Jones v. Moss

Background

Theodore Walter Jones filed a petition challenging his state conviction for voluntary manslaughter. The court denied that petition on March 3, 2020. Jones then timely moved under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment. Respondent opposed the motion.

A Rule 59(e) motion is an extraordinary request to change a judgment. The court explained that it generally requires newly discovered evidence, clear error, or an intervening change in the law. The court denied Jones’s motion.

Claim 5: Fred Thompkins and the requested factual development

Jones argued that the court clearly erred in upholding the state appellate court’s rejection of his ineffective-assistance claim concerning trial counsel’s failure to call Fred Thompkins as a defense witness. Jones said Thompkins might have supported his claim that he acted in self-defense or defense of another. Jones also challenged the denial of an evidentiary hearing and discovery, including a proposed deposition of Thompkins.

The court applied the two-part ineffective-assistance standard from Strickland v. Washington: a defendant must show that counsel’s performance was deficient and that the deficiency caused prejudice, meaning a reasonable probability of a different result. The state appellate court had rejected Claim 5 based on lack of prejudice. It found that the record did not show Thompkins could have helped the jury decide the key issue: whether Jones knew, or reasonably could have known, that the victim had a second gun.

The court held that this state-court decision was not unreasonable under the deferential federal review standard for state convictions. It emphasized that Thompkins repeatedly told investigators that he did not see any guns and did not witness the shooting. Jones did not identify a specific statement showing that Thompkins could have provided helpful testimony about the second gun or whether the victim reached for it. The court therefore found no clear error in its earlier decision to reject Claim 5 without ordering further factual development.

The court also held that the state court was not required to hold an evidentiary hearing because it could reasonably conclude that the existing record was sufficient. The federal court likewise did not err in denying a hearing because the claim had been adjudicated on the state-court record. Finally, the court denied Jones’s discovery argument, finding that his belief that Thompkins might provide helpful testimony was speculation and did not establish the required good cause for discovery.

Claim 10: Closing argument and Brandy Davis’s testimony

Jones argued that the court failed to address an ineffective-assistance argument concerning trial counsel’s failure to object to the prosecution’s closing argument about testimony from Brandy Davis. Davis had testified at a preliminary hearing that, after the shooting, Jones said something like, “He tried to kill us.” She was not allowed to elaborate on that testimony at trial because of the prosecution’s objection.

The court first said that Jones improperly raised this argument for the first time in his traverse, a later filing that was not the proper place to add new grounds for relief. The court nevertheless addressed the argument and rejected it. Jones had not cited controlling authority establishing that the prosecution’s reference to excluded evidence was misconduct. Under the deferential standard governing ineffective-assistance claims in federal review of state convictions, the court could not conclude that trial counsel performed deficiently by failing to make the proposed objection.

The court also held that Jones failed to show prejudice. It reasoned that Davis’s proposed testimony would at most have supported Jones’s subjective belief that he was acting in self-defense, an issue the jury had credited. The dispositive issue was whether Jones’s actions were objectively reasonable, including whether he knew or reasonably could have known that the victim had a second gun. The court found that Davis’s statement would not have helped resolve that issue. It further concluded that the trial court’s immediate instruction that attorney comments were not evidence cured any possible harm.

Certificate of appealability and disposition

Jones challenged the earlier denial of a certificate of appealability, which is permission to appeal a federal habeas decision. The court stated that such a certificate requires a substantial showing that a constitutional right was denied and, when claims were rejected on their merits, that reasonable judges could debate the ruling. The court concluded that Jones had not met that standard. It said that even if one supporting legal argument were debatable, the ultimate rejection of his ineffective-assistance claims was not reasonably debatable.

Judge Beth Labson Freeman denied Jones’s Motion to Alter or Amend Judgment. The order terminated ECF 35.