Andrew Thomas Appeal

Case 2:12-cv-02333-SHM-tmp Document 1 Filed 04/27/12 Page 1 of 130
PageID 1
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
_________________________________________________________________________
ANDREW THOMAS
)
)
Petitioner,
)
Electronically filed
)
vs.
)
No.
)
ROLAND COLSON, Warden,
)
CAPITAL CASE
Riverbend Maximum Security
)
Institution,
)
)
Respondent.
)
_________________________________________________________________________
PETITION FOR WRIT OF HABEAS CORPUS
_________________________________________________________________________
Robert L. Hutton
GLANKLER BROWN, PLLC
6000 Poplar Ave.
Suite 400
Memphis, TN 38119
Ph: 901-525-1322
Fax: 901-525-2389
rhutton@glankler.com
Thomas P. Lane
Jennifer N. White
Patrick M. McGill
WINSTON & STRAWN LLP
200 Park Avenue
New York, NY 10166
Ph: 212-294-6700
Fax: 212-294-4700
tlane@winston.com
jwhite@winston.com
pmcgill@winston.com
Attorneys for Petitioner
ANDREW THOMAS
PageID 2
TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
PROCEDURAL HISTORY.............................................................................................................7
GROUNDS SUPPORTING THE PETITION FOR RELIEF .......................................................17
I.
II.
III.
CLAIM NO. 1: THE STATE VIOLATED THOMASS

CONSTITUTIONAL RIGHTS BY FAILING TO COMPLY WITH
ITS DISCOVERY OBLIGATIONS UNDER BRADY v. MARYLAND ......................17
A.
Evidence That U.S. Marshal Sanders Paid Angela Jackson

In Connection With Her Federal Testimony Is Favorable Evidence ..................17
B.
The State Suppressed The Favorable

Impeachment Evidence That U.S. Marshal Sanders
Paid Angela Jackson In Connection With Her Federal Testimony ....................18
C.
There Is A Reasonable Probability That The Result Of

Thomass Trial Would Have Been Different If Evidence
Of The Payment To Angela Jackson Had Been Disclosed .................................21
D.
Thomas Can Excuse Any Procedural Default Or Non-Exhaustion

Of His Brady Claim Because The State Unconstitutionally
Suppressed Evidence Of Its Payment To Angela Jackson..................................27
E.
Thomas Lacks Avenues For Asserting His Brady Claim In State Court ............29
CLAIM NO. 2: THE STATE VIOLATED

ANDREW THOMASS CONSTITUTIONAL RIGHTS
BY PRESENTING ANGELA JACKSONS FALSE TESTIMONY .........................29
A.
Angela Jacksons Testimony That She Had Not Received A

Reward In Connection With Her Federal Testimony Was Actually False .........30
B.
Angela Jacksons False Testimony Was Material

Because There Is A Reasonable Likelihood That
It Could Have Affected The Judgment Of The Jury ...........................................32
C.
The Prosecution Had Constructive

Knowledge That Angela Jackson Testified Falsely ............................................34
D.
Thomas Can Excuse Any Procedural Default

Or Non-Exhaustion Of His False Testimony Claim ...........................................34
E.
Thomas Lacks An Avenue To Assert

His False Testimony Claim In State Court .........................................................35
CLAIM NO. 3: THOMAS IS ACTUALLY

INNOCENT OF DAYS FELONY MURDER ...........................................................36
i
A.
Thomas Makes A Truly Persuasive Demonstration Of Actual Innocence .........36

1.
2.
3.
IV.
PageID 3
Thomas Is Factually Innocent: Bobby Jackson

Was Bonds True Accomplice In The Walgreens Robbery.......................36
a.
The Evidence Shows That

Bobby Jackson Drove The Getaway Vehicle ...................................37
b.
The Evidence Shows That Bond Shot Day .......................................39
c.
Newly Discovered Evidence Has Completely

Shattered The States Case Against Thomas ....................................40
i.
Angela Jacksons Testimony Is A Lie .....................................41
ii.
Bond Recanted His Confession And Federal Testimony ........44
Thomas Is Factually Innocent:

The Bullet Did Not Cause Days Death .....................................................46
a.
Days Spinal Cord Injury Was Caused By

The Hospitals Grossly Negligent Administration
Of Anti-Hypertensive Medications, Not The Gunshot .....................47
b.
Days Condition Improves After Discharge And

He Lives At Home For More Than Two Years ................................50
c.
Day Dies Of A Bladder Infection,

Diabetic Ketoacidosis, and Coumadin Toxicity ...............................51
Andrew Thomas Is Legally Innocent .........................................................53

a.
Thomas Is Legally Innocent

Because The Meds Gross Negligence Was A
Superseding Cause Of Days Death Under Tennessee Law .............54
b.
Thomass Conviction For Felony Murder

On These Facts Does Not Satisfy Independent
Constitutional Requirements Necessary For
Lawful Execution Under The Eighth Amendment ...........................56
B.
Thomas Can Excuse Any Procedural Default Or

Non-Exhaustion Of His Actual Innocence Claims .............................................58
C.
Andrew Thomas Lacks An Avenue

To Assert His Innocence In State Court .............................................................59
CLAIM NO. 4: ANDREW THOMAS WAS

DENIED EFFECTIVE ASSISTANCE OF COUNSEL
THROUGHOUT THE STATE COURT PROCEEDINGS ........................................60
A.
Trial Counsel Was Ineffective For Failing

To Present A Medical Causation Defense ..........................................................61
ii
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1.
Trial Counsels Failure To Consult With

An Expert Qualified To Opine On The Cause
Of Days Death Constituted Deficient Performance
Under Clearly Established Supreme Court Precedent ...............................62
2.
The Proper Application Of Clearly Established

Supreme Court Precedent Shows That Thomas Was
Undeniably Prejudiced By Scholls Failure To Consult With
An Expert Qualified To Opine On The Cause Of Days Death ................67
B.
Trial Counsel Was Ineffective Due To Glatsteins De Facto

Withdrawal And Scholls De Facto Solo Representation ..................................69
C.
Trial Counsel Was Ineffective For His Failures

With Respect To The Admission And Use
Of Bonds Confession As Evidence Against Thomas ........................................71
1.
The Court Of Criminal Appeals Properly Found

That The Improper Redaction Of Bonds Confession
Violated Thomass Constitutional Right Of Confrontation .......................73
2.
The Confrontation Clause Violations

Were The Result Of Scholls Deficient Performance
3.
a.
The Court Of Criminal Appeals Correctly

Found That Scholl Was Deficient For His
Failure To Request A Limiting Instruction .......................................74
b.
The Court Of Criminal Appeals Decision That Scholl

Was Not Deficient For Failing To Object To The States
Unconstitutional Introduction And Use Of The Bond
Confession Was Contrary To, And An Unreasonable
Application Of, Clearly Established Federal Law ............................75

Supreme Court Precedent Shows That
Thomas Was Undeniably Prejudiced By Scholls
Deficient Performance With Respect To Bonds Confession....................78
D.
Trial Counsel Was Ineffective For Failing To

Object To The Prosecutors Repeated Argument
That Thomas And Bond Were Greed And Evil ...........................................82
E.
Appellate Counsel Was Ineffective For Failing To

Raise The Confrontation Clause Violation On Appeal.......................................84
1.
The Court of Criminal Appeals Correctly Found That

Brookss Failure To Present Any Confrontation Clause
Issues On Thomass Direct Appeal Was Deficient Performance ..............84
iii
2.
F.
G.
H.
PageID 5

Issues On Thomass Direct Appeal Was Highly Prejudicial .....................85
Trial Counsel Was Ineffective For Failing To Object

To The Trial Courts Erroneous Jury Instruction On Causation.........................85
1.
The Trial Courts Instruction On Causation

Impermissibly Relieved The State Of The Burden Of Proof .....................85
2.
Scholls Failure To Object To The Trial Courts

Unconstitutional Instruction on Causation Was
Deficient Performance That Prejudiced Thomas .......................................87
Trial Counsel Was Ineffective For Failing To Present

Evidence That Another Individual, Bobby Jackson,
Committed The Walgreens Robbery With Anthony Bond .................................88
1.
Scholls Failure To Present Evidence That

Bobby Jackson Committed The Walgreens Robbery
With Anthony Bond Constituted Deficient Performance
2.

Undeniably Prejudiced By Scholls Failure To Present
Evidence That Bobby Jackson Committed The Walgreens Robbery ........91
The Cumulative Effect Of Counsels

Errors Constitutes Ineffective Assistance Of Counsel ........................................92
V.
CLAIM NO. 5: THE JURY SHOULD HAVE

BEEN INSTRUCTED ON LESSER INCLUDED
OFFENSES OF FELONY MURDER .........................................................................93
VI.
CLAIM NO. 6: THE COURT ERRED IN

ALLOWING THE PROSECUTOR TO REPEATEDLY
ARGUE THAT THOMAS AND BOND WERE GREED AND EVIL ...............97
VII.
CLAIM NO. 7: THE TRIAL COURTS ERRONEOUS JURY

INSTRUCTION RELIEVED THE STATE OF PROVING
PROXIMATE CAUSATION AND WOULD RESULT IN
AN ARBITRARY AND CAPRICIOUS EXECUTION .............................................98
VIII.
CLAIM NO. 8: THE COURT IMPROPERLY STRUCK FOR

CAUSE A POTENTIAL JUROR WHO EXPRESSED CONCERNS
ABOUT THE DEATH PENALTY, BUT WHO WOULD NOT HAVE
BEEN SUBSTANTIALLY IMPAIRED IN PERFORMING HIS DUTIES ..............99
IX.
CLAIM NO. 9: THE STATE SHOULD NOT HAVE TRIED

THOMAS CAPITALLY FOR A CRIME FOR WHICH HE HAD
ALREADY BEEN TRIED AND CONVICTED IN FEDERAL COURT ................101
iv
X.
XI.
PageID 6
A.
Re-Prosecution Of The Robbery Violated

Constitutional Protections Against Double Jeopardy .......................................102
B.
The Re-Prosecution Of Thomas Violated The ICCPR .....................................103
CLAIM NO. 10: THE DEATH PENALTY VIOLATES

TREATIES RATIFIED BY THE UNITED STATES AND IS
INCONSISTENT WITH INTERNATIONAL LAWS AND NORMS .....................103
A.
Tennessees Use Of The Death Penalty Violates International Treaties ..........104
B.
Tennessees Use Of The Death Penalty

Violates International Laws And Norms ..........................................................106
CLAIM NO. 11: THE DEATH PENALTY SYSTEM IS SO

BROKEN AND FRAUGHT WITH ERRORS THAT THE IMPOSITION
OF DEATH IN THIS CASE VIOLATES THE CONSTITUTION ..........................108
A.
Tennessees Death Scheme Fails To

Meaningfully Narrow The Class Of Eligible Defendants.................................108
B.
Death Sentences Are Imposed Arbitrarily and Capriciously In Tennessee ......109
C.
Tennessees Appellate Review Process

In Death Penalty Cases Does Not Ensure That
Capital Punishment Is Not Imposed Arbitrarily And Capriciously ..................112
D.
The Administration Of Lethal Injection

Constitutes Cruel And Unusual Punishment.....................................................113
PRAYER FOR RELIEF ..............................................................................................................114

VERIFICATION..........................................................................................................................115
PageID 7
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Adams v. Texas,
448 U.S. 38 (1980) .................................................................................................................100
Akrawi v. Booker,
572 F.2d 252 (6th Cir. 2009) ...................................................................................................28
Apanovitch v. Houk,
466 F.3d 460 (6th Cir. 2006) ...................................................................................................28
Arave v. Creech,
507 U.S. 463 (1993) ...............................................................................................................108
Atkins v. Virginia,
536 U.S. 304 (2002) ...............................................................................................................107
Banks v. Dretke,
540 U.S. 668 (2004) ......................................................................................................... passim
Bartkus v. Illinois,
359 U.S. 121 (1959) ...............................................................................................................102
Beck v Alabama,
447 U.S. 625 (1980) .................................................................................................................94
Bell v. Bell,
512 F.3d 223 (6th Cir. 2008) .............................................................................................21, 27
Berger v. United States,
295 U.S. 78 (1935) .............................................................................................................83, 97
Blythe v. Hinckley,
173 U.S. 501 (1899) ...............................................................................................................105
Brady v. Maryland,
373 U.S. 83 (1963) ........................................................................................................... passim
Brecht v. Abrahamson,
507 U.S. 619 (1993) ...............................................................................................79, 95, 96, 98
Brinkerhoff-Faris Trust & Sav. Co. v. Hill
281 U.S. 673 (1930) .................................................................................................................55
vi
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PageID 8
Bruton v. United States,

391 U.S. 123 (1968) ......................................................................................................... passim
Chapman v. California,
386 U.S. 18 (1967) ......................................................................................................10, 11, 32
Clemons v. Mississippi,
494 U.S. 738 (1990) ...............................................................................................................112
Coker v. Georgia,
433 U.S. 584 (1977) .................................................................................................................57
Coleman v. Thompson,
501 U.S. 722 (1991) .................................................................................................................27
Cone v. Bell,
556 U.S. 449 (2009) .................................................................................................................22
Cullen v. Pinholster,
131 S. Ct. 1388 (2011) .............................................................................................................79
Dempsey v. Bobby,
412 F. Supp. 2d 720 (N.D. Ohio 2005) ....................................................................................89
Dobbs v. Zant,
506 U.S. 357 ............................................................................................................................92
Duncan v. Ornoski,
528 F.3d 1222 (9th Cir. 2008) .................................................................................................66
Enmund v. Florida,
458 U.S. 782 (1982) .........................................................................................................57, 107
Evitts v. Lucey,
469 U.S. 387 (1985) .................................................................................................................84
Francis v. Franklin,
471 U.S. 307 (1985) ...........................................................................................................87, 98
Furman v. Georgia,
408 U.S. 238 (1972) ...................................................................................................53, 56, 109
Giglio v. United States,
405 U.S. 150 (1972) ......................................................................................................... passim
Gray v. Maryland,
523 U.S. 185 (1998) ...........................................................................................................73, 76
vii
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Gregg v. Georgia,
428 U.S. 153 (1976) .................................................................................................99, 109, 113
Guzman v. Dept of Corr.,
663 F.3d 1336 (11th Cir. 2011) ...............................................................................................33
Hall v. Vasbinder,
563 F.3d 222 (6th Cir. 2009) .............................................................................................79, 83
Harrington v. Richter,
131 S. Ct. 770 (2011) .........................................................................................................65, 79
Herrera v. Collins,
506 U.S. 390 (1993) ...............................................................................................36, 53, 58, 59
Hopper v. Evans,
456 U.S. 605 (1982) .................................................................................................................94
House v. Bell,
547 U.S. 518 (2006) .............................................................................................36, 58, 59, 112
In re Kemmler,
136 U.S. 436 (1890) ...............................................................................................................113
In re Winship,
397 U.S. 358 (1970) .................................................................................................................85
Jamison v. Collins,
291 F.3d 380 (6th Cir. 2002) .......................................................................................18, 28, 35
Kennedy v. Louisiana,
554 U.S. 407 (2008) .................................................................................................................57
Kimmelman v. Morrison,
477 U.S. 365 (1986) ...........................................................................................................76, 78
Kyles v. Whitley,
514 U.S. 419 (1995) ...........................................................................................................21, 22
Lefever v. Money,
No. 99-3040, 2000 WL 977305 (6th Cir. July 6, 2000)...........................................................59
Mapes v. Tate,
388 F.3d 187 (6th Cir. 2004) .............................................................................................84, 89
Martin v. Rose,
744 F.2d 1245 (6th Cir. 1984) .................................................................................................78
viii
NY:1385052.4
PageID 10
McClesky v. Kemp,
481 U.S. 279 (1987) ...............................................................................................................111
McKoy v. North Carolina,
494 U.S. 433 (1990) ...............................................................................................................111
Miller v. Francis,
269 F.3d 609 (6th Cir. 2001) ...................................................................................................78
Mooney v. Holohan,
294 U.S. 103 (1935) .................................................................................................................29
Mullaney v. Wilbur,
421 U.S. 684 (1975) .................................................................................................................57
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958) .................................................................................................................56
Napue v. Illinois,
360 U.S. 264 (1959) .....................................................................................................17, 29, 32
Parker v. Dugger,
498 U.S. 308 (1991) ...............................................................................................................112
Porter v. McCollum,
130 S. Ct. 447...........................................................................................................................80
Pyle v. Kansas,
317 U.S. 213 (1942) .................................................................................................................29
Reece v. Georgia,
350 U.S. 85 (1955) ...................................................................................................................54
Richardson v. Marsh,
481 U.S. 200 (1987) .....................................................................................................73, 74, 76
Richey v. Bradshaw,
498 F.3d 344 (6th Cir. 2007) ...................................................................................................66
Ricketts v. Adamson,
483 U.S. 1 (1987) .....................................................................................................................46
Robinson v. Mills,
592 F.3d 730 (6th Cir. 2010) ...................................................................................................22
Rompilla v. Beard,
545 U.S. 374 (2005) .................................................................................................................76
ix
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Roper v. Simmons,
543 U.S. 551 (2005) ...............................................................................................................107
Rosencrantz v. Lafler,
568 F.3d 577 (6th Cir. 2009) .................................................................................30, 32, 33, 34
Ruelas v. Wolfenbarger,
580 F.3d 403 (6th Cir. 2009) .......................................................................................79, 95, 98
Schlup v. Delo,
513 U.S. 298 (1995) ...........................................................................................................36, 59
Sears v. Upton,
130 S. Ct. 3259 (2010) .............................................................................................................79
Shih Wei Su v. Filion,
335 F.3d 119 (2d Cir. 2003)...............................................................................................33, 34
Strickland v. Washington,
466 U.S. 668 (1984) ......................................................................................................... passim
Strickler v. Greene,
527 U.S. 263 (1999) ...............................................................................................17, 21, 28, 34
The Paquete Habana,
175 U.S. 677, 700 (1900) .......................................................................................................106
Thomas v. Tennessee,
2012 WL 685777 (Mar. 5, 2012). ............................................................................................15
Thomas v. Tennessee,
546 U.S. 855 (2005). ...............................................................................................................11
Towns v. Smith,
395 F.3d 251 (6th Cir. 2005) ...................................................................................................90
Tremble v. Burt,
2010 WL 3488636 (E.D. Mich. Sept. 1, 2011) ........................................................................34
Trop v. Dulles
356 U.S. 86 (1958) .................................................................................................................107
United States v. Agurs,
427 U.S. 97 (1976) .......................................................................................................18, 32, 35
United States v. Bagley,
473 U.S. 667 (1985) ...........................................................................................................17, 32
x
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United States v. Cronic,

466 U.S. 648 (1984) .................................................................................................................92
United States v. Hawkins
969 F.2d 169 (6th Cir. 1992) ...................................................................................................32
United States v. Locklear,
24 F.3d 641 (4th Cir.), cert. denied, 513 U.S. 909 (1994) .......................................................77
United States v. Payne,
2 F.3d 706 (6th Cir. 1993) .......................................................................................................83
United States v. Schwartz,
541 F.3d 1331 (11th Cir. 2008) ...............................................................................................81
Wainwright v. Witt,
469 U.S. 412 (1985) ...............................................................................................................100
Walker v. Morrow,
2012 WL 313689 (6th Cir. Feb. 1, 2012) ....................................................................87, 88, 99
Ward v. Bd. of County Commrs of Love County, Okla.,
253 U.S. 17 (1920) ...................................................................................................................55
Wiggins v. Smith,
539 U.S. 510 (2003) ......................................................................................................... passim
Williams v. Martin,
618 F.2d 1021 (4th Cir. 1980) .................................................................................................65
Williams v. Taylor,
529 U.S. 362 (2000) ...........................................................................................................79, 92
Wogenstahl v. Mitchell,
668 F.3d 307 (6th Cir. 2012) ...................................................................................................30
Wong v. Belmontes,
130 S. Ct. 383 (2009) ...............................................................................................................79
Zant v. Stephens,
462 U.S. 862 (1983) ...............................................................................................................113
xi
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STATE CASES
Colorado v. Saavedra-Rodriguez,
971 P.2d 223 (Colo. 1999) .......................................................................................................55
Gray v. State,
250 S.W.2d 86 (Tenn. 1952)....................................................................................................55
State v. Adkins II,
725 S.W.2d 660 (Tenn 1987).................................................................................................110
State v. Brimmer,
876 S.W.2d 75 (Tenn. 1994)..................................................................................................109
State v. Caldwell,
671 S.W.2d 459 (Tenn. 1984)................................................................................................109
State v. Farner,
66 S.W.3d 188 (Tenn. 2001)..............................................................................................55, 86
State v. Groseclose,
615 S.W.2d 142 (Tenn. 1981)................................................................................................111
State v. Harris,
989 S.W.2d 307 (Tenn. 1999)................................................................................................108
State v. Hutchinson,
898 S.W.2d 161 (Tenn. 1994)................................................................................................110
State v. Johnson,
632 S.W.2d 542 (Tenn. 1982)................................................................................................110
State v. Nichols,
877 S.W.2d 722 (Tenn. 1994)................................................................................................109
State v. Randolph,
676 S.W.2d 943 (Tenn. 1984)..................................................................................................56
State v. Taylor,
771 S.W.2d 387 (Tenn. 1989)................................................................................................110
State v. Thomas,
158 S.W.3d 361 (Tenn. 2005). ........................................................................................ passim
State v. Thomas,
2004 WL 370297 (Tenn. Crim. App. Feb. 27, 2004). ..........................................10, 82, 94, 98
xii
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Thomas v. State,
2011 WL 675936 (Tenn. Crim. App. Feb. 23, 2011). .............................................................13
FEDERAL STATUTES
18 U.S.C. 924(c) .......................................................................................................................103
18 U.S.C. 1951 ..........................................................................................................................103
28 U.S.C. 1821(b) .......................................................................................................................22
28 U.S.C. 2241(d) .........................................................................................................................7
28 U.S.C. 2254 ......................................................................................................................1, 7, 8
28 U.S.C. 2255 ............................................................................................................5, 16, 20, 42
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V............................................................................................................. passim
U.S. Const. amend. VI ........................................................................................................... passim
U.S. Const. amend. VIII......................................................................................................... passim
U.S. Const. amend. XIV ........................................................................................................ passim
U.S. Const. art. VI ........................................................................................................................105
STATE STATUTES AND RULES

Tenn. Code Ann. 39-13-202 .........................................................................................................8
Tenn. Code Ann. 39-13-204 ............................................................................................... passim
Tenn. Code Ann. 39-13-206 ...................................................................................9, 10, 112, 113
Tenn. Sup. Ct. R. 12 ...............................................................................................................10, 113
Tenn. Sup. Ct. R. 13 .......................................................................................................70, 109, 110
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OTHER AUTHORITIES
7 Tenn. Prac. Pattern Jury Instr. T.P. I.-Crim. 42.14 (2011) .........................................................86
ABA Guidelines For The Appointment And Performance Of Counsel In Death Penalty
Cases, reprinted in 31 Hofstra L. Rev. 913 (rev. ed. 2003).....................................................70
ABA Guidelines For The Appointment And Performance Of Counsel In Death Penalty
Cases (1989) ............................................................................................................................70
American Declaration of the Rights and Duties of Man,
OEA/Ser.L/V.II 23, doc. 21, rev. 6 (1948) ............................................................................104
Amnesty Intl, Death Sentences and Executions 2011 (2012) ............................................105, 106
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 ......................................................................104
Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, Europe.T.S. No. 5; 213 U.N.T.S. 221 .............................................................106
Daniel A. Braun, Praying to False Sovereigns: The Rule Permitting Successive
Prosecutions in the Age of Cooperative Federalism, 20 Am. J. Crim. Law L. 1
(1992). ....................................................................................................................................102
Human Rights Committee, Report of the Human Rights Committee, Volume I: Eightyfifth Session (17 October-3 November 2005), Eighty-sixth Session (13-31 March
2006), Eighty-seventh Session (10-28 July 2006), 1 December 2006, A/61/40 (Vol. I). ......105
International Convention on the Elimination of All Forms of Racial Discrimination,
Dec. 21, 1965, 660 U.N.T.S. 195 ...................................................................................104, 105
International Covenant on Civil and Policital Rights,
Dec. 16, 1966, 999 U.N.T.S. 171 ...................................................................103, 104, 105, 106
Kevin J. Hellmann, The Fallacy of Dueling Sovereignties: Why the Supreme Court
Refuses to Eliminate the Dual Sovereignty Doctrine, 2 J.L. & Poly 149 (1994) .................102
Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress
Tags to Overfederalization, 54 Am. U. L. Rev. 747, 771 nn. 117, 119 (2005) .....................102
Thomas White, Limitations on the Dual Sovereignty Doctrine by Federal and State
Governments, 38 N. Ky. L. Rev. 173 (2011) .........................................................................102
Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. Doc. A/810 at 71
(1948) .....................................................................................................................................104
xiv
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PETITION FOR WRIT OF HABEAS CORPUS

Petitioner ANDREW THOMAS, currently being held in custody by Warden Roland
Colson on death row at Riverbend Maximum Security Institution in Nashville, Tennessee,
respectfully petitions this Court under 28 U.S.C. 2254 for relief from his unconstitutionally
obtained conviction and sentence.
INTRODUCTION
1)
On April 21, 1997, an assailant robbed and shot James Day, a Loomis Fargo
armored car guard, as he exited a Walgreens store in Memphis, Tennessee, carrying the stores
deposits (the Walgreens robbery). Although Day was shot in the back of the head, he survived
the attack.
2)
After the robbery, Day was transported to the City of Memphis Hospital (the
Med). At the time of his admission, Day was neurologically stable. However, over the course
of the next 24 hours, in addition to surgically removing the bullet, the doctors administered an
unnecessary and aggressive regimen of six different and contra-indicated anti-hypertensive
medications, even though Days blood pressure fell within the normal range for a person with a
brain injury. At some point during that window, it was discovered that Day had developed the
following neurological injuries:
paraparesis (weakness of the lower extremities) and a
neurogenic bladder (loss of control over bowel and bladder functions). Yet, when Day was
released from the hospital, his physician specifically noted in his discharge papers that this
neurologic deficit was unexplained by any CT scan findings or injury inflicted by the gunshot
wound. State Trial Ex. 73 (Med Discharge Summary (5/28/97)), attached hereto as Ex. 1.1
For the Courts convenience, certain key documents that support this petition are attached
hereto. Citations to these documents are followed by references to the relevant exhibit letter
where these documents can be found, denoted as follows: Citation, attached hereto as Ex. #.
3)
PageID 17
Several eyewitnesses to the Walgreens robbery offered physical descriptions of
the perpetrators. Investigators were able to recover one fingerprint from a passenger side door of
the getaway vehicle, right below the handle, as well as a grainy black-and-white surveillance
video of the crime taken from inside the Walgreens. The gun was not recovered nor was there
any other physical evidence.
4)
A few months later, Thomas and Anthony Bond were arrested on unrelated
charges. Investigators compared their fingerprints to the fingerprint lifted from the getaway
vehicle and determined that the print matched Bonds print. Bond subsequently confessed to
being the driver of the getaway vehicle and gave a written statement claiming that Thomas was
his accomplice and Days shooter.
See State Trial Ex. 57 (Bonds unredacted confession
(11/5/97)). Thomas denied, and continues to deny, any involvement in the crime.2
5)
Two-and-a-half years after the Walgreens robbery took place, Day was admitted
to the hospital with a large tear in the wall of his bladder, which had resulted in a pervasive
infection. Additionally, Day was suffering from uncontrolled diabetes and was Coumadin-toxic.
The tear was repaired, but Days condition continued to decline. On October 2, 1999, Days
wife requested that he be removed from life support, and he died shortly thereafter.
6)
On March 21, 2000, a Tennessee grand jury indicted Thomas and Bond for felony
murder in connection with Days death. Thomas pleaded not guilty to this charge. The State
More than a year after the Walgreens robbery, while Day was still alive, on June 15, 1998,
Thomas and Bond were indicted by a federal grand jury on armed robbery charges in connection
with the Walgreens robbery (plus a felon-with-a-gun charge for Thomas). Bond pleaded guilty.
When Thomas was tried in federal court in November 1998 (the federal trial), Bond testified
against Thomas. Bond subsequently received a 5K1.1 recommendation for a lighter sentence
that resulted in a 12-year federal sentence for Bond. Thomas, on the other hand, was convicted
on one count of robbery, one count of using a firearm in a crime of violence, and one count of
being a felon in possession of a firearm, and was sentenced to life in prison without parole, plus
five years.
2
PageID 18
announced its intention to seek the death penalty soon after and opted to try the defendants
together. The trial court appointed local attorneys Michael E. Scholl and Jeffery S. Glatstein to
represent Thomas at trial.
7)
At trial, the State was required to prove that the gunshot wound that Day received
in April 1997 caused his death two-and-a-half years later. Despite causation being a critical
issue in the caseone that certainly required consultation with an expert to mount an effective
defensetrial counsel did not consult with any medical experts about the cause of Days death.
One of Bonds attorneys, Howard Manis, spoke with Dr. Steven Hayne, a pathologist, who
explained that there were various explanations for the conditions that ultimately caused Days
death (the gunshot being but one), and that the appropriate expert to consult with on the matter
was a neurosurgeon. See PC Hrg Ex. 16 (Letter from Dr. Hayne to Manis (8/29/01)), attached
hereto as Ex. 2. Despite Dr. Haynes instruction that they do so, neither Scholl nor Manis
consulted with a neurosurgeon at any point before or during trial.
8)
The sum of the States evidence against Thomas at trial consisted of: (a) the
testimony of his estranged ex-wife, Angela Jackson (who purported to testify about statements
that Thomas allegedly made to her about the Walgreens robbery, as well as about Thomass
activities before and after the robbery); (b) Angela Jacksons improbable and incredible
identification of Thomas as the individual depicted in the grainy surveillance video that captured
the crime; (c) the confession of Thomass co-defendant, Anthony Bond, which improperly and
unconstitutionally implicated Thomas and was introduced at trial in violation of Bruton v. United
States, 391 U.S. 123 (1968), without objection from Scholl; and (d) an extremely suspect
identification made by Richard Fisher, an eyewitness to the Walgreens robbery who had
PageID 19
previously identified two other individuals as the shooter before pointing the finger at Thomas in
court at the prompting of Bonds counsel.
9)
Ultimately, Thomas was convicted of one count of felony murder in connection
with the Walgreens robbery and was sentenced to death.

