IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

UNITED STATES OF AMERICA ex rel. ) 

MICHAEL THOMAS, ) 

 ) 

 Petitioner, ) 

 ) 

 vs. ) No. 11 C 7743 

 ) 

MARC HODGE, ) 

 ) 

 Respondent. ) 

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge: 

 In 1999, an Illinois jury convicted Michael Thomas of first-degree murder in 

connection with the stabbing death of Keith Stalker on a Chicago street in 1996, and the 

trial judge imposed a prison sentence of forty years. The Illinois Appellate Court 

affirmed Thomas's conviction on direct appeal. After Thomas filed an unsuccessful 

petition for leave to appeal with the Illinois Supreme Court, he filed a petition for postconviction relief. The Circuit Court of Cook County dismissed the petition, but the 

Illinois Appellate Court reversed that decision, concluding that Thomas had stated the 

gist of a constitutional claim. On remand, the circuit court again rejected Thomas's 

petition, a decision the Illinois Appellate Court affirmed, followed by the Illinois Supreme 

Court's denial of Thomas's petition for leave to appeal. 

 Thomas then filed a pro se petition for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254 in October 2011, and he also filed a motion for appointment of 

counsel. Respondent Marc Hodge, the warden of the prison where Thomas is 
2 

incarcerated, argued that five of Thomas's seven claims are procedurally defaulted, that 

six of the claims are otherwise meritless, and that a seventh provides no basis for 

federal habeas relief. After Thomas replied, the Court dismissed one of Thomas's 

claims but otherwise declined to dismiss the other claims on procedural and state law 

grounds. United States ex rel. Thomas v. Gaetz, No. 11 C 7743, 2013 WL 53988 (N.D. 

Ill. Jan. 2, 2013) The Court also appointed counsel to represent Thomas. Thomas then 

filed, via counsel, a supplemental memorandum of law, to which respondent replied. 

Thomas filed a motion asking the Court to terminate his appointed attorney. The Court 

denied that motion in February 2014. Thomas has also filed a pro se motion seeking 

transcripts of certain purported state court proceedings. The Court addresses that 

motion in this decision, along with the remaining claims in Thomas's habeas corpus 

petition. For the following reasons, the Court denies Thomas's petition and his motion. 

Background 

 The Court incorporates the following background from its prior opinion in this 

case. See United States ex rel. Thomas, 2013 WL 53988, at *1-5. 

A. State court proceedings 

 1. The stabbing and Thomas's trial 

 Thomas admits that he stabbed Stalker near the corner of Magnolia and Wilson 

Avenues on November 23, 1996. He contends that he acted in self-defense and in 

defense of others or, in the alternative, that he should have been convicted of seconddegree murder on a theory that he unreasonably believed that he was acting in selfdefense and defense of others. 

 Thomas—then a member of the Black P-Stone Nation street gang—was selling 
3 

crack cocaine on the street outside of 4541 North Magnolia Avenue on November 23 

with Tory Jackson, Tyrone Curry, and Solomon Monroe, all fellow gang members. 

Stalker—who belonged to the Gaylord Nation street gang—was also in the 

neighborhood that day. Stalker frequently bought cocaine from the group, and he would 

occasionally bring other drug users to buy from them, in exchange for which the sellers 

would give Stalker free cocaine. 

 Around 2 a.m. on November 23, two other members of the Gaylord Nation gang 

drove into the area in a red GMC Blazer. It is undisputed that at some point between 2 

a.m. and 4 a.m., the two men stole approximately $150 worth of cocaine from Black PStone Nation gang members. Jackson testified at Thomas's trial that he was the one 

responsible for selling the drugs that day. Jackson stated that sometime before 3 a.m., 

the two unidentified men pulled up outside of the porch where he was sitting with 

Stalker. One of the men got out of the car and talked with Stalker about buying an 

"eight-ball" (1/8 of an ounce) of cocaine, which Jackson agreed to sell for $150. 

Jackson instructed the men to drive around the block while he prepared the drugs for 

sale. Jackson testified that Monroe gave him the cocaine as the men drove around the 

block. The men returned a few minutes later and stopped the Blazer in the middle of 

the street. As Jackson reached through the passenger window to show them the 

cocaine, the passenger yelled to the driver to drive away. Jackson stated that he hung 

onto the car, trying to recover the drugs, until the men ran him into a pole approximately 

two blocks away. According to Jackson, Stalker was not involved in the theft. 

 Jackson testified that after he regained consciousness, he walked back to 4541 

North Magnolia, where he met up with Thomas. Jackson stated that Thomas punched 
4 

him in the eye as punishment for losing the drugs, and was "stabbing the dirt with his 

knife." Resp.'s Ex. Q at F-40. Thomas and Jackson walked out into the street, where 

they saw Curry and Monroe with Stalker. Curry and Monroe then began punching 

Stalker and beating him with a wooden 2x4 they had taken out of a dumpster. 

According to Jackson, Thomas walked toward the group, took out a knife, and stabbed 

Stalker. Jackson testified that during the entire incident, Stalker never fought back and 

never had a weapon in his hands. 

