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Thurman v. Griffith

United States District Court, E.D. Missouri, Eastern Division

January 24, 2018

JEFFREY G. THURMAN, Petitioner,
v.
CINDY GRIFFITH,[1] Respondent.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 4). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) (Doc. 12). After reviewing the case, the Court has determined that Petitioner is not entitled to relief. As a result, the Court will DENY the Petition and DISMISS the case.

         I. BACKGROUND

         In January 2007, Petitioner was charged with one count of first-degree murder for the murder of Ricky Haynes (“Haynes”) and two counts of Class C felony stealing for taking two cars belonging to Haynes in St. Francois Circuit Court (Doc. 10-2 at 36-37). On September 21, 2007, the State filed a notice of aggravating factors in support of the death penalty (Id. at 9). On December 7, 2011, Petitioner pleaded guilty to first-degree murder pursuant to a plea agreement with the State (Id. at 29; Doc. 10-1 at 2). At the plea hearing, when asked how many times Petitioner had discussed his case with plea counsel, Petitioner agreed it was well over 40 times and further stated that counsel had spent close to 100 hours with him (Doc. 10-1 at 2). Petitioner also testified that he was satisfied with counsel's assistance, felt he had sufficient time to consult with counsel before pleading guilty, and felt he had been fully informed of all charges and defenses available to him (Id. at 2-3). Petitioner stated he had not been threatened or coerced into pleading guilty and acknowledged the rights he was waiving by doing so (Id. at 3). In exchange for Petitioner's guilty plea, the State withdrew its notice of intent to seek the death penalty and dismissed the two counts of stealing (Id. at 2-3). The Circuit Court accepted Petitioner's plea and sentenced him to life without parole in the Missouri Department of Corrections (Id. 6, 39-40).

         On March 1, 2012, Petitioner filed a motion for post-conviction relief (Id. at 33, 48-52). On December 4, 2012, with the assistance of counsel, Petitioner filed an amended motion (Id. at 34, 58-74). Without holding an evidentiary hearing, the motion court denied Petitioner's motion on January 8, 2013 (Id. at 34, 75-77). On February 10, 2013, Petitioner appealed the motion court's decision, raising the following ground for relief: the motion court clearly erred in denying Petitioner's post-conviction relief motion in that counsel was ineffective because there was not pretrial determination of whether Petitioner is mentally retarded, [2] and thus categorically ineligible for the death penalty (Id. at 34; Doc. 10-3 at 8).

         On appeal, Petitioner asserted that, if afforded a hearing, he would provide medical records that establish Petitioner's mental retardation and that he is, therefore, ineligible for the death penalty under state statute. Specifically, before the post-conviction appellate court, Petitioner outlined his medical and school history as follows:

         Thurman pleaded that medical records in counsel's file would have shown that Thurman was born in August of 1985. He was delivered by Caesarian section, under general anesthesia, due to failure to progress. Thurman started experiencing seizures at nine months of age. At less than a year old, he was evaluated at Farmington Community Hospital and Spirit of St. Louis Hospital and found to have an abnormal EEG and CT scan. Those tests revealed “asymmetrical ventricles” of the brain. He was placed on 20 mg of phenobarbital twice a day at the age of eleven months.

         At a very early age Thurman experienced difficulty in the normal classroom setting. In 1990, at the age of five, he was evaluated at Rolla Regional Center. Intelligence testing at that time found a full scale score of 75. Thurman was placed in special education. In 1993, Thurman was having difficulty keeping up in first grade and was evaluated at Neurologic Associates of Cape Girardeau. Dr. Steven Mellies noted that Thurman's problems were organic versus psychiatric and that he would benefit from special education. An EEG performed by Neurologic Associates showed abnormalities in brain functioning.

         Thurman's school counselor reported to Dr. Mellies that Thurman has “across the board learning problems.” By 1994, Thurman was being prescribed Ritilan for Attention Deficit Disorder in addition to his anti-seizure medication. In 1996, Thurman was evaluated by Children's Haven in Farmington. Children's Haven noted that Thurman was of borderline intelligence and made reference to a prior CT scan that showed scar tissue on Thurman's brain. Thurman was referred to a psychiatrist.

         In 1997, another EEG showed generalized “spike and wave” abnormalities consistent with seizure disorder. In 1998, Thurman was seen by Dr. David Mullen at the Bonne Terre Medical Associates. Dr. Mullen's notes indicate that Thurman “probably has mild MR or significant learning disabilities . . . testing showed low IQ and couple grades behind.” An IQ test performed on May 20, 1998 showed a full scale IQ of 67.

         In 1999, Thurman was being home schooled by a public school teacher. At a meeting at Rolla Regional Hospital, a plan was devised recommending that Thurman continue being home schooled, that the family be provided with respite services, and that he needed more community involvement. The plan reports that his diagnosis is “ADHD, mild mental retardation, damage to . . . brain and epilepsy.”

         In 2000, at the age of fifteen, Thurman was hospitalized after attempting suicide by hanging himself. While at the Spirit of St. Louis hospital he is [sic] diagnosed with “Major Depression, Impulse Control Disorder NOS, Parental/Child Relational Problem, Oppositional Defiant Disorder and Mild Mental Retardation.” At Lakeland Hospital later that year he was given a Peabody Picture Vocabulary Test and scored a 79. In a Social Service evaluation performed while at Lakeland, he was characterized as mentally retarded. In a Lakeland School assessment, Thurman is [sic] also diagnosed as mentally retarded. At the age of sixteen, an evaluation was performed by the West County R-IV school district in Park Hills, and Thurman was diagnosed as “moderately mentally retarded” with a Full Scale IQ of 69. And once again, an abnormal EEG was found. In 2003 Thurman was evaluated by psychologist Kenneth Mayfield. The test reports that Thurman's speech and mental activity are “clearly somewhat illogical.” Intelligence testing found a Full Scale IQ of 71. In June of 2006 Thurman was evaluated by Vocational Rehabilitation Services and found to be eligible due to “Mental Retardation” with an I.Q. of 69.

         Thurman was evaluated by neuropsychologist Dr. Robert Heilbronner, at the request of plea counsel, in 2008. Dr. Heilbronner found that Thurman suffered cognitive deficits in intellectual functions, academic abilities, attention skills, learning and memory (both auditory and visual information), and certain language skills. The most pronounced difficulty demonstrated on executive functions. He further found that there is “clear and convincing evidence of brain-based disturbances in neuropsychological functions that arise from brain damage in early infancy.” Dr. Heilbronner administered the WAIS 3 and found a Full Scale IQ of 72.

         In 2010 upon the recommendation of Dr. Heilbronner, plea counsel further explored the question of Thurman's intellectual functioning. At the request of counsel, Dr. Stephen Greenspan evaluated Thurman to determine if he qualified for an exemption to death by execution under Atkins v. Virginia, 536 U.S. 304 (2002) due to mental retardation. Dr. ...


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