10)
After being convicted and sentenced to death, Thomas received a handwritten
letter from Bond admitting that he and Angela Jackson had falsely implicated Thomas as Bonds
accomplice in the Walgreens robbery (the Bond letter). See PC Hrg Ex. 3 (Bond letter
(1/10/02)), attached hereto as Ex. 3. Bond admitted that he committed the Walgreens robbery
with another individual, Bobby Jackson, and that he had falsely accused Thomas because he had
sexually pursued Bonds girlfriend. Bond also explained that Angela Jackson had lied at trial
because she was angry at Thomas for his infidelity during their marriage and because she was
protecting Bobby Jackson, with whom she was romantically involved at that time:
Me and your bitch Angie played you playa . . . When you was
fucking all them hoes on Angie she was fucking off too and then
she lied on you about the Walgreens case. The hoe was fucking
the Bobby Jackson the whole time . . . Anyway Angie knew that
me and Bobby hit the Fargo truck but the bitch lied about me
comin back to her house . . . The reason why I didnt tell on Bobby
was because he didnt try to fuck my hoe like you did. Since you
tried to cross me, I crossed you. It was either you or me, so it had
to be you. Angie didnt snitch on Bobby even though she new the
business. . . . I hate that shit went down like that but its every man
for himself.
Id.
11)
Thomass imprisonment and death sentence for his alleged role in the Walgreens
robbery are unconstitutional because they are the result of a fundamentally unfair trial.
Furthermore, Thomass imprisonment and death sentence are unconstitutional because he is
actually innocent of the crime for which he has been convicted.
12)
PageID 20
Thomas was convicted and sentenced to death without confessing to his alleged
role in the Walgreens robbery and without any physical evidence implicating him. In the years
since his conviction, piece after piece of evidence has emerged that casts extreme doubt on the
States case against him.
13)
Critically, it has recently come to light that the prosecution unconstitutionally
failed to provide Thomas with highly-damaging Brady evidence that U.S. Marshal Scott Sanders,
the lead investigator of the Walgreens robbery, and the FBI had paid the key witness against him,
Angela Jackson, in connection with her testimony at Thomass federal trial (which also arose out
of the Walgreens robbery).
14)
The fact of this payment was concealed from Thomas until October 2011, when it
was revealed at an evidentiary hearing in this Court in connection with Thomass 28 U.S.C.
2255 petition for relief from his federal sentence. Until the revelation of this payment several
months ago, the prosecution and the State continuously and disingenuously painted Angela
Jackson as a scared spouse whose only motivation to testify against Thomas was to make right
by putting him behind bars.
15)
Not only does the unconstitutional concealment of this payment, which is clearly
Brady evidence, alone entitle Thomas to a new trial, it also irreparably damages the States case
against him, which turned on Angela Jacksons credibility. No jury with knowledge of the
payment (and her lies about receiving the payment) would assign the same degree of credibility
to Angela Jacksons testimony as it could without that knowledge.
16)
Revelation of the FBIs payment to Angela Jackson also corroborates the
substance of the Bond letter, further damaging Angela Jacksons credibility and the States case
against Thomas.
17)
PageID 21
In addition to the prosecutions failure to disclose highly damaging Brady
evidence, Thomass trial was constitutionally inadequate because Thomass trial counsel
rendered ineffective assistance at trial. Among counsels many errors at trial were the following:
18)
Despite the obvious importance of the question of whether the gunshot

wound that Day sustained to the back of his head during the Walgreens
robbery ultimately caused his death from a bladder infection two-and-ahalf years later, trial counsel failed to adequately investigate and present a
medical causation defense;
Trial counsel rendered ineffective assistance of counsel because Glatstein

effectively withdrew from Thomass case before it even went to trial to
attend graduate school, leaving Scholl to defend Thomas alone;
Trial counsel failed to object to the States unconstitutional introduction

and use of Bonds confession as evidence against Thomas. They also
failed to request a limiting instruction with respect to the scope of the
States permissible use of the confession;3
Trial counsel failed to object to a legally incorrect jury instruction that

relieved the State of its obligation to prove causation beyond a reasonable
doubt;
Trial counsel failed to object to the prosecutions repeated use of

inflammatory epithets to describe Thomas and Bond during her opening
and closing arguments; and
Trial counsel failed to present highly probative, relevant, and admissible

evidence that Bobby Jackson, not Thomas, committed the Walgreens
robbery with Bond.
While the Court of Criminal Appeals of Tennessee found that Scholl was
deficient on a number of these grounds, it found that none of his errors were prejudicial,
generally citing the overwhelming evidence of Thomass guilt provided by Angela Jacksons
testimony. Even if the Court of Criminal Appeals correctly applied the Strickland prejudice
Thomas also received ineffective assistance from his appellate counselattorney Robert
Brooks, and again, Michael Scholldue to their failure to raise on appeal any of the many
Confrontation Clause violations resulting from the States unconstitutional introduction and use
of Bonds confession as evidence against Thomas.
6
PageID 22
standard in finding no prejudice (which it did not, failing to consider the totality of the
evidence as Strickland requires), see Strickland v. Washington, 466 U.S. 668, 669 (1984), since
it has now come to light that Angela Jackson was paid by the FBI in connection with her
testimonyinformation that corroborates the statements made in the Bond letterthe state
courts conclusions on this point are incomplete, unreliable, and must be revisited.
19)
Finally, many other trial court errorsall of which are discussed in detail infra
individually and cumulatively denied Thomas the fair trial to which he was constitutionally
entitled.
20)
As set forth in detail in this petition, the adjudication of these federal claims in the
state courts resulted in decisions that were contrary to, and involved an unreasonable application
of, clearly established federal law as determined by the United States Supreme Court, and
resulted in decisions that were based on an unreasonable determination of the facts in light of the
evidence presented in the state courts. As such, relief is warranted.
PROCEDURAL HISTORY
21)
Thomas is being held in custody by Warden Roland Colson on death row at
Riverbend Maximum Security Institution in Nashville, Tennessee.

22)
Thomas invokes this Courts jurisdiction pursuant to 28 U.S.C. 2254.4 Thomas
seeks this Courts protection and intercession because the Tennessee state courts have violated,
and unreasonably and arbitrarily refused to correct violations of, his Fifth, Sixth, Eighth, and
Fourteenth Amendment rights, resulting in Thomass unconstitutional conviction and sentence of
Venue is proper in the Western District of Tennessee because Thomas was convicted and
sentenced to death in Shelby County, which is located in this district. See 28 U.S.C. 2241(d)
(2006).
7
PageID 23
death.5 Thomas requests that this Court afford him all the protections promised by the United
States Constitution, federal habeas corpus statutes, the Rules Governing Section 2254 Cases in
the United States District Courts, and all other pertinent statutes, court rules, and case law.
Finally, Thomas seeks an order granting this petition for writ of habeas corpus.
23)
Thomas was convicted of one count of killing during the perpetration of a robbery
in violation of Tenn. Code Ann. 39-13-202 and was sentenced to death in the Criminal Court
of Tennessee, 30th Judicial District at Memphis, Division V in Shelby County, Tennessee on
September 26, 2001, No. 00-03095. Thomas pleaded not guilty to this charge.
24)
Thomas was tried and sentenced to death by a jury.
25)
Thomas did not testify at any pre-trial hearing, trial, or post-trial hearing.
26)
Thomas appealed from the judgment of conviction to the Court of Criminal
Appeals of Tennessee at Jackson, No. W2001-02701-CCA-R3-DD.
Thomas raised the
following grounds in that appeal: (a) the evidence was insufficient, as a matter of law, to warrant
the verdict reached by the jury; (b) the trial court erred by denying pre-trial motions (i) to charge
the jury with the presumption of sentencing, (ii) for procedures governing jury composition, (iii)
to declare bill of victims rights unconstitutional, (iv) to dismiss the indictment based on the
common law year-and-a-day rule, (v) to use jury questionnaires with specific questions about the
death penalty, (vi) to dismiss for unconstitutional selective prosecution in the Major Violators
Unit, and (vii) to dismiss for violation of the double jeopardy clause; (c) the trial court erred by
not continuing the case for a longer period of time after the events of September 11, 2001; (d) the
trial court erred in excusing a prospective juror for cause when that juror did not exclude the
5
All claims for relief and references to violations of Thomass federal constitutional rights are
expressly intended toand by this reference hereby doallege violations of Thomass federal
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and their individual clauses and sections.
8
PageID 24
possibility of giving the death penalty; (e) the trial court erred by admitting into evidence
photographs of the victim (i) while alive, and (ii) at the morgue; (f) the trial court erred by
admitting evidence of and from Thomass federal trial; (g) the trial court erred in restricting
Thomass impeachment of Angela Jackson; (h) the trial court erred in failing to voir dire a
prospective witness regarding her relationship with defense witness Russell Carpenter; (i) the
trial court erred in sustaining an objection to the testimony of John Hibbler about the trouble
Thomas was having getting the car title transferred to his name; (j) the trial court erred in
allowing Officer Sims to testify regarding the fingerprint match despite a stipulation that the
fingerprint on the getaway car matched Bond; (k) the trial court committed several errors in the
admission of expert testimony; (l) the trial court erred by not charging the lesser included
offenses of felony murder after a request by defense counsel; (m) the trial court erred by failing
to charge the jury with an accomplice instruction with respect to Angela Jackson after a request
by defense counsel; (n) it was plain error for the State to refer to Thomas and his co-defendant as
Greed and Evil in its opening statement and closing argument; (o) the trial court erred in
permitting the State to argue that the jury had a job to find Thomas and Bond guilty; (p) the trial
court erred by not instructing on specific mitigating factors raised by the defense; (q) the trial
court erred by permitting the State to cross-examine Thomass mother regarding disciplinary
actions taken against him while in prison; (r) the trial court erred by not granting Thomass
motion for directed verdict and judgment of acquittal at the close of the States proof; (s) the
indictment failed to charge a capital offense; (t) the death penalty violates treaties ratified by the
United States and international law; (u) the Tennessee death penalty sentencing statute and the
imposition of the sentence of death are unconstitutional; and (v) the criteria of Tenn. Code Ann.
39-13-206(c)(1) have not been met in this case.
27)
PageID 25
The Court of Criminal Appeals affirmed Thomass conviction and sentence on
February 27, 2004. The opinion of the court is not published in the South Western Reporter, but
can be found at State v. Thomas, 2004 WL 370297 (Tenn. Crim. App. Feb. 27, 2004).
28)
Thomas then sought further review by the Supreme Court of Tennessee at
Jackson, No. W2001-02701-SC-DDT-DD. Pursuant to Tenn. Code Ann. 39-13-206(a)(1) and

Tennessee Supreme Court Rule 12.2, all errors assigned in Thomass case were automatically
reviewed by the Tennessee Supreme Court. In addition, Thomas briefed the following issues in
that appeal: (a) the trial court erred in excusing a prospective juror for cause when that juror did
not exclude the possibility of giving the death penalty; and (b) the trial court erred by not
charging the lesser included offenses of felony murder after a request by defense counsel. In its
response, the State briefed a third issue: the criteria of Tenn. Code Ann. 39-13-206(c)(1) had
been satisfied in this case.
29)
The Tennessee Supreme Court affirmed Thomass conviction and sentence on
March 4, 2005. In so doing, the court ruled not only on the three issues that had been briefed,
but also on the remaining issues raised by Thomas to, and addressed by, the Court of Criminal
Appeals. The opinion of the court can be found at State v. Thomas, 158 S.W.3d 361 (Tenn.
2005).
30)
Thomas then filed a petition for writ of certiorari in the United States Supreme
Court, No. 04-10507. Thomas raised the following grounds in that petition: (1) whether a
capital defendant has a right under the Eighth and Fourteenth Amendments to have the jury
instructed that it can consider residual-doubt about the defendants guilt when deciding whether
to impose the death penalty; (2) whether the failure of the Tennessee Supreme Court to correctly
apply the constitutional harmless error analysis set out by the Court in Chapman v. California,
10
PageID 26
386 U.S. 18 (1967), to the failure of the trial court to instruct on lesser included offenses requires
the intervention of the Supreme Court to reiterate its concern in Chapman that overemphasis on a
courts view of overwhelming evidence will neutralize the constitutional rule for finding error
harmless beyond a reasonable doubt; and (3) whether the prosecutions repeated reference to
Thomas and his co-defendant as Greed and Evil, and the prosecutions statement that failing to
sentence Thomas to death would result in a freebie or no punishment for killing Day, so
undermined the jurys decision making in this case as to render the conviction and/or the
sentence of death unreliable in violation of the protections of the Eighth and Fourteenth
Amendments.
31)
The petition for writ of certiorari was denied on October 3, 2005. The denial of
certiorari can be found at Thomas v. Tennessee, 546 U.S. 855 (2005).

32)
Thomas next filed a pro se Petition for Relief from Conviction or Sentence in the
Criminal Court of Tennessee on January 26, 2006, No. 00-03095. On November 13, 2006,
Thomas filed a Petition for Writ of Error Coram Nobis and Amended Petition for Relief from
Conviction or Sentence. The proceeding was in the nature of a state habeas corpus proceeding.
Thomas raised the following grounds in post-conviction: (a) Thomass petition for writ of error
coram nobis should be granted on the basis of newly discovered recantation testimony of Bond;
(b) Thomas is actually innocent of felony murder; (c) Thomass right of confrontation was
violated by the introduction into evidence of Bonds confession and lack of a limiting
instruction; (d) the court should have severed the joint trial of Thomas and Bond; (e) in
sentencing Thomas to death, the jury failed to find that he had the requisite intent to kill; (f)
Thomas suffered ineffective assistance of counsel due to his counsels (i) errors in the
investigation of innocence, (ii) failure to adequately investigate or challenge medical issues
11
PageID 27
relating to the cause of Days death, (iii) failure to object to Bonds redacted confession and to
request a limiting instruction, (iv) failure to object to the joint trial of Thomas and Bond in
August 2001, (v) failure to object to the States references to Thomas and Bond as Greed and
Evil, (vi) failure to retain a mitigation expert or to adequately present mitigation evidence, (vii)
failure to request a jury instruction requiring a finding of intent to kill; (viii) Glatsteins
constructive withdrawal from the case, and (ix) failure to raise new and favorable Supreme Court
precedent on appeal; (g) death by lethal injection is unconstitutionally cruel and inhuman in
violation of Thomass rights; (h) the death penalty violates substantive and procedural
proportionality requirements; (i) the death penalty system is so broken and fraught with errors
and inequities that it violates the United States and Tennessee Constitutions; and (j) the
cumulative effect of all errors at trial.
33)
A hearing where evidence was given on Thomass petition was held in the
Criminal Court on October 1-4, 2007. The petition was denied by the court on August 4, 2008.
34)
Appeal of the denial of the petition was timely filed in the Court of Criminal
Appeals of Tennessee on August 28, 2008, No. W2008-01941-CCA-R3-PD. Thomas raised the
following grounds in that appeal: (a) the court below erred in concluding that Thomass right to
effective assistance of counsel was not violated by Scholls failures with respect to Bonds
confession; (b) the court below erred in concluding that Thomass right to effective assistance of
appellate counsel was not violated by Brookss failure to raise the Confrontation Clause
violations on appeal; (c) the court below erred in concluding that Thomass right to effective
assistance of counsel was not violated by Scholls failure to present a medical causation defense;
(d) the court below erred in concluding that Thomass right to effective assistance of counsel was
not violated by Scholls failure to introduce evidence that another individual committed the
12
PageID 28
crime; (e) the court below erred in concluding that Thomass right to effective assistance of
counsel was not violated by Scholls failure to object to the States use of the epithets Greed
and Evil; (f) the court below erred in concluding that Thomass right to effective assistance of
counsel was not violated by Glatsteins de facto withdrawal from the case; (g) the court below
erred in concluding that Thomass right to effective assistance of counsel was not violated by
Scholls improper delegation of a critical part of Thomass defense to Glatstein; (h) the court
below erred in concluding that Thomass right to effective assistance of counsel was not violated
by the cumulative effect of Scholls numerous errors; (i) the court below erred in concluding that
newly discovered exculpatory evidence does not warrant a new trial; (j) Scholl was ineffective
for failing to object to a legally deficient jury instruction (raised in Thomass petition for
rehearing to the Court of Criminal Appeals); and (k) the death penalty is so broken and fraught
with errors and inequities that imposition of death in this case violates the state and federal
constitutions.
35)
The Court of Criminal Appeals heard oral argument on February 2, 2010. The
court affirmed the Criminal Courts denial of the petition on February 23, 2011. The opinion of
the court is not published in the South Western Reporter, but can be found at Thomas v. State,
2011 WL 675936 (Tenn. Crim. App. Feb. 23, 2011).
36)
An Application for Permission to Appeal from the Judgment of the Court of
Criminal Appeals was timely made to the Supreme Court of Tennessee on June 6, 2011, No.
W2008-01941-SC-R11-PD. Thomas raised the following grounds in that application: (a) the
court below erred in concluding that Thomass right to effective assistance of counsel was not
violated by Scholls failures with respect to Bonds confession; (b) the court below erred in
concluding that Thomass right to effective assistance of appellate counsel was not violated by
13
PageID 29
Brookss failure to raise the Confrontation Clause violations on appeal; (c) the court below erred
in concluding that Thomass right to effective assistance of counsel was not violated by Scholls
failure to present a medical causation defense; (d) the court below erred in concluding that
Thomass right to effective assistance of counsel was not violated by Scholls failure to introduce
evidence that another individual committed the crime; (e) the court below erred in concluding
that Thomass right to effective assistance of counsel was not violated by Scholls failure to
object to the States use of the epithets Greed and Evil; (f) the court below erred in
concluding that Thomass right to effective assistance of counsel was not violated by Glatsteins
de facto withdrawal from the case; (g) the court below erred in concluding that Thomass right to
effective assistance of counsel was not violated by Scholls improper delegation of a critical part
of Thomass defense to Glatstein; (h) the court below erred in concluding that Thomass right to
effective assistance of counsel was not violated by the cumulative effect of Scholls numerous
errors; (i) the court below erred in concluding that newly discovered exculpatory evidence does
not warrant a new trial; (j) Scholl was ineffective for failing to object to a legally deficient jury
instruction; and (k) the death penalty is so broken and fraught with errors and inequities that
imposition of death in this case violates the state and federal constitutions.
37)
The Tennessee Supreme Court denied Thomass application for permission to
appeal on August 25, 2011.

38)
Thomas then filed a petition for writ of certiorari in the United States Supreme
Court, No. 11-648. Thomas raised the following grounds in that petition: (1) whether the Court
of Criminal Appeals erred in holding, in conflict with federal circuit court decisions, that trial
counsels failure to consult with a qualified expert could not constitute deficient performance
under Strickland, even where expert evidence was necessary to the resolution of a critical legal
14
PageID 30
issue; (2) whether, in conflict with Strickland, the Court of Criminal Appeals erred in its
approach to the prejudice requirement by requiring Thomas to demonstrate that if counsel had
performed effectively, a necessary element of the criminal charge would have been conclusively
disproven; (3) whether the Court of Criminal Appeals erred in holding, in conflict with the
Supreme Courts Strickland jurisprudence, that a trial strategy can be reasonable when it is
based on a fundamental error of law or inattention to factswhich here, led counsel to fail to
object to the States introduction and use of a co-defendants confession in violation of Bruton;
and (4) whether the Court of Criminal Appeals adopted an approach that conflicts with
Strickland when it summarily concluded that defense counsels deficient performance was not
prejudicial without analyzing the totality of the evidence as it would have appeared to the jury
but for counsels deficiency.
39)
The petition for writ of certiorari was denied on March 5, 2012. The denial of
certiorari can be found at Thomas v. Tennessee, 2012 WL 685777 (Mar. 5, 2012).

40)
Other than the two petitions for writs of certiorari in the United States Supreme
Court described in paragraphs 30 and 38, supra, Thomas has not previously filed any type of
petition, application, or motion in a federal court regarding the conviction that he challenges in
this petition.
41)
There are certain grounds raised in this petition that have not been presented in
state court, see Sections I, II, and III, infra, but any failure to exhaust state court remedies should
be excused because Thomas can show cause.6
42)
Additionally, Thomas has no remaining mechanisms for asserting these claims in
state court.
6
Any failure to exhaust state court remedies should be excused for the additional and
independent reason that Thomas can show that he is actually innocent. See Section III(B), infra.
15
43)
PageID 31
Thomas does not have any petition or appeal now pending in any state or federal
court for the judgment that he is challenging.

44)
Thomas was represented by the following attorneys in the following stages of
judgment that he is challenging:
45)
a)
Pre-trial, trial, and sentencing: Michael E. Scholl (The Scholl Law Firm,
8 South 3rd Street, 4th Floor, Memphis, Tennessee 38103), Jeffery S.
Glatstein (Sedgwick Claims Management Services, Inc., 1100 Ridgeway
Loop Rd., Suite. 200, Memphis, Tennessee 38120);
b)
On appeal: Michael E. Scholl (The Scholl Law Firm, 8 South 3rd Street,
4th Floor, Memphis, Tennessee 38103), Robert Brooks (100 North Main
Street, #2601, Memphis, Tennessee 38103);
c)
Post-conviction in the Criminal Court: Winston & Strawn LLP (200 Park
Avenue, New York, New York 10166); Arthur E. Quinn (62 North Main
Street, #401, Memphis, Tennessee 38103); and
d)
Post-conviction on appeal to the Court of Criminal Appeals and Tennessee

Supreme Court: Winston & Strawn LLP (200 Park Avenue, New York,
New York 10166); Office of the Post-Conviction Defender (530 Church
Street, Suite 600, Nashville, TN 37243).
In addition to the sentence of death, Thomas also has a sentence of life in prison
without parole, plus five years, arising out of his conviction and sentence on armed robbery
charges brought by the United States in connection with the Walgreens robbery and an unrelated
felony charge. That sentence was imposed on February 16, 1999 in the United States District
Court for the Western District of Tennessee in Memphis, Tennessee, No. 98-20100-MI.
46)
Thomas has filed a petition for relief pursuant to 28 U.S.C. 2255 in connection
with his federal conviction and sentence, No. 2:03-cv-02416-JPM-tmp. That petition is currently
sub judice before this Court.
16
PageID 32
GROUNDS SUPPORTING THE PETITION FOR RELIEF

I.
CLAIM NO. 1: THE STATE VIOLATED THOMASS

CONSTITUTIONAL RIGHTS BY FAILING TO COMPLY WITH
ITS DISCOVERY OBLIGATIONS UNDER BRADY v. MARYLAND
47)
Thomass conviction and sentence are unlawfully and unconstitutionally imposed
in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution because the State failed to comply with its discovery obligations under Brady v.
Maryland, 373 U.S. 83 (1963).
48)
There are three components of a true Brady violation: [1] The evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is impeaching;

[2] that evidence must have been suppressed by the State, either willfully or inadvertently; and
[3] prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The
following facts, among others, establish each of these three elements:
A.
Evidence That U.S. Marshal Sanders Paid Angela Jackson

In Connection With Her Federal Testimony Is Favorable Evidence
49)
In accordance with Brady, the State was obligated to provide Thomas with
favorable evidence that was material to guilt or to punishment. See Brady, 373 U.S. at 87.
Evidence is favorable if it is exculpatory, or because it is impeaching. Strickler, 527 U.S. at
281-82. Impeachment evidence . . . falls within the Brady rule because it 'is evidence
favorable to an accused, so that, if disclosed and used effectively, it may make the difference
between conviction and acquittal. United States v. Bagley, 473 U.S. 667, 676 (1985) (internal
quotations omitted). Thus, [w]hen the reliability of a given witness may well be determinative
of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general
[Brady] rule. Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360
U.S. 264, 269 (1959)).
17
50)
PageID 33
The State failed to disclose favorable impeachment evidence to Thomas
concerning its key witness against him, Angela Jackson, who at the time of her testimony was
Thomass ex-wife. Specifically, the State did not reveal that Angela Jackson received $750.00
after giving her testimony against Thomas at his federal trial in November 1998, which also
arose out of the Walgreens robbery.7 A government payment to a witness plainly constitutes
favorable impeachment evidence. See Banks v. Dretke, 540 U.S. 668, 671 (2004) (A witnesss
paid informant status plainly qualifies as evidence advantageous to [the defendant].).
B.
The State Suppressed The Favorable

Impeachment Evidence That U.S. Marshal Sanders
Paid Angela Jackson In Connection With Her Federal Testimony
51)
During the entire pendency of his state proceedings, encompassing his pre-trial,
trial, direct appeals, and post-conviction proceedings, the State withheld evidence of U.S.
Marshal Sanderss and the FBIs payment to Angela Jackson, despite its affirmative obligation to
disclose that evidence to Thomas.
52)
Supreme Court decisions lend no support to the notion that defendants must
scavenge for hints of undisclosed Brady material when the prosecution represents that all such
material has been disclosed. Id. at 695. Instead, the Court has clearly held that the prosecution
must disclose Brady material even if no request is made. United States v. Agurs, 427 U.S. 97,
107 (1976); see also Jamison v. Collins, 291 F.3d 380, 387 (6th Cir. 2002) (noting that the
Additionally, the State did not disclose evidence of the agreement to make the $750.00
payment to Angela Jackson in connection with her testimony at Thomass federal trial. Nor did
the State disclose evidence of agreements or understandings between the government and Angela
Jackson that she would be granted immunity from prosecution or would receive any other benefit
or consideration in connection with her cooperation. U.S. Marshal Sanders, the lead investigator
of the Walgreens robbery, testified in October 2011 that he considered that Angela Jackson could
have been an accessory after the fact. See 2255 Hrg Tr. at 292. Before Angela Jackson gave a
recorded and signed statement to investigators, the investigators informed her that she may have
liability in connection with the Walgreens robbery and read her Miranda rights. See id.
18
PageID 34
governments obligation under Brady has been interpreted to impose an affirmative duty to
evaluate evidence and provide exculpatory evidence to the defense).
53)
Despite the fact that it was the States independent obligation to turn over any
material impeachment evidence to Thomas, Scholl filed multiple motions prior to trial requesting
that the State disclose exculpatory and impeachment evidence, including, but not limited to, a
specific request that the State disclose [a]ny and all considerations or promises of
consideration given to or made on behalf of prosecution witnesses. Motion For Disclosure Of
Impeaching Evidence 1 (4/20/00), attached hereto as Ex. 4; see also Motion To Require State
To Reveal Any Agreements Entered Into Between State And Prosecution Witness (4/20/00)
and Motion For Discovery And Inspection 6 (4/20/00), attached hereto as Ex. 4. The State
responded that it would advise defense counsel promptly of any consideration or promises of
consideration given to or made on behalf of government witnesses. Response to Motion for
Disclosure of Impeaching Evidence (6/7/00) 1, attached hereto as Ex. 5.
54)
On November 21, 2000, at a pre-trial hearing, the court further instructed the
State to inform Thomass counsel of any deals that might have been made or consideration
given in exchange for any testimony, anything of that sort. State Pre-Trial Tr. (11/21/00) at
16. Prosecutor Jennifer Nichols responded that Thomass counsel had access to open-file
discovery.
See id. at 16-17; see also id. at 15, 21-22, 28, 32-34 (discussing open file
discovery for the purposes of Brady material).

