appendix D, p. 45 to Original

Habeas Petition. This could be construed as “psychology.” Cf. Charles v.

Smith, 894 F.2d at 726. According to this Court’s clearly established

jurisprudence, the detective’s decision to talk Ms, Thomas into allowing her

to continue her interrogation undeniably undermined Thomas’s “right to cut

off questioning.” Michigan v. Mosley, 423 U.S., at 103, 96 S.Ct., at 326;

quoting Miranda v. Arizona, 384 U.S., at 474, 86 S.Ct , at 1627.

Ms. Thomas told the detective she wanted the interview to be over

with so she and Thomas could leave. The detective stonewalled and made

Ms. Thomas feel like Thomas had to cooperate. Whether Thomas was going

to be arrested or not was in the detective’s discretion; however, the decision

not to end the interview was not especially after Ms. Thomas clearly said

she wanted it to end. Had the detective ended the interrogation, as prescribed

by law, Ms. Thomas could have consulted with an attorney to advise her and

Thomas throughout the remainder of the investigation. Because the detective

failed to scrupulously honor Thomas5 right to cut off questioning, as

asserted by his mother, his constitutional right against self-incrimination

was violated.

There are five important factors the Court must consider in deciding if

Thomas right to cut off questioning was scrupulously honored:

(1) whether the suspect was advised prior to initial interrogation that

ne was under no obligation to answer question; (2) whether the

reinterrogation^'mthe leneth of

'u ,remam silent prior to the

(4) whether the’ second interrogation was restricted to° interrog,ftio1ns;

not been the subject of ear if,./?,!.

,ncted to a crime that had

suspect’s first invocation of rights wa^honored." ^ (5) whether the

V.S. v. AIvarado-SaIdivar, 62 F3d

at 699; citing Michigan v. Mosley,, 423

U.S. at 104-105, 96 S.Ct. at 327.'

The only factor that weighs in the State’s favor is that Thomas and his

mother were informed of their rights under Miranda prior to the mterview.

As for the second factor, there was

detective did not stop the first

no second interrogation because the

one when asked. She talked Ms. Thomas iinto

allowing her to “continue to talk to him.”

Habeas Petition. The second factor

Appendix D, p. 44 to Original

weighs in Thomas’ favor. The third factor

also weighs in Thomas’ favor. The detective refused to end the interview and

pleaded with Ms. Thomas to let her continue her interrogation

so Thomas

could “finish his story.” Appendix D,

P- 45 to Original Habeas Petition. In

considering the fourth factor, the Court is

tasked with deciding if the subject

matter of the second interrogation had changed. This factor,

too, weighs in

Thomas favor. The detective’s i

s initial reason for interviewing Thomas was “to

verify Andrew’s statement of how they

came into possession of the PS3.”

Appendix D, p. 8 to Original Habeas Petition. However, after “further review

of the s tatements provided by Andrew and Tremond Thomas,

[she] began to

notice inconsistencies, not only within their

compared to each otherf,]” Appendix D

own statements, but when

P- 9 t0 Original Habeas Petition,

The detective questioned Thomas while

another detective questioned

Randy Andrew; and, as they “continued to compare their

statements [they]

became increasingly inconsistent. The focus began to shift from an

independent burglary that may have occurred several days before the homicide,

to the juveniles- direct involvement in the home invasion and homicide.”

Appendix D, p, 10 to Original Habeas Petiti

ion, In fact, the detective told

Ms, Thomas her son was going to be an accomplice

or a witness and that it

depended on what came out of his mouth.

Appendix D, p. 45 to Original

Habeas Petition. The detective’

s statement indicates a shift from a burglary

to a murder investigation; and,

contrary to controlling jurisprudence, the

detective made the statement to talk Ms.

Thomas into letting her finish the

interrogation. In her own words, Detective Brinkman said she told Thomas:

They will try to pin this on you. They will try to say that you are the one

that did this murder, if you can’t tell me when for

sure you had burglarized

this house/5 ohe testified that in response, Thomas asked; “

Just me?”

According to Detective Brinkman’s trial testimony, she said she “felt there

was way more to their involvement-that they may have been involved in

the

m the actual homicide. And at that point, I hit record.” Trial Transcript

ol, II of III, p, 344, This was the shift in the investigation and when

Thomas' mother tried to end the interview.

Finally, in considering the fifth factor, the Court

first invocation of Thomas’ right

must decide if the

to cut off questioning was honored. The

detective failed to end the interrogation when asked

instead she pleaded

with Ms. Thomas to allow her to finish the interrogation; thus the first

invocation was not honored.