 At his trial, Thomas testified on his own behalf, recounting a different version of 

events. Thomas did not dispute that around 2 a.m., the two unknown Gaylord Nation 

gang members drove up to 4541 North Magnolia. According to Thomas, however, 

Stalker then got into the car with the two men, and they drove away. They returned 

about thirty minutes later, got out of the car, and asked Jackson if they could "buy some 

drugs." Resp.'s Ex. S at F-270. Thomas testified that he and Curry advised Jackson 

not to sell to the men because they did not know them very well. Thomas contends that 

when Jackson refused to sell them cocaine, Stalker and the two other men left the area. 

 According to Thomas, the Blazer returned approximately fifteen minutes later. 

The three men again got out of the Blazer and asked if they could purchase an eightball of cocaine. Thomas and Curry again advised Jackson not to sell to them, but 

Jackson disagreed, packaged the cocaine, and gave it to one of the men for inspection. 

Instead of paying, the man with the cocaine "swung on" Jackson, and the three men ran 

for the car. Id. at F-273. Jackson ran after the man with the drugs and tackled him to 

the ground. According to Thomas, Stalker joined the fight against Jackson, and Monroe 

jumped in to help defend his fellow gang member. Thomas contends that it was Stalker 
5 

who grabbed the wooden 2x4 from the dumpster and hit Monroe with it several times. 

Thomas then joined the fight, running toward Stalker and punching him in the stomach. 

Stalker turned and swung the board at Thomas's head but missed. Thomas grabbed 

Stalker by the waist, and Stalker began choking him. In response, Thomas grabbed the 

knife he had stored in the front pocket of his sweatshirt and stabbed Stalker in the 

stomach. 

 Thomas testified that while he and Monroe were fighting with Stalker, the man 

with the cocaine freed himself from Jackson and ran toward the Blazer. Jackson gave 

chase, but the man successfully reached the car (the driver was already inside), and the 

two sped away in the Blazer, with Jackson hanging onto the passenger side door. After 

the stabbing, Thomas and Monroe jumped into Monroe's car, drove to the alley to pick 

up Jackson and Curry, and drove south to the house of Thomas's girlfriend, Sonia 

McKinstry, on Aberdeen Street between 52nd and 53rd Streets. Jackson and Monroe 

left the area soon afterward, but Thomas and Curry stayed at McKinstry's apartment 

until they were arrested three days later. 

 On November 26, 1996, Jackson returned to the corner of Wilson and Magnolia, 

where police arrested him in connection with Stalker's death. After questioning him 

about his participation in the incident, Jackson led police to McKinstry's house, where 

they arrested both Thomas and Curry. After his arrest, Thomas was interviewed 

multiple times by the police and an assistant state's attorney. At 2 a.m. the next day, 

Thomas signed a statement admitting that he stabbed Stalker after seeing Curry and 

Monroe beating Stalker up because he was getting "angrier about what the guys in the 

Blazer had done and thought Keith [Stalker] shared the blame for it." Resp.'s Ex. R at 
6 

F-237. Thomas also stated that Stalker did not have anything in his hands when 

Thomas stabbed him. Thomas was charged with first-degree murder. Curry, Monroe, 

and Jackson were also charged in connection with Stalker's death. 

 The trial judge appointed a public defender to represent Thomas. Thomas 

moved to quash his arrest and suppress his statement to the authorities. On January 8, 

1998, the trial judge held a pretrial hearing on the motions. Resp.'s Ex. P at A-1–93. 

Thomas and Curry both testified, as did two of the officers involved in Thomas's arrest—

Detectives Philip Mannion and Dennis Gray. Because McKinstry, who had been 

subpoenaed to testify, was not available that day, the court continued the matter. 

McKinstry testified on May 12, 1998, and the court denied Thomas's motions on July 15, 

1998. 

 Thomas's jury trial began on January 20, 1999. In its case-in-chief, the 

prosecution called Jackson to testify. Jackson had recently been acquitted of the 

murder in a separate trial. Detective Mannion and Assistant States' Attorney Karen 

O'Malley also testified, recounting the circumstances surrounding Thomas's signed 

statement. The parties stipulated to the autopsy report, which the prosecution read into 

evidence. In it, Dr. Aldon Fusaro, a deputy medical examiner at the Cook County 

Medical Examiner's Office, concluded that Stalker died of a stab wound to the abdomen 

and that blunt force to his head was a contributing factor. Dr. Fusaro also noted in the 

report that Stalker had "[c]ontusions over the knuckles of the right thumb and index 

finger." Resp.'s Ex. R at F-203. 

 After the prosecution rested, Thomas took the stand in his own defense, giving 

his account of the circumstances that led him to stab Stalker. Thomas denied ever 
7 

reading the statement that O'Malley wrote for him to sign, and he contended that the 

written statement inaccurately reflected what he told Mannion and O'Malley in his postarrest interviews. In rebuttal, O'Malley challenged Thomas's testimony that the 

statement was inaccurate, and she testified that Thomas never told her that Stalker 

attacked him that evening. Thomas's attorney conceded in closing argument that 

Thomas stabbed Stalker but argued that he did so only in defense of himself and 

Monroe, or alternatively, that Thomas unreasonably believed he was doing so in 

defense of himself and Monroe and was therefore guilty of second-degree murder 

rather than first-degree murder. On January 21, the jury found Thomas guilty of firstdegree murder. 