55)
Thomass counsel reasonably relied on the prosecutions word, telling the court
that any [Brady] information they have Im of the belief that -- that we now have. Id. at 22;
see Declaration of Michael E. Scholl 4, 6, attached hereto as Ex. 6.
19
56)
PageID 35
Yet despite the States repeated assurances that Thomass counsel would receive
any exculpatory or impeachment evidence, the State withheld evidence of the payment that was
made to Angela Jackson in connection with her prior testimony.8
57)
At trial, Angela Jackson was asked during direct and cross-examination whether
she received any rewards or deals in exchange for her testimony. See State Trial Tr. at 648, 680,
attached hereto as Ex. 7. Both times, she testified that she did not receive either a reward or deal
in exchange for her testimony against Thomas, or for her cooperation with the investigation more
generally.9 See id.
58)
Thus, at no time before, during, or after the trial was Scholl made aware of the
fact that Angela Jackson had received any kind of money, reward, compensation, or deal from
the investigators, prosecutors, or any other law enforcement in connection with the Walgreens
robbery. See Declaration of Michael E. Scholl 4, attached hereto as Ex. 6.
59)
The fact of this payment was only first learned by Thomas in October 2011 during
an evidentiary hearing in the United States District Court for the Western District of Tennessee
in connection with Thomass habeas corpus petition for relief from his federal sentence. At that
hearing, U.S. Marshal Sanders, lead investigator of the shooting and robbery of Day, publicly
acknowledged for the first time that he had personally given Angela Jackson a $750.00 FBIfunded payment in connection with her testimony against Thomas at his federal trial:
8
Evidence of Angela Jacksons payment was also withheld by the United States from Thomass
trial counsel in his federal case. See Motion For Leave To Amend And Supplement Petition To
Vacate, Set Aside, Or Correct Sentence Under 28 U.S.C. 2255, docket entry 149 in United
States v. Thomas, No. No. 2:03-cv-02416-JPM-tmp.
9
Both before and after the state trial, Angela Jackson also denied that any arrangements were
made for her compensation. At Thomass federal trial in November 1998, Angela Jackson
testified that she was not interested in the possibility of receiving any reward money. See Fed.
Trial Tr. at 488. At Thomass state post-conviction hearing in October 2007, Angela Jackson
again denied that she was promised any sort of immunity . . . [or] any money in exchange for
[her] testimony. PC Hrg Tr. at 192-93.
20
Q.
Do you know whether Angela Jackson was ever paid

anything in the form of a reward or anything else in
connection with her testimony [in Thomass federal trial]?
A.
Yes, she was. After the conclusion of the case, after the
sentencings, I believe she was given the sum of $750.
Q.
And who provided that money?
A.
The FBI funded the payment, and I believe I paid her.
PageID 36
2255 Hrg Tr. at 293 (emphasis added), attached hereto as Ex. 8.

60)
U.S. Marshal Sanderss and the FBIs knowledge of the payment to Angela
Jackson is imputed to the prosecutors and to the State for Brady purposes. It is irrelevant
whether the prosecutors actually knew about U.S. Marshal Sanderss payment to Angela Jackson
because individual prosecutors are charged with the duty of learn[ing] of any favorable
evidence known to the others acting on the governments behalf in the case, including the
police. Kyles v. Whitley, 514 U.S. 419, 437 (1995).
61)
Moreover, it is irrelevant whether the prosecution intentionally or mistakenly
failed to turn over exculpatory or impeaching material to the accused. See Strickler, 527 U.S. at
288 (under Brady, an inadvertent nondisclosure has the same impact on the fairness of the
proceedings as deliberate concealment); see also Bell v. Bell, 512 F.3d 223, 231 (6th Cir. 2008).
[W]hether . . . a failure to disclose is in good faith or bad faith, the prosecutions responsibility
for failing to disclose known, favorable evidence rising to a material level of importance is
inescapable. Kyles, 514 U.S. at 437-38 (internal citation omitted).
C.
There Is A Reasonable Probability That The Result Of

Thomass Trial Would Have Been Different If Evidence
Of The Payment To Angela Jackson Had Been Disclosed
62)
The suppression of evidence is prejudicial under Brady when the evidence is
material. See Strickler, 527 U.S. at 282. Evidence is material when there is a reasonable
21
PageID 37
probability that the result of the trial would have been different if the [evidence] had been
disclosed to the defense. Id. at 289. The question is not whether the defendant would more
likely than not have received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Id. at
289-90 (quoting Kyles, 514 U.S. at 434). In other words, if the suppressed evidence might have
persuaded one or more jurors to change their decision, the evidence is material. Cone v. Bell,
556 U.S. 449, 475 (2009).
63)
The suppressed impeachment evidence that U.S. Marshal Sanders paid Angela
Jackson $750.00 in connection with her federal testimonyfar more than the $40.00 statutorily
authorized witness fee, see 28 U.S.C. 1821(b)is material because there is a reasonable
probability that if this payment had been disclosed, the jurors would not have convicted Thomas
or sentenced him to death. She was the States key witness and proof of an ulterior motive to
testify might have affected the decision of one or more jurors.
64)
Clear precedent from the Supreme Court indisputably shows that information
concerning government payments to, or deals with, a key witness constitutes material evidence
that the prosecution must disclose before trial. In Banks, the Supreme Court held that evidence
of a $200.00 payment to a key witness was material due to the probability that the jury would
have discounted the witnesss testimony if it had known of his added incentive to cooperate at
trial. See Banks, 540 U.S. at 685, 700-01; see also Robinson v. Mills, 592 F.3d 730 (6th Cir.
2010) (holding that suppressed impeachment evidence that the governments key witness was a
paid informant was material).
65)
Aside from Angela Jacksons testimony, the State had virtually no evidence
against Thomas. The States case against Thomas was based almost entirely on circumstantial
22
PageID 38
evidence, with much conflicting and contradictory testimony. There was absolutely no forensic
evidence linking Thomas to the crime. Fingerprint testing conducted on the getaway car showed
Bonds fingerprint on the passenger side of the getaway car, but Thomass fingerprints were not
found anywhere on the vehicle. See State Trial Tr. at 817-18, 881-82.
66)
Of the many eyewitnesses who were at the scene when the crime took place, only
Richard Fisher identified Thomas as a participant. His identification lacks credibility, however,
because he identified Thomas only after first identifying two other people. In two photographic
line ups, Richard Fisher identified an unrelated individual, Terrance Lawrence, as the person that
he saw in the passenger side of the getaway car as it sped away from the crime scene. Then, on
direct examination at Thomass trial, Richard Fisher identified Bond as the passenger in the
getaway car. See id. at 895-96. This prompted the court, in a sidebar with counsel, to question
Richard Fishers ability to accurately identify anyone:
So I think it can safely assumed and properly argued to the jury
that Mr. Fisher, while he was doing the best that he could, as he
said from the witness stand a moment ago, wasnt real sure of any
identification. He identified, tentatively, somebody in a
photospread that was not either of these defendants. He identified,
apparently, from what people are saying today, from a distance,
Mr. Andrew Thomas in federal court. And in court today, he
tentatively identified Bond. Even today he didnt say, Yes, thats
the guy. Im positive. Ill never forget his face. I have nightmares
every night. He said, Yeah, that look like him to me. And so -and he said that he had -- you know, he had run down that hallway,
gone down the steps -- was already beginning to question why hes
even there -- why hes even doing that, and the car sped faster.
Id. at 910. When Richard Fisher subsequently identified Thomas as the passenger in the getaway
car, he did so while being cross-examined by Manis, Bonds attorney, who made Richard Fisher
come down from the witness chair and stand at defense counsels table while Thomas was
23
PageID 39
instructed to stand and remove his glasses. See id. at 919-24. Only under those extremely
suspect circumstances did Richard Fisher change his identification from Bond to Thomas.
67)
Without credible eyewitness or forensic evidence tying Thomas to the crime,
Angela Jacksons testimony provided the keyand necessarytestimonial foundation that the
State needed to tie Thomas to the Walgreens robbery.10
68)
First, Angela Jackson provided evidence of what Thomas was wearing on the
day of the Walgreens robbery, testifying that he wore a striped shirt and some shorts. State
Trial Tr. at 649-50. This testimony proved to be a critical link between Thomas and the crime
when Bonds confession was presented to the jury, as the confession contained an identical
description of the shooters clothing.
See State Trial Ex. 58 (Bonds redacted confession
(11/5/97)), attached hereto as Ex. 9. Ultimately, Bonds confession and Angela Jacksons
testimony were the only credible pieces of evidence that inculpated Thomas as a perpetrator in
the Walgreens robbery.
69)
Second, Angela Jacksons testimony provided the essential link between Thomas
and the States physical evidencea grainy black and white surveillance video taken from inside
the Walgreens. The surveillance video is extremely fuzzy, the shooters face cannot be seen, and
the crime was partially obstructed because the surveillance video was captured from inside the
store. Nevertheless, Angela Jackson somehow purported to identify Thomass back when she
was shown a still photograph from the surveillance video. See State Trial Tr. at 731-33; State
Trial Ex. 18 (Surveillance Still), attached hereto as Ex. 10. Without Angela Jacksons testimony,
10
Indeed, Angela Jacksons testimony was the linchpin implicating Thomas in the Walgreens
robbery from the very beginning of the governments investigation. In November, 1997, Angela
Jackson provided investigators with a signed statement implicating Thomas in the Walgreens
robbery. See PC Hrg Ex. 7 (A. Jacksons Advice of Rights, Waiver of Rights, and Statement
(11/4/97). She subsequently supplied crucial testimony in support of the grand jury indictment
in his federal trial.
24
PageID 40
the video had little evidentiary value due to its abysmal quality. But with Angela Jacksons
testimony to shape the jurors perception of the videos indistinct figures, the State was able to
transform its otherwise impotent physical evidence into a critical part of its case against Thomas.
70)
Third, Angela Jackson provided significant circumstantial evidence that Thomas
was involved in the Walgreens robbery, including testimony about statements Thomas allegedly
made about the crime, and about how she and Thomas allegedly spent the money from the
Walgreens robbery. See State Trial Tr. at 641-46, 651, 655-59, 660-63, 719.
71)
In short, the States case turned almost exclusively on the jurys perception of
Angela Jacksons credibility. Knowing this, the State sought at trial to bolster her credibility
with the jury by eliminating any suggestion that Angela Jackson had any ulterior motive for
cooperating with the government, repeatedly characterizing Angela Jackson as a scared spouse
who was not proud of her actions, but who finally was trying to make right by testifying against
her former spouse. See id. at 662-63, 649, 669, 721. The State did so, however, while knowing
that Angela Jackson had actually been paid by U.S. Marshal Sanders in connection with her
cooperation and testimony.
72)
Thomass trial counsel, too, recognized that the States case against Thomas came
down to whether the jury could be convinced to believe Angela Jacksons testimony, and that
accordingly, his primary strategy was to attack her credibility:
Q.
Okay. Now you stated earlier that you believe this whole
case pretty much boiled down to whether or not you
believed Angela Jackson [ ]?
A.
I do.
Q.
And so your primary strategy was to make Angela Jackson

look to be less than truthful?
A.
Yes.
25
PageID 41
****
A.
So the one person thats going to point the finger to really

say Andrew was involved is Angela. So Ive got to
overcome Angela . . .
PC Hrg Tr. at 540, 566-67; see id. at 411 (referring to Angela Jackson as the states key
witness); id. at 444 (testifying that Angela Jackson was a key witness for the State), id. at 460
(You either believed Angela Jackson, or you didnt believe Angela Jackson.). But because the
State did not disclose that U.S. Marshal Sanders had paid Angela Jackson, Scholl was unable to
impeach her with this information.
73)
Thus, the State succeeded in presenting Angela Jacksons testimonya rerun of
the testimony she had been paid forwithout the jury knowing about the payment. Because the
payment was suppressed, Angela Jackson was able to testifytwice, and without being
contradicted or impeachedthat she had never received any reward or compensation in
connection with her testimony against Thomas. This false testimony actually bolstered her
credibility in the eyes of the jury. See Section II(B), infra.
74)
Had evidence of Angela Jacksons payment been disclosed to Thomass counsel,
this evidence could haveand, according to Scholl, would havebeen used to impeach Angela
Jackson. See Declaration of Michael E. Scholl 6, attached hereto as Ex. 6.
75)
The jury would have heard of the importance of the $750.00 payment to Angela
Jackson, whose car had already been repossessed when FBI investigators first interrogated her
and who, at the time of the trial, was still making payments on the legal fees from her divorce
from Thomas. See State Trial Tr. at 633, 648; PC Hrg Tr. at 219. This information would have
exposed Angela Jacksons bias and motive for testifying against Thomas, and would have raised
questions about whether she was again motivated by a possibleor even promisedcash
26
PageID 42
payment for her testimony. Or the jury may have suspected that Angela Jackson had not been
truthful at the federal trial and that she was now repeating bought testimony. Moreover, Scholl
could have used evidence of the payment to show not only that Angela Jackson had a material
motive for testifying but that she was a liar, having testified falsely about ever receiving the
payment. See Section II(A), infra. This would have substantially destroyed the credibility of the
States key witness in the eyes of the jury.
76)
As such, it is beyond doubt that there is a reasonable probability that had evidence
of Angela Jacksons payment been disclosed, the jurors would not have convicted Thomas nor
sentenced him to death.
D.

Or Non-Exhaustion Of His Brady Claim Because The State
Unconstitutionally Suppressed Evidence Of Its Payment To Angela Jackson
77)
Because the State unconstitutionally suppressed this Brady evidence until after the
conclusion of Thomass state post-conviction proceedings, Thomass Brady claim is not

procedurally defaulted.
78)
A habeas petitioner who defaults on his federal claims in state court is barred
from bringing those claims in federal court unless he can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrates that failure to
consider the claims will result in a fundamental miscarriage of justice. Bell, 512 F.3d at 231
n.3 (en banc) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
79)
However, [a]s the Supreme Court explained in Banks v. Dretke, the cause and
prejudice standard [required to overcome a failure to present evidence in anterior state

proceedings] tracks the last two elements of a Brady claim: suppression by the government and
materiality. Bell, 512 F.3d at 231 n.3 (citing Banks, 540 U.S. at 691). Thus, if [a petitioner]
succeeds in showing suppression of favorable evidence material to guilt or innocence, [he] will
27
PageID 43
have necessarily shown cause and prejudice excusing his procedural default. Akrawi v. Booker,
572 F.3d 252, 261-62 (6th Cir. 2009); see Apanovitch v. Houk, 466 F.3d 460, 478 (6th Cir. 2006)
(As the Brady analysis is identical for our purposes with the procedural default excuse analysis,
we must ascertain whether the prosecutions withholding of this evidence constituted a Brady
violation.); Jamison, 291 F.3d at 388 (finding cause for purposes of procedural default of
Brady claim [s]ince the factual basis of the claim was reasonably unknown to defendants
counsel).
80)
Under this standard, Thomass Brady claim meets the cause and prejudice
standard required to overcome procedural default. First, Thomas clearly has cause for presenting
his Brady claim for the first time now because there is no question that the Brady evidencethe
payment to Angela Jacksonwas reasonably unknown to Thomas until after the conclusion of
his state post-conviction proceedings. Jamison, 291 F.3d at 388. Indeed, Thomass trial counsel
filed multiple motions specifically requesting evidence of any consideration provided to
government witnesses in exchange for their cooperation.
In response, the prosecution
represented that it had an open file policy, and Thomass counsel reasonably relied on the
prosecutions representations, believing that the prosecution had disclosed all material evidence.
See Strickler, 527 U.S. at 289 ([P]etitioner reasonably relied on the prosecutions open file
policy as fulfilling the prosecutions duty to disclose such evidence.). Not only did the
prosecution fail to turn over evidence of the payment to Angela Jackson, but it presented her
false testimony that she had never received such a payment. See Section II, infra; Banks, 540
U.S. at 693-94 (prosecutions allowance of testimony to stand uncorrected supported finding of
cause).
28
81)
PageID 44
Second, Thomas has suffered prejudice sufficient to overcome procedural default
because the States suppression of the payment to Angela Jackson was material. See Banks, 540
U.S. at 698 (Unless suppressed evidence is material for Brady purposes, its suppression does
not give rise to sufficient prejudice to overcome a procedural default. (internal quotation
omitted)). As established above, had the payment to Angela Jackson been disclosed as Brady
requires, there is a reasonable probability that the evidence may have affected the decision of one
or more jurors, thus showing its materiality. See Section I(C), supra.
E.
Thomas Lacks Avenues For Asserting His Brady Claim In State Court
82)
Because this Brady evidence was suppressed and, therefore, was reasonably
unknown to Thomas until after the conclusion of his state post-conviction proceedings, Thomas
has no remaining avenues to assert the Brady violation in state court. Federal habeas relief is the
only available remedy to correct Thomass unconstitutionally-obtained conviction.
II.
CLAIM NO. 2: THE STATE VIOLATED

ANDREW THOMASS CONSTITUTIONAL RIGHTS
BY PRESENTING ANGELA JACKSONS FALSE TESTIMONY
83)
Constitution because the State solicited and then failed to correct Angela Jacksons false
testimony that she never received any payment or other benefit in connection with her testimony
against Thomas.
84)
The Supreme Court has long held that it is constitutional error for a State to
present false evidence. See Giglio, 405 U.S. at 153 (citing Mooney v. Holohan, 294 U.S. 103,
112 (1935); Pyle v. Kansas, 317 U.S. 213, 215-16 (1942)). The same result obtains when the
State, although not soliciting false evidence, allows it to go uncorrected when it appears.
Napue, 360 U.S. at 269.
29
85)
PageID 45
To establish a constitutional due process violation based on the prosecutions
presentation of evidence known to be false, . . . a petitioner must demonstrate that: (1) the
statement was actually false; (2) the statement was material; and (3) the prosecution knew it was
false. Wogenstahl v. Mitchell, 668 F.3d 307, 323 (6th Cir. 2012) (quoting Rosencrantz v.
Lafler, 568 F.3d 577, 583-84 (6th Cir. 2009), cert. denied, 130 S. Ct. 2401 (2010)); see also
Rosencrantz, 568 F.3d at 583 (recognizing a specific type of Brady violation . . . where the
prosecutor failed to correct false testimony that he knew, or should have known, to be false).
The following facts, among others, establish each of these three elements:
A.
Angela Jacksons Testimony That She Had Not Received A

Reward In Connection With Her Federal Testimony Was Actually False
86)
The States key witness, Angela Jackson, testified twice in Thomass state trial
that she had not received a reward in connection with her testimony against Thomas. This
testimony is indisputably false because U.S. Marshal Sanders testified in federal court, in
response to the question whether Angela Jackson had been paid anything in the form of a
reward or anything else, that he paid her $750.00 on behalf of the FBI.
87)
Angela Jackson testified multiple times at Thomass trial that she had not received
any incentive for her testimony. First, under direct examination by the State, Angela Jackson
testified as follows:
Q.
When did the FBI agents come to your house?
A.
I dont remember the date, but it was in November of 97.
Q.
Did you ask them for your reward money?
A.
No.
Q.
Did you ever get any reward money?
A.
No.
30
PageID 46
State Trial Tr. at 648 (emphasis added), attached hereto as Ex. 7.

88)
Then, while being cross-examined by Thomass counsel, Angela Jackson testified
as follows:
Q.
You said you were here today to testify because it was the
right thing to do. Is that correct?
A.
Yes.
Q.
And thats your only motivation in testifying today. Is that

right?
A.
Yes, sir.
Q.
You havent receiving [sic] a reward for any of this?
A.
No.
Q.
Youre not receiving any deals to testify?
A.
No, sir.
Id. at 680 (emphasis added), attached hereto as Ex. 7.

89)
This testimony was indisputably and actually false, as it is flatly contradicted by
the sworn testimony of U.S. Marshal Sanders, lead investigator of the Walgreens robbery. On
October 12, 2011, he admitted that Angela Jackson had been paid $750.00 funded by the FBI for
her involvement in Thomass federal case for the armed robbery of Day:
Q.
Do you know whether Angela Jackson was ever paid

anything in the form of a reward or anything else in
connection with her testimony [in Thomass federal trial]?
A.
Yes, she was. After the conclusion of the case, after the
sentencings, I believe she was given the sum of $750.
Q.
And who provided that money?
A.
The FBI funded the payment, and I believe I paid her.
2255 Hrg Tr. at 293 (emphasis added), attached hereto as Ex. 8.

31
PageID 47
B.
Angela Jacksons False Testimony Was Material

Because There Is A Reasonable Likelihood That
It Could Have Affected The Judgment Of The Jury
90)
Well-established Supreme Court precedent shows that the use of false testimony
can be critical to the result of a trial where it affects the credibility of a key witness. See Napue,
360 U.S. at 269. The jurys estimate of the truthfulness and reliability of a given witness may
well be determinative of guilt or innocence, and it is upon such subtle factors as the possible
interest of the witness in testifying falsely that a defendants life or liberty may depend. Id.
91)
False testimony, including testimony affecting the credibility of a key witness, is
material when there is a reasonable likelihood that the false testimony could have affected the
judgment of the jury.11 Agurs, 427 U.S. at 104. Because of the higher degree of prosecutor
culpability implicated by the knowing use of false testimony versus the suppression of Brady
evidence, the materiality standard for knowing use of false testimony is lower, more
favorable to the defendant, and hostile to the prosecution. Rosencrantz, 568 F.3d at 587
(quoting Gilday v. Callahan, 59 F.3d 257, 267-68 (1st Cir. 1995)); see Hawkins, 969 F.2d at 175
(test of materiality depends on the nature of the evidence and the culpability of the
government); Agurs, 427 U.S. at 103-04 (justifying lower materiality standard because use of
false testimony involves a corruption of the truth-seeking function of the trial process).
Indeed, because the materiality standard for knowing use of false testimony is so friendly-to-
11
The Sixth Circuit, following that portion of Justice Blackmuns opinion not joined by the
majority in Bagley, has announced that where the prosecution knowingly uses false evidence,
the fact that the testimony is perjured is considered material unless failure to disclose it would
be harmless beyond a reasonable doubt. United States v. Hawkins, 969 F.2d 169, 175 (6th Cir.
1992) (quoting Bagley, 473 U.S. at 680 (Blackmun, J.)). Per Justice Blackmuns opinion, the
Chapman harmless error standard is equivalent to the materiality standard already applicable to
Brady/Giglio claims [based on the prosecutions knowing use of false testimony]. Rosencrantz,
568 F.3d at 584 n.2 (quoting Bagley, 473 U.S. at 680 n.9); see also Chapman v. California, 386
U.S. 18 (1967).
32
PageID 48
the-accused, the Sixth Circuit has emphasized that in most cases involving perjury or its
equivalent the result will likely be a finding of constitutional error. Rosencrantz, 568 F.3d at
587 (internal quotations omitted) (emphasis added).
92)
It is more than reasonably likely that Angela Jacksons false testimony affected
the judgment of the jury. As described in Section I(C), supra, the States case depended almost
entirely on Angela Jacksons testimony; without it, there would have been little evidence to carry
the case to the jury. Thus, Angela Jacksons credibility was a critical factor in the States case
against Thomas, and her perjured testimony that she never received payment led the jury to trust
her. Had she testified truthfully that she had received $750.00 for her cooperation, the jury
would have had reason to question her motivesand had the jurors been made aware that
Angela Jackson not only received payment, but also repeatedly lied about it, the jurors doubt
would have compounded, and they would have had good reason to question the veracity of
Angela Jacksons entire story.
93)
Under these circumstances, it is more than reasonably likely that Angela
Jacksons perjury affected the jurys opinion of her credibility and with it, the outcome of
Thomass trial. See Giglio, 405 U.S. at 154-55 (key witnesss false testimony concerning
agreement as to his future prosecution was a violation of due process requiring a new trial where,
without that witnesss testimony, there could have been no indictment and no evidence to carry
the case to the jury); see also Guzman v. Dept of Corr., 663 F.3d 1336, 1341-43, 1349-50,
1355-56 (11th Cir. 2011) (key witnesss false testimony that she had received no benefit for
testifying, when she had in fact received $500 from the authorities, was reasonably likely to have
affected the jurys judgment and required a new trial); Shih Wei Su v. Filion, 335 F.3d 119, 127,
129-30 (2d Cir. 2003) (false testimony of chief witness that he was not promised anything by
33
PageID 49
the prosecutor when in fact he had made a related plea deal was reasonably likely to have
affected the jurys judgment and required remand and new trial).
C.
The Prosecution Had Constructive

Knowledge That Angela Jackson Testified Falsely
94)
Despite the material falsity of Angela Jacksons testimony, the State did nothing
to correct it, even though it had an obligation to do so.
A prosecutor is charged with
responsibility for correcting testimony that he knew or should have known to be false: whether
the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor.
The prosecutors office is an entity and as such it is the spokesman for the Government. Giglio,
405 U.S. at 154; see Rosencrantz, 568 F.3d at 583 (prosecutor must correct false testimony that
he knew, or should have known, to be false). As is the case with respect to the suppression of
material impeachment evidence, here, too, the the prosecutor is responsible for any favorable
evidence known to the others acting on the governments behalf in the case, including the
police. Tremble v. Burt, 2010 WL 3488636, at *20 (E.D. Mich. Sept. 1, 2010) (quoting
Strickler, 527 U.S. at 275 n.12). Thus, [i]t follows that, before a prosecutor puts to the jury
evidence that a witness has made no deal with the government, he or she has a fundamental
obligation to determine whether that is so. Shih Wei Su, 335 F.3d at 127. Here, the State knew
or should have known of the falsity of Angela Jacksons testimony, but nevertheless presented it
to the jury as truth.
D.