Although the Fifth Circuit Court of Appeals have

a five prong test to

determine if a criminal defendant’s right to remain silent

—or to cut off

questioning-was scrupulously honored, the Nebraska Supreme Court believes

Michigan v. Mosefy claims require a three-factor analysis in determining

whether the police scrupulously honored the right

to remain silent. Those

factors are (1) whether the police immediately ceased the interrogation once

the defendant invoked his right to remain silent; (2) whether the police resumed

the interrogation after a significant time and

a renewal of the Miranda

warnings; and (3) whether the police restricted the renewed i

interrogation to

content not covered by the first interrogation. Nebraska

v. Bauldwin> 283

Neb. 678, 811 N.W.2d 267 (Ne. 2012)

Thomas’ right to cut off questioning

£,

• Under either tests, it is apparent

was not scrupulously honored.

The Right to Cut °ff Questioning is not the

same as an

Involuntary Waiver.

Applying La. C. Cr. P. art 930.4, the state courts declined

to review

this issue allegedly because i

U was raised and litigated on appeal. Appendix

C, p. 6 to Original Habeas Petition.

To the contrary, the claim raised in

Thomas’s SAPOR was that his right to cut off questioning

—which is not the same as a

was not honored

waiver of the right to remain silent. State v.

Thomas, 201 So.3d at 280-83. The trial court also claimed the State addressed

whether Thomas’ right to cut off questioning was honored. That

not true; when the State filed its response, the state

the claims filed in Thomas’ initial APCR which

documents under State ex rel Bernard

Section

assertion is

s attorney responded to

was a request for supporting

v. Orleans Criminal District Court

94-2247 (La. 4/28/95); 653 So.2d

SAPCR, he informed the trial court that he

1174. When Thomas filed his

was not pursuing the claims filed

in his initial APCR. The state courts alleged adjudications of this claim

contrary to clearly established law as interpreted by this Court; and

erroneous application of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

16 L.Ed.2d 694 (1966).

are:

1602,

Although the motion to

raised in Thomas’ SAPCR

suppress was raised on direct appeal, the issue

was not litigated. On appeal, the appellate

court

concluded:

The state demonstrated that Defendant’

voluntary and

intimidation,

tha Defendant and his mother were mformed of his rights ha 11

^ir’cTei^wrid 1,

w:d tLse

that Defendant's confession was admissible and, "hlre'for” lidToT"8

State v. Thomas, 201 So.3d at 284.

Thus the issue presented here was not

on appeal. The law of the case doctrine did

revisiting the initial denial of Thomas

resolved by the appellate court

not preclude the state courts from

’ motion to suppress. Cf. State v.

Matthews, 50. 838 (La. App. 2 Cir. 8/10/16); 200 So.3d 895, 908; State v.

Cage, 87-2778 (La. 2/4/94); 637 So.2d 89.

Thomas’ counsel and the state

courts danced around the issue of Thomas’ ri

right to cut off questioning

instead of tackling it head -on. Accordingly, Thomas is entitled to habeas

relief on this claim. See Charles v. Smith,

894 F.2d 718,725-26.

[Question 2] Thomas’ trial counsel rendered

—and caused actual weludir^l

u d “effective assistance

and coerced waiver instld n^T argUed an tootontmr,

.«r “Pi,x"xsIh"”' rt'M - -

The state courts denied this

claim without reaching the merits of

Thomas argument. In denying this claim, the trial court relied

misplaced response to Thomas’

on the State’s

APCR. The federal district court essentially

agreed with the state courts and opined-in error-that counsel briefed and

argued Thomas’ right to cut off questioning

Because this claim, if established,

was not scrupulously honored.

would entitle Thomas to relief, he had a

right to an evidentiary hearing to resolve the

question of why his attorney

argued a coerced waiver of the right to remain silent

instead of the violation

of his right to cut off questioning. See La. C. Cr. P.

art. 927 et seq;

Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052 (1984). The state

district court opined that

any “related ineffective assistance of counsel

argument” is eliminated because of the

appellate court’s ruling on appeal

concerning the motion to

suppress. Appendix C. p. 6 to Original Habeas

Petition. The state courts decisions,

to deny relief on this claim, are wrong.

Thomas’ right to the “effective assi

assistance of counsel is mandated by

the Sixth Amendment to the United States Constitution.”

