Troy Thomas v. Warden, State Prison (2009)

THE COURT:  All right.   The Court-This will constitute the decision of the Court.   Please prepare the transcript for my signature.   This habeas petition revolves around essentially two issues.   One is the criminal activities of former Detectives Ortiz and Henderson, the other issue is the similarity of the car in which the petitioner was driving and a car that was wanted for investigation of a murder case.

The Court has a tremendous advantage in this case, unlike virtually every other:  habeas petition, of an extraordinarily detailed, thorough decision by Judge Mulcahy, Respondent's Exhibit F. That essentially deals with the issue of Detectives Henderson and Ortiz in exhausting detail.   The conclusion of Judge Mulcahy that even had this information been available and used at trial, it is not probable that the result would have been any different, is binding upon Mr. Thomas.   In that sense, the matter is res judicata.

It is clear that the standards for actual innocence, as set forth in the Miller v. Commissioner Case, have not even come close to being met.   A habeas petition, of course, is unlike a criminal proceeding.   First of all, it's not a criminal proceeding, it's a civil proceeding.   Another key difference is the status of the petitioner in a habeas case is significantly different then the status of a petitioner-I'm sorry-a defendant in a criminal case.

As Mr. Thomas sits here in court today, unlike when he sat before Judge Keller in the criminal court, he is not innocent, he is a convicted individual.   He was convicted of two offenses in two separate proceedings.   One was a trial before a jury that found him guilty beyond all reasonable doubt.   The other is a proceeding on which the defendant pled nolo contendere and was, therefore, found guilty.

In the criminal trial, of course, the defendant had the presumption of innocence and he was entitled to that presumption of innocence by our constitution, but that presumption does not carry over to the habeas case.   Consequently, unlike the criminal case in which the burden of proof rests with the government, and it's a heavy burden to prove, proof beyond a reasonable doubt, in the habeas case it is the burden of the petitioner to prove the facts with a preponderance of the evidence for counts 3, 4, and 5, and with clear and convincing evidence in counts 1 and 2. This he has failed to do.

Now, the standard for judging ineffective assistance of counsel is contained in the case of Strickland v. Washington, and that essentially sets forth a two-prong test.   First, a petitioner must prove that his counsel, in the performance of his or her duties, was deficient.   Second, the petitioner must then prove that as a result of that deficient performance, that the petitioner was prejudiced.

Examining Mr. Weingast's performance, which revolves around the issue of former Detectives Henderson and Ortiz, the Court clearly finds that there was no deficiency of performance.   Despite the fact that it is true that Detectives Henderson and Ortiz have betrayed their oaths as police officers and been convicted, it was not something that Mr. Weingast would have been able to discover at the time of this trial.   Consequently, the Court cannot find that Mr. Weingast was ineffective for not opening up an investigation and finding this evidence.

Secondly, even had this evidence of the misconduct of Ortiz and Henderson been discovered by Mr. Weingast, it would have been able to be used only for impeachment purposes of the testimony of Ortiz and Henderson.   And even if the jury completely disregarded their testimony, there was sufficient evidence by which the petitioner could have been convicted.

Now, while it's a bit self-serving for the prosecutor to come in and say that had she known of this evidence, she would not have used these two witnesses, nevertheless, it also seems to have a certain logic to it.   The misconduct evidence could have been introduced through a variety of sources, and knowing that Ortiz and Henderson were bent, undoubtedly the prosecutor would have, used some other source.   So I can't find that there is any prejudice to Mr. Thomas as result of the misconduct of Ortiz and Henderson.

Looking at the performance by Attorney McKay, this of course revolves around the question of the reason for the stop.   It is, even if the Court accepts that the car had been found several days before the police stopped the petitioner, and the Court accepts that the police officers would have known of the cancellation of the be on the lookout for this black Nissan Altima, even if that falls out as a basis for the stop, there are at least two other bases upon which the stop was made, the running of the stop signs, the illegal tinting.

Once the car was legitimately stopped, according to the evidence presented to the Court, there is sufficient reason to go forward at that point.   So the motion to suppress would have been denied even if Mr. McKay had known and found out about this.   So the Court cannot find ineffective assistance of counsel of Mr. McKay.

Secondly, the case that Mr. McKay represented the petitioner on is a guilty plea.   There is no allegation, nor is there any basis upon which this Court can conclude that the petitioner would have been acquitted if he had elected to plead not guilty and gone to trial.   As far as the ineffective assistance of appellate counsel, there is, short of an allegation that an issue should have been briefed;  there is no proof to support that.   Consequently, all five counts are denied.   I do want to say one thing to you though, Mr. Thomas.   I read your comments to Judge Keller at your sentencing and they did appear to be very heartfelt.   And I would agree with you that you, unfortunately through choices you've made through life, have probably put yourself on a very difficult path and the world is not very kind to people with a record.   But I also detected a certain amount of hope in that statement, that you might have, to be able to put your life back together.   I know you're not going to be able to do so as quickly as possible, but I hope you do use the remaining time that you have to remain incarcerated to reinforce your belief in what you said to Judge Keller, so that when you do come out, you'll still be a young man and you can put your life back together.   And I sincerely hope you can do that.   Madam Clerk, if you'd please serve the appeal papers upon the petitioner.   All right.   Copies of the appeal papers have been given to petitioner and counsel.   And good luck to you, Mr. Thomas.   Is there anything further?

MR. LEDFORD:  No, Your Honor.

THE COURT:  Very well.   Court is adjourned.  (At which time, this matter was concluded.)

Fuger, S.T., J.