 Thomas appealed his conviction to the Illinois Appellate Court on four grounds, 

none of which he has included in his habeas corpus petition before this Court. The 

court affirmed his conviction on November 15, 2000, and the Illinois Supreme Court 

later denied Thomas's pro se petition for leave to appeal (PLA). 

2. State post-conviction proceedings 

 Thomas filed a pro se petition for post-conviction relief in the Circuit Court of 

Cook County on September 25, 2001. In the petition, Thomas raised the following 

claims: 

 The prosecutor violated his right to due process by knowingly eliciting 

false testimony from Jackson. 

 He was denied due process when the prosecutor failed to disclose an 

interview with Steven Myvett—a cocaine user who had been in the 

area on the night of Stalker's death—in which Myvett told prosecutors 

about material facts that corroborated Thomas's defense and 

impeached Jackson's testimony. 

 His trial counsel rendered ineffective assistance by failing to 
8 

investigate or call witnesses on his behalf. 

 His appellate counsel was unconstitutionally ineffective for failing to 

argue trial counsel's ineffectiveness and the prosecutor's knowing use 

of false testimony on direct appeal. 

In December 2001, the state trial court dismissed Thomas's petition upon initial review 

as "patently without merit." Resp.'s Ex. F at C-35. 

 The Illinois Appellate Court reversed and remanded. The court found that 

Thomas's petition "state[d] the gist of claims of constitutional deprivations in its 

allegations that the prosecution withheld favorable evidence and that Thomas received 

ineffective assistance from his trial counsel." Resp.'s Ex. E at 1. The court explained 

that these claims adequately alleged constitutional deficiencies and that summary 

dismissal was therefore improper. Id. at 5. The Illinois Supreme Court later denied the 

state's PLA. 

 On remand, Thomas timely filed, pro se, an amended post-conviction petition. 

Thomas repeated the claims from his first petition and added five new claims. Among 

them was a claim that the prosecutor and the trial court had destroyed certain 

transcripts from Thomas's pre-trial hearing that he alleged contained favorable 

testimony by the arresting officers and replaced them with new contradictory testimony. 

Specifically, Thomas contended that each officer's original testimony conflicted with the 

other officers' versions of events and conceded several errors in arresting Thomas. 

After hearing this testimony, Thomas contended, the court "ordered the transcription to 

be taken 'off the record' or destroyed," and allowed the officers to re-testify about the 

circumstances surrounding Thomas's arrest. Resp.'s Ex. U at C-162. Thomas also 

included a new claim that trial counsel was constitutionally ineffective for failing to 
9 

challenge the court's purported action or preserve the matter for appellate review. 

 On May 27, 2008, the trial court granted the state's motion to dismiss the 

amended petition. The court addressed only two of the grounds that Thomas raised in 

his petition: Thomas's claim that the trial court erased testimony from his pre-trial 

hearing and ordered the officers to re-testify, and his claim that trial counsel was 

constitutionally ineffective when she failed to investigate and call Myvett and Dr. Fusaro 

as witnesses at trial. The court did not acknowledge or address any of Thomas's other 

claims. The court found that Thomas had waived both of these claims by failing to raise 

them at trial or on direct appeal and that even if the claims were not procedurally barred, 

they lacked merit. 

 Thomas timely appealed to the Illinois Appellate Court. The Office of the State 

Appellate Defender was appointed to represent him. Appointed counsel asserted only 

one argument in her brief. Specifically, she argued that Thomas had made a showing 

that trial counsel was ineffective for failing to investigate Myvett and Dr. Fusaro that was 

sufficient to warrant an evidentiary hearing on that claim. 

 Even before Thomas's appointed counsel filed a brief on his behalf, Thomas 

began filing motions with the appellate court, complaining that his attorney was planning 

waive some of his claims and asking leave to file a supplemental pro se brief. See 

Pet.'s Ex. 25 at 7. The court denied his request. After appointed counsel filed the oneissue brief on Thomas's behalf, Thomas filed a motion asking to proceed pro se and 

asking the court to strike the appellate defender's brief and set a new briefing schedule 

or to allow Thomas to file a supplemental brief on his own behalf. Thomas contended 

that he was "being forced to waive meritorious claims of which the law would require 
10 

relief," including his claim that the prosecutor withheld favorable evidence and his claim 

that the trial court destroyed testimony given at his pretrial hearing. Pet.'s Ex. 28 at 3. 

The court also denied this request. 

 On September 20, 2010, the Illinois Appellate Court affirmed the lower court's 

dismissal of Thomas's claim of ineffective assistance of trial counsel, finding that 

"defense counsel clearly made a strategic decision not to call Myvette [sic] and Dr. 

Fusaro as witnesses because their testimony would have harmed more than helped 

defendant's case. Moreover, defendant was not prejudiced by their absence at trial." 

