7th Circuit affirms dismissal of killer’s habeas petition

The 7th Circuit Court of Appeals on Tuesday affirmed the dismissal of a convicted killer’s habeas petition alleging ineffective assistance of counsel, agreeing that his attorney’s alleged errors did not prejudice him.

In 1982, an Indiana jury convicted Jay Thompson of murder and conspiracy to commit burglary on the theory that Thompson and a friend stabbed a couple to death during a house break-in. Thompson initially was sentenced to death but later was resentenced to an aggregate 120 years’ imprisonment, affirmed by the Indiana Supreme Court.

Between August 1992 and 2014, Thompson filed several amended post-conviction relief petitions that continued to languish, bouncing between several public defenders, two private attorneys and pro se appeals.

When the Indiana Supreme Court denied his petition to transfer, Thompson turned to federal court with a petition for writ of habeas corpus under 28 U.S.C. § 2254, arguing that his trial attorney was ineffective and that his conviction violated the protection against double jeopardy.

Although the district court concluded that laches was a firmly established and regularly followed rule in Indiana, the 7th Circuit vacated and remanded upon finding that Thompson had made a substantial showing that his rights to effective assistance of counsel and against double jeopardy were indeed violated.

On remand, the district court dismissed the habeas petition because “counsel’s alleged errors did not prejudice Thompson.” The 7th Circuit in a Tuesday decision agreed, affirming the district court in Jay R. Thompson v. Frank Vanihel, 20-2571.

In affirming the district court, the 7th Circuit agreed that the evidence against Thompson was “overwhelming.” It drew facts from the district court’s recitation, relying also on the Indiana Supreme Court’s decision from Thompson’s direct appeal.

“Viewed as a whole, it is not substantially likely that the result of Thompson’s trial would have been different but for the errors he identifies,” Circuit Judge Thomas Kirsch wrote.

On appeal, Thompson argued his counsel failed to move pretrial to suppress Thompson’s request for a lawyer and his post-request statements; failed to object to the prosecutor’s remarks in closing argument referencing Thompson’s request for a lawyer in violation of Doyle v. Ohio, 426 U.S. 610 (1976); and failed to present the prosecutor’s remarks in Thompson’s direct appeal in state court.

“It is not likely, much less ‘substantially’ so, that the result of Thompson’s trial or appeal would have been different but for his counsel’s failure to act in the three ways Thompson identifies,” the 7th Circuit held.

“Both the physical evidence and the eyewitness testimony was consistent with Dillon’s testimony implicating Thompson, including the blood on Thompson’s jeans and glove that law enforcement recovered from his closet shortly after the murders; the hunting knife found in Thompson’s trunk, freshly cleaned and oiled; Thompson’s presence with (Richard) Dillon at a laundromat just after the murders; and the forensic pathologist’s testimony that the stab wounds on the (victims) were consistent with two different knives. Thompson’s uncorroborated alibi was not supported by the evidence. … And Thompson’s question after telling his mother that he thought they should get a lawyer did not prejudice Thompson (and he has not argued otherwise on appeal),” the panel concluded.

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