A claim of

ineffective assistance of counsel “i

is analyzed under the two prong test

developed by the” Supreme Court i

m Strickland. State v. Birkleti, 32, 261

(La. 2 Cir, 12/8/99); 749 So.2d 817,821

(citation omitted); Strickland v.

Washington, supra; also see Hughes v.

Vannoy, 7 F.4th 380,386-92 (5th Cir.

2021). The Louisiana Supreme

Court has said “there is

of reasonably effective assistance

effectiveness of counsel must

of counsel [and] any inquiry into the

be individualized and fact-driven.” The state

high court concluded that f

or a lawyer to be considered

he or she must

possess and apply adequate skill

defending clients. State

no precise definition

reasonably effective,

and knowledge when

V. /w, 621 So.2d 780 (La.1993). The Fifth Circuit

Court of Appeals said that i

ignorance of relevant law is “an identifiable

lapse” in c onstitutionally adequate

representation. U.S. v. Williamson, 183

F.3d 458, 464 (C.A. 5 1999); (quoting W v.

Maggio, 731 F,2d 288 293

(C.A, 5 1984)). One reasonable minded juri

nst said that “knowledge of the

\*ery basic rules of evidence iis essential to

any competent representation in a

criminal trial.” Gochicoa

v. Johnson, 238 F.3d 278,

292 (C.A. 5 2000)

(Dennis, J., dissenting).

Attorney Harville failed

to properly argue his motion to

Thomas’ mculpatory statements.

suppress

He failed to brief the trial

court on how the

detective failed to scrupulously honor Th

omas’s right to cut off questioning

when his mother tried to end the

custodial interview. To reduce redundancy,

Thomas respectfully asks the

Court to consider this claim i

m the light of

claim one, Out of an abundance of caution,

however, Thomas will brief the

Court of how his counsel’s deficient

performance prejudiced him at trial.

After having reviewed this claim in

the light of the laws applicable,

Thomas

humbly asks the Court

to determine if the statement he

made to Detective

Brinkman, after she failed

to honor his right to cut-off

questioning, was

admissible over his objection at trial. Cf. Michigan

v. Mostly, 423 U.S.

96,99-100, 96 S.Ct. 321,324-25.

Thomas was not a

murder suspect when the detective

him. Her first interview with Tho

mas took place at Calvary Ball Fields. The

next day, the detectivi wanted to talk with Thomas

in court for an unrelated matter. She decided

his mother there. What happened during that

the statements that were later used

argued that Detective Brinkman

first contacted

again but learned he was

to make contact with him and

custodial interrogation tainted

against Thomas at trial. Had counsel

contravened Thomas’ right to cut off

questioning, contrary to clearly

y established federal lav/, there i

is a real

possibility the trial court would have granted the

motion to suppress. During

her testimony, Officer Brinkman said she

was frustrated with Thomas

t -V

“because he was going back and forth on when this actually happened. And

[she] finally told him, if you aren’t sure you are going to become the perfect

suspect in this murderOfficer Brinkman testified that she told Thomas:

They will try to pin this on you, They will try to say that you are the

one that did this murder, if you can’t tell me when for sure you had

burglarized this house. And his response to me at that time was, just

me? And after he said just me, I felt there was way more to their

involvement—that they may have been involved in the—in the actual

homicide. And at that point, I hit record.

Trial Transcript Vol. II of III, p. 344.

Although interrogators have a wide margin to operate in, there are

bright lines that mark when they are traversing out of bounds. Thomas’s

counsel alluded to how Officer Brinkman contravened Thomas's right

during cross-examination; however, the following colloquy shows how he

failed to expose Officer Brinkman’s unlawful action for what it was:

When Tremond Thomas’ mother was advised of the rights that she had

and the rights that her son had, one of those was that they could refuse

to answer questions, correct?

That’s correct.

They—and they can stop at any time, correct?

That’s correct.

This is State’s Exhibit 89, a juvenile rights form that you filled out on

October 12th when you were questioning Mr. Thomas at the Bossier

City Police Department?

Yes, sir.

In 3'our office?

In my office, yes, sir.

to stop answering^questjons^^any^ime^orrecr?1^

That’s correct.

“

haV6 the ri®ht

Th0m- ™d his mother, hrs

during thJ second inTmiew?

qUestlon“S *>

did she

not,

The second

I understand. Sorry about flic* n,

sorry, the second interview or the firsHm C°n~the second “ler—I’m

tne first interview on October 12th?

The one in my office?

Yes, ma’am.