Resp.'s Ex. J at 10. Thomas timely filed a pro se PLA, including the additional claims 

he had sought leave to file at the appellate level. The Illinois Supreme Court denied the 

PLA. 

B. Thomas's habeas corpus petition 

 On October 31, 2011, Thomas filed a pro se habeas corpus petition in this Court. 

In his petition, Thomas asserts seven claims. First, Thomas claims that his trial counsel 

rendered ineffective assistance when she failed to investigate or call witnesses that 

would have corroborated his claim of self-defense. Second, Thomas contends that his 

due process rights were violated because the state trial court doctored the transcript of 

the proceedings, removing police officers' purported favorable testimony from the record 

of a pretrial hearing, and that he was further denied due process because various state 

courts refused to provide him transcripts of what he says was the original testimony. 

Third, Thomas claims that his due process rights were violated because the prosecutor 

knowingly presented the officers' false testimony at the alleged do-over of the pretrial 

hearing. Fourth, Thomas argues that the prosecutor procured testimony from Jackson 
11 

that she knew was false, in violation of Napue v. Illinois, 360 U.S. 264 (1959)—namely, 

Jackson's claim that he received no leniency in exchange for his testimony at Thomas's 

trial. Fifth,1

 Thomas alleges that the prosecutor wrongfully withheld her pretrial interview 

with Myvett, who told her facts that Thomas contends were materially helpful to his 

defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Sixth, Thomas contends 

that his trial counsel was unconstitutionally ineffective for failing to preserve his missing 

transcript/changed testimony claim because she did not challenge the trial court's 

striking of the purported favorable testimony at the pretrial hearing and did not object to 

the subsequent conflicting testimony. Seventh, Thomas argues that the Illinois 

Appellate Court violated his due process rights when it failed to allow him to proceed 

pro se in his appeal from the second denial of his post-conviction petition. 

 After respondent filed a response to Thomas's petition, Thomas filed a motion 

asking the Court to order respondent to produce transcripts from February 18, 1998, 

March 3, 1998, April 9, 1998, and April 20, 1998. Thomas argues that the transcripts 

from these dates support his claims regarding the "doctored" testimony and transcripts. 

The Court issued an opinion and order in the case after Thomas filed his reply, in which 

it addressed most of respondent's procedural arguments against Thomas's claims and 

also appointed counsel for Thomas. In the opinion, the Court first addressed Thomas's 

claims related to the transcripts from his trial, reserving judgment on the claims and 

leaving it for appointed counsel to assess whether to pursue them. The Court next 

concluded that Thomas's Brady claim was not procedurally defaulted. Although 

 

1

 Thomas lumps together in a single claim the claims that the Court has referred to as 

his fourth and fifth claims, but the two claims are logically distinct, so the Court lists 

them separately here. 
12 

Thomas's appellate counsel on post-conviction did not assert the claim on appeal, 

Thomas adequately presented the claim to the state court in asking it to strike his 

appellate counsel's brief and allow him to submit a supplemental brief. The Court did, 

however, conclude that Thomas's Napue claim was defaulted and that Thomas did not 

offer cause sufficient to excuse the default. Finally, the Court concluded that Thomas's 

seventh claim, dealing with the denial of his right to proceed pro se on post-conviction 

appeal, was not presented as a separate basis for granting habeas relief, but rather as 

support for Thomas's other claims. The Court noted that respondent had not argued 

that Thomas's first claim (a claim of ineffective assistance of counsel for failing to 

investigate or call witnesses), was defaulted, and the Court reserved judgment on this 

and the other remaining claims. 

Discussion

 A petitioner is entitled to a writ of habeas corpus "only on the ground that he is in 

custody in violation of the Constitution or laws or treaties of the United States." 

28 U.S.C. § 2254(a). A federal court may issue a writ of habeas corpus on a claim that 

was adjudicated on the merits in state court proceedings only if the state court's 

decision (1) "was contrary to, or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable determination of the facts 

in light of the evidence presented in the State court proceeding." Id. § 2254(d); see also 

Burt v. Titlow, 134 S. Ct. 10, 15 (2013). This is a "highly deferential standard for 

reviewing claims of legal error by the state courts." Id.

 
13 

A. Ineffective assistance of counsel

 In Thomas's first claim, he contends that his trial counsel was ineffective for 

failing to investigate and call two witnesses: Steven Myvett and Dr. Aldon Fusaro, the 

medical examiner. These witnesses, he says, "were necessary to corroborate not only 

various claims, but pivotal disputes between the defense and prosecution." Pet.'s Pro 

Se Mem. at 4. Thomas argues that Myvett was present before the murder of Stalker but 

gave conflicting statements to police about the matter and was beaten and coerced into 

providing "bogus/false statements to imprison petitioner." Id. at 5. Had trial counsel 

investigated Myvett, Thomas argues, she would have learned that Myvett had evidence 

favorable to the defense, such as the fact that he witnessed a fight between the robbers 

and Thomas's group of colleagues before the murder. Thomas also says Dr. Fusaro 

could have corroborated this version of events, because he "believed that the decedent 

might have been fighting prior to his death," given the "abrasions and lacerations" to his 

knuckles and fingers. Id.