Or Non-Exhaustion Of His False Testimony Claim
95)
Like his Brady claim, Thomass claim that the State violated his constitutional
rights by failing to correct Angela Jacksons false testimony is excused from procedural default
because the nature of the claim establishes cause and prejudice for raising the claim now. See
Banks, 540 U.S. at 691; Section I(D), supra.
34
96)
PageID 50
First, Thomas has cause to raise this claim now because the evidence of Angela
Jacksons perjury was suppressed until after the close of Thomass state post-conviction
proceedings. Thomass counsel reasonably relied upon the States representation that it had
disclosed all material evidence, and appropriate[ly] . . . assume[d] that [the State] would not
stoop to improper litigation conduct to advance prospects for gaining a conviction. Banks, 540
U.S. at 694. The evidence that Angela Jackson testified falsely was therefore reasonably
unknown to Thomas during the pendency of his state proceedings. Jamison, 291 F.3d at 388.
97)
Second, Thomas was severely prejudiced by the suppression of this evidence
because the perjured testimony went to the heart of the key witnesss credibility, corrupt[ing]
the truth-seeking function of the trial process. Agurs, 427 U.S. at 104. The States presentation
of false testimony was prejudicial, excusing procedural default, for the same reasons that its
suppression of Brady evidence was prejudicial: the false testimony was material to guilt or
innocence. Indeed, the States presentation of Angela Jacksons false testimony was enabled by
its suppression of the evidence that she had been paid. Accordingly, prejudice attaches to
Thomass due process claim based on the prosecutions knowing use of false testimony, just as it
attaches to his claim based on suppression of Brady material.
E.
Thomas Lacks An Avenue To Assert

His False Testimony Claim In State Court
98)
Because evidence of Angela Jacksons perjury was suppressed and, therefore,
reasonably unknown to Thomas until after the conclusion of his state post-conviction
proceedings, Thomas has no remaining avenues to assert a false testimony claim in state court, as
this claim would now be procedurally- and time-barred. Federal habeas relief is the only
available mechanism for correcting Thomass unconstitutionally-obtained conviction.
35
III.
PageID 51
CLAIM NO. 3: THOMAS IS ACTUALLY

INNOCENT OF DAYS FELONY MURDER
99)
Constitution because Thomas is actually innocent. The following facts, among others, support
this claim:
A.
Thomas Makes A Truly Persuasive Demonstration Of Actual Innocence
100)
The Supreme Court has announced that the execution of a legally and factually
innocent person would be a constitutionally intolerable event. Herrera v. Collins, 506 U.S. 390,
419 (1993) (OConnor, J., concurring); see also id. at 430 (Blackmun, J., dissenting) (Nothing
could be more contrary to contemporary standards of decency, or more shocking to the
conscience, than to execute a person who is actually innocent. (internal citations omitted)).
101)
To obtain relief for a claim of actual innocence, the petitioner must make a truly
persuasive demonstration of actual innocence based upon all the evidence . . . without regard
to whether it would necessarily be admitted under rules of admissibility that would govern at
trial. House v. Bell, 547 U.S. 518, 537-38, 554 (2006) (quoting Herrera, 506 U.S. at 417, and
Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).
102)
The facts exposed after Thomass conviction and death sentence in state court
reveal a very different picture of the shooting and robbery of Day than that presented at trial.
Though convicted in state court, Thomas now makes a truly persuasive demonstration of his
innocence.
1.
103)
Thomas Is Factually Innocent: Bobby Jackson

Was Bonds True Accomplice In The Walgreens Robbery
First, Thomas is factually innocent because he was not a participant in the
Walgreens robbery. Rather, Bobby Jackson was Bonds true accomplice in that crime. Indeed,
36
PageID 52
all of the evidence that has emerged concerning the Walgreens robbery shows that Bobby
Jackson drove the getaway car during the Walgreens robbery while Bond shot and robbed Day.
a.
104)
The Evidence Shows That

Bobby Jackson Drove The Getaway Vehicle
Shortly after 12:30 p.m. on April 21, 1997, an assailant robbed and shot Day, a
Loomis Fargo armored car guard, as he exited a Walgreens store on Summer Avenue in
Memphis, Tennessee. The shooter jumped into the passenger side of a white Pontiac Bonneville
driven by a second individual, and the two sped away from the scene.
105)
That same day, investigators from the Safe Streets Task Force interviewed several
eyewitnesses to the crime who consistently described the driver of the getaway vehicle as a
heavyset, black male.
The eyewitness descriptions of the getaway driver recorded by the
investigators are as follows (attached hereto as Ex. 11):
106)
a)
Male, black, heavyset and broad-shouldered by David Roth, a patron at

the Piggly Wiggly located in the same shopping plaza as the Walgreens,
see PC Hrg Ex. 15 (FBI 302 for David Roth (4/21/97));
b)
Male, black, heavier by Richard Fisher, an employee at a store located in

the same shopping plaza as the Walgreens, see PC Hrg Ex. 17 (FBI 302
for Richard Fisher (4/21/97));
c)
Male, black, heavyset, age 30-35 by Gail McDonald, who was about to
enter the Walgreens when the crime occurred, see PC Hrg Ex. 12 (FBI
302 for Gail McDonald (4/21/97)); and
d)
Male, black, heavyset, age mid-30s by Imogene Walls, who had just
entered the Walgreens when the crime occurred, see PC Hrg Ex. 14 (FBI
302 for Imogene Walls (4/21/97)).
Neither Thomas nor Bond weighed more than 160 pounds at the time. See
Prosecutive Report Of Investigation at C, attached hereto as Ex. 12. Also, at the time of the
robbery, Thomas was in his early 20s and Bond was just 19 years old. See id. In contrast,
Bobby Jackson stands six feet tall, and at the time of the Walgreens robbery, weighed 240
37
PageID 53
pounds. See Federal Pen Pak for Bobby Jackson, attached hereto as Ex. 13. At that time, Bobby
Jackson was 30 years old. See id.
107)
Not only did Bobby Jackson match the eyewitness descriptions of the driver of
the getaway vehicle, but he was identified twice as the driver of the getaway vehicle in a
photographic spread of possible perpetrators. On July 29, 1997, Robert Fisherwho witnessed
the perpetrators of the Walgreens robbery driving away from the scene of the crimewas asked
to review a photographic spread. After carefully viewing it, he identified Bobby Jackson as
the driver of the getaway vehicle. PC Hrg Ex. 13 (FBI Statement of Robert Fisher (7/29/97)),
attached hereto as Ex. 14.
On August 4, 1997, Robert Fisher was, once again, shown a
photographic spreadand, once again, he selected the photograph of Bobby Jackson as the man
he saw driving the getaway vehicle. See PC Hrg Ex. 17 (FBI Statement of Robert Fisher
(8/4/97)), attached hereto as Ex. 15.
108)
On July 21, 1997exactly three months after the Walgreens robberyBobby
Jackson, accompanied by Terrance Lawrence, attempted to rob another Loomis Fargo guard at
the Southbrook Mall in Memphis before fleeing the scene in a red vehicle. Terrance Lawrence
later testified that this robbery was Bobby Jacksons idea, including the suggestion of targeting
an armored car. See PC Hrg Ex. 9 (Lawrence Deposition Tr.) at 7-10, 13-14.
109)
During the course of the Southbrook Mall armored car robbery attempt, Bobby
Jackson dropped his beeper after shots were exchanged, leading to his apprehension by the
police. While in prison for the Southbrook Mall robbery, Bobby Jackson admitted to another
inmate, Steven Briscoe, that he committed the Southbrook Mall robberyand that the
Southbrook Mall robbery was not the first time he had robbed an armored car. See PC Hrg Ex.
17 (Letter from Briscoe to AUSA Tony Arvin (9/17/97)).
38
b.
110)
PageID 54
The Evidence Shows That Bond Shot Day
Bonds involvement in the Walgreens robbery is undisputed: (1) he confessed to
being one of the perpetrators to the police; (2) he entered into a plea agreement with Assistant
United States Attorney Tony Arvin in which he admitted to being one of the perpetrators; and (3)
he testified at Thomass federal trial that he was one of the perpetrators. Though Bond has
admitted his involvement in the crime multiple times, he has never fully accepted responsibility
for his true role in the robbery: he was the triggerman who robbed and shot Day.
111)
While Bobby Jackson comfortably fits the description of the driver offered by
several eyewitnesses, Bond most certainly does not.
At about six feet tall and weighing
approximately 145 pounds at the time of the Walgreens robbery, Bonds string-bean frame rules
him out as the broad-shouldered man seen driving the white Pontiac Bonneville. The dissonance
between Bonds slender frame at the time of the crime and the eyewitness descriptions of the
driver, along with the knowledge that Bond was definitely and admittedly involved in the
Walgreens robbery, compels the conclusion that Bond was the person who rode in the passenger
seat alongside Bobby Jackson and that Bond was the person who shot and robbed Day.
112)
Indeed, on the day of the Walgreens robbery, investigators from the Safe Streets
Task Force interviewed several eyewitnesses to the crime who gave descriptions of the shooter
that matched Bond, but not Thomas. Imogene Walls described the passenger/shooter as slim,
a description that easily fits Bond but not Thomas, who was of average buildapproximately
59 and 150 pounds. PC Hrg Ex. 14 (FBI 302 for Imogene Walls (4/21/97)), attached hereto as
Ex. 11. Gail McDonald and Bobbie Fleming both described the shooter as wearing blue pants or
jeansa description that matches the blue jeans that Bond admitted to wearing, but not the
shorts that he claimed Thomas wore.
See PC Hrg Ex. 12 (FBI 302 for Gail McDonald
39
PageID 55
(4/21/97)) and PC Hrg Ex. 11 (FBI 302 for Bobbie A. Fleming (4/21/97)), attached hereto as
Ex. 11; State Trial Ex. 58 (Bonds redacted confession (11/5/97)), attached hereto as Ex. 9.
113)
Critically, the Memphis Police recovered Bonds fingerprint from the passenger
side door of the getaway vehiclewhere eyewitnesses identified the shooter as sitting. See State
Trial Tr. at 817-18, 881-82. None of Thomass fingerprints were ever found on the vehicle.
114)
The fact that the police found Bonds fingerprints on the getaway vehicle gave
him little choice upon confrontation but to acknowledge his role in the crime. Indeed, as he later
explained to Thomas in the Bond letter (discussed at Section III(A)(1)(c)(ii), infra): [Marshal]
Sanders from the Feds who had the Walgreens case was gone [sic] fuck me off because of my
finger prints on the Bonneville. He told me all he wanted was a shooter. . . . PC Hrg Ex. 3
(Bond letter (1/10/02)) at 2, attached hereto as Ex. 3.
115)
Of course, Bond had ample motivation to muddle reality and characterize himself
as the getaway driver: doing so allowed him to strike a deal with Assistant United States
Attorney Tony Arvin whereby he pleaded guilty to federal armed robbery charges and testified
against Thomas in his federal case, and, in return, received a 5K1.1 recommendation for a
lighter sentence. See State Trial Ex. 87 (Anthony Bond Plea Agreement (11/2/98)). In contrast,
Thomaswhose conviction was aided by Bonds false statement that he was the shooter
received a life sentence without parole, plus five years.
c.
116)
Newly Discovered Evidence Has Completely

Shattered The States Case Against Thomas
As described in Section I(C), supra, the States case relied almost exclusively on
the testimony of Angela Jackson. That testimony was bolstered by the other piece of evidence in
the States possession that pointed the finger at Thomas as the shooter in the Walgreens robbery:
Bonds improperly and unconstitutionally redacted confession, see Section IV(C) (discussing
40
PageID 56
how the redaction and use of Bonds confession violated Bruton), infra, which implicated
Thomas and corroborated portions of Angela Jacksons testimony. In the years since Thomass
conviction, the credibility and probative value of both Angela Jacksons testimony and Bonds
confession have crumbled. Nothing remains of the States case against Thomas.
i.
117)
Angela Jacksons Testimony Is A Lie
Angela Jackson lied when she testified against Thomas. She did so to collect
reward money, to protect Bobby Jackson, and to avenge Thomass unfaithfulness in their
relationship.
118)
As described in Section I(A)-(B), supra, Angela Jackson was paid $750.00 by
U.S. Marshal Sanders and the FBI after she testified against Thomas at his federal trial. As
described in Section I(B), supra, the State unlawfully withheld evidence of that payment from
Thomas during his state trial for felony murder.
119)
Because Angela did not receive her money until [a]fter the conclusion of the
[federal] case, after the sentencings, 2255 Hrg Tr. at 293, attached hereto as Ex. 8, she had
ample motivation to make her testimony as incriminating as possible.
120)
Angela Jackson has repeatedly lied under oath about receiving any reward, deal,
or compensation in connection with her testimony against Thomas. During Thomass federal
armed robbery trial, she explicitly denied she was interested in the possibility of receiving a
reward. See Fed. Trial Tr. at 488. At Thomass state felony murder trialwhich occurred after
federal agents had paid hershe twice denied receiving any reward. See State Trial Tr. at 648,
680, attached hereto as Ex. 7. And during Thomass state post-conviction hearing, she denied
receiving any payment for yet a third time. See PC Hrg Tr. 191-93.
121)
Because the State made no efforts to correct Angela Jacksons false testimony
about never being paid in connection with her testimony, see Section II, supra, the jury in
41
PageID 57
Thomass state felony murder trial did not know that Angela Jackson had been paid when they
assessed her credibilityas well as the credibility of the States case against Thomas.
122)
Angela Jackson received other benefits for falsely implicating Thomas. When
federal agents first interviewed Ms. Jackson, they suspected her of criminal activity. Indeed, at
the evidentiary hearing in connection with Thomass 2255 petition for relief from his federal
convictions, U.S. Marshal Sanders testified that at the time of the interview with Angela Jackson,
he considered charging her as an accessory-after-the-fact in the Walgreens robbery. See 2255
Hrg Tr. at 292. Moreover, U.S. Marshal Sanders informed Angela Jackson that she may have
liability in connection with the robbery and read her Miranda rights prior to the interview. See
id.; see also PC Hrg Ex. 7 (A. Jacksons Advice of Rights, Waiver of Rights, and Statement
(11/4/97)). Yet, the prosecutors did not charge her with any crime, seemingly trading the
exercise of prosecutorial discretion for her testimony incriminating Thomas.
123)
Angela Jackson also had personal reasons for incriminating Thomas and
protecting Bobby Jackson: she and Bobby Jackson were romantically involved at the time he
committed the Walgreens robbery through Thomass federal trial and she was angry with
Thomas for cheating on her.
124)
Numerous witnesses who knew Angela Jackson and Bobby JacksonWilliam
Upchurch, Barry Brown, Tonya Gentry, and Stephanie Williamstestified that the two dated in
1997 when federal agents investigated the robbery. See State Trial Tr. at 1511, 1516; PC Hrg
Tr. at 65, 227-28, 418-19. And though Angela Jackson initially denied knowing Bobby Jackson
during her testimony at the trial, she later grudgingly acknowledged seeing him. State Trial
Tr. at 1543.
42
125)
PageID 58
Both Angela Jackson and Bobby Jackson had strong incentives to hide their
relationship. For Bobby, acknowledging the relationship would implicate him in a robbery for
which he had escaped prosecution. For Angela, proof of her relationship with Bobby Jackson
would cost her the reward money and potentially lead to her own prosecutionboth for her role
in the aftermath of the Walgreens robbery and for perjury.
In contrast, neither William
Upchurch, Barry Brown, Tonya Gentry, nor Stephanie Williams had any incentive to lie about
the relationship between Bobby Jackson and Angela Jackson.
126)
Furthermore, at the time that Angela Jackson first gave her signed statement to
investigators after being read her Miranda rights, she was embroiled in a bitter divorce from
Thomas and she had an axe to grind against him. It was well known that Angela Jackson was
upset with Thomas during their marriage for having girlfriends on the side and for being in
and out all the time. Id. at 728-29. As a result of that anger, Angela Jackson was cruel to
Thomass sonconduct that Thomas openly confronted her about. Id. at 729. After Thomas
broke up with Angela Jackson due to this and other reasons, she told people that she was gonna
pay him backand that if she couldnt have him, no one would. See id. at 1510, 1522-23.
127)
There can be no doubt that Angela Jacksons anger over Thomass philandering,
combined with her own romantic interest in and involvement with the true second perpetrator of
the robbery, Bobby Jackson, provided ample incentive for her to implicate Thomas.
128)
After all of these facts and illicit motivations have been revealed, the actual
substance of Angela Jacksons testimony offers little to incriminate Thomas. One of the most
damaging pieces of Angela Jacksons testimonyher description of Thomass clothes, which
matched the description of the shooter in Bonds confession (and did not match the
eyewitnesses description of a shooter who wore blue jeans)was not even something that
43
PageID 59
Angela Jackson told officers during her initial interview. See PC Hrg Ex. 7 (A. Jacksons
Advice of Rights, Waiver of Rights, and Statement (11/4/97). Rather, it was a detail that seems
to have occurred to her for the first time when she testified at Thomass federal trial. Ms.
Jacksons purported identification of Thomass back on the grainy, black and white
surveillance video would be laughable, given the extremely poor quality of the tape, if not for the
fact that it may cost Thomas his life. The remaining part of Ms. Jacksons testimony, which
described various large purchases Thomas made shortly after the robbery, also has diminished in
inculpatory value since the trial. Thomas, in fact, obtained the money for these purchases not
from the Walgreens robbery, but from other sources.
ii.
129)
Bond Recanted His Confession And Federal Testimony
After being convicted and sentenced to death, Thomas, on or about January 10,
2002, received the Bond lettera handwritten letter from Bond in which Bond admitted that he
and Angela Jackson falsely implicated Thomas as Bonds partner in the Walgreens robbery. In
this letter, Bond admitted that he committed the Walgreens robbery with Bobby Jackson and that
he falsely accused Thomas as the shooter because Thomas had pursued his girlfriend sexually.
Bond also explained to Thomas why Angela Jackson lied to the authorities and at trial: she was
protecting Bobby Jackson, Bonds true accomplice, because she was romantically involved with
him. Bonds words speak for themselves:
Me and your bitch Angie played you playa. Its a cold game and a
cold world and we in both of them so its freezing. . . . Bolegg Im
gone let you see how cold his game is. When you was fucking all
them hoes on Angie she was fucking off too and then she lied on
you about the Walgreens case. The hoe was fucking the Bobby
Jackson the whole time . . . . Anyway Angie knew that me and
Bobby hit the Fargo truck but the bitch lied about me comin back
to her house. . . . White Boy Scott Sanders from the Feds who had
the Walgreens case was gone [sic] fuck me off because of my
finger prints on the Bonneville. He told me all he wanted was a
shooter so I gave them you. The reason why I didnt tell on Bobby
44
PageID 60
was because he didnt try to fuck my hoe like you did. Since you
tried to cross me, I crossed you. It was either you or me, so it had
to be you. Angie didnt snitch on Bobby even though she new the
business. . . . I hate that shit went down like that but its every man
for himself.
PC Hrg Ex. 3 (Bond letter (1/10/02)), attached hereto as Ex. 3.
130)
The state post-conviction court found that Bond wrote this letter, a fact that was
uncontested by the State at the evidentiary hearing. See PC-Crim. Ct. Op. at 51. Nevertheless,
the state court found Angela Jacksons testimony compelling and declared the letter highly
suspicious (an odd conclusion given the fact that the court found that Bond, in fact, wrote the
letter), and noted that Thomas pointed to nothing to corroborate its truthfulness. Id. at 49-50.
131)
As an initial matter, the contents of the letter were corroborated. The most critical
point made in the Bond letter is that Bobby Jackson, not Thomas, was Bonds accomplice in the
Walgreens robbery. This allegation is supported by the various eyewitness identifications that
smack of Bobby Jackson as the driver and Bond as the shooter, see paragraphs 105, 112, supra,
Robert Fishers identification of Bobby Jackson as the driver of the getaway vehicle, see
paragraph 107, supra, and Bonds fingerprint on the passenger side door of the getaway vehicle,
see paragraph 113, supra.
132)
Another critical point made in the Bond letter is that Angela Jackson lied about
Thomass involvement in the Walgreens robbery to protect Bobby Jackson. This point, too, is
corroborated by the various witnesses who testified that Angela Jackson and Bobby Jackson
were romantically involved during this time. See paragraph 124, supra.
133)
The state post-conviction courts at both the trial and appellate level relied entirely
on Angela Jacksons testimony in disregarding the Bond letter and finding ample evidence of
Thomass guilt. PC-Crim. Ct. Op. at 50-51; PC-CCA Op. at 46. But the state courts never heard
evidence of the FBIs $750.00 payment to Angela Jackson in exchange for her testimony, see
45
PageID 61
Section I(B), supra, nor were they aware of the fact that she perjured herself to deny such a
payment. See Section II(A), supra. Now that this evidence has finally been brought to light,
there can be no question that the credibility and strength of Angela Jacksons testimony is, at a
minimum, greatly diminished.
134)
Furthermore, the consequences Bond faced as a result of his recantation only
bolster the credibility of his letter and further diminish that of Angela Jackson. Not only could
Bonds statements have had serious implications for his then-pending appeals, his statements
also risked disturbing the light sentence which he received for his prior conviction of federal
armed robbery and exposing him to additional charges for violating the plea agreement.12
Besides clearing his conscience, Bond had no incentive to recant his previous statements other
than to mockingly brag about the success of his scheme to implicate Thomas. Indeed, the state
courts offered no explanation for why Bond might subject himself to these consequences if the
statements contained in his recantation were untrue.
2.
135)
Thomas Is Factually Innocent:

The Bullet Did Not Cause Days Death
Second, even if Thomas were involved in the robbery, the medical evidence now
shows that other causes, not the gunshot wound, killed Day. Thus, even if Thomas pulled the
trigger (which he did not), Thomas is factually innocent of the crime.
12
The agreement, for example, required him to continue to provide truthful information or risk
withdrawal of the plea agreement and retrialwhich would have had dire consequences for
sentencing. See, e.g., Ricketts v. Adamson, 483 U.S. 1, 4-8 (1987) (defendant sentenced to death
on retrial after revocation of plea agreement for untruthfulness).
46
a.
136)
PageID 62
Days Spinal Cord Injury Was Caused By

The Hospitals Grossly Negligent Administration
Of Anti-Hypertensive Medications, Not The Gunshot
Days death resulted, in part, from a chain of events that began with a lesion on
his lower spinal cord. As a factual matter, the gunshot did not cause this lesion. Indeed, Days
own doctor concluded that this neurologic deficit was unexplained by any CT scan findings or
injury inflicted by the gunshot wound. State Trial Ex. 73 (Med Discharge Summary (5/28/97))
(emphasis added), attached hereto as Ex. 1.
137)
Likewise, Dr. Steven Horowitzthe only neurology expert to have testified in
any of Thomass proceedingstestified at Thomass post-conviction evidentiary hearing that

[t]here was no connection between the bullet wound and Mr. Days [sic] subsequent
neurological deficits and ultimate death. PC Hrg Tr. at 256. Rather, the lesion on Days lower
spinal cord was caused by the Meds grossly negligent administration of anti-hypertensive
medications to Day, who was not hypertensive at the time those medicines were given to him.
138)
When Day was robbed, he sustained a gunshot wound to the back of his head.
The bullet did not enter his brain, but lodged in the area of his head known as the posterior fossa.
See id. at 215, 256.
139)
Upon his admission to the Med, Day was awake with the highest possible
Glasgow Coma Score, 15, which indicated that Day was alert and conscious with proper eye,
verbal and motor responses. See State Trial Ex. 73 (Med Discharge Summary (5/28/97)),
attached hereto as Ex. 1. More importantly, Day was able to move his arms and legs, indicating
that the gunshot wound had not damaged his spinal cord. See id. Days condition was not
critical when he arrived at the hospital, so rather than immediately operating to remove the
bullet, medical personnel opted to keep him under observation. See PC Hrg Tr. at 159-60, 21516, 355-56.
47
140)
PageID 63
Day exhibited blood pressure levels which were within normal limits for someone
with a head injury, like Day. Id. at 272. Patients in Days condition actually require higher
blood pressuretypically 160-180 over 90 is recommendedto ensure adequate perfusion of
the brain with blood. Id. at 279-83. Initially, Days blood pressure fluctuated between 176 over
123 and 187 over 126. Id. at 274. Given the medical guidelines, Days blood pressure was not
abnormally high given [his] condition and [he] was not hypertensive when he first arrived at
the hospital. Id. at 275. In fact, Day never experienced sustained levels of blood pressure over
the 180 threshold that would have resulted in a hypertensive patient requiring treatment. At
most, Day had borderline blood pressures that would have received no treatment under the
standard of care for such a patient. Id. at 272.
141)
The standard of care is to treat a patient in Days condition as hypertensive only if
his blood pressure exceeds 180 for a sustained period of time. See id. at 271. Days medical
records reveal, however, that his doctors at the Med, contrary to the standard of care, sought to
keep very tight control on his blood pressure in an effort to get it below 160. Id. at 277.
Moreover, in violation of the applicable medical standard of care, Days physicians also ordered
treatment for his blood pressure if his systolic blood pressure rose above 140. See id. The
standard of care dictates that treatment at that blood pressure level was unnecessary and, in fact,
was medically improper. See id.
142)
Notwithstanding the fact that Day was not hypertensive and was exhibiting
relatively normal blood pressure levels for a patient in his condition, doctors aggressively treated
him for hypertension in a manner inconsistent with the standard of care by administering six
different major anti-hypertensive medications, some of which were contra-indicated for each
other and some of which were specifically contra-indicated for Days condition.
48
143)
PageID 64
The first medication, Procardia, was given to Day approximately two hours after
admission to the Med. While still receiving Procardia, two more anti-hypertensive medications
were added: Nipride and Nicardipine. Day would continue to receive these medications for the
next two days, from April 21, 1997 to April 23, 1997. See id. at 274-77.
144)
Importantly, Nipride, which belongs to a class of drugs called vasodilators, is
contra-indicated for patients with injuries like Days even if those patients are, in fact,
hypertensive. As Dr. Horowitz explained, the fear is that Nipride will cause vasodilation not
only in the arteries but the veins and cause an increase in blood pressure, an increase in the
intracranial pressure. So Nipride is notis not thought to be used in order to lower the blood
pressure in intra-cerebral bleeds . . . . Id. at 278.
145)
Later in the evening of April 21, 1997, Day was given a fourth anti-hypertensive
medication in the form of a nitro-patch and a fifth concurrent medication, Vasotec. See id. at
279. Finally, a sixth anti-hypertensive medicationBetalolwas added. See id. at 282.
146)
Thus, within 24 hours of admitting Day to the hospital, doctors were
administering six hypertensive drugs concurrently, all while Day was not hypertensive.
However, even if Day were hypertensive and treatment with these medications was warranted,
the manner in which doctors administered these drugs contravened the standard of care. As Dr.
Horowitz explained, in such a situation, the standard of care requires giv[ing] one medication at
a time and to see if it worksotherwise, the drugs could interact and cause a sudden drop in
blood pressure. Id. at 282. Instead, Days doctors administered all six medications in rapid
succession without waiting to see if the earlier-administered drugs had taken effect.
147)
Additionally, of the six medications that Day received, only Betalol and
Nicardipine are recommended for patients with intracranial bleeding. See id. The other four risk
49
PageID 65
increasing intracranial blood pressure and are contra-indicated for patients with injuries similar
to Days. See id. 278-79, 282. Yet even when Day was finally brought in for surgery to relieve
his cranial pressure, the doctors at the Med continued to give him regular infusions of these
vasodilators. See id. at 288-89.
148)
Not surprisingly given this course of mistreatment, Days blood pressure
plummeted. See id. 288. Though the American Heart Association recommends a mean arterial
blood pressure of between 110 and 130, Days mean arterial blood pressure ultimately dipped to
between 75 and 77. See id at 288-89. This drop in blood pressure, unrelated to the wounds Day
suffered from the bullet, caused a decreased flow of blood to his lower spine, resulting in the
lesion that left him with paraparesis (a profound weakness of the legs) and a loss of bladder and
bowel functions. See id.
b.
149)
Days Condition Improves After Discharge And

He Lives At Home For More Than Two Years
Upon his discharge from the Med, Day was transferred to a HealthSouth
rehabilitation center where he remained until July 3, 1997, when he returned home. See State
Trial Ex. 73 (HealthSouth Rehab Hospital Discharge Summary (7/27/97)).
Over the next
several months, Day continued to receive outpatient therapy and, by October 27, 1997, he was
able to walk 20 feet unaided. See State Trial Ex. 76 (Office Notes (10/27/97)).
150)
By January 28, 1998, Day had recovered sufficiently so that he could walk on his
own for a short distance and he was deemed independent from a wheelchair. Further, Day was
capable of performing a sedentary-level job and driving an automobile with hand controls. See
id. (Office Notes (11/28/98)). Days outpatient physical therapy program concluded on March 9,
1998, at which time he was given instructions to continue his exercises at home. Day continued
to see medical specialists for observation and treatment of his neurogenic bladder.
50
c.
151)
PageID 66
Day Dies Of A Bladder Infection,