She said she couldn’t listen

to anymore. She didn’t want to hear

anymore.

Do you have your police report with you?

No, sir, I don’t.

Trial Transcript Vol. II of III, pp. 355-356.

Thomas’ trial counsel’s performance here

below an objective standard of reasonabl

norms. See Strickland v. Washington,

was deficient because it fell

eness under prevailing professional

stipm; State v. Matthis, 2007-0691

(La. 11/2/07); 970 So.2d 505,509; State v.

LeS<r, 2005-0011 (La. 7/10/06);

936 So.2d 108, 143. Counsel highlighted

some of the things Ms. Thomas

said to indicate she wanted the interview to end; however, he still failed to

Thomas’ counsel failed

to expose the lie i

ln Officer Brinkman’s

statement as shown above;

Mother;

If he’s going to jail, can he go?

Detective:

I’m

Mother:

I don t want to hear anymore of this

Detective;

Can I, okay, can I continue t

. It’s

Mother;

o talk to him?

I’m

Can he1o?t0 8° 311,1 8et3Wayfromh^

if he’s going to jail.

Detective;

I> I just need you to tell me if I

Detective:

can keep talking to him.

way yoZre sTijl8^^11 but you're

and if you’ll let me continue to

?”-tSide.the door? That

n*ht h«e? And,

Mother;

need to, I need to bTtLOTgh^thtff'

^ d°ne' 1 mean 1

is too much. I don’t want to stand 1S ^

I, just, this

want it to be over with.

* d outside the door when I

Appendix D, PP- 44, 45 to Original Habeas Petition.

The state appellate

was her son

court noted that Ms. Thomas asked the detective

going to jail and said “she did

not want to hear any more

questioning,” The court also noted the detectiv

know' if Thomas

Thomas’s

was going to jail or

e’s claim that she did not

not and, instead of respecting Ms.

request to end the interview, “

explained the iimportance of

finishing the interview.

She also asked Ms. Thomas if she

would like to sit

outside the room, but stressed that she would

need her permission to continue

interviewing Defendant if she chose to leavi

the room. Thereafter, Ms. Th

omas

agreed that Defendant could finish telling his

st°iy> and she remained in the

room during the interview.” State v.

to clearly established federal law,

Thomas, 201 So.3d at 282-83.

Contrary

Thomas’ trial counsel failed in his duty to

argue the deprivation of the right to cut off qu

estioning.

[Question 3] Thomas’

appellate counsel

rendered ineffective

assistance—and caused actual

prejudice—when he argued an

involuntary and coerced

waiver

instead

of arguing that Thomas’

right to cut off questioning was

not scrupulously honored.

Like his claim of ineffective assn

assistance of trial counsel, the state

courts denied Thomas’ claim of ineffective assistance of appellate counsel

without reaching the merits of hi

the State’s misplaced

5 argUTnent Again, the trial court relied on

response to Thomas’ SAPCR

However, because this claim,

to deny this claim.

if established, would also entitle Thomas to

relief, he had a right to an evidentiary hearing to resolve the question of why

his attorney decided to argue

a coerced waiver instead of the claim raised in

Ills SAPCR—a violation of the ri

right to cut of questioning. See La.

art. 927 et seq; see McCoy v. Court ofAppeals Wise

429, 444, 108 S.Ct. 1895, 100 L.Ed.2d440,

C. Cr. P.

onsin, Dist. 1, 486 U.S.

56 USLW 4520 (1988). The trial

court opined that any “related ineffective assistance of counsel

argument” is

eliminated because of the

appellate court’ s ruling concerning the motion to

suppress on appeal, Appendix C,

P- 6 to Original Habeas Petition

decisions of the Louisi

tana courts are wrong.

A counsel s performance

on appeal is judged under Stricklands two-

prong test. Evitis v. Lucey, 469 U.S. 387

Strickland v. Washington

. The

105 S.Ct. 830, 83 L.Ed.2d 821 (1985)-

™Pra. On appeal, effective assistance

of counsel

does not mean counsel who will rai

raise ever}-' non-frivolous ground for appeal

available, Rather, it

reasonably effective

means, as it does at trial,

counsel performing in a

manner. See Evitis, 105 S.Ct.

lawyer must master the trial

judgment in identifying the

at 835. “The appellate

record, thoroughly research the law,

and exercise

arguments that may be advanced on appeal.”