 Respondent, on the other hand, contends that the state appellate court's 

rejection of these arguments was reasonable. Myvett's testimony would not have 

assisted Thomas's defense, respondent argues, because Myvett did not witness the 

stabbing and had provided differing stories to police, "some of which implicated 

petitioner in the stabbing." Resp.'s Mem. at 21. Further, respondent contends that it 

was clear Thomas's trial counsel knew of Myvett's discussions with police, because the 

record from Thomas's pretrial hearing demonstrates the attorney's knowledge of 

Myvett's statements. Thus, respondent argues, it was not deficient performance for the 

trial counsel to decline to call Myvett as a witness. As for Dr. Fusaro, respondent 
14 

argues that trial counsel reasonably stipulated to Dr. Fusaro's autopsy report on Stalker 

rather than calling Dr. Fusaro to testify. "[T]o call Fusaro to testify about the scrapes [on 

Stalker's hand] would open Fusaro to damaging cross-examination that would highlight 

the evidence of the beating Stalker sustained at the hands of petitioner and his 

accomplices." Id. at 22. 

 To establish a claim of ineffective assistance of counsel, a petitioner must show 

both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 

(1984). To qualify as deficient, the performance must "f[a]ll below an objective standard 

of reasonableness," considered "under prevailing professional norms." Id. at 688. 

Courts must be "highly deferential" when scrutinizing counsel's performance, which is 

subject to a "strong presumption" that it "falls within the wide range of reasonable 

professional assistance." Id. at 689. As for prejudice, "[t]he defendant must show that 

there is a reasonable probability that, but for counsel's unprofessional errors, the result 

of the proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome." Id. at 694. 

 The Illinois Appellate Court rejected Thomas's ineffective assistance of counsel 

claim on its merits. Thus this Court's review is "doubly deferential," owing to the 

application of both Strickland and 28 U.S.C. § 2254(d), which requires deference to 

state court decisions. Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013). In other 

words, "[w]e take a 'highly deferential' look at counsel's performance, through the 

'deferential lens of § 2254(d).'" Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) 

(citations omitted) (quoting Strickland, 466 U.S. at 689; Knowles v. Mirzayance, 556 

U.S. 111, 121 n.2 (2009)). 
15 

 Thomas disputes the appellate court's conclusion that his trial counsel's failure to 

call these witnesses was reasonable trial strategy. He first argues that his trial counsel 

never argued herself in any hearing or affidavit that it was her strategy not to call these 

witnesses. He contends essentially that the appellate court's determination that trial 

counsel's strategy was reasonable was a sua sponte conclusion and thus 

inappropriate—"clearly a violation of federal law," because "a state court may not make 

a claim that counsel has not made for itself." Pet.'s Pro Se Mem. at 7. He therefore 

argues that the court's decision was contrary to clearly established law, though he does 

not cite any particular clearly established law the appellate court supposedly violated by 

deciding upon this rationale. He goes on to contend that if trial counsel had called 

Myvett and Dr. Fusaro, "the outcome of the case would have been different" because 

their testimony would have helped the jury understand that the prosecutor's version of 

events was not "completely trustworthy." Id. (citing Moffett v. Kolb, 930 F.2d 1156, 1161 

(7th Cir. 1991). 

 Thomas has failed to show that the state appellate court's rejection of this claim 

was unreasonable on either part of the Strickland analysis. With regard to Myvett, the 

court pointed to Myvett's varying statements to police about the events preceding the 

stabbing, as revealed at Thomas's pretrial proceedings. The court concluded that 

"[g]iven the varying statements, any favorable testimony would have been subject to 

severe impeachment, and calling Myvette [sic] as a witness probably would have been 

harmful to defendant." Resp.'s Ex. J at 11–12. Thomas's trial counsel participated in 

the pretrial hearing, asking specific questions about Myvett's changing story, indicating 

her knowledge of his differing accounts. Based on this record, the appellate court 
16 

reasonably concluded that, given this knowledge, a decision not to call Myvett during 

trial did not amount to deficient performance. Thomas's argument that Myvett's account 

was obtained through police violence and coercion does not change things. The 

appellate court had that argument before it as well; though the court did not specifically 

address the point, it nonetheless concluded that a reasonable judgment could be made 

that Myvett would be shown to lack credibility and would not have helped Thomas's 

defense. 

 The court's decision on the prejudice aspect of Strickland with regard to Myvett 

was also reasonable. Myvett's 2001 declaration, which Thomas has cited throughout 

the state post-conviction proceedings and in this case, and the affidavit that Thomas's 

appointed counsel obtained from Myvett in connection with the present case, both show 

that Myvett did not witness the stabbing of Stalker. Rather, both statements indicate 

that Myvett left the scene before Stalker was killed. Even were one to accept Thomas's 

contention that Myvett saw a fight between Thomas's group and the rival gang group 

outside their vehicle—a contention that is not entirely clear from Myvett's two 

affidavits—Myvett does not explicitly link that fight to Stalker's murder in a way that 

would tend to support a claim of actual or unreasonable self-defense or defense of 

others. The appellate court was thus reasonable in its conclusion: "While the abovestated evidence may have bolstered defendant's rendition of the facts, the value was 

not enough to demonstrate prejudice, i.e. create a reasonable probability that the 

outcome of the proceeding would have been different." Resp.'s Ex. J at 13. 