Diabetic Ketoacidosis, and Coumadin Toxicity
More than two-and-half years after the Walgreens robbery, on September 29,
1999, Days wife called Days urologist, Dr. Hickey, and advised him that Day had large
amounts of blood in his urine. State Trial Tr. at 1030. The urologist simply directed Days wife
to give him more fluids and did not tell her to bring Day to the hospital. Id. When a doctor
called the following morning, Days wife reported that Days condition had worsened overnight.
See State Trial Tr. at 1030-31. Day was transported to the hospital where he was admitted with
profuse vomiting, diarrhea, significant gross hematosis, abdominal distension, hypotension, fever
and malaise. See State Trial Ex. 78 (Methodist Consultation (10/1/99)).
152)
Once he was in the hospital, Days condition continued to decline. Exploratory
surgery conducted on September 30, 1999 revealed a large tear in the wall of his bladder. The
tear was repaired, but Days condition did not improve. See id. (Methodist Death Summary).
Day died on October 2, 1999, shortly after his wife requested that he be removed from life
support. Id.
153)
Day died from sepsis, a massive bacterial infection of the blood. See PC Hrg Tr.
at 344. Dr. Horowitzin testimony the State did not disputeidentified two major causes of
this infection: Days diabetes and toxic levels of Coumadin. See id. at 344-45.
154)
Days diabetes contributed to the formation of the bladder infection. Blood sugar
levels over 125 generally indicate diabetes. See id. at 325. Even when Day was at the Med in
1997, his blood glucose levels were already ranging from 133 to 166. See id. at 326-27. Yet the
physicians did not treat Day for this condition, even though at that point he needed to be
managed, and he needed to be watched. Id. at 330.
51
155)
PageID 67
Left untreated, diabetes gets worse. When Day was admitted to the hospital in
1999, he showed blood sugar levels of 699. See id. at 325-26. Such an extremely high blood
sugar level indicates that he was already suffering from severe diabetic ketoacidosis at that time,
a life-threatening condition in and of itself. See id. at 326, 337. As a consequence of the
diabetes and ketoacidosis, Day had sugar in his urine. See id. at 337. Because bacteria can feed
off this sugar, individuals in a diabetic state similar to Days are more susceptible to infection
[and] especially urinary tract infections.
Id.
Thus, Days diabetesa condition wholly
unrelated to the gunshot woundplayed a critical role in fostering, fueling and exacerbating the
bacterial infection in his urinary tract.
156)
Days urinary tract infection only escalated to life-threatening sepsis after his
bladder ruptured. The rupture was caused by excessive bleeding in the bladder walls, which was
itself caused by the over-administration of Coumadin, a strong anti-coagulant that thins blood
and reduces its clotting properties. See id. at 342.
157)
Generally, a patient in Days condition requires an International Normalization
Rate (INR), which measures bloods clotting ability, of 2 to 3. See id. at 341-42. Any INR
exceeding 4.5 creates a dangerous situation where stopping bleeding would be difficult. See id.
158)
When admitted to the hospital in 1999, Day displayed an INR of 5.3. See id. at
342. Day was Coumadin-toxic, his blood was too thin, and his bleeding was very difficult to
stop. See id.
159)
Unable to stem bleeding through normal clotting mechanisms, blood pooled in
Days body. Id. at 342-43. Doctors found one liter of blood in Days abdomen, bleeding around
his eyes and nose, bleeding in the lining of his brain, and bleeding into the bladder wall. See id.
52
PageID 68
This pooling of blood in his bladder wall caused the bladder to rupture, allowing the urinary tract
infection to spread throughout his body. See id. at 342-43.
160)
In the end, the gunshot wound that Day sustained on April 21, 1997 to the back of
his head did not cause Days paralysis or result in his death on October 2, 1999. Rather, as Dr.
Horowitz concluded, Day died, two-and-a-half-years later, from an overwhelming infection,
diabetic ketoacidosis and . . . Cumadin [sic] toxicity, id. at 344-45,all conditions arising
from the Meds grossly negligent decision to treat a non-existent problem upon Days admission
to the hospital (his hypertension) and its carelessness in monitoring his medical conditions
after his initial release.
3.
161)
Andrew Thomas Is Legally Innocent
Finally, the execution of an individual whose acts do not satisfy the legal elements
of the crime of which he has been convicted is no less offensive to the Constitution than the
execution of the factually innocent. See Herrera, 506 U.S. at 419 (OConnor, J., concurring)
(the execution of a legally and factually innocent person would be a constitutionally intolerable
event.) (emphasis added).
162)
As such, a death row petitioners legal innocence of one or more elements of an
offense warrants habeas corpus relief. Any other rule would render the execution arbitrary and
capricious in violation of the Eighth Amendment. See Furman v. Georgia, 408 U.S. 238, 309-10
(1972) (Stewart, J., concurring).
163)
Thomas is legally innocent of the death penalty because: (1) the Meds gross
negligence, in fact, constituted a superseding cause that broke the chain of causation under
Tennessee law, and the state courts failure to recognize it as such is a violation of Thomass due
process rights under the 14th Amendment; and (2) even if the gunshot wound did, as a factual
matter, contribute to Days death, the state courts decisions in this case demonstrate that
53
PageID 69
proximate cause is so broadly defined under Tennessee law that Thomass conviction for felony
murder does not meet the Eighth Amendments requirement that each element of homicide be
proven beyond a minimum threshold in order for a state to justifiably impose the death penalty.13
a.
164)
Thomas Is Legally Innocent Because The

Meds Gross Negligence Was A Superseding
Cause Of Days Death Under Tennessee Law
As a matter of Tennessee state law, the Meds grossly negligent treatment of Day
for hypertension was an unforeseeable, superseding cause of his death. Thus, the State cannot
prove the causation element of felony-murder. As a result, Thomas is legally innocent and his
conviction and sentence are unconstitutional.
165)
The Supreme Court has held that a federal court can assess a state courts
application of state law when that application lacks fair and substantial supportor, in other
words, where the state courts application of state law is so novel or arbitrary that it deprives the
defendant of due process of law or some other constitutional right to which he is entitled. See,
e.g., Bush v. Gore, 531 U.S. 98, 115 (2000) (Rehnquist, C.J., concurring) (overturning the
Florida Supreme Courts interpretation of state election law because it impermissibly distorted
[the law] beyond what a fair reading required, in a violation of the federal Constitution); Reece
v. Georgia, 350 U.S. 85, 89-90 (1955) (finding that a state procedural rule was unconstitutionally
applied where the state courts application of the rule denied the defendant effective assistance of
counsel and due process of law); Ward v. Bd. of Cnty. Commrs of Love Cnty., Okla., 253 U.S.
17, 22 (1920) (stating that a federal court may assess nonfederal grounds of decision . . . [where
they] were without any fair or substantial support.).
13
Thomas asserts each of the claims in this section as an independent violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments.
54
166)
PageID 70
The federal courts power to review a state courts application of state law under
such circumstances cannot be disregarded without neglecting or renouncing a jurisdiction

conferred by law and designed to protect and maintain the supremacy of the Constitution and the
laws made in pursuance thereof. Ward, 253 U.S. at 23.
167)
Whether the decision at issue comports with, or deviates from, prior state court
interpretations of the statute, doctrine, or provision at issue is directly relevant to the question of
whether the state law decision is so novel and arbitrary that it violates the Constitution. See, e.g.,
Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 676 (1930) (reversing the Missouri
Supreme Courts application of state law to deny plaintiffs federal claim due to failure to
exhaust state administrative remedies because the same court had ruled six years earlier that
exhaustion was not required and that decision was thereafter consistently acted upon . . . [and]
followed).
168)
In Tennessee, causation is an element of every homicide offense, State v.
Farner, 66 S.W.3d 188, 206 (Tenn. 2001), and an unexpected, unforeseeable or remote act of
another that causes death breaks the chain of causation required to convict the defendant of
homicide. See State v. Randolph, 676 S.W.2d 943, 948 (Tenn. 1984). Gross medical negligence
or intentional misconduct by a physician in treating the patient satisfies this test. See Gray v.
State, 250 S.W.2d 86, 90 (Tenn. 1952).
[M]edical treatment [that] is so deficient as to
constitute gross negligence or intentional malpractice . . . is abnormal and not reasonably

foreseeable . . . [when] the wound inflicted upon the victim would probably not have been fatal,
but the victim dies as a result of the physicians grossly negligent treatment.
Saavedra-Rodriguez, 971 P.2d 223, 226-27 (Colo. 1999).
55
People v.
169)
PageID 71
The Meds gross medical negligence should have been found to constitute a break
in the chain of causation under Tennessee law. The bullet wound that Day suffered during the
course of the Walgreens robbery was not fatal and the evidence establishes that Day ultimately
died as a result of the Meds wholly unnecessary treatment of his elevated blood pressurean
unproblematic, normal condition when associated with head and brain trauma that did not require
any treatment whatsoever. See Section II(A)(2)(a), supra.
170)
As such, the Tennessee courts failure to recognize that this course of events
reflected a break in the chain of causation constituted a novel and arbitrary application of state
law, which is subject to review in federal court. See NAACP v. Alabama ex rel. Patterson, 357
U.S. 449, 457-58 (1958) (Novelty [in state law rulings] cannot be permitted to thwart review in
this Court applied for by those who, in justified reliance upon prior decisions, seek vindication . .
. of their federal constitutional rights.).
171)
Given the law of Tennessee on causation, it is clear that a different state court
would have found the chain of causation to be broken in Thomass caseleaving no doubt that
the imposition of the death penalty on Thomas would be arbitrary and capricious. Thus, this
court can and should review the Tennessee courts novel application of state law on causation,
which violates Thomass rights under the Eighth and Fourteenth Amendments. See Furman, 408
U.S. at 309-10 (Stewart, J., concurring) (the Eighth and Fourteenth Amendments prohibit states
from arbitrarily and capriciously imposing the death sentence on their citizens).
b.
172)
Thomass Conviction For Felony Murder

On These Facts Does Not Satisfy Independent
Constitutional Requirements Necessary For
Lawful Execution Under The Eighth Amendment
Even if the Meds gross medical negligence with respect to its care for Day is
determined not to break the chain of causation under Tennessee law, Thomas is nevertheless
56
PageID 72
entitled to relief because the facts of the States case against him do not satisfy the independent
constitutional threshold for proximate causation that is necessary for a state to lawfully execute a
prisoner under the Eighth Amendment.
173)
To ensure that an individual is never executed arbitrarily or capriciously in
violation of the Eighth Amendment, the Constitution imposes limits on the states ability to levy
the death penalty. Critically, the Supreme Court has repeatedly held that a state cannot impose
the death penalty in instances where the victims life was not taken. Kennedy v. Louisiana,
554 U.S. 407, 437-38 (2008) (stating that the Eighth Amendment prohibits the death penalty for
child rape); Coker v. Georgia, 433 U.S. 584, 600 (1977) (holding that the Eighth Amendment
prohibits the death penalty for adult rape).
174)
As such, the Supreme Court has held that the Eighth Amendment requires a
minimum showing for each element of homicide (e.g., act, intent, causation), independent of
whether the prosecution has proven the state law-defined elements of the offense, that must be
met in order for a state to constitutionally impose the death penalty. See Enmund v. Florida, 458
U.S. 782, 798 (1982) (finding execution unconstitutional, even though defendant was properly
found guilty of felony murder under state law, because the facts of the case did not show a
sufficiently high level of culpability to justify the imposition of the death penalty); see also
Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975) (a state cannot undermine interests protected
by the Constitution by redefin[ing] the elements that constitute different crimes).
175)
Thus, even if the state courts correctly applied the Tennessee law of causation and
superseding cause in finding Thomas guilty of felony murder, Thomas cannot constitutionally be
executed under the Eighth Amendment because the state courts rulings in this case demonstrate
57
PageID 73
that Tennessee law defines a legal cause (i.e., proximate cause) so broadly that the
prosecutions need to prove proximate causation in a trial for homicide is essentially eliminated.
176)
As such, Tennessee lawat least, as applied in this casefails to meet the Eighth
Amendments requirement that each element of homicide be proven beyond a certain threshold
in order for the imposition of the death penalty to be constitutional.
177)
Indeed, if Thomas can be properly convicted of felony murder under Tennessee
law, despite the numerous and significant causes that intervened to cause Days death (e.g., the
Meds gross medical negligence in the unnecessary administration of six contra-indicated antihypertensive drugs; Days uncontrolled diabetes; the failure of Days doctors to monitor his
Coumadin treatment; the failure of Days urologist to urge his wife to bring him to the hospital
when blood was found in his urine, etc.), the State of Tennessee could impose the death penalty
for virtually any felonious act that has some relationship to the death of its victim, no matter how
remote or attenuated.
B.
Thomas Can Excuse Any Procedural Default Or

Non-Exhaustion Of His Actual Innocence Claims
178)
To obtain a writ based upon a freestanding claim of actual innocence, a petitioner
in a capital case must first satisfy the procedural prerequisites required of all habeas petitions.
See Herrera, 506 U.S. at 426 (OConnor, J., concurring). Any procedural default or nonexhaustion of an actual innocence claim in the courts below should be excused because Thomas
can establish a gateway claim of actual innocence. See House, 547 U.S. at 536-38.
58
179)
PageID 74
First, Thomas has produced new reliable evidence not presented at trial.14 See
id. at 537. As discussed in Section I(B), supra, Thomas was only recently made aware that
Angela Jackson, a key State witness, was paid in connection with her testimony.
180)
Second, Thomas can show that it is more likely than not that no reasonable juror
would have found [him] guilty beyond a reasonable doubt if the jury had considered all the
evidence, old and new, incriminating and exculpatory, without regard to whether it would
necessarily be admitted . . . at trial. Id. at 538; Schlup, 513 U.S. at 327. Because Thomas can
satisfy the even higher standard for a freestanding claim of innocence under Herrera, he
necessarily satisfies the showing of innocence to excuse the procedural default of any of his
actual innocence claims. However, even if this Court believes that Thomas has not made out a
sufficient claim for actual innocence under Herrera, any procedural default of his other
innocence claims is excused because the evidence offered in support of Thomass Herrera claim
is clearly sufficient to satisfy the lower Schlup standard for a gateway innocence claim.
C.
Andrew Thomas Lacks An Avenue To Assert His Innocence In State Court
181)
Next, to obtain a writ based upon a freestanding claim of actual innocence, a
petitioner in a capital case must lack an avenue to assert his innocence in state court. See
Herrera, 506 U.S. at 426 (OConnor, J., concurring).
14
Though new reliable evidence forms a threshold requirement for a gateway claim of actual
innocence, see e.g., House, 547 U.S. at 537 (quoting Schlup, 513 U.S. at 324), the Supreme
Court has never articulated such a requirement for a Herrera freestanding claim of actual
innocence. See generally Herrera, 506 U.S. at 419-20, 426 (OConnor, J., concurring) (not
mentioning newly discovered evidence requirement). But see id. at 429 (White, J., concurring in
the judgment) (requiring newly discovered evidence). The Sixth Circuit has, however, imposed
such a requirement. See Lefever v. Money, No. 99-3040, 2000 WL 977305, at *6 (6th Cir. July
6, 2000). Notwithstanding the absence of a logical reason why the execution of an innocent man
would somehow be less offensive to the Constitution when the evidence establishing innocence
is old, for the reasons discussed in this section, Thomas satisfies the new reliable evidence
requirement.
59
182)
PageID 75
As the Court of Criminal Appeals recognized, Petitioner has availed himself of
the available avenues of relief in asserting a claim of actual innocence in Tennessee state courts.
PC-CCA Op. at 59. Even if Thomas had not taken advantage of any state procedures allowing
him to assert an actual innocence claim, doing so now would be procedurally- and time-barred
under state law. Thomas has no remaining mechanisms for asserting his innocence in state court.
Federal habeas relief is the only available avenue for correcting Thomass unconstitutional
conviction and preventing his execution for a crime he did not commit.
IV.
CLAIM NO. 4: ANDREW THOMAS WAS

DENIED EFFECTIVE ASSISTANCE OF COUNSEL
THROUGHOUT THE STATE COURT PROCEEDINGS
183)
Constitution because Thomas was deprived of the effective assistance of counsel throughout and
at all stages of the state court proceedings, and it is at least reasonably likely that a more
favorable outcome would have been obtained for Thomas had counsel performed competently.
The adjudication of Thomass ineffective assistance of counsel claims in the state courts resulted
in decisions that were contrary to, and involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court, and resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in state
court.
184)
[T]he right to counsel is the right to the effective assistance of counsel.
Strickland, 466 U.S. at 686 (citations omitted). Effective representation of a criminal defendant
entails certain basic duties including a duty to bring to bear such skill and knowledge as will
render the trial a reliable adversarial testing process. Id. at 688.
60
185)
PageID 76
Strickland sets forth two elements that must be shown in order to succeed on an
ineffective assistance of counsel claim: (1) that counsels performance was deficient; and (2)
that the deficient performance prejudiced the defendant. See id. at 687. Counsels performance
is deficient under Strickland if it falls below an objective standard of reasonableness, as defined
by prevailing professional norms and as reflected in [the] American Bar Association standards
and the like. Id. at 687-88, 690; Wiggins v. Smith, 539 U.S. 510, 522 (2003). Deficient
performance will be deemed prejudicial if but for counsels error, there is a reasonable
probability that at least one juror would have struck a different balance. Wiggins, 539 U.S. at
513.
186)
If counsels performance is both deficient and prejudicial, a new trial is
warranted. See Strickland, 466 U.S. at 686.

187)
At trial, Thomas was represented by Michael Scholl, who was court-appointed to
serve as Thomass lead attorney, and Jeffery Glatstein, who was court-appointed to serve as
Thomass second-chair attorney. On appeal, Thomas was represented again by Scholl, and also
by Robert Brooks. Neither Scholl, nor Glatstein, nor Brooks rendered effective assistance of
counsel, thereby denying Thomas of his rights pursuant to the Fifth, Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution. The following facts, among others,
support this claim:
A.
Trial Counsel Was Ineffective For Failing

To Present A Medical Causation Defense
188)
A crucial issue at trial, which the State had to prove beyond a reasonable doubt,
was whether the gunshot wound that Day sustained to the back of his head on April 21, 1997
ultimately caused his death from a bladder infection two-and-a-half years later. Despite the
obvious importance of this issue, Thomass trial counsel failed to adequately investigate and
61
PageID 77
present a medical causation defense, and therefore deprived him of effective assistance of
counsel.
189)
Specifically, Scholl and Glatstein committed the following errors, each of
whichindividually and cumulativelyled to their failure to present an adequate medical

causation defense: (1) Scholl delegated responsibility for the medical defense to Glatstein, who
had constructively withdrawn as Thomass counsel; (2) Scholl and Glatstein failed to consult
with a qualified expert to assist them in understanding and challenging the States case on
causation; (3) they failed to present a single witness to challenge the States case on causation,
even though they possessed evidence demonstrating that Day did not die as a result of the
gunshot wound; (4) they failed to object to the cumulative testimony of the States two medical
witnesses, Dr. O.C. Smith and Dr. Cynthia Gardner; (5) they failed to properly cross-examine
Dr. Smith and Dr. Gardner with key evidence contradicting the States theory of causation; and
(6) in front of the jury, Scholl agreed with Dr. Gardner that the gunshot wound caused Days
neurological injuries.
190)
As a result of these errors, the States cumulative evidence that Days gunshot
wound caused his paralysis and bladder problems, which in turn resulted in his death, went
effectively unchallenged, despite the existence of significant evidence to dispute these theories.
1.
191)
Trial Counsels Failure To Consult With

An Expert Qualified To Opine On The Cause
Of Days Death Constituted Deficient Performance
Under Clearly Established Supreme Court Precedent
Despite the obvious importance of causation to the States ability to prove that
Thomas committed felony murder, Scholl and Glatstein failed to consult with an appropriate
expert who was qualified to opine on the cause of Days paralysis and eventual death.
62
192)
PageID 78
Scholl, by his own admission, did very little work on Thomass medical defense.
Instead, he delegated this critical responsibility away to his co-counsel, Glatstein, who was
transitioning out of the practice of law and was unable to adequately serve as Thomass attorney,
and to Manis, who did not even represent Thomas. See PC Hrg Tr. at 387, 494.
193)
Glatstein barely involved himself in the preparation of Thomass defense. Sixty
days before Thomass trial, Glatstein had, in fact, stopped practicing criminal law and no longer
even had an office. See id. at 95. Glatstein stated during Thomass post-conviction evidentiary
hearing that he was wrapping up his criminal practice at this time in preparation for a masters
program in accounting and tax. Id. Glatstein also testified that during Thomass trial, he
focused all his energies on his studies, not on Thomass defense. Id. By his own admission,
during Thomass trial, Glatstein had effectively withdrawn from his defense.
194)
Nevertheless, Scholl tasked Glatstein to develop Thomass medical causation
defenseone of the most important aspects of Thomass defense. Scholl did this even though he
knew that Glatstein was in the midst of transitioning out of the practice of law, had only tried one
capital case in his career, and was unable to adequately serve as Thomass attorney. In fact,
Scholl had specifically requested that Glatsteinwho was renting office space from Scholl at the
time of Thomass trialbe appointed as his second chair, possibly for the reason that the
appointment would provide Glatstein with enough money to pay his rent.
195)
Unsurprisingly, Glatstein made little effort to obtain or understand the relevant
medical information. By his own admission, Glatstein testified that he did not independently
contact a medical expert and that he had no recollection of talking to any medical expert at all.
See id. at 92, 387. In his own words, Glatstein was merely riding [the] coattails of Manis,
63
PageID 79
Bonds counsel, who, in Glatsteins opinion, had taken full charge of the medical records.15 See
id. at 108.
196)
Maniswho represented Thomass co-defendant, Anthony Bondcontacted Dr.
Steven Hayne, the Chief Medical Examiner of Mississippi and a forensic pathologist, to see if he
could reach a different conclusion than the States medical experts on the issue of causation.16
197)
Dr. Hayne was unqualified to opine on the cause of Days death, not least by his
own admission. After reviewing certain medical records submitted to him by Manis, Dr. Hayne
wrote Manis a letter containing his observations . . . concerning the demise of James Day. PC
Hrg Ex. 16 (Letter from Dr. Hayne to Manis (8/29/01)), attached hereto as Ex. 2. In this letter,
Dr. Hayne recognized that the gunshot wound was only one possible explanation for Days
neurological injuries, noting that Days injuries could be explained by other possible causes. See
id.
198)
Dr. Hayne advised Manis that it was critical for him to consult with an expert in
the field of neurology to determine the cause of Days death and to evaluate the impact of Days
medical treatment on his injuries:
To determine the appropriateness of monitoring as opposed to
neurological intervention, a neurosurgeon would be required to
review the medical records as to the appropriateness of medical
care to include both diagnosis and intervention. This would be of
critical importance to ascertain the appropriateness of medical
intervention as related to the development of paraplegia and
15
Indeed, it was Maniswho arguably had a conflict with Thomass interestsand not
Glatstein or Scholl who would handle all the defense motions on medical issues. At trial, Manis
conducted cross-examination of the States medical witnesses first, with Scholl following up
with the few additional questions he thought necessary. See PC Hrg Tr. at 494. The record of
the joint trial clearly reflects the minimal nature of Scholls cross-examination.
16
At Thomass post-conviction hearing, Scholl recalled that Manis also spoke with a urologist,
Dr. Alabaster, who did not dispute the States theory of causation with respect to Days
urological issues. Scholl did not recall any conversations or meeting with either doctor. See PC
Hrg Tr. at 520, 528.
64
PageID 80
neurogenic bladder. The determination of the level of medical

care is of critical importance in ascertaining the impact of the
injury to the ultimate demise of James Day and any relationship
of medical care delivered or withheld and its relationship to the
death of James Day.
Id. (emphasis added).
199)
Despite this express instruction, neither Scholl nor Glatstein nor Manis ever spoke
to a neurosurgeon. In fact, they did not speak to any further doctors, qualified or otherwise,
about the cause of Days paralysis, and instead decided to proceed to trial without an expert.
200)
In Strickland, the Supreme Court held that strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words, counsel has a duty to make
reasonable investigation or to make a reasonable decision that makes particular investigations
unnecessary. Strickland, 466 U.S. at 690-91. Any limitation on counsels investigation must
be directly assessed for reasonableness [under] all the circumstances . . . . Id. at 691; see
Wiggins, 539 U.S. at 533. In assessing whether counsel exercised reasonable professional
judgment in making a particular decision, courts must focus on whether the investigation
supporting counsels decision . . . was itself reasonable. Wiggins, 539 U.S. at 523 (emphasis in
original); see Strickland, 466 U.S. at 690-91.
201)
Additionally the Supreme Court has recognized that [c]riminal cases will arise
where the only reasonable and available defense strategy requires consultation with experts or
introduction of expert evidence, whether pretrial, at trial, or both. Harrington v. Richter, 131 S.
Ct. 770, 788 (2011); see Williams v. Martin, 618 F.2d 1021, 1025 (4th Cir. 1980) (There can be
no doubt that an effective defense sometimes requires the assistance of an expert witness. This
observation needs little elaboration.).
65
202)
PageID 81
Thomass case was one where expert testimony was required. The States case
against him turned on whether it could prove beyond a reasonable doubt that the gunshot wound
that Day sustained to the back of the head on April 21, 1997, caused his death from a bladder
infection more than two-and-a-half years later. Scholl himself has acknowledged that a critical
issue in Thomass trial was whether Days death was caused by the gunshot because if Days
death was not caused by the gunshot that Thomas was alleged to have inflicted, then his client
could not be convicted of felony murder. See PC Hrg Tr. at 491-92.
203)
Nevertheless, the state courts excused trial counsels failure to consult with a
neurologist on the ground that he had learned from Manis that Dr. Hayne and Dr. Alabaster
supposedly did not dispute the States theory of causation. The state courts holding that Scholl
employed a reasonable investigation that supported his decision to try the case without the aid of
expert consultation or testimony squarely conflicts with and is an unreasonable application of
clearly established Supreme Court precedent concerning what constitutes a reasonable
investigation capable of supporting a strategic decision.
204)
The United States Courts of Appeals have clearly and uniformly applied the
Supreme Courts precedent on this issue to hold that where the resolution of a critical legal issue
in a criminal case is dependent on expert evidence, the failure to consult with a qualified expert
constitutes deficient performanceespecially where counsel has an inkling that there is reason to
question the validity of the States evidence on that issue. See, e.g., Richey v. Bradshaw, 498
F.3d 344, 362-64 (6th Cir. 2007) (where scientific evidence of arson was fundamental to the
States case and counsel knew that there were gaps in the States proof, counsels strategy merely
to poke holes in the States case without the benefit of an expert was deficient); see also
Duncan v. Ornoski, 528 F.3d 1222, 1235 (9th Cir. 2008) (where the defense theory was that
66
PageID 82
defendant did not commit the murder and a police report indicated that there were antigens in the
blood sample that were inconsistent with the victims blood type, failure to consult with a
serologist constituted deficient performance).
205)
Under these precedents, trial counsels resignation of defeat after nothing more
than a nominal investigation of potential experts does not pass muster under Strickland as a
reasonable strategy capable of supporting the decision to meet the States causation case without
the assistance of an expert.
2.
206)

Undeniably Prejudiced By Scholls Failure To Consult With
An Expert Qualified To Opine On The Cause Of Days Death
There can be no doubt that Scholl and Glatsteins failure to consult with an expert
qualified to support a medical causation defense was highly prejudicial.