McCoy v. Court of Appeals of Wise ansi

m, Disk /, 486 U.S., at 438. “In

searching for the strongest arguments available.

the attorney must be zealous

and must resolve all doubts and

ambiguous legal questions in favor of his or

her client.” McCoy v. Court of Appeal, of Wisconsi

m, Dist. 1, 486 U.S., at

444. Of course, “knowledge

Of the very basic rules of evidence is essential

to any competent representation!;.]"

Gochicoa v. Johnson, 238 F.3d at 292.

Thomas’ appellate counsel, who

ineffective assistance for failing

was also his trial counsel, rendered

to point out to the appellate

court that the

police failed to scrupulously honor Thomas’

Counsel s performance was deficient

right to cut off questioning.

on direct appeal because he

argued

Thomas’ confession should have been suppressed because it "was the product

of fear, duress, intimidation,

State v. Thomas, 201 So.3d

menaces, threat*, inducements and/or promises.”

at 280. Counsel failed in his duty to make the

appellate court aware of the detective’s failure to

Thomas’

scrupulously honor

and by extension his mother’s

—right to bring the interrogation to

an end. In challenging Harville's performance

on appeal, Thomas is tasked

with showing “that with effective

counsel, there was

a reasonable probability

that he would have won on appeal.” Moreno

v. Dretke, 450 F.3d 158,168

(C.A. 5 2006) (citing Smith

v. Robbins, 528 U.S. 259,285,

120 S.Ct. 746,

145 L,Ed.2d 756 (2000)). He has

met his burden. Had counsel first shown

the trial court that the detective failed to

scrupulously honor Thomas’s right

to stop the interrogation, the confession would

not have been admitted at

tnal; also, had counsel realized his fail

ure and briefed it on appeal, there is a

possibility he would have prevailed.

The state appellate court denied Thomas’

showing made and cited La.

writ application on the

C. Cr. P art. 930.4. However, Thomas did

not

present a repetitive claim. Thomas made it clear to the state courts that he

was not presenting the same claim his

however, where the motion

appellate counsel urged on appeal;

to suppress Thomas’ confession

appropriate corrective action for both claims,

would be the

in their respective postures,

the state courts are wrong about the claim bei

mg repetitive.

In his supplemented application f<

or post-conviction relief (“SAPCR” )

Thomas argued that his right to cut

off questioning was not scrupulously

honored by Detective Brink

man. The claim Harville raised

on appeal—and

pre-trial in the original motion to suppress—was

right to remain silent, See State

v. Thomas, supra. Harville

Thomas on appeal and was also his trial

The state courts have decided the

way this Court deals with a defendant’s

initial valid waiver of the right to

a coerced waiver of the

represented

counsel.

outcome of this case contrary to the

nght to cut-off questioning after an

remain silent. The state courts treatment

of this claim iis contrary to and involves

an unreasonable application of

clearly established la

w as determined by this Court.

This honorable Court

has said if a person being questioned by police “indicates i

m any manner, at

my time prior to or during questioning, that he wishes to

interrogation must cease.” Miranda

remain silent, the

Arizona, 384 U.S. 436, 473-474, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Fifth Ci

ircuit, relying on this Court’s

decision in Miranda, reiterated that “[t]he admissibility of statements

obtained after the person in custody has decided to remain silent depends

under Miranda on whether his right to cut off questioning was ‘scrupulously

honored.’” U.8. v, Alvarado-Saldivar, 62 F.3d 697, 699 (C.A. 5 (Tex.) 1995),

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Relying on Michigan v. Mosley, the state supreme court said: “When a

defendant exercises his privilege against self-incrimination the validity of

any subsequent waiver depends upon whether police have

t ■

scrupulously

honored1 his right to remain silent.” State v. Taylor, 838 So.2d at 739;

Michigan v. Mosley, supra. “Whether the police have scrupulouslyJionored a

defendant’s right to cut off questioning is a determination made on a caseby-case basis under the totality of the circumstances.” State vy Odums,

50,969 (La App. 2 Cir, 11/30/16); 210 So.3d 850, 860. A proper inquiry into

the facts of this case will reveal: (1) that Thomas—who was fifteen-year-old

at the time—initially waived his right to remain silent; (2) through his

mother’s adamant pleading, begged for the interrogation to cease; and (3)

the detective conducting the interrogation refused to scrupulously honor

Thomas’ right to cut off questioning.

CONCLUSION

For the foregoing reasons Thomas’s petition for a writ of certiorari

should be granted.

Respectfully submitted,

Temond Thomas

Date

•Swma*:

1D, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.