 The Court similarly concludes that the appellate court's decision on this claim 

with regard to Dr. Fusaro was not unreasonable. With regard to the prejudice 
17 

requirement of Strickland, Dr. Fusaro's findings were read into evidence to the jury at 

Thomas's trial. They included his finding that Stalker had "[c]ontusions over the 

knuckles of the right thumb and index finger." Resp.'s Ex. R at F203. The jury was thus 

made aware of the injury Thomas points to here. Thomas contends that Dr. Fusaro 

later told a state investigator that he had a "belief that decedent was fighting prior to his 

death." Pet's Pro Se. Mem. at 6. But when one of Thomas's attorneys interviewed Dr. 

Fusaro in 2004, Dr. Fusaro told the attorney that the wounds "could be an indication of a 

struggle or could be considered defensive wounds," but he "was not able to say with 

certainty that the wounds indicate the deceased was fighting or struggling before being 

killed." Resp.'s Ex. U at C87–88. Regardless, as the state appellate court noted, "there 

was far more evidence indicating that Stalker was beaten." Resp.'s Ex. J at 12. This 

evidence was plain in Dr. Fusaro's stipulated report, which was read to the jury and 

spoke to a host of injuries, including "multiple blunt trauma of the head," as well as 

"hemorrhage in the kidneys and adrenal gland and incised wounds with surrounding 

hemorrhage in the area of the right abdominal wall musculature and diagram." Resp.'s 

Ex. R at F203–04. 

 The appellate court did not act unreasonably in concluding that even if Dr. 

Fusaro had testified in person at the trial and had told the jury that Stalker might have 

been fighting before his death, the number and nature of Stalker's other injuries 

demonstrated that Thomas "was not acting in self-defense when he stabbed Stalker." 

Resp.'s Ex. J at 12. Further, as the appellate court noted, the knuckle contusion 

evidence "is equally consistent with the other medical evidence showing that Stalker 

was beaten, and does not necessarily support defendant's self-defense claim." Id. at 
18 

13. This conclusion aligned with the available evidence. 

 Considering the evidence outlined above, the Court concludes that the state 

appellate court's decision to reject Thomas's ineffective assistance claim was 

reasonable on both Myvett and Dr. Fusaro. The Court therefore declines to grant 

Thomas habeas relief on his first claim.2

B. Failure to disclose evidence

 Thomas contends in his fifth claim that the prosecutor in his case was aware of 

Myvett's true account of events—including the fact that his earlier contrary accounts 

were the product of police beating him and coercing him—but did not turn this 

information over to Thomas during his trial. As noted above, the Court concluded in its 

prior decision that this claim was not procedurally defaulted, because the state courts 

did not address it despite Thomas's presentment of the claim on a pro se basis. The 

Court now turns to the merits of this claim and reviews it de novo. See Cone v. Bell, 

556 U.S. 449, 472 (2009). 

 Thomas contends that the prosecutor learned from Myvett on the first day of trial 

that police had coerced him with violence and threats to make statements implicating 

Thomas in Stalker's murder. Thomas further contends that the prosecutor also learned 

that Myvett saw a fight between Thomas's group of men and the rival gang group prior 

to Stalker's murder. Thomas contends that the prosecutor then decided not to call 

Myvett as a witness and did not inform Thomas of Myvett's exculpatory account. "There 

 

2

 In his pro se reply, Thomas also alleges that his trial counsel told the court that she 

was "not prepared for trial," citing a page of the trial transcript that is not in the record 

that respondent provided. Pet.'s Pro Se Repl. at 2. However, Thomas made this 

particular argument for the first time in his reply, and he did not make it in any prior 

proceeding. The Court therefore declines to consider it. 
19 

was one problem with all of this," Thomas argues; "the prosecutor was in violation of the 

Brady rule when [she] did not turn over exculpatory exonerating evidence to the defense 

from Myvett." Pet.'s Pro Se Mem. at 16. Thomas argues this failure was prejudicial, 

because he could have used the evidence from Myvett "to impeach state witnesses, or 

their credibility." Id. at 17. Specifically, he contends, as on his ineffective assistance 

claim, that Myvett could have told the jury about a fight occurring between the men on 

the street prior to Stalker's murder, along with the fact of the police beating and 

threatening him into making a false statement. "Myvett's testimony would have 

definitely put the case in a 'different light' where [the] jury, reasonably, may have 

reached a different verdict, had this information been disclosed." Id. (citing Kyles v. 

Whitley, 514 U.S. 419, 435 (1995)). 

 "[S]uppression by the prosecution of evidence favorable to an accused upon 

request violates due process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 

373 U.S. at 87. In the Brady context, evidence is considered material "when there is a 

reasonable probability that, had the evidence been disclosed, the result of the 

proceeding would have been different." Cone, 556 U.S. at 469–70. The petitioner can 

demonstrate such a reasonable probability if "the likelihood of a different result is great 

enough to undermine confidence in the outcome of the trial." Smith v. Cain, 132 S. Ct. 