207)
Scholl and Glatstein failed to present a single witness to challenge the States case
on causation. Had they consulted with an expert qualified to opine on the cause of Days
neurological injuries, they would have been able to present testimony like that given by Dr.
Steven Horowitz, who testified at Thomass post-conviction hearing that Days medical records
show that his paraplegia and neurogenic bladder were not caused by the gunshot, but instead by
the Meds grossly negligent administration of multiple, contra-indicated anti-hypertensive
medications to Day when he was not medically hypertensive. See Section III(A)(2)(a), supra. In
addition, Dr. Horowitzs testimony called into question critical points of Dr. Smiths and Dr.
Gardners testimonies which, if presented at trial, would have rebutted their theory of causation
and introduced doubt that the State hador even couldprove that the gunshot wound that Day
received during the Walgreens robbery was the proximate cause of his ultimate demise.
67
208)
PageID 83
Because Scholl and Glatstein failed to consult with a qualified expert to assist in
their understanding of the medical case, Scholl failed to cross-examine Dr. Smith and Dr.
Gardner with even one medical record, even though the medical records contradicted their
theory of causation. Instead, an uninformed and uneducated Scholl actually agreed with Dr.
Gardner in front of the jury that Days neurogenic bladder was caused by the gunshot wound.
See State Trial Tr. at 1389, 1393-94, 1412.
209)
Furthermore, due to his failure to consult with a qualified expert, Scholl and
Glatstein did not understand that Dr. Smiths and Dr. Gardners testimonies on the cause of
Days death was cumulative, and did not object to the States unnecessary presentation of both
witnesses. As a result, the jury heard uncontroverted testimony from both of the States experts
that the gunshot wound caused Days death, and did not hear any rebuttal testimony like that of
Dr. Horowitz.
210)
The Court of Criminal Appeals found that even if trial counsels failure to present
an adequate medical causation defense constituted deficiency, Thomas was not prejudiced by
that failure because he could not prove that Dr. Horowitzs testimony established the affirmative
defense of a break in the chain of causation. In so finding, however, the Court of Criminal
Appeals applied a standard that is contrary to, and an unreasonable application of, the clearlyestablished prejudice standard announced in Strickland.
211)
Under Strickland, the central question in the prejudice inquiry is not whether
Thomas could definitively prove that the hospitals gross negligence broke the causal chain.
Instead, to prove prejudice under Strickland, Thomas is only required to introduce a reasonable
probability that the State failed to prove any necessary element of its case against him.
Strickland, 466 U.S. at 694 (describing the prejudice inquiry as whether there is a reasonable
68
PageID 84
probability that, but for counsels unprofessional errors, the result of the proceeding would have
been different).
212)
Thus, Dr. Horowitz did not need to make out an airtight defense that there was a
break in the chain of causation;17 his testimony should have been deemed sufficient to show
prejudice so long as it exposed sufficient weakness in the States causation argument such that
one juror might have believed that the State failed to prove its case against Thomas. See
Wiggins, 539 U.S. at 513 (describing prejudice as a reasonable probability that at least one juror
would have struck a different balance).
213)
There can be no question that if Scholl and Glatstein had consulted with a
qualified expert in the field of neurology, like Dr. Horowitz, they could have created reasonable
doubt in at least one jurors mind as to whether the gunshot wound Day sustained during the
Walgreens robbery was the proximate cause of Days death. As such, the determination of the
Court of Criminal Appeals that Thomas was not prejudiced by trial counsels failure to present
an adequate prejudice defense was contrary to, and an unreasonable application of, the Strickland
prejudice inquiry.
B.
Trial Counsel Was Ineffective Due To Glatsteins De Facto

Withdrawal And Scholls De Facto Solo Representation
214)
For the same reasons discussed in Section IV(A), supra, Glatsteins de facto
withdrawal and Scholls de facto representation of Thomas as a solo attorney severely and
prejudicially compromised the integrity of Thomass defense and, thus, rendered Thomass
counsel ineffective.
17
Thomas contends that Dr. Horowitz did, in fact, demonstrate that the Meds grossly negligent
treatment of Day was a superseding cause of his death. See Section III(A)(3)(a), supra. But for
purposes of establishing prejudice under Strickland, Thomas need not prove an affirmative
defense or that the States theory is absolutely incorrect as a matter of law in order to obtain
relief.
69
215)
PageID 85
Under Strickland, the ABA standards serve as a guide for determining reasonable
attorney conduct. See Strickland, 466 U.S. at 688 (stating that the prevailing norms of practice
that govern the deficiency inquiry are reflected in American Bar Association standards and the
like). The standards in place at the time of Thomass trial, as well as now, specifically require
that a defendant in a capital case be represented by one lead counsel and one co-counsel. See
ABA Guidelines For The Appointment And Performance Of Counsel In Death Penalty Cases
2.1 (1989) (1989 ABA Death Penalty Guidelines) (requiring two qualified trial attorneys),
superseded by ABA Guidelines For The Appointment And Performance Of Counsel In Death
Penalty Cases, reprinted in 31 Hofstra L. Rev. 913 (rev. ed. 2003) (requiring the same); see also
Tenn. Sup. Ct. R. 13, 3(b)(1) (requiring two attorneys to represent a defendant at trial in a
capital case). Two competent attorneys are required because the defendant is constitutionally
entitled to legal assistance of sufficient quality so as to prepare an adequate defense at trial, and
this mandate is difficult to fulfill where the heavy responsibilities of representation are placed in
the hands of a single attorney. 1989 ABA Death Penalty Guidelines 2.1 commentary.
216)
Glatsteins failure to fully engage in the Thomas trial and assist his fellow
counsel, as he was obligated to do under Strickland, thus violated the applicable ABA standards
for attorney conduct and constituted deficiency.
Likewise, Scholls decision to proceed
effectively as a solo attorney in his capital representation of Thomas violated the applicable ABA
standards for attorney conduct and constituted deficiency.
217)
There can be no doubt that their deficiency was severely prejudicial. As the ABA
Rules make clear, the burden of adequately representing a death penalty client is simply too great
for a single attorney to handle on his own. And, in fact, if Glatstein had been more invested in
Thomass defense, perhaps Scholls delegation of Thomass causation defense to him would
70
PageID 86
have led to fewer serious errors. Had Glatstein been properly engaged in Thomass defense, as
he was required to be under the ABA standardsor, had Scholl alerted the court to the situation
and sought a replacement second counselthe defense team might have properly investigated
the medical causation defense and consulted with a qualified expert in the field of neurology, like
Dr. Horowitz, making them better equipped to create reasonable doubt as to whether Days
gunshot wound was the proximate cause of his death.
218)
Instead, Glatstein was essentially unavailable to assist in Thomass defense, and
Scholl proved unable to handle the heavy load of a capital defense alone. As discussed in
Section IV(A), supra, Thomas was undeniably prejudiced by (1) Scholl and Glatsteins failure to
consult with a qualified expert to assist him in understanding and challenging the States case on
causation, (2) their failure to present a single witness to challenge the States case on causation,
(3) their failure to properly cross-examine the States medical experts with key evidence
contradicting their theory of causation, (4) their failure to object to the cumulative testimony of
the States two medical witnesses, and (5) Scholls agreement with Dr. Gardner that the gunshot
wound caused Days neurological injuries.
219)
As such, there is no question that Glatsteins de facto withdrawal from Thomass
representation and Scholls de facto solo representation of Thomas was both deficient and deeply
prejudicial, and that Thomas is therefore entitled to relief.
C.
Trial Counsel Was Ineffective For His Failures With Respect To The
Admission And Use Of Bonds Confession As Evidence Against Thomas
220)
At or about the time of his arrest in November 1997, Bond gave a confession to
the authorities claiming that he was the driver of the getaway car in the Walgreens robbery and
that Thomas was the shooter. See State Trial Ex. 57 (Bonds unredacted confession (11/5/97)).
71
221)
PageID 87
Before the commencement of Thomas and Bonds joint trial for the Walgreens
robbery, the State informed the court and defense counsel that it intended to introduce and rely
upon Bonds confession at trial. See PC Hrg Ex. 10 (Letter from A. Weirich to M. Scholl
(8/10/01)).
222)
To protect Thomass Confrontation Clause rights, redaction of the confession was
necessary under the Supreme Courts opinion in Bruton v. United States, 391 U.S. 123 (1968).
The court held a pre-trial conference to discuss the form and content of the redacted confession,
at which Scholl specifically requested that Bonds description of his accomplices clothing
during the robbery remain unredacted. From the context of the rest of the redacted confession, it
was clear that Bonds accomplice, referred to as the other person in his confession, was the
shooter. See State Trial Ex. 58 (Bonds redacted confession (11/5/97)), attached hereto as Ex. 9.
223)
As presented at trial, the unredacted portion of Bonds confession reads as
follows:
Q.
What was the other person wearing during the robbery?
A.
A striped shirt, I think it was yellow and blue. And he

might have had some shorts on.
Id.
224)
The phrase the other person was handwritten into the redacted confession to
replace a typewritten reference to Thomass nickname. See id. The confession was otherwise
redacted by replacing text with big blocks of empty space and replacing other words with
handwritten words. See id.
225)
Other than his request for the un-redaction of Bonds description of what Thomas
was purportedly wearing during the robbery, Scholl did not object to the States introduction or
72
PageID 88
use of the confession against Thomas at trial, nor did he request a limiting instruction to instruct
the jury that Bonds confession could only be considered as evidence against Bond, not Thomas.
226)
Thus, Scholl committed the following errors, each of which constitutes a separate
instance of ineffective assistance of counsel under Strickland: (1) Scholl failed to object to the
improper introduction of Bonds confession at the joint trial despite the fact that even as
redacted, Bonds confession implicated Thomas as the shooter in the Walgreens robbery in
violation of Bruton; (2) Scholl failed to object to the States repeated improper use of Bonds
confession during its closing argument as proof of Thomass participation and role in the
Walgreens robbery; and (3) Scholl failed to request that a limiting instruction be given to the jury
to inform them that Bonds confession could not be considered as evidence in determining the
guilt or innocence of Thomas, or to object to the courts failure to issue any such instruction.
These failures, viewed individually or collectively, resulted in a violation of Thomass right of
confrontation and his right to effective assistance of counsel, and deeply prejudiced his defense.
1.
227)
The Court Of Criminal Appeals Properly Found

That The Improper Redaction Of Bonds Confession
Violated Thomass Constitutional Right Of Confrontation
A criminal defendant is deprived of his constitutional right of confrontation when
the confession of a non-testifying co-defendant that incriminates him is introduced at their joint
trial, or when a properly-redacted co-defendants confession is admitted without a limiting
instruction that informs the jury that the confession cannot be used as evidence of the nonconfessing co-defendants guilt or innocence. See Bruton, 391 U.S. at 127-28, 135-37; see also
Gray v. Maryland, 523 U.S. 185, 194, 201 (1998); Richardson v. Marsh, 481 U.S. 200, 211
(1987).
228)
The Court of Criminal Appeals correctly found that Bonds confession was
improperly redacted and that its introduction without a limiting instruction violated Thomass
73
PageID 89
constitutional right of confrontation under Bruton, holding that: The law regarding redacted
confessions under Bruton was in place well before [Thomass] trial. We can reach no conclusion
other than that the redacted statement which replaced Bowlegs with other person violated the
mandates of Bruton and its progeny. PC-CCA Op. at 33.
2.
229)
The Confrontation Clause Violations Were

The Result Of Scholls Deficient Performance
Under Clearly Established Supreme Court Precedent
Scholl explained during Thomass post-conviction hearing that he did not object
to the form or content of Bonds redacted confession at the pre-trial Bruton hearing because he
believed that the States proposed redaction complied with the rules of evidence. It complied
with Bruton . . . I agreed that the redactions were properly made. PC Hrg Tr. at 403-04.
230)
Scholl further explained at the hearing that he had insisted that Bonds description
of Thomass clothing on the day of the robbery remain unredacted because he believed that this
portion of the confession contradicted other witnesses descriptions of what the shooter was
wearing during the commission of the crime. See id. at 411-12.
231)
Finally, Scholl was asked why he never requested a limiting instruction with
respect to the jurys use of Bonds confession as evidence against Thomas, as required by
Richardson, 481 U.S. at 211. He responded that he believed that a limiting instruction was
merely recommended, and that it was the judges job to ensure a limiting instruction was
given, not the responsibility of defense counsel. PC Hrg Tr. at 459.
a.
232)
The Court Of Criminal Appeals Correctly

Found That Scholl Was Deficient For His
Failure To Request A Limiting Instruction
The Court of Criminal Appeals correctly held that Scholls failure to request an
instruction limiting the jurys consideration of the improperly redacted Bond confession
74
PageID 90
constituted deficient performance under Strickland, stating that it could fathom no legitimate
tactical reason to explain counsels failure to request a limiting instruction. PC-CCA Op. at 35.
233)
Indeed, Scholls failure to request a limiting instruction was based on nothing
more than his unfamiliarity with Supreme Court jurisprudence. A reasonable attorney would
have known the absolute necessity of requesting a limiting instruction in this case, and the Court
of Criminal Appeals properly concluded that Scholls failure to do so constituted deficient
performance.
b.
234)
The Court Of Criminal Appeals Decision That Scholl

Was Not Deficient For Failing To Object To The States
Unconstitutional Introduction And Use Of The Bond
Confession Was Contrary To, And An Unreasonable
Application Of, Clearly Established Federal Law
Despite properly concluding that Scholls failure to request a limiting instruction
with respect to Bonds confession was the result of his deficient representation, the Court of
Criminal Appeals excused Scholls failure to object to the States unconstitutional use of the
confession against Thomas on the basis that Scholl made a tactical decision to leave the
description of the accomplices clothing in the statement to amplify the inconsistencies of the
various descriptions of the shooter. Id. at 35.
235)
A cursory review of the record, however, shows that Scholls purported strategy
at trial was the product of both his unfamiliarity with basic, well-established precedents long ago
laid down by the Supreme Court to protect defendants Confrontation Clause rights and his
inattention to the basic facts of Thomass case. The finding of the Court of Criminal Appeals
that Scholls strategy was reasonable and entitled to deference is, thus, contrary to, and an
unreasonable application of, the Supreme Courts Strickland jurisprudence.
236)
The Supreme Court has repeatedly held that the Sixth Amendment imposes a duty
on counsel to bring to bear such skill and knowledge as will render the trial a reliable
75
PageID 91
adversarial testing process. Strickland, 466 U.S. at 688, 690-91. As such, counsel has a duty to
conduct a reasonable investigation into the applicable facts and law that govern the case at
issue. Id. Pursuant to this duty, the Supreme Court has long recognized that a tactical or
strategic decision is unreasonable if based on a failure to research or understand the law. See
Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) (rejecting the justifications given by
counsel for his failure to file a timely suppression motion because they betray a startling
ignorance of the law). Additionally, if counsel employs a trial strategy that is unreasonable
given the facts of the case, and his failure to thoroughly investigate and understand the applicable
facts is due to inattention rather than a reasoned strategic judgment, then deficiency must be
found. See Rompilla v. Beard, 545 U.S. 374, 396 (2005); Wiggins, 539 U.S. at 526.
237)
From the very opening of Thomass trial proceedings, Scholl displayed a
remarkable lack of understanding of basic Confrontation Clause jurisprudence. Scholl did not
object to either the form or content of the proposed redacted confession at the pre-trial
conference where it was discussed, even though the confession was riddled with obvious
redactions that indicated that information was being concealed, because he thought that the form
and content of the redacted confession complied with the rules of evidence. It complied with
Bruton . . . I agreed that the redactions were properly made. PC Hrg Tr. at 403-04.
238)
However, neither the Criminal Court on post-conviction nor the Court of Criminal
Appeals entertained any doubt that the condition of Bonds confession as it was introduced and
used at trial was unconstitutional under Bruton, Richardson, and Gray.
Both courts
acknowledged that the law regarding redacted confessions under Bruton was in place well
before Petitioners trial. PC-Crim. Ct. Op. at 81-83; PC-CCA Op. at 33.
76
239)
PageID 92
Furthermore, Scholls belief that it was not his responsibility to request a limiting
instruction evidences just how severely he misunderstood not just the Supreme Courts Bruton
jurisprudence, but also basic universal trial and evidence procedures. See, e.g., United States v.
Locklear, 24 F.3d 641, 646 n.2 (4th Cir.) (noting that defendant waives his right to a limiting
instruction if he fails to request one), cert. denied, 513 U.S. 909 (1994).
240)
Any residual belief that Scholl employed a reasonable strategy with regard to
the incomplete redaction of the confession is removed once one understands how poorly
conceived and executed Scholls supposed strategy actually was.
241)
There can be no greater mark of Scholls inattention to Thomass case than the
fact that the key premise of Scholls purported strategy was directly contradicted by the record.
At the post-conviction hearing, Scholl claimed that [n]o one ever matched the description that
Anthony Bond gave [of the other person]. PC Hrg Tr. at 444. However, Angela Jackson also
said that Thomas was wearing a striped shirt and shorts on the day of the robbery. See State
Trial Tr. at 649-50. Therefore, not only was the inclusion of Bonds description of the shooters
clothing totally unnecessary (since Angela Jackson gave the same exact description of Thomass
alleged clothing, which also contradicted the eyewitness accounts of the shooter), but in
matching Jacksons description of what Thomas was wearing, it suggested to the jury that
Thomas himself was the other person/shooter referred to in Bonds confession.18
18
Furthermore, the reasonableness of Scholls strategy is further belied by the fact that he did
not even call two eyewitnesses who gave descriptions of the shooters clothing that contradicted
Bond and Jacksons account. Bobbie Fleming told the FBI that the shooter wore a blue baseball
cap, a tan shirt with horizontal red and blue stripes, and blue pants. Similarly, Gail McDonald
told the FBI that the shooter was wearing a blue baseball cap, blue and white short sleeved,
pinstriped shirt, light blue jeans and white tennis shoes. See PC Hrg Ex. 11 (FBI 302 for Bobbie
A. Fleming (4/21/97)) and PC Hrg Ex. 12 (FBI 302 for Gail McDonald (4/21/97)), attached
hereto as Ex. 11. Scholl did not call either of them to testify at trial.
77
242)
PageID 93
Given the depth of legal incompetence revealed by Scholls post-conviction
testimony and the unreasonableness of his purported strategy in light of the facts, there can be no
question that his failure to object to the States improper introduction and use of the Bond
confession constituted deficiency.
243)
The best explanation for the finding by the Court of Criminal Appeals that Scholl
employed a reasonable trial strategy is that it blindly deemed Scholls conduct at trial
reasonable merely because it was cloaked in the trappings of strategy. However, clearly
established Supreme Court precedent states that the mere invocation of strategy is not a
blanket justification for conduct that otherwise amounts to deficient performance.
See
Kimmelman, 477 U.S. at 385 (counsels failure to request discovery was not based on strategy,
but on counsels mistaken beliefs [about the law]). In other words, even deliberate trial tactics
may constitute ineffective assistance of counsel if they fall outside the wide range of
professionally competent assistance. Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984)
(quoting Strickland, 466 U.S. at 689).
244)
As such, Scholls baseless invocation of trial strategy cannot defeat Thomass
legitimate claim for relief. See Miller v. Francis, 269 F.3d 609, 625 (6th Cir. 2001) (the noun
strategy is not an accused lawyers talisman that necessarily defeats a charge of constitutional
ineffectiveness (internal quotations and citations omitted)).
3.
245)
The Proper Application Of Clearly Established Supreme Court

Precedent Shows That Thomas Was Undeniably Prejudiced By
Scholls Deficient Performance With Respect To Bonds Confession
Despite finding deficiency with respect to Scholls failure to request a limiting
instruction, the Court of Criminal Appeals made the sweeping conclusion that Thomas was not
prejudiced by any potential deficiencies with respect to Bonds confession because the Bruton
errors that occurred during Thomass trial were harmless. This finding was founded on the
78
PageID 94
purported fact that [t]he evidence of Petitioners guilt, even absent the redacted statement, was
overwhelming. PC-CCA Op. at 33.
246)
In focusing purely on the purported strength of the prosecutions evidence against
Thomas, the Court of Criminal Appeals clearly misapplied the Strickland prejudice standard.19
247)
Strickland demands that judges consider the totality of the evidence when
making a prejudice determination, including the evidence that would have been provided but for
counsels deficiency, as [s]ome errors will have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary picture, and some will have had an
isolated, trivial effect. 466 U.S. at 695-96; see also Sears v. Upton, 130 S. Ct. 3259, 3265-66
(2010) (post-conviction court erred by failing to consider the effect of evidence that would have
been presented but for counsels deficiency).
248)
In other words, the Supreme Courts interpretation of the Strickland prejudice
prong has settled on a fundamental rule:
simply recounting the States evidence is an
incompleteand incorrectway to determine whether counsels errors undermined confidence

in the outcome of the trial. Despite nuanced approaches in applying the prejudice prong to the
specific facts of the case, this principle runs consistently through the Supreme Courts Strickland
jurisprudence. See, e.g., Cullen v. Pinholster, 131 S. Ct. 1388, 1408-09 (2011); Harrington, 131
19
In the Sixth Circuit, the standard laid out by the Supreme Court in Brecht v. Abrahamsoni.e.,
whether an error had a substantial and injurious effect or influence in determining the jurys
verdict, 507 U.S. 619, 632 (1993)is always the test to determine whether a state courts
improper finding that a constitutional error was harmless meets the AEDPA standard for the
grant of habeas relief. See Ruelas v. Wolfenbarger, 580 F.3d 403, 412 (6th Cir. 2009).
However, where a habeas court is reviewing a state courts finding that counsels failure to
object to an underlying constitutional error was not prejudicial because the constitutional error
was harmless, the habeas court need only conduct the Strickland prejudice inquiry to determine
whether there was reversible error under AEDPA, as [t]he prejudice prong of the ineffective
assistance analysis subsumes the Brecht harmless-error review. Hall v. Vasbinder, 563 F.3d
222, 236 (6th Cir. 2009) (If Hall can show that he was prejudiced by his attorneys failure to
object during closing, then he necessarily satisfies Brecht).
79
PageID 95
S. Ct. at 791-92; Wong v. Belmontes, 130 S. Ct. 383, 390 (2009); Williams v. Taylor, 529 U.S.
362, 398 (2000).
249)
The analysis by Court of Criminal Appeals of the prejudice that resulted from
Scholls deficiencies with regard to the unconstitutionally-redacted Bond confession simply

rehashed Jacksons testimony and deemed it overwhelming evidence of Thomass guilt. PCCCA Op. at 33-34. The Court of Criminal Appeals did not analyze how the improper admission
of Bonds confession affected the complete picture of the evidence before the jury. See id.
250)
A more complete look at the evidence introduced during Thomass trial shows
how critical the improper admission of the confession was to the States case. As described in
Section I(C), supra, since the State lacked any forensic evidence or credible identification
placing Thomas at the scene, its case leaned heavily on Angela Jacksons testimonyand
Bonds confession was the sole piece of evidence that could corroborate her identification of
Thomas on the Walgreens surveillance video. Without this critical corroboration from Bonds
confession, there can be little doubt that there is a reasonable probability that at least one juror
would have taken a different view of the evidence against Thomas and questioned his guilt. See
Wiggins, 539 U.S. at 513 (describing the Strickland prejudice inquiry as asking whether there is
a reasonable probability that at least one juror would have struck a different balance)
(emphasis added).
251)
Additionally, there is so much evidence that wouldor shouldhave been
presented at trial that otherwise calls Jacksons credibility into question, all of which must be
considered under the Strickland prejudice analysis. See Porter v. McCollum, 130 S. Ct. 447,
453-54 (2009) (To assess [the] probability [of a different outcome under Strickland], we
consider the totality of the available . . . evidenceboth that adduced at trial, and the evidence
80
PageID 96
adduced in the habeas proceedingand reweig[h] it against the [prosecutions] evidence.

(internal citation omitted)).
252)
As discussed in Section I(B), supra, it is now known that the prosecution withheld
Brady material from Thomas about the FBIs payment of Angela Jackson in connection with her
testimony in his federal trialevidence that absolutely would have been used to impeach her
credibility had it been disclosed, and that would have severely damaged her credibility in the
eyes of the jury.
Furthermore, if the jury had also known about the Bond letter and its
recantation of Bonds implication of Thomas, and if Scholl had properly presented additional
evidence of Angela Jacksons relationship with Bobby Jackson and his involvement in the
Southbrook Mall robbery, there is no doubt at least one juror would have taken a different view
of evidence against Thomas.
253)
Finally, in conducting its prejudice analysis, the Court of Criminal Appeals also
failed to expressly consider the States deeply prejudicial use of Bonds confession during its
summation, when the prosecutor repeatedly linked Thomas to the other person referenced in
Bonds confession. See, e.g., United States v. Schwartz, 541 F.3d 1331, 1353 (11th Cir. 2008)
(finding that where the prosecutor made a connection between a Bruton violation and
defendants commission of crimes during his closing argument, the inference [of guilt] was
made inevitableand therefore devastating).
254)
As such, the cursory and unduly restrictive prejudice analysis by the Tennessee
Court of Criminal Appeals was contrary to, and an unreasonable application of, clearly
established Supreme Court authority that requires a more searching evaluation of prejudice.
When the totality of the evidence in Thomass case is properly considered, as Strickland
requires, it is clear that Scholls deficiencies with respect to the States unconstitutional
81
PageID 97
introduction and use of Bonds confession deeply prejudiced Thomass defense, and warrant
relief.
D.
Trial Counsel Was Ineffective For Failing To Object To The Prosecutors

Repeated Argument That Thomas And Bond Were Greed And Evil
255)
The state courts holdings that Scholls failure to object to the prosecutors
repeated use of inflammatory epithets in her opening and closing arguments did not prejudice
Thomass defense at trial was contrary to, and an unreasonable application of, the Supreme
Courts holding in Strickland.
256)
During its opening and closing statements of the guilt phase of Thomass trial, the
State referred to Bond and Thomas as Greed and Evil a total of 21 times. See, e.g., State
Trial Tr. at 378 (You cant hide from Greed and Evil), 1574 ([G]reed and evil really didnt
care that day whether [Day] lived or died . . . .). Scholl failed to object to these abusive
characterizations a single time, and the trial court failed to issue a curative instruction.
257)
Both the Court of Criminal Appeals and the Tennessee Supreme Court correctly
acknowledged that the prosecutors repeated inflammatory characterization of Thomas and Bond
were improper, and that Scholls failure to object to them rendered his performance deficient
under Strickland. See Thomas, 158 S.W.3d at 373; Thomas, 2004 WL 370297, at *46.
258)
They incorrectly and unreasonably concluded, however, that the prosecutors
words, though unseemly and improper, were harmless. Given the highly inflammatory and
unnecessary character of the prosecutors repeated characterizations of Bond and Thomas as
greed and evil, there can be no doubt that there is a reasonable probability that at least one
82
PageID 98
juror would have struck a different balance if Scholl would have properly objected. See
Wiggins, 539 U.S. at 513 (emphasis added).20
259)
In Berger v. United States, the Supreme Court recognized that a prosecutors
words carry great weight with the jury, and that if pronounced and persistent, improper
suggestions and insinuations can have a probable cumulative effect upon the jury which cannot
be disregarded as inconsequential. Berger v. United States, 295 U.S. 78, 88-89 (1935) at 88-89;
see United States v. Payne, 2 F.3d 706, 712-15 (6th Cir. 1993) (reversing an obstruction of mail
conviction because the prosecutor characterized the defendant as a bad individual, thereby
misleading the jury) (citing Berger, 295 U.S. at 88).
260)
Simply by reference to the fact that the prosecutor called Thomas and Bond
Greed and Evil a total of 21 times during her opening and closing statement, there can be no
doubt that her repeated use of those unseemly and improper epithets had a significant effect
on the jury that cannot reasonably be deemed harmless. Had Scholl objected to the prosecutors
use of these inflammatory epithets, and had the court instructed the prosecutor to cease making
such improper insinuations and/or issued a curative instruction, there is a reasonable probability
that one juror might have been better able to impartially weigh the evidence presented at trial and
may have been more open to considering the various inconsistencies and weaknesses of the
States case against Thomas (which have been pointed out repeatedly throughout this Petition).
As such, there can be little doubt that Scholls deficient performance in failing to object to the
20
As discussed in footnote 19, supra, where a habeas court is reviewing a state courts finding
that counsels failure to object to an underlying constitutional error was not prejudicial because
the constitutional error was harmless, the habeas court need only conduct the Strickland
prejudice inquiry. Hall, 563 F.3d at 236.
A claim that the state courts determination that the prosecutors improper remarks were
harmless error is contrary to, and an unreasonable application of, clearly established Supreme
Court precedent is separately pleaded in this petition. See Section VI, infra.
83
PageID 99
prosecutions repeated characterization of Thomas and Bond as greed and evil deeply
prejudiced Thomass defense.
E.
Appellate Counsel Was Ineffective For Failing To

Raise The Confrontation Clause Violation On Appeal
261)
Thomass right to effective assistance of appellate counsel was violated by Robert
Brookss failure to raise any of the many Confrontation Clause violations on direct appeal
relating to the States unconstitutional introduction and use of Bonds confession as evidence
against Thomas.21 This failure was prejudicial to Thomas because these were meritorious issues.
1.
262)
The Court of Criminal Appeals Correctly Found That

Issues On Thomass Direct Appeal Was Deficient Performance
A defendant is entitled to the effective assistance of counsel in his direct appeal.
See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Where, as here, counsel fails to raise meritorious
issues that are significant and obvious, appellate counsel has rendered ineffective assistance.
See, e.g., Mapes v. Tate, 388 F.3d 187, 192-93 (6th Cir. 2004) (finding appellate counsel
ineffective for failing to raise a significant and obvious issue regarding an erroneous jury
instruction).
263)
The Court of Criminal Appeals correctly found that Brooks should have
challenged the States use of [Bonds] statement on direct appeal. PC-CCA Op. at 31. Indeed,
Brookss failure to raise any of the Confrontation Clause violations during Thomass direct
appeal, even though these were significant and obvious issues, caused his performance to fall
below the wide range of competence required of attorneys in criminal cases, a conclusion with
which Brooks agreed when he testified at the post-conviction evidentiary hearing that he had no
21
Although Scholls name is also on Thomass Appellate briefs, Brooks testified that he handled
the appeal alone and that Scholl had minimal involvement in the preparation of the Appellate
briefs and the presentation of their arguments at the Appellate level. Scholl testified similarly.
84
PageID 100
strategic reason for failing to raise any of the Confrontation Clause violations on direct appeal.
See PC Hrg Tr. at 375-76.
2.
264)

