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Thomas v. Superintendant

United States District Court, S.D. Indiana, Terre Haute Division

May 19, 2017

SYLVESTER THOMAS, Petitioner,
v.
SUPERINTENDENT, Wabash Valley Correctional Facility, Respondent.

          ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          Hon. Jane Magnus-Stinson, United States District Court Chief Judge

         Once convicted and after exhaustion or waiver of any right to appeal, a defendant is presumed to stand “fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982). For the reasons explained in this Entry, the effort of Sylvester Thomas to show otherwise with respect to his state court convictions fails. His petition for a writ of habeas corpus will therefore be denied. In addition, the Court finds that a certificate of appealability should not issue.

         I. Background

         A jury convicted Thomas of felony murder and attempted robbery in Marion County. He was sentenced to an executed term of 60 years. The evidence pertinent to the offenses and aspects of the prosecution were summarized by the Indiana Court of Appeals in Thomas's direct appeal:

Around 11:45 p.m. on January 7, 2008, police and emergency personnel responded to a report that someone had been shot at an Indianapolis apartment complex. They found Emanuel Jenkins lying on the parking lot outside one of the apartment buildings, suffering from a fatal gunshot wound to his chest.
The police immediately began an investigation. Detective Christine Mannina of the Indianapolis-Metropolitan Police Department interviewed a bystander, Shon Hudson, who told her that he had been inside Jenkins's apartment when he heard a knock at the door followed by two gunshots.
Detective Mannina also interviewed Tasia Lee, who lived with her son in the adjacent apartment. Lee told Detective Mannina that before the shooting, two men had entered her apartment and held her at gunpoint. After Lee became extremely upset and scared, the men told her that “they did not want her but wanted her neighbors.” Appellant's App. p. 26. Lee watched while one of the men went to Jenkins's apartment and knocked on the door. Shortly thereafter, the second man jumped from her apartment into the hallway and began firing his handgun.
The next day, on January 8, 2008, Lee notified Detective Mannina that the shooter had come to her place of employment wearing a jacket with either “Thomas Sylvester” or “Sylvester Thomas” written on it. Id. at 29. Lee identified Thomas from a photo array as the person who did the shooting.
On January 31, 2008, the State charged Thomas with one count of murder, two counts of criminal confinement, and one count of possession of a firearm by a serious violent offender under Cause Number 49G01-0802-MR-28025 (MR- 28025). Forensic testing identified Thomas's DNA on cigarettes left in an ashtray in Lee's apartment. In addition, Lee's telephone records indicated that on the day of the shooting, she had received several calls from Alan Thomas, Thomas's brother and an inmate at the Marion County Jail. When confronted with this evidence, Lee admitted that Alan was her boyfriend and that Thomas had been in her apartment just before the shooting.
On February 9, 2009, the day scheduled for Thomas's trial in MR-28025, Hudson admitted that on the day of the shooting, there was a high-stakes dice game occurring in Jenkins's apartment. Hudson told the police that after the door of Jenkins's apartment was opened, someone ordered the occupants to lie on the floor, and he realized that someone was trying to rob the players of the dice game. In an attempt to thwart the robbery, Hudson fired a gun towards the door of the apartment.
After receiving this new information, the State dismissed the charges in MR-28025. The next day, on February 10, 2009, the State charged Thomas with Count I, felony-murder; Count II, attempted robbery; and Count III, possession of a firearm by a serious violent felon under Cause Number 49G01-0902-MR-24145 (MR-24145).
On April 22, 2009, five days before Thomas's trial was to begin, Thomas filed a motion to dismiss the charges against him, which the trial court denied. The first part of Thomas's bifurcated trial commenced on April 27, 2009. On April 29, a jury found Thomas guilty on Counts I and II. The second part of Thomas's trial commenced on May 8, 2009, and the trial court found Thomas not guilty on Count III.

Thomas v. State, 924 N.E.2d 678, *1-2 (Ind.Ct.App. 2010).

         In that direct appeal, the Indiana Court of Appeals considered and rejected the following claims: (1) the trial court abused its discretion when it denied Thomas's motion to dismiss based on the refiling of charges; (2) the trial court abused its discretion in finding that a witness was unavailable and allowing her testimony to be given through her deposition; (3) the trial court abused its discretion by allowing portions of taped jailhouse conversations to be played to the jury; (4) the trial court improperly denied Thomas's motion for a mistrial based on prosecutorial misconduct; (5) the trial court violated Thomas's “right to presence” by individually questioning jurors while he was not present and erred when it denied Thomas's motion for a mistrial based on juror “contamination”; (6) the trial court erred when it did not vacate Thomas's conviction for attempted robbery; and (7) Thomas's sentence was inappropriate under Indiana Appellate Rule 7(b).

         Thomas promptly filed an action for post-conviction relief, which was denied on August 1, 2016. While that action was pending, however, Thomas sought permission from the Indiana Court of Appeals to pursue a successive post-conviction petition. That request was denied without prejudice on July 12, 2016. As noted, the post-conviction relief petition was denied three weeks later. Thomas did not appeal the denial of his action for post-conviction relief.

         This action was filed on November 14, 2016, and has been fully at issue since March 13, 2017. The claims Thomas asserts are these:

(1) the trial court abused its discretion when it denied Thomas's motion to dismiss based on the refiling of charges;
(2) the trial court abused its discretion in finding that a witness was unavailable and allowing her testimony to be given through her deposition;
(3) the trial court abused its discretion by allowing portions of taped jailhouse conversations to be ...

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