627, 630 (2012) (internal quotation marks and alterations omitted). Summing up these 

requirements, the Supreme Court has laid out a test for showing Brady violations: "a 

convicted defendant must make each of three showings: (1) the evidence at issue is 

favorable to the accused, either because it is exculpatory, or because it is impeaching; 
20 

(2) the State suppressed the evidence, either willfully or inadvertently; and (3) prejudice 

ensued." Skinner v. Switzer, 131 S. Ct. 1289, 1300 (2011) (internal quotation marks 

and alterations omitted). 

 As with Thomas's ineffective assistance of counsel claim, the Court concludes 

that his Brady claim is without merit. There is not a reasonable probability that the 

result of his trial would have been different had the prosecution informed Thomas about 

Myvett's recounting of his communications with police. As noted above, Myvett did not 

witness the murder of Stalker, and the extent to which his account of events prior to the 

murder matches that of Thomas is unclear from the record. Furthermore, as the state 

court discussed, the varying nature of Myvett's accounts likely would have detracted 

from his credibility—which encompasses Myvett's contention that his statements to 

police were originally coerced. The other evidence in the trial against Thomas—his 

confession, and an eyewitness account—was quite strong. As a result, the benefit of 

Myvett's account would not have been of sufficient import to overcome the inculpatory 

evidence and produce a different result. The Court therefore concludes that Thomas's 

Brady claim lacks merit. 

C. Destruction and alteration of transcripts

 Thomas's second, third, and sixth claims from his petition concern his contention 

that "he was denied relevant pre-trial motions transcripts from hearing dates that proved 

the government was involved in massive corruption." Pet.'s Pro Se Mem. at 8. 

Specifically, he contends that at an initial pretrial hearing, police detectives involved in 

his case admitted that they violated his constitutional rights along with other facts that 

bolstered his defense. Then, Thomas argues, "the judge ordered that the detectives 're-
21 

do' their testimonies on subsequent dates." Id. On those subsequent dates, Thomas 

says, the detectives gave other testimony contradicting their prior statements, and the 

judge "instructed the court reporter to take the original testimonies out of the record and 

only to allow the second/subsequent testimonies to be part of the current official 

transcript." Id. Citing these events, Thomas asserts three claims in his petition: first, a 

due process and equal protection violation owing to state officials' refusal to produce the 

transcripts Thomas says are missing; second, a violation of due process and his right to 

a fair trial flowing from the destruction and alteration of the transcripts; and third, a claim 

that his trial counsel was ineffective for failing to preserve his claims relating to the 

transcripts. Respondent argues that these claims are procedurally defaulted and that 

they are without basis in fact. 

 In January 2013, the Court concluded that Thomas's Brady claim, discussed 

above, was not procedurally defaulted because he had adequately presented it to the 

state courts. Although Thomas's appellate attorney did not include the claim in 

Thomas's post-conviction appellate briefs, the Court determined that Thomas 

nonetheless adequately presented the claim in pro se pleadings to the appellate court. 

See United States ex rel. Thomas, 2013 WL 53988, at *7–8. Through counsel, Thomas 

now argues the same result should apply to his transcript claims. Thomas "expressly 

sought review of the appellate court's order denying his request to present" these 

claims, which are thus "no different from his Brady claim." Pet.'s Supp. Mem. by Cnsl. 

at 4. Respondent argues that the state post-conviction trial court decided that Thomas's 

transcript claims were waived because they were not raised on direct appeal and also 

found the claims meritless. The court's finding of waiver, respondent argues, was "an 
22 

independent and adequate state law ground of decision barring federal review." Resp.'s 

Repl. to Pet.'s Supp. Mem. at 3. 

 Unlike Thomas's Brady claim, which the state courts never addressed, the state 

trial court did, as respondent points out, examine Thomas's transcript claims. The postconviction trial court first found that Thomas's failure to raise the claims on direct appeal 

constituted waiver; the court then rejected the claims on the merits, finding that "the trial 

court did not erase the testimony from petitioner's motion to suppress." Resp.'s Ex. V at 

C440. Following this decision, Thomas's appointed counsel did not raise the claim on 

appeal. Similar to Thomas's Brady claim, however, he attempted to raise them pro se

during his appeal on his post-conviction proceeding, but the appellate court declined to 

consider his arguments. Thus, for the reasons described in the Court's earlier ruling 

with regard to the Brady claim, the Court concludes that Thomas did not commit a 

procedural default and will consider the transcript-related claims on their merits. 

 Thomas alleges, lacking support other than his own assertions, a conspiracy to 

destroy the transcripts from a pretrial hearing in his case and replace them with 

fabricated or false transcripts. This conspiracy, as Thomas tells it, involved the trial 

judge, the judge's court reporter, and three detectives who later reversed the content of 

their testimony after initially testifying in his favor. In his pro se petition, Thomas argues 

that "the trial court then ordered the original testimonies to be taken 'out of the record,'" 

Pet. at 7, as though he is quoting a transcript—but the quotations he provides do not 

appear in any transcript on record. Rather, Thomas points to the judge's handwritten 

notes on various court dates on the "half sheet" (the rough equivalent of a docket 

sheet), as well as the certified statement of conviction/disposition from his case, which 
23 

includes a list of "disposition(s)" that "was/were rendered before the honorable judge." 