Issues On Thomass Direct Appeal Was Highly Prejudicial
The Court of Criminal Appeals asserted that Brookss errors on this point were
not prejudicial because the underlying Bruton violations were harmless. See PC-CCA Op. at 51.
265)
However, this finding was contrary to, and an unreasonable application of, the
Supreme Courts Strickland jurisprudence. As demonstrated in Section IV(C)(3), supra, the

Bruton claims were (and are) meritorious at the time of trial and appeal, and Brookss failure to
raise them on appeal was just as prejudicial as Scholls failure to object to the violations in the
first place. Had Brooks raised them, there is more than a reasonable probability that the outcome
of the appeal would have been different.
266)
Therefore, the finding of the Court of Criminal Appeals that Thomas was not
prejudiced by Brookss failure to raise Confrontation Clause violations on appeal was contrary
to, and an unreasonable application of, clearly established federal law.
F.
Trial Counsel Was Ineffective For Failing To Object

To The Trial Courts Erroneous Jury Instruction On Causation
1.
267)
The Trial Courts Instruction On Causation

Impermissibly Relieved The State Of The Burden Of Proof
It is a pillar of our criminal law system that the prosecution must prove every
element of a crime being alleged at trial. See In re Winship, 397 U.S. 358, 361-63 (1970) (the
requirement that the prosecution prove every element of a crime beyond a reasonable doubt is a
bedrock, axiomatic and elementary principle whose enforcement lies at the foundation of the
administration of our criminal law (internal quotations omitted)). In line with this requirement,
Tennessee law requires that a criminal jury be instructed that the State must prove proximate
85
PageID 101
cause: Before the defendant can be convicted of any degree of homicide, the State must have
proven beyond a reasonable doubt that the death of the deceased was proximately caused by the
criminal conduct of the defendant. 7 Tenn. Prac. Pattern Jury Instr. T.P. I.-Crim. 42.14 (2011)
(emphasis added); see also Farner, 66 S.W.3d at 206 (causation is an element of every
homicide offense, and the jury should so be instructed).
268)
Despite the long-standing and critical nature of this element of criminal
procedure, the trial court omitted to instruct Thomass jury that the State must prove proximate
cause. The trial court instructed the jury on proximate cause as follows:
A fundamental principle of criminal law is that a person is held
responsible for all consequences proximately caused by his
criminal conduct. Under the law the defendant may be found
guilty of Murder during the Perpetration of a Robbery even if
death was not an immediate result and even if an intervening event
contributed to or even caused the victims death. Where such
intervening events are foreseeable and naturally result from the
defendants criminal conduct, the law considers the chain of legal
causation unbroken and holds the defendant criminally responsible
for the resulting death. The defendant would be relieved of
responsibility for the consequences of his acts only if the
intervening act that caused death is not a natural and foreseeable
result of the defendants act.
See Jury Instructions at 12, attached hereto as Ex. 16.
269)
This instructions omission of any mention of the States burden to prove
proximate causation is glaringly obvious, and given the bedrock nature of this requirement,
patently incorrect. Instead, the instruction clearly conveys to the jury that they are to presume
proof of proximate causation unless the defendant can establish a break in the chain of
causationthus impermissibly shifting the burden of proof on causation to the defendant to
prove himself out of criminal liability instead of placing it squarely on the shoulders of the
prosecution, where it belongs.
86
270)
PageID 102
The trial courts failure to expressly instruct the jury that the State bore the burden
of proving proximate cause therefore violated Thomass constitutional rights. See Francis v.
Franklin, 471 U.S. 307, 313 (1985) (states may not us[e] evidentiary presumptions in a jury
charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable
doubt of every essential element of a crime).
2.
271)
Scholls Failure To Object To The Trial Courts

Unconstitutional Instruction on Causation Was
Deficient Performance That Prejudiced Thomas
Despite the clear unconstitutionality of the trial courts instruction on proximate
causation, Scholl failed to object to it in any way. See State Trial Tr. at 1556-57.
272)
Because there is no reason to believe that Scholls failure to object somehow
flowed from sound strategic considerations, there can be no doubt that this failure constituted
deficient performance. See Walker v. Morrow, 2012 WL 313689, at *7 (6th Cir. Feb. 1, 2012)
(finding counsels failure to object to an improper jury instruction constituted deficiency, where
counsels failure to object was not based on any strategic consideration and rendered an
important defense meaningless).
273)
There is a reasonable probability that counsels objection to the trial courts
unconstitutional instruction would have changed the outcome of Thomass trial. By allowing the
trial court to instruct the jury that the State did not have to prove proximate causation, Scholl not
only enabled the violation of Thomass constitutional rights, but also irreparably decimated
Thomass causation defense.
274)
As discussed in Section IV(A)(2), supra, under a correct statement of the law,
Thomass causation defense did not have to affirmatively prove a break in the chain of causation
in order to be successful; the defense would also have been successful if it only created enough
uncertainty as to the cause of Days death that a juror would think that the State had not proven
87
PageID 103
its case beyond a reasonable doubt. The trial courts improper jury instruction foreclosed that
possibility by shifting the burden of proof to the defense. See Morrow, 2012 WL 313689, at *89 (counsels failure to object to a jury instruction that incorrectly prevented the jury from
considering strong evidence in favor of the defendant for any purpose for which it was
properly presented was prejudicial under Strickland because it prohibit[ed] a certain use of [the
evidence]the use most probative of [the defendants] innocence).
275)
As such, there can be no doubt that the state courts determinations that Scholls
failure to object to the trial courts improper jury instruction on causation did not constitute
ineffective assistance of counsel was contrary to, and involved an unreasonable application of,
clearly established federal law and thus warrants relief. See id. at *8-9 (holding that state courts
unreasonably applied Strickland in finding that trial counsels failure to object to improper jury
instructions did not constitute ineffective assistance).
G.
Trial Counsel Was Ineffective For Failing To Present

Evidence That Another Individual, Bobby Jackson,
Committed The Walgreens Robbery With Anthony Bond
276)
Scholl also failed to mount an adequate defense that Bobby Jackson was the true
perpetrator of the Walgreens robbery, therefore depriving Thomas of effective assistance of

counsel.
1.
277)
Scholls Failure To Present Evidence That Bobby Jackson Committed

The Walgreens Robbery With Anthony Bond Constituted Deficient
Performance Under Clearly Established Supreme Court Precedent
Scholls primary defense at trial was that Anthony Bond was involved in the
Walgreens robbery with another individual . . . Bobby Jackson. PC Hrg Tr. at 411. Despite
the fact that there was a significant evidentiary basis for this theory, Scholl presented scant
evidence to support it.
88
278)
PageID 104
Inexplicably, Scholl failed to introduce highly probative, relevant and admissible
evidence that Bobby Jackson, not Thomas, committed the Walgreens robbery with Anthony
Bond. First, although Robert Fisher identified Bobby Jackson as one of the perpetrators of the
Walgreens robbery on two different occasions, Scholl only introduced evidence of one such
identificationand he did so without any mention of Bobby Jacksons name, meaning that the
jury only knew that Robert Fisher had identified someone besides Thomas as the perpetrator of
the robbery, without having any idea who that someone was. See State Trial Tr. at 1488-89.
279)
Second, even though multiple witnesses gave descriptions of the getaway driver
that matched Bobby Jackson, and of the shooter that matched Bond, Scholl did not call any of
these witnesses to testify to what they had seen (besides Robert Fisher). During the postconviction evidentiary hearing, Scholl dismissed this error as a tactical decision to avoid having
one of the witnesses potentially identify Thomas as a perpetrator of the robbery. See PC Hrg Tr.
at 479. However, Scholls purported fear that this witness would identify Thomas is without
merit because: (1) at least one of the eyewitness, Gail McDonald, had actually viewed a
photospread containing Thomass picture, but she did not identify him as a perpetrator in the
Walgreens robbery; (2) Scholl called Robert Fisher to testify, apparently without fearing that he
would identify Thomas; (3) Thomas does not fit any of the descriptions given by these witnesses;
and (4) Scholl never even contacted these witnesses to form a basis for his fear.22
22
The mere invocation of strategy is not a blanket justification for conduct which otherwise
amounts to ineffective assistance. See Mapes, 388 F.3d at 192-93 (rejecting the argument that
counsels decision not to raise an issue was strategic because the attorney gained no advantage
by not raising it); Dempsey v. Bobby, 412 F. Supp. 2d 720, 730 (N.D. Ohio 2005) (finding that
counsels performance was outside the wide range of professional competent assistance when
she failed to investigate, interview, and present several witnesses . . . who could have provided
important information and testimony related to [defendants] innocence or guilt on the crimes
charged).
89
280)
PageID 105
Third, while Scholl introduced some evidence that Angela Jackson and Bobby
Jackson had been romantically involved, he did not offer any evidence of the fact that they were
dating in 1997, when Angela Jackson gave her statement to investigators implicating Thomas
and protecting Bobby Jackson, or when Angela Jackson testified at Thomass federal trial.
281)
Fourth, and most critically, Scholl failed to introduce evidence that, as described
in paragraphs 108, supra, just three months after the Walgreens robbery, Bobby Jackson
admittedly attempted to rob another Loomis Fargo guard at the Southbrook Mall in Memphis.
Scholls failure to call Bobby Jackson as a witness at trial and/or to present evidence of
Jacksons subsequent attempted robbery was an inexcusable error. See Towns v. Smith, 395 F.3d
251, 258-59 (6th Cir. 2005) (finding that counsels failures to conduct a reasonable investigation
into a third party that may have actually committed the crime and to call that individual as a
defense witness constitutes ineffective assistance of counsel under the Strickland standard).
Scholl was well aware of Bobby Jacksons potential involvement in the Walgreens robbery,
but inexplicably and unjustifiably decided not to call Bobby Jackson as a witness or to introduce
any evidence of his subsequent attempted robbery. See PC Hrg Tr. at 465.
282)
Scholl also failed to call Terrance LawrenceBobby Jacksons accomplice in the
Southbrook Mall robberyto testify at Thomass trial. At Thomass Post-Conviction Hearing,

Terrance Lawrence testified that Bobby Jackson approached him to commit the robbery at
Southbrook Mall, that the target of the robberya Loomis armored car guardwas Bobby
Jacksons idea and that Bobby Jackson shot at the guard. See PC Hrg Ex. 9 (T. Lawrence Dep.
(10/2/07)) at 7-10. This evidence would have further strengthened Thomass defense that Bobby
Jackson was Bonds true partner in the Walgreens robbery.
90
283)
PageID 106
As such, the Court of Criminal Appeals decision that Scholls failure to mount an
adequate defense that Bobby Jackson was the true perpetrator of the Walgreens robbery did not
constitute deficient performance was contrary to, and an unreasonable application of, Strickland.
2.
284)

Undeniably Prejudiced By Scholls Failure To Present
Evidence That Bobby Jackson Committed The Walgreens Robbery
The Court of Criminal Appeals did not reach the issue of whether Scholls failure
to introduce evidence of Bobby Jacksons attempted robbery of another Loomis armored car
guard was prejudicial against Thomas. It clearly was.
285)
Scholls failure to introduce highly probative, relevant and admissible evidence
that Bobby Jackson, not Thomas, was Bonds true accomplice in the Walgreens robbery
prejudiced Thomasessentially, it meant that Thomas went to trial without a defense on this
issue. To form an adequate defense, Scholl needed to introduce evidence that Bobby Jackson
attempted a similar crimerobbing a Loomis armored car guard at the Southbrook Mall
exactly three months after the Walgreens robbery; such evidence would have tied the other facts
relating to Bobby Jackson together into an adequate defense argument. If the jury had heard this
evidence, there was a reasonable probability that they would have concluded that Bobby Jackson
was Bonds accomplice. When this evidence is added to Robert Fishers double identification of
Bobby Jackson as a participant in the Walgreens robbery, and the evidence from eyewitnesses
that the driver of the getaway car was a heavy-set, black male (a description that fits Bobby
Jackson but neither Thomas nor Bond), there is a reasonable probability that a juror could have
concluded that Bobby Jackson, not Thomas, was Bonds accomplice.
91
PageID 107
H.
The Cumulative Effect Of Counsels

Errors Constitutes Ineffective Assistance Of Counsel
286)
The cumulative effect of counsels errors during pretrial, guilt, and penalty phases
of the state court proceedings violated Thomass rights to due process and a fair trial in violation
of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution,
as defined under Strickland. See Strickland, 466 U.S. at 687, 688 (counsels performance fell
below an objective standard of reasonableness and deprive[d] the defendant of a fair trial, a
trial whose result is reliable).
287)
Consideration of the cumulative effect of counsels error is mandatory under
Strickland. See Williams, 529 U.S. at 399 (state court properly considered the entire postconviction record, viewed as a whole and cumulative of mitigation evidence presented
originally in finding ineffective assistance); Dobbs v. Zant, 506 U.S. 357, 359 n.* (1993)
(combined errors of counsel could be considered when conducting an ineffective assistance of
counsel claim); United States v. Cronic, 466 U.S. 648, 657 n.20 (1984) (counsels overall
representation of respondent, as opposed to any specific error or omission may be the basis of
an ineffective assistance of counsel claim).
288)
As detailed above, counsels mistakes were legion, including the following:
(1) the failure to present an adequate medical defense, including (a) the failure to consult with a
medical expert, (b) the failure to present a medical expert, (c) the failure to properly crossexamine the prosecutions medical experts, (d) the failure to object to the States cumulative
expert testimony, and (e) uninformed agreement with the States medical examiner on the cause
of Days neurological injuries, see Section IV(A), supra; (2) Glatsteins de facto withdrawal
from Thomass case and Scholls de facto solo representation of Thomas, see Section IV(B),
supra; (3) the failure to object to the introduction of Bonds improperly redacted confession, see
92
PageID 108
Section IV(C), supra; (4) the failure to object to the States use of Bonds confession as evidence
of Thomass alleged guilt, see Section IV(C), supra; (5) the failure to request a limiting
instruction with respect to the scope of the States permissible use of the confession, see Section
IV(C)(2)(a), supra; (6) the failure to object to the prosecutions repeated use of inflammatory
epithets to describe Thomas and Bond during her opening and closing arguments, see Section
IV(D), supra; (7) the failure to raise any of the colorable Confrontation Clause issues on appeal,
see Section IV(E), supra; (8) the failure to object to a legally incorrect jury instruction that
relieved the State of its obligation to prove causation beyond a reasonable doubt, see Section
IV(F), supra; (9) the failure to present highly probative, relevant and admissible evidence that
Bobby Jackson, not Thomas, committed the Walgreens robbery with Bond, see Section IV(G),
supra.
289)
These mistakes, viewed in their totality against the paucity of evidence linking
Thomas to Days death, alter[ed] the entire evidentiary picture and, ultimately, the outcome of
the trial itself. Strickland, 466 U.S. at 696. Counsels repeated failures to perform adequately in
this case have already cost their client his rights at trial and, unless a remedy is provided, stand to
cost him his life. To allow such a result would be absolutely unjustifiable.
V.
CLAIM NO. 5: THE JURY SHOULD HAVE BEEN

INSTRUCTED ON LESSER INCLUDED OFFENSES OF FELONY MURDER
290)
Constitution because the trial court failed to instruct the jury on lesser included offenses of
felony murder. The adjudication of Thomass federal claim in the state courts resulted in a
decision that was contrary to, and involved an unreasonable application of, clearly established
93
PageID 109
federal law as determined by the Supreme Court, and resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the state court.
291)
In Beck v. Alabama, the Supreme Court of the United States clearly established
that in a capital case, the jury must be instructed on lesser included offenses when there is
evidence to support the instruction. Failure to give such instructions when there is evidence to
support them constitutes constitutional error. See Beck v. Alabama, 447 U.S. 625, 638 (1980);
Hopper v. Evans, 456 U.S. 605, 611 (1982). In accordance with this standard, the trial court
should have instructed the jury on the lesser included offenses of felony murder. The following
facts, among others, support this claim:
292)
At Thomass trial, the court instructed the jury as to felony murder only; the jury
was not instructed on the lesser included offenses of second degree murder, reckless homicide, or
criminally negligent homicide. The court refused Scholls request to instruct the jury as to the
lesser included offenses. State Trial Tr. at 1558-63.
293)
On direct appeal, both the Tennessee Supreme Court and the Court of Criminal
Appeals correctly foundand the State concededthat the failure to instruct the jury on lesser
included offenses constituted constitutional error, as the evidence introduced at trial supported
the existence of the lesser included offenses, and a jury rationally could have found Thomas
guilty of one or more of those offenses instead of felony murder. See Thomas, 158 S.W.3d at
380; Thomas, 2004 WL 370297, at *51.
294)
However, the state courts found that the failure to instruct on these offenses was
harmless. That decision is contrary to, and an unreasonable application of, clearly established
Supreme Court precedent, and the trial courts failure to give such instructions clearly had [a]
94
PageID 110
substantial and injurious effect or influence in determining the jurys verdict. Brecht, 507 U.S.
at 623; see Ruelas, 580 F.3d at 412.
295)
For one, the state courts incorrectly limited their application of the harmless error
standard to consideration of the prosecutions and defenses trial theoriesspecifically relying

on Thomass innocence defenseand the purported strength of the evidence against Thomas.
See Thomas, 158 S.W.3d at 380. In so doing, the courts blatantly ignored the substantial and
injurious effect that the failure to provide lesser included offenses had on the jurys decision: by
providing instructions only for felony murder, the trial court limited the jurys ability to look
beyond the prosecutions and defenses theories and convict Thomas of a lesser included crime
that was clearly supported by the evidence.
296)
A reasonable jury could have found Thomas guilty of a lesser included offense.
Indeed, the Tennessee Supreme Court specifically found that [t]here was evidence that
reasonable minds could accept as to these lesser included offenses, and the evidence was legally
sufficient to support a guilty verdict on these lesser included offenses. Id. It is critical to note
that the jury did not find that Thomas had any intent to kill Day. Instead, the jurys verdict read
as follows: We, the jury, find the defendants, Anthony M. Bond and Andrew L. Thomas guilty
of unlawfully and with the intent to commit a robbery killing James Day during an attempt to
perpetrate robbery as charged in the indictment. State Trial Tr. at 1713 (emphasis added).
Thus, the jury did not find that Thomas intended to kill Day, only that he intended to rob him.
Under these facts, the state courts refusal to instruct the jury as to lesser included offenses was
an error of a constitutional dimension, as the jurys finding that Thomas only intended to commit
a robbery signals that, if given the option, the jury could have convicted Thomas of a lesser
offense.
95
297)
PageID 111
Moreover, even if the jury was convinced that Thomas was involved in the
Walgreens robbery, it was not bound to accept the prosecutions theory of the crimei.e., that
Thomas was the shooter in the Walgreens robbery and Bond was the driver of the getaway car.
Indeed, there was evidence that implicated Bond as the shooter, including the fact that his
fingerprintsnot Thomasswere found on the passenger side door of getaway car where
eyewitnesses saw the shooter sitting.
See paragraphs 113, supra.
Additionally, various
eyewitness descriptions of the shooter matched the clothes that Bond admitted to wearing on the
day of the robbery. See paragraphs 112, supra. Further, the videotape evidence heavily relied on
by the state courts in justifying their findings of harmless error is of such poor quality that
reasonable minds could differ as to whether the tape is too grainy to show anything cognizable at
all. Finally, the jury could have reasonably discounted the testimony of Angela Jackson. For all
of the reasons described in paragraphs III(A)(1)(c)(i), supra, the jury could have concluded that
Angela Jacksons testimony was not credible, which would have greatly vitiated any evidence
that Thomas was involved in the Walgreens robbery. Had the jury knownas we do nowthat
Angela Jackson had received money in connection with her testimony and then lied about it to
the jury, the jury certainly would have questioned the truthfulness of the rest of her testimony,
including her testimony on statements that Thomas allegedly made about the crime.
298)
Because the evidence produced at trial could have permitted the jury to
reasonably convict Thomas of a lesser included offense of felony murder, the trial courts failure
to instruct the jury on lesser included offenses had [a] substantial and injurious effect or
influence in determining the jurys verdict, see Brecht, 507 U.S. at 623, rendering the findings
of harmless error by the Tennessee Supreme Court and Court of Criminal Appeal contrary to, or
96
PageID 112
an unreasonable application of, clearly established federal law, and thus warranting the grant of
relief.
VI.
CLAIM NO. 6: THE COURT ERRED IN

ALLOWING THE PROSECUTOR TO REPEATEDLY
ARGUE THAT THOMAS AND BOND WERE GREED AND EVIL
299)
Constitution because the prosecutor repeatedly argued to the jury that Thomas and Bond were
greed and evil.23 The adjudication of Thomass federal claim in the state courts resulted in a
decision that was contrary to, and involved an unreasonable application of, clearly established
unreasonable determination of the facts in light of the evidence presented in state court.
300)
In Berger, the Supreme Court recognized that a prosecutors words carry great
weight with the jury, and that if pronounced and persistent, improper suggestions and
insinuations can have a probable cumulative effect upon the jury which cannot be disregarded
as inconsequential. Berger, 295 U.S. at 88-89. Thus, the trial court should have instructed the
prosecutor to cease making such improper insinuations and/or issued a curative instruction. The
following facts, among others, support this claim:
301)
As described in Section IV(D), supra, the State referred to Bond and Thomas as
greed and evil a total of 21 times during its opening and closing statements of the guilt phase
of Thomass trial without objection by defense counsel or the issuance of a curative instruction
by the court.
23
A claim that the state courts unreasonably determined that Scholl was not ineffective for his
failure to object to the prosecutors improper remarks is separately pleaded in this petition. See
Section IV(D), supra.
97
302)
PageID 113
Both the Tennessee Supreme Court and the Court of Criminal Appeals correctly
acknowledged that the prosecutors repeated inflammatory characterizations of Thomas and

Bond were improper. See Thomas, 158 S.W.3d at 373; Thomas, 2004 WL 370297, at *46. They
incorrectly and unreasonably concluded, however, that the prosecutors words, though
unseemly and improper, were harmless.
303)
For the reasons described in Section IV(D), supra, the prosecutors highly
inflammatory and unnecessary argument that Thomas and Bond were greed and evil clearly
had [a] substantial and injurious effect or influence in determining the jurys verdict, and
cannot reasonably be deemed harmless. Brecht, 507 U.S. at 623; see also Ruelas, 580 F.3d at
412. As such, Thomas is entitled to relief from his conviction and sentence.
VII.
CLAIM NO. 7: THE TRIAL COURTS ERRONEOUS JURY

INSTRUCTION RELIEVED THE STATE OF PROVING
PROXIMATE CAUSATION AND WOULD RESULT IN AN
ARBITRARY AND CAPRICIOUS EXECUTION
304)
in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution
because the trial court erroneously instructed the jury on proximate causation. The following
305)
As discussed in Section IV(F)(1), supra, the trial courts jury instruction on
proximate causation unconstitutionally shifted the burden of proof on causation to the defense
when clear and long-established Supreme Court precedent holds that the jury must be instructed
that the State is required to prove every element of a criminal charge. See Francis, 471 U.S. at
313 (states may not us[e] evidentiary presumptions in a jury charge that have the effect of
relieving the State of its burden of persuasion beyond a reasonable doubt of every essential
element of a crime).
98
306)
PageID 114
The trial courts jury instruction thus violated Thomass Fifth, Eighth and
Fourteenth Amendments rights by improperly instructing the jury on causation, as the execution
of a defendant convicted on such a faulty instruction would constitute an arbitrary and capricious
death sentence. See Gregg v. Georgia, 428 U.S. 153, 189 (1976) (the elements of a crime not
only define the criminal offense but, in a capital case, also provide standards that ensure that the
jurys discretion [is] suitably directed and limited so as to minimize the risk of wholly arbitrary
and capricious action.).
307)
The unconstitutional instruction was obviously harmful in this case: by shifting
the burden of proof to the defense instead of putting it squarely on the prosecution, the
instruction foreclosed the possibility that at least one juror could have believed that Thomass
causation defense created enough uncertainty as to the cause of Days death that the State had
not proven its case beyond a reasonable doubt.
See Morrow, 2012 WL 313689 at *8-9
(counsels failure to object to a jury instruction that incorrectly prohibited the jury from
considering strong evidence in favor of the defendant presented at trial for any purpose for
which it was properly presented was prejudicial because it prohibit[ed] a certain use of [the
evidence]the use most probative of [the defendants] innocence). Thus, Thomas is entitled to
relief from his conviction and sentence.
VIII. CLAIM NO. 8: THE COURT IMPROPERLY STRUCK FOR
CAUSE A POTENTIAL JUROR WHO EXPRESSED CONCERNS
ABOUT THE DEATH PENALTY, BUT WHO WOULD NOT HAVE
BEEN SUBSTANTIALLY IMPAIRED IN PERFORMING HIS DUTIES
308)
Constitution because the trial court improperly struck for cause a potential juror who expressed
misgivings about the death penalty but who also expressed that his misgivings would not
99
PageID 115
substantially impair him in performing his duties as a juror required to consider the imposition of
the death penalty. Thus, the adjudication of Thomass federal claim in the state courts resulted in
a decision that was contrary to, and involved an unreasonable application of, clearly established
unreasonable determination of the facts in light of the evidence presented in state court.
309)
The Supreme Court has held that the proper standard for determining when a
prospective juror may be excluded for cause because of his views on capital punishment is
whether the jurors views would prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath. Wainwright v. Witt, 469 U.S. 412,
424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). In accordance with this standard,
the prospective juror at issue, G.P.,24 should not have been excused for cause. The following
310)
During the trial court voir dire proceeding, G.P. admitted that imposing the death
penalty would be difficult for him due to the permanency of the punishment and his concerns
about the reliability of witness testimony (which, as it turns out, were justified, since the FBI
paid Angela Jackson, the States chief witness, in connection with her testimony against
Thomas), but he never stated that he could not follow the law with regard to the imposition of the
death penalty or that his personal beliefs would prevent him from following the law as it then
stood in Tennessee. See State Trial Tr. at 199-204.
311)
G.P. confirmed this fact when defense counsel asked him, So there are some
circumstances where you could give that punishment [the death penalty] if it actually showed; is
that correct? G.P. answered, Thats right. Id. at 201-02. The trial court sought further
24
G.P. refers to the prospective juror described on pages 199-204 of the state trial transcript. Thomas refers to the
prospective juror by these initials in an effort to respect his privacy in light of the electronic filing of this Petition.
100
PageID 116
confirmation, asking him, So youre not foreclosing the possibility of giving the death penalty.
Is that correct []? G.P. did not hesitate: Thats correct. Id. at 202.
312)
G.P. showed his willingness to impose the death penalty by identifying two
potential situations, among others, when he would impose death: when he had witnessed the
crime or heard a defendants confession. He did not, however, limit the circumstances in which
he would impose death to these two situations. As the prospective juror explained to the court,
Thats the only two [situations] that I can think of right now. Id. at 201 (emphasis added).
Thus, the prospective juror did not foreclose other situations in which he would sentence a
defendant to death.
313)
G.P.s comments do not reflect an unwillingness to apply the law as it stands, but
rather, a general and well-founded concern over whether the State could bear the evidentiary
burden of proving Thomass guilt and death-eligibility beyond a reasonable doubt. At most, G.P.
indicated that he would evaluate the credibility of witnessesa duty squarely within the
province of the jurywith a careful eye.
As such, Thomas is entitled to relief from his
conviction and sentence.