Resp.'s Ex. O at C2. Both documents contain notations as to dates on which Thomas 

claims hearings were held where the detectives "'COMPLETELY' changed their 

previous / original testimonies." Pet. at 7. This, he says, was because "the judge 

instructed the detectives to commit perjury so the bogus statement[s] would be 

admissible at trial." Id. at 9. Subsequently, Thomas argues, the trial judge "instructed 

the court reporter to take the original testimonies out of the record and only to allow the 

second / subsequent testimonies to be part of the current official transcript." Pet.'s Pro 

Se Mem. at 8. 

 The four dates Thomas points to—February 18, March 3, April 9 and April 20, all 

in 1998—do appear within the certified statement of his case, although not all of them 

appear on the half sheet. Nonetheless, neither document suggests anything untoward. 

The handwritten notes on the half sheet say "HEARING HELD" on January 8, 1998, 

which Thomas concedes was the date of his pretrial motion hearing. See Resp.'s Ex. U 

at C3. But none of the entries for the other dates suggests hearings were held on those 

dates. This undercuts Thomas's claim that the trial court held hearings on those days 

during which the detectives provided updated, false testimony.3

 Further, the certified 

statement of disposition does not indicate much of anything, save for various court 

dates in Thomas's case along with the fact that each date included a "continuance by 

agreement." See Resp.'s Ex. O at C4–C5. Thomas cites no further evidence of any 

kind referring to the court dates in question, let alone their purported illegitimate 

 

3

 Of course, by the logic of Thomas's allegation that his judge was in on the conspiracy, 

the judge's own handwritten notes might not reflect the illegal activity taking place. 

However, the Court is not willing to infer the truth of Thomas's allegations from the mere 

absence of evidence. 
24 

purpose—and nothing at all to suggest that the transcript on record from January 8, 

1998 is a fabrication. Thomas's appointed counsel and a colleague conducted several 

interviews in a thorough effort to investigate Thomas's transcripts claim. The 

interviewees included Thomas's trial counsel, the court reporter from his pretrial 

hearing, the prosecutor from the pretrial hearing, Thomas's father, and two attorneys 

who assisted Thomas in attempting to locate the alleged missing transcripts. According 

to counsel, "[n]one provided information that, in the undersigned's view, should be 

brought to the Court's attention." Sealed Resp. of Cnsl. To Pet.'s Mot. To Have Cnsl. 

Withdrawn at 4. 

 In short, there is no factual foundation for Thomas's second, third, and sixth 

claims. On the second claim, there is no evidence that there were transcripts available 

for the state to deliver him on the dates in question. On the third claim, there is no 

evidence that the trial judge and prosecutor in his case destroyed transcripts containing 

testimony favorable to Thomas and then substituted unfavorable testimony. Finally, on 

the sixth claim, there is no evidence that there was a claim for Thomas's trial counsel to 

preserve regarding the alleged destruction of the transcripts. In light of the evidence 

discussed above, Thomas's unsupported contentions about these events are insufficient 

to warrant a hearing or further development of the record. The Court concludes these 

claims lack merit. For these same reasons, the Court also denies Thomas's second 

motion for production of transcripts [docket no. 47], because there is no evidence the 

requested transcripts exist. 

D. Certificate of appealability

 When a district court enters a final judgment that dismisses a prisoner's habeas 
25 

corpus petition, it must issue or deny a certificate of appealability (COA). "[F]ederal 

courts of appeals lack jurisdiction to rule on the merits of appeals from habeas 

petitioners" in the absence of a COA. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). 

To obtain a COA, the petitioner must make "a substantial showing of the denial of a 

constitutional right." 28 U.S.C. § 2253(c)(2). A court should issue a COA if it 

determines that "reasonable jurists could debate whether (or, for that matter, agree that) 

the petition should have been resolved in a different manner or that the issues 

presented were adequate to deserve encouragement to proceed further." Slack v. 

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). When a district 

court denies a claim on procedural grounds, the petitioner must show both that "jurists 

of reason would find it debatable whether the petition states a valid claim of the denial of 

a constitutional right and that jurists of reason would find it debatable whether the 

district court was correct in its procedural ruling." Id.

 The Court's determinations that the state courts reasonably adjudicated some of 

Thomas's claims, that his Napue claim is procedurally defaulted, and that other claims 

are without merit are not fairly debatable. The Court therefore declines to issue a 

certificate of appealability. 

Conclusion

 For the foregoing reasons, the Court denies Thomas's habeas corpus petition 

[docket no. 1], his motion for transcripts [docket no. 47], and also denies a certificate of 

appealability.

 ________________________________ 

 MATTHEW F. KENNELLY 

Date: March 31, 2014 United States District Judge