IX.
CLAIM NO. 9: THE STATE SHOULD NOT HAVE

TRIED THOMAS CAPITALLY FOR A CRIME FOR WHICH
HE HAD ALREADY BEEN TRIED AND CONVICTED IN FEDERAL COURT
314)
Constitution because the State tried Thomas capitally for a crime for which he had already been
tried and convicted in federal court. The adjudication of this claim in the state courts resulted in
a decision that was contrary to, and involved an unreasonable application of, inter alia, the
Double Jeopardy Clause of the Fifth and Fourteenth Amendments. The following facts, among
others, support this claim:
101
PageID 117
A.
Re-Prosecution Of The Robbery Violated

Constitutional Protections Against Double Jeopardy
315)
As discussed in footenote 2, supra, prior to being tried by the State of Tennessee
for felony murder for his alleged role in the Walgreens robbery, Thomas was tried and convicted
in federal court for armed robbery based on the same alleged acts. The State of Tennessees trial
and conviction of Thomas for essentially the same crime for which he was already being
punished violated his Fifth and Fourteenth Amendment rights to be free from double jeopardy.
316)
The legal fiction of the dual-sovereignty doctrine is woefully outdated, as it
predates both recent increases in cooperation between federal and state law enforcement and the
passage of numerous federal laws addressing criminal issues historically left to the states. See,
e.g., Thomas White, Limitations on the Dual Sovereignty Doctrine by Federal and State
Governments, 38 N. Ky. L. Rev. 173, 187-95 (2011); Sara Sun Beale, The Many Faces of
Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 Am. U.L. Rev.
747, 771 nn. 117, 119 (2005); Kevin J. Hellmann, The Fallacy of Dueling Sovereignties: Why
the Supreme Court Refuses to Eliminate the Dual Sovereignty Doctrine, 2 J.L. & Poly 149, 16264 (1994); Daniel A. Braun, Praying to False Sovereigns: The Rule Permitting Successive
Prosecutions in the Age of Cooperative Federalism, 20 Am. J. Crim. L. 1, 7-9 (1992). Indeed,
both of Thomass prosecutions resulted from the joint investigative efforts of state and federal
law enforcement agencies, which had joined forces to form the Safe Streets Task Force and
investigate criminal activity in Memphis.
317)
Furthermore, Thomass state prosecution was in essential fact another federal
prosecution. Bartkus v. Illinois, 359 U.S. 121, 124 (1959). In federal court, the government put
on evidence that Thomas allegedly robbed and shot Day in an effort to prove Counts I and II of
the federal indictment: obstruction of interstate commerce through the use of robbery under 18
102
PageID 118
U.S.C. 1951 and use of a firearm to commit a crime of violence under 18 U.S.C. 924(c). To
prove felony murder, the State put on the same evidence that Thomas allegedly robbed and shot
Day. The State necessarily had to re-prosecute the robbery in order to prove the underlying
felony in the felony murder charge. Thus, the evidence admitted at the federal and state trials
overlapped significantly.
B.
The Re-Prosecution Of Thomas Violated The ICCPR
318)
Prosecuting and convicting Thomas in both federal and state court violated the
guarantees against double jeopardy contained in the International Covenant on Civil and Political
Rights (ICCPR), which the United States ratified on September 8, 1992.
319)
Article XIV, 7 of the ICCPR, which was ratified by the United States on
September 8, 1992, provides guarantees against double jeopardy within a single country. See
ICCPR art. XIV, 7, Dec. 16, 1966, 999 U.N.T.S. 171. Under the auspices of this treaty, the
state/federal dual sovereignty rule is not recognized.
320)
As described in Section X(A), infra, federal and state judges are bound by the
terms of treaties to which the United States is a party. Accordingly, Thomass state prosecution
violated the protections he is afforded under the ICCPR.
X.
CLAIM NO. 10: THE DEATH PENALTY VIOLATES

TREATIES RATIFIED BY THE UNITED STATES AND IS
INCONSISTENT WITH INTERNATIONAL LAWS AND NORMS
321)
Constitution because use of the death penalty in Tennessee conflicts with the denouncement and
proscription of the use of the death penalty in treaties signed and ratified by the United States, as
well as in international laws and norms that reflect modern mores of civility and decency with
regard to the imposition of sanctions for criminal activity. Thus, the adjudication of this federal
103
PageID 119
claim in the state courts resulted in a decision that was contrary to, and involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court.
A.
Tennessees Use Of The Death Penalty Violates International Treaties
322)
The use of the death penalty in Tennessee is a violation of the following treaties
to which the United States is a party: (a) ICCPR, art. 6, Dec. 16, 1966, 999 U.N.T.S. 171, which
the United States signed in 1977 and ratified in 1992; (b) International Convention on the
Elimination of All Forms of Racial Discrimination, arts. 5, 6 and 7, Dec. 21, 1965, 660 U.N.T.S.
195, which the United States signed in 1966 and ratified in 1994 (CERD); and (c) Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, 1465 U.N.T.S. 85, signed by the United States in 1988 and ratified in 1994.
The
administration of the death penalty further violates two agreements adopted by the United States
in 1948: (a) the American Declaration of the Rights and Duties of Man, OEA/Ser.L/V.II 23, doc.
21, rev. 6 (1948); and (b) the Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N.
Doc. A/810 at 71 (1948).25
323)
These treaties and agreements explicitly protect an individuals inherent right to
life, ban cruel and unusual punishment, and abhor the arbitrary deprivation of life imposed by the
death penalty. Each of these treaties and agreements command restrictions on, and safeguards to
be observed in, the administration of capital punishment.
25
Although these declarations are not legally binding treaties, they are considered a source of
binding international obligations for the member states of the Organization of American States as
well as evidence for the determination of customary international law.
104
324)
PageID 120
The imposition of the death penalty in violation of international treaties signed
and ratified by the Senate constitutes a violation of Article VI of the Constitution.26 Indeed, both
federal and state judges are bound to the terms of the treaties to which the United States is a
party, as it is a long-standing principle that the treaties of the United States, are as much a part
of the laws of every state as its own local laws and Constitution. Blythe v. Hinckley, 173 U.S.
501, 508 (1899).
325)
The rights conferred by the United States obligations under these treaties, to
maintain safeguards for the administration of the penalty and prevent the arbitrary deprivation of
life, would be violated by the imposition of the death penalty on Thomas.27 There is a clear
conflict between the State of Tennessee sentencing Thomas to death and the federal government
ratifying international treaties and agreements that prohibit such an arbitrary deprivation of life.
Under the plain language of the treaties and the Senates ratification of the same, the United
States can and must take action to review and correct the imposition of the death penalty.
26
The Supremacy Clause of Article VI of the United States Constitution states that: [A]ll
treaties made, or which shall be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every state shall be bound thereby, any thing in the
Constitution or laws of any state to the contrary notwithstanding.
27
For example, in 1996, the International Commission of Jurists concluded that racial
discrimination in the administration of the death penalty violates the United States obligations
under the ICCPR and CERD. In 2006, the United Nations Commission on Human Rights firmly
requested that the United States impose a moratorium on executions due to the racial disparity
with which the death penalty is imposed, citing the United States need to comply fully with its
ICCPR obligations with regard to ensuring capital punishment is not imposed disproportionately
on racial minorities. See Human Rights Committee, Report of the Human Rights Committee,
Volume I: Eighty-fifth Session (17 October-3 November 2005), Eighty-sixth Session (13-31
March 2006), Eighty-seventh Session (10-28 July 2006), 1 December 2006, A/61/40 (Vol. I).
Most recently, in November 2010, when the United States was reviewed under the Universal
Periodic Review, the report recommended that the United States review its use of the death
penalty and abolish the practice. See Amnesty Intl, Death Sentences and Executions 2011 at 15
(2012). Because Thomas is African-American, these concerns warrant serious consideration by
the Court.
105
PageID 121
B.
Tennessees Use Of The Death Penalty

Violates International Laws And Norms
326)
It is a long-standing principle of federal law that international law is part of our
law and must be ascertained and administered by the courts of justice of appropriate jurisdiction
as often as questions of right depending upon it are duly presented for their determination. The
Paquete Habana, 175 U.S. 677, 700 (1900); see also Restatement (Third) of Foreign Relations
Law of the United States 111(1) (1987) (International law and international agreements of the
United States are law of the United States and supreme over the law of the several States.). As
such, there is a strong historical relationship and correspondence between international law and
the interpretation of rights under the United States Constitution.
327)
There can be no doubt that there is a powerful international trend within the
modern international communityespecially among Western democraciestowards the

abolition of the death penalty. Statistics indicate an acceleration of the one-way international
trend toward the disappearance of capital punishment: only 18 of the 193 Member States of the
UN carried out executions in 2011. See Amnesty Intl, Death Sentences and Executions 2011 at
5 (2012). Indeed, in 2011, only China, Pakistan, Iraq, Iran, Egypt, India, Malaysia and Sri Lanka
had more reported death sentences than the United Statesputting the U.S. on par with, or
having more reported death sentences than, Somalia, Myanmar, Kuwait, Sudan and Saudi
Arabia. See id. at 56.28
28
Additionally, the Second Optional Protocol to the ICCPR commits its members to the
abolition of the death penalty andas of September 2011has 74 parties and 35 additional
signatories. Protocol 13 of the Convention for the Protection of Human Rights and Fundamental
Freedoms, Nov. 4, 1950, Europe.T.S. No. 5; 213 U.N.T.S. 221, also requires the total abolition
of the death penalty, and has been ratified by every member state of the Council of Europe
(except for Poland and Armenia, which have signed but not ratified the protocol, and Russia and
Azerbaijan which have not yet signed).
106
328)
PageID 122
In its capital punishment jurisprudence, the Supreme Court has continuously
referred to and relied on international law, norms, and standards in considering the permissibility
of practices under the Constitution. Specifically, the decisions of the Supreme Court in Roper v.
Simmons, 543 U.S. 551 (2005), and Atkins v. Virginia, 536 U.S. 304 (2002), have clearly
indicated that the international trend against capital punishment has informed and may continue
to substantiate its decisions restricting the implementation of capital punishment. See, e.g.,
Roper, 543 U.S. at 551 (The overwhelming weight of international opinion . . . provides
respected and significant confirmation for [our own] determination . . . It does not lessen fidelity
to the Constitution or pride in its origins to acknowledge that the express affirmation of certain
fundamental rights by other nations and peoples simply underscores the centrality of those same
rights within our own heritage of freedom.).29
329)
In continuing to sanction the administration of the death penalty, the United States
has breached its obligations under ratified international treaties and is in violation of duties
imposed by international law and norms. As such, the decision of the Court of Criminal Appeals
that the imposition of the death penalty does not constitute a violation of treaties ratified by the
United States or customary international laws and norms was an unreasonable application of
federal law. The United States must correct the conflict between its practices and its obligations
29
See also Trop v. Dulles, 356 U.S. 86, 102-103 (1958) (The civilized nations of the world are
in virtual unanimity that statelessness is not to be imposed as punishment for crime); Atkins,
536 U.S. 304, 316 n.21 (recognizing that within the world community, the imposition of the
death penalty for crimes committed by mentally retarded offenders is overwhelmingly
disapproved); Thompson v. Oklahoma, 487 U.S. 815, 830-831 (1988) (noting the abolition of
the juvenile death penalty by other nations that share our Anglo-American heritage, and by the
leading members of the Western European community, and observing that [w]e have
previously recognized the relevance of the views of the international community in determining
whether a punishment is cruel and unusual); Enmund, 458 U.S. at 796-97 (noting that the
doctrine of felony murder has been eliminated or restricted in England, India, Canada, and a
number of other Commonwealth countries).
107
PageID 123
under ratified international treaties, and should confirm its role as an international leader and
moral beacon by conforming its policy on the implementation of the death penalty to the
undeniable international consensus.
XI.
CLAIM NO. 11: THE DEATH PENALTY SYSTEM

IS SO BROKEN AND FRAUGHT WITH ERRORS THAT THE
IMPOSITION OF DEATH IN THIS CASE VIOLATES THE CONSTITUTION
330)
Constitution because the death penalty system is so broken and fraught with errors that the
imposition of death in this case violates the Constitution. The adjudication of Thomass federal
claim in the state courts resulted in a decision that was contrary to, and involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court, and resulted
in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in state court. The following facts, among others, support this claim:
A.
Tennessees Death Scheme Fails To

Meaningfully Narrow The Class Of Eligible Defendants
331)
The Supreme Court has held that a states death penalty scheme must genuinely
narrow the class of persons eligible for the death penalty. Arave v. Creech, 507 U.S. 463, 474
(1993). If the criteria used to aggravate a murder case to a death penalty case do not genuinely
narrow the pool of murder cases to a specific subclass, then the criteria are invalid.
332)
In Tennessee, this narrowing is allegedly accomplished by applying aggravating
circumstances. See State v. Harris, 989 S.W.2d 307, 315 (Tenn. 1999). But several of the
aggravating circumstances set forth in Tenn. Code Ann. 39-13-204(i) have been so broadly and
disparately interpreted that they fail to provide a meaningful basis for narrowing the
population of those convicted of first-degree murder to those eligible for the sentence of death.
108
333)
PageID 124
For instance, the aggravating factor that the defendant was previously convicted
of one or more felonies whose statutory elements involve the use of violence to the person, see
Tenn. Code Ann. 39-13-204(i)(2), has been so broadly construed as to encompass convictions
that occurred after the commission of the crime being sentenced and even those in which final
judgment has not yet been entered. See, e.g., State v. Caldwell, 671 S.W.2d 459 (Tenn. 1984)
(holding that a conviction entered before sentencing of present charge is an aggravating factor);
State v. Nichols, 877 S.W.2d 722, 736 (Tenn. 1994) (considering a conviction in which final
judgment was not yet entered). Such broad interpretation and application of this statutory
aggravating factor evidences the fact that Tennessee fails to meaningfully narrow its class of
defendants eligible for the death penalty.
B.
Death Sentences Are Imposed Arbitrarily and Capriciously In Tennessee
334)
The Supreme Court has held that [b]ecause of the uniqueness of the death
penalty . . . it could not be imposed under sentencing procedures that created a substantial risk
that it would be inflicted in an arbitrary and capricious manner. Gregg, 428 U.S. at 188 (citing
Furman, 408 U.S. at 313 (White, J., concurring)).
335)
Tennessees death penalty is imposed under sentencing procedures that create a
substantial risk that it will be inflicted in an arbitrary and capricious manner. Those procedures
include, but are not limited to, the following:
a)
Tennessee prosecutors have unlimited discretion in deciding whether to

seek the death penalty; there are no statewide guidelines or procedures
governing this decision. See State v. Brimmer, 876 S.W.2d 75, 86 (Tenn.
1994). As a result, the majority of inmates on death row come from just a
handful of counties.
b)
There are inadequate qualification and performance standards for defense

counsel.
Tennessee Supreme Court Rule 13 provides minimal
qualifications for defense counsel in a capital case. Notably, Rule 13 does
not require that attorneys demonstrate a commitment to providing zealous
advocacy or high quality legal representation in the defense of capital
109
PageID 125
cases. Moreover, although the Rule requires certain capital defense

training, the contents of this training are not specified. Under the current
standards, there is no assurance that a defendant will receive effective
legal counsel.
c)
There are no uniform standards to ensure an open inquiry into potentially

prejudicial subject matter during jury selection in capital cases.
Individually sequestered voir dire, for instance, is not required in all
capital cases. See State v. Hutchinson, 898 S.W.2d 161, 167 (Tenn. 1994)
(holding that sequestered voir dire is permissible, not mandatory). Some
courts allow individual sequestered voir direwhere a defendant can
more effectively question prospective jurors about sensitive issues like a
jurors knowledge and attitude about pretrial publicity, methods of
execution, parole eligibility, the cost of incarceration, or the death penalty
generallywhile others do not provide defendants with the same ability to
effectively question potential jurors on these crucial issues.
d)
The jury selection process excludes the sizeable portion of the community
that has scruples against the death penalty. As a result, the death
qualification process skews the make-up of the jury and results in a
prosecution-friendly, conviction-prone jury.
e)
Tennessees capital sentencing scheme fails to provide defendants with

adequate access to experts. Tennessee Supreme Court Rule 13 limits the
hourly rates of compensation for experts and investigators and requires
that they live within 150 miles of the courthouse. These restrictions
hinder a defendants ability to retain the experts necessary to present a
meaningful defense.
f)
Defendants are prohibited from addressing misconceptions about matters

relevant to sentencing. Jurors are generally instructed that they may rely
upon their own common knowledge and experiences in reaching their
verdict, but this often involves a number of popularly-held mistaken
beliefs about the death penalty including, but not limited to, (i) the cost of
incarceration compared to the cost of execution, (ii) deterrence, (iii) mode
of execution, and (iv) parole ineligibility. See, e.g., State v. Johnson, 632
S.W.2d 542, 547-48 (Tenn. 1982) (upholding exclusion of evidence
regarding deterrent effect of death penalty); State v. Taylor, 771 S.W.2d
387, 397 (Tenn. 1989) (excluding evidence regarding parole eligibility is
permissible); State v. Adkins II, 725 S.W.2d 660, 664 (Tenn. 1987)
(upholding exclusion of evidence regarding mode of execution).
g)
Tennessees death penalty statute mandates that a trial court shall allow
a victims representative to testify before the jury in sentencing. Tenn.
Code Ann. 39-13-204(c). This violates separation of powers and injects
arbitrariness and capriciousness into capital sentencing by prohibiting the
trial court from exercising discretion in whether the prejudicial value of
110
PageID 126
evidence outweighs its probative value and violates due process and equal
protection. In addition, a prosecutor may introduce evidence regarding
facts and circumstances of prior crimes at sentencing, and the court may
not exclude such evidence based on the danger of prejudice. Tenn. Code
Ann. 39-13-204(c).
h)
Tennessees death penalty statute denies the defendant the final closing
argument in the penalty phase of trial, see Tenn. Code Ann. 39-13204(d), even though the burden is ultimately on the defense to show that
mitigating circumstances outweigh aggravating factors and that the
defendant does not deserve a sentence of death.
i)
The jury is required to unanimously agree that the aggravating factors do

not outweigh the mitigating factors in order for a life sentence to be
imposed. Tenn. Code Ann. 39-13-204(f)(2). The practical effect is that
the jury must unanimously agree to a life sentence in order for one to be
imposed. This undercuts the Supreme Courts holding that each juror be
permitted to consider and give effect to mitigating evidence when deciding
the ultimate question whether to vote for a sentence of death. McKoy v.
North Carolina, 494 U.S. 433, 442-43 (1990).
j)
There is a reasonable likelihood that jurors believe that they must

unanimously agree as to the existence of mitigating circumstances because
of the failure to instruct the jury on the meaning and function of mitigating
circumstances. Juries are instructed to consider mitigating evidence as
they consider aggravating evidence and are not given a separate
instruction defining mitigating circumstances. See State v. Groseclose,
615 S.W.2d 142, 148 (Tenn. 1981). This, too, is contrary to the Supreme
Courts holding that each juror be allowed to give effect to mitigating
evidence in capital cases, see McKoy, 494 U.S. at 442-43, and creates the
likelihood of jury confusion and misapplication of the law.
k)
If the jury determines that the aggravating circumstances outweigh

mitigating circumstances beyond a reasonable doubt, they must impose the
death penalty. See Tenn. Code Ann. 39-13-204(g). This removes the
jurys ability to make an ultimate determination that death is or is not
warranted in any given case.
l)
The death penalty is imposed in a discriminatory manner. Statistics

demonstrate that the likelihood of receiving a death sentence depends,
inter alia, on the defendants and/or the victims race, the defendants
geographic location, and the defendants sex. See generally McClesky v.
Kemp, 481 U.S. 279, 287 n.2 (1987) (citing Baldus study which finds that
racial discrimination is a factor in capital punishment)
m)
Tennessee does not properly ensure that claims of factual innocence

receive adequate judicial review. The current mechanisms to handle
111
PageID 127
claims of factual innocence, such as post-conviction proceedings and writs

of error coram nobis, do not function as intended. For example,
Tennessee courts failed to grant relief on a capital appeal in a matter in
which the United States Supreme Court ultimately concluded that it is
more likely than not that no reasonable juror would have found [House]
guilty beyond a reasonable doubt. House, 547 U.S. at 537, 553-54.
C.
Tennessees Appellate Review Process

In Death Penalty Cases Does Not Ensure That
Capital Punishment Is Not Imposed Arbitrarily And Capriciously
336)
The Supreme Court has held that meaningful appellate review of death
sentences promotes reliability and consistency, and plays a crucial role in ensuring that the death
penalty is not imposed arbitrarily and capriciously. See Clemons v. Mississippi, 494 U.S. 738,
749 (1990); Parker v. Dugger, 498 U.S. 308, 321 (1991) (noting that the Court has emphasized
repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is
not imposed arbitrarily or irrationally).
337)
There is no meaningful appellate review in Tennessee for the following reasons,
among others:
a)
Tennessees death penalty statute does not require the jury to make written
findings concerning mitigating circumstances. See Tenn. Code Ann. 3913-204(g)(2). The absence of such findings makes it difficult for an
appellate court to conduct proportionality review or harmless error
analysis in the event that one of the jurys findings of an aggravating
circumstance is found to be invalid.
b)
In order for appellate courts to perform a comparative review of death

sentences, judges are required to fill out forms in every case where a
defendant is convicted of first degree murder. See Tenn. Sup. Ct. R.
12(1). These forms, are often incomplete or not filled out at all. As a
result, appellate courts lack essential information to conduct a meaningful
comparative review. See Tenn. Code Ann. 39-13-206(c)(1)(D).
c)
The methodology of comparative review in Tennessee, see Tenn. Code

Ann. 39-13-206(c)(1)(D), is flawed because it requires appellate courts
to compare cases in which death has been imposed, but improperly
excludes cases in which defendants convicted of first degree murder with
aggravating circumstances were given a lesser sentence. By excluding
112
PageID 128
this important class of cases, courts cannot accurately place the case under
review within the context of all first degree murder cases.
d)
The proportionality review that the appellate courts must engage in

pursuant to Tenn. Code Ann. 39-13-206(c)(1)(D) is deficient,
inadequate, and inconsistent with due process considerations for the
following reasons, among others: (i) there is no uniformly enforced
procedure for collecting data on homicide sentences that is necessary to
perform a proportionality review; (ii) the proportionality review does not
include homicide cases less than first degree murder or with a sentence of
less than life; (iii) the information collected pursuant to Tennessee
Supreme Court Rule 12, that provides a basis for comparative review, is
incomplete and inadequate; (iv) the jury verdict form does not require
findings of mitigating factors thus limiting the ability of courts to conduct
a meaningful comparison; and (v) it is impossible to conduct meaningful
review unless a sufficient number of cases have been reported so as to
provide a basis for comparison.
D.
The Administration Of Lethal Injection

Constitutes Cruel And Unusual Punishment
338)
The prohibition against cruel and unusual punishment prevents punishment that
involves torture or a lingering death as well as the unnecessary and wanton infliction of pain.
In re Kemmler, 136 U.S. 436, 447 (1890); see Gregg, 428 U.S. at 173. The Supreme Court has
held that the Eighth Amendment requires that all feasible measures be taken to minimize the risk
of administering capital punishment. See, e.g., Zant v. Stephens, 462 U.S. 862, 874 (1983).
339)
Tennessees method of lethal injection constitutes cruel and unusual punishment
that presents a significant risk of torturing or causing a lingering death. Among other problems,
sodium thiopentala barbiturate that is supposed to induce general anesthesiamay act as an
ultra-short barbiturate that may wear off and lead to consciousness. When this happens, the
individual suffers a terrifying and excruciatingly painful death.
The administration of
pancuronium bromide immobilizes his ability to breathe and causes paralysis so that when the
potassium chloride is administered to induce a heart attack, the individual is conscious to
113
PageID 129
experience the pain, but unable to move and unable to breathe. In Tennessee, none of the
executioners who administer the lethal injection are trained medical professionals.
PRAYER FOR RELIEF
WHEREFORE, Thomas prays that this Court:
340)
Issue a writ of habeas corpus to have Thomas brought before this Court to the end
that he may be discharged from his unconstitutional confinement and restraint and relieved of his
unconstitutional conviction and sentence of death;
341)
Require respondent to answer the allegations of this petition and bring forth the
entire state court record so that this Court can review those parts of the record that are relevant to
the issues and defenses raised in this proceeding;
342)
Afford Thomas an opportunity to reply to any responsive pleading filed by
respondent;
343)
Grant discovery, a sufficient period of time to conduct discovery, and an
evidentiary hearing on the allegations of this petition and after such a hearing, grant relief from
the unconstitutional convictions and sentences;
344)
Stay his execution pending final disposition of this petition; and
345)
Grant such other and further relief as may be appropriate and dispose of this
matter as law and justice require.

Dated: April 27, 2012
Respectfully submitted,
/s Robert L. Hutton
____________________________________
Robert L. Hutton
GLANKLER BROWN, PLLC
6000 Poplar Ave.
Suite 400
114
PageID 130
Memphis, TN 38119
Ph: 901-525-1322
Fax: 901-525-2389
rhutton@glankler.com
and
/s Thomas P. Lane by Robert L. Hutton
w/permission
____________________________________
Thomas P. Lane
Jennifer N. White
Patrick M. McGill
WINSTON & STRAWN LLP
200 Park Avenue
New York, NY 10166
Ph: 212-294-6700
Fax: 212-294-4700
tlane@winston.com
jwhite@winston.com
pmcgill@winston.com
VERIFICATION
I, Andrew Thomas, declare under the penalty of perjury that I have read the contents of
the foregoing Petition and swear that they are true to my own knowledge.
(Signature redacted,
original with Robert L. Hutton)
____________________________________
Andrew Thomas
Riverbend Maximum Security Institution
Unit 2, C-103
7475 Cockrill Bend Industrial Road
Nashville, Tennessee 37209-1048
115

Andrew Thomas Appeal

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Case 2:12-cv-02333-SHM-tmp Document 1 Filed 04/27/12 Page 1 of 130

IN THE UNITED STATES DISTRICT COURT

Case 2:12-cv-02333-SHM-tmp Document 1 Filed 04/27/12 Page 2 of 130

CLAIM NO. 1: THE STATE VIOLATED THOMASS

Evidence That U.S. Marshal Sanders Paid Angela Jackson

The State Suppressed The Favorable

There Is A Reasonable Probability That The Result Of

Thomas Can Excuse Any Procedural Default Or Non-Exhaustion

CLAIM NO. 2: THE STATE VIOLATED

Angela Jacksons Testimony That She Had Not Received A

Angela Jacksons False Testimony Was Material

The Prosecution Had Constructive

Thomas Can Excuse Any Procedural Default

Thomas Lacks An Avenue To Assert

CLAIM NO. 3: THOMAS IS ACTUALLY

Case 2:12-cv-02333-SHM-tmp Document 1 Filed 04/27/12 Page 3 of 130

Thomas Makes A Truly Persuasive Demonstration Of Actual Innocence .........36

Thomas Is Factually Innocent: Bobby Jackson

The Evidence Shows That

The Evidence Shows That Bond Shot Day .......................................39

Newly Discovered Evidence Has Completely

Angela Jacksons Testimony Is A Lie .....................................41

Bond Recanted His Confession And Federal Testimony ........44

Thomas Is Factually Innocent:

Days Spinal Cord Injury Was Caused By

Days Condition Improves After Discharge And

Day Dies Of A Bladder Infection,

Andrew Thomas Is Legally Innocent .........................................................53

Thomas Is Legally Innocent

Thomass Conviction For Felony Murder

Thomas Can Excuse Any Procedural Default Or

Andrew Thomas Lacks An Avenue

CLAIM NO. 4: ANDREW THOMAS WAS

Trial Counsel Was Ineffective For Failing

Case 2:12-cv-02333-SHM-tmp Document 1 Filed 04/27/12 Page 4 of 130

Trial Counsels Failure To Consult With

The Proper Application Of Clearly Established

Trial Counsel Was Ineffective Due To Glatsteins De Facto

Trial Counsel Was Ineffective For His Failures

The Court Of Criminal Appeals Properly Found

The Confrontation Clause Violations

The Court Of Criminal Appeals Correctly

The Court Of Criminal Appeals Decision That Scholl

The Proper Application Of Clearly Established

Trial Counsel Was Ineffective For Failing To

Appellate Counsel Was Ineffective For Failing To

The Court of Criminal Appeals Correctly Found That

Case 2:12-cv-02333-SHM-tmp Document 1 Filed 04/27/12 Page 5 of 130

Brookss Failure To Present Any Confrontation Clause

Trial Counsel Was Ineffective For Failing To Object

The Trial Courts Instruction On Causation

Scholls Failure To Object To The Trial Courts

Trial Counsel Was Ineffective For Failing To Present

Scholls Failure To Present Evidence That

The Proper Application Of Clearly Established

The Cumulative Effect Of Counsels

CLAIM NO. 5: THE JURY SHOULD HAVE

CLAIM NO. 6: THE COURT ERRED IN

CLAIM NO. 7: THE TRIAL COURTS ERRONEOUS JURY

CLAIM NO. 8: THE COURT IMPROPERLY STRUCK FOR

CLAIM NO. 9: THE STATE SHOULD NOT HAVE TRIED

Case 2:12-cv-02333-SHM-tmp Document 1 Filed 04/27/12 Page 6 of 130

Re-Prosecution Of The Robbery Violated

The Re-Prosecution Of Thomas Violated The ICCPR .....................................103