# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 14, 2011 *

Decided August 19, 2011

Before

JOEL M. FLAUM, Circuit Judge

DANIEL A. MANION, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 10

‐ 2712

MARC E. THOMPSON,

Petitioner

‐ Appellant,

v.

UNITED STATES OF AMERICA,

Respondent

‐ Appellee

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 09 C 7685

Suzanne B. Conlon,

Judge

.

O R D E R

Marc Thompson was convicted by a jury of nineteen counts, including wire fraud, use

of fire to commit a felony, bankruptcy fraud, and money laundering. These convictions were

the result of Thompson’s plan to collect on a homeowner’s insurance policy after a fire which

caused the death of his mother, Carmen Thompson. Thompson was sentenced to 190 years’ NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After

examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.

App. P. 34(a); Cir. R. 34(f).No. 10

‐ 2712 Page 2

imprisonment. We affirmed his conviction and sentence on direct appeal. See United States v.

Thompson

, 523 F.3d 806 (7th Cir. 2008), cert. denied

, 129 S. Ct. 770 (2008). Thompson filed a

petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 alleging

ineffective assistance of trial counsel and a violation of Brady v. Maryland

, 373 U.S. 83 (1963).

The district court declined to hold an evidentiary hearing and denied the petition. Thompson

sought to appeal his ineffective assistance of counsel claim, and we granted a certificate of

appealability on that issue. Because we find that trial counsel’s chosen strategy was objectively

reasonable, we affirm the district court’s denial of the petition.

I. BACKGROUND

The underlying events giving rise to Thompson’s convictions are fully recited in our

previous opinion, see Thompson

, 523 F.3d at 808

‐ 09, but we summarize the facts pertinent to his

ineffective assistance claim.

Following his divorce and the loss of his job, Marc Thompson began to borrow

significant sums of money. Facing financial pressure, he began hiding assets from his ex

‐ wife

and creditors. In June 2001, Thompson moved his then 89

‐ year old mother, Carmen, from

California to Chicago to live with him. He had her California home sold, and spent the

proceeds of the sale. In December 2001, Thompson raised his homeowner’s insurance policy

from $275,000 to $350,000.

Thompson later told his housekeeper that his mother had said she wanted to burn the

house down. On August 8, 2002, Thompson brought his mother to the hospital with a burn

injury on her shoulder. He first told hospital staff that she had fallen on the stove after he left

the room. Later that night, however, he told staff that she was injured after he left her alone in

the house. Suspicious of the injury and Thompson’s inconsistent statements, the hospital called

an elder abuse hotline, but eventually Carmen Thompson was released and Thompson brought

her back to his home.

Three days later, a fire broke out in Thompson’s basement. Neighbors said that

Thompson left the house around 7:00 p.m., but Thompson told investigators that he left the

house around 6:15 p.m., made a stop, and then attended a 7:05 p.m. movie at a theater located

at 600 N. Michigan Avenue. At approximately 7:10 p.m., neighbors saw smoke coming out of

Thompson’s house, and called 911. Firefighters quickly extinguished the fire, but found

Carmen Thompson in the basement, dead of smoke inhalation, about four feet from the fire’s

origin. The area underneath her body was untouched by the fire.No. 10

‐ 2712 Page 3

Thompson arrived home and told Chicago Police detectives that his mother acted in a

psychotic manner, was taking medications, had previously burned herself, and had talked

about committing suicide in the past. The investigation ended, and a medical examiner ruled

Carmen Thompson’s death a suicide. The detectives, however, were unaware of Thompson’s

neighbors’ observations, Carmen Thompson’s limited movement, and a codicil to Carmen

Thompson’s will dated one week before the fire that stated that she did not want to have an

autopsy conducted and wished to be immediately cremated. Additionally, at the time of her

death, Carmen Thompson had alcohol, Valium (prescribed to Marc Thompson), and an anti

‐ psychotic drug in her system (prescribed to Carmen at Marc Thompson’s request).

Fire Marshal Carmelita Wiley

‐ Earls led the Chicago Fire Department’s investigation into

the fire’s cause. She concluded that the fire had been caused by the ignition of a flammable

liquid that had been poured or splashed in the basement of the house. On the night of the fire,

Thompson called his insurance carrier, but waited until the following morning to call his sister

to inform her of their mother’s death. He ultimately collected over $600,000 in insurance claims

as a result of the fire, most of which he transferred to an off

‐ shore account. In 2003, Thompson

filed for bankruptcy, and he later admitted to fraudulently concealing assets from the

bankruptcy court and lying under oath.

Thompson was indicted, and the court appointed John L. Sullivan as his counsel. Prior

to trial, Thompson requested that Sullivan be discharged as his attorney because Thompson felt

that Sullivan did not sufficiently consult with him during trial preparation. The court did not

discharge Sullivan, finding the consultation sufficient, but appointed Robert Clarke as co

‐

counsel at Mr. Sullivan’s request given the complex and challenging nature of the case.

At trial, Wiley

‐ Earls testified without any objection from the defense. She concluded

that the fire was “incendiary” in origin. She testified that she found “unusual” low burning in

the basement at the point where a wall met the floor. She explained that in the absence of an

accelerant, one would expect a “V” pattern of fire damage to form from the point of origin. In

Thompson’s house, however, she found uniform low burning that was not normal in a typical

fire. Because one wall had the most concentrated charring and damage, Wiley

‐ Earls

determined that the fire had originated there, a few feet from where Carmen Thompson’s body

lay face down. Two cans of flammable liquid, each containing a residual amount of liquid and

vapors, were also found nearby. Wiley

‐ Earls acknowledged that these cans could have moved

during the attempt to put out the fire, and was unable to say whether the contents from either

can started the fire. Wiley

‐ Earls also attempted to find a potential heat source. She eliminated

a light switch near the area of origin and ruled out the furnace ʹ s pilot light because there was

no damage whatsoever to the furnace. She testified that she looked for any other possible

accidental causes and found none.No. 10

‐ 2712 Page 4

Wiley

‐ Earls also testified to smelling a chemical at the scene, but did not at that time test

for accelerants. Although some portion of the basement’s wall materials were sent for

laboratory testing for the presence of accelerants, Wiley

‐ Earls never received any test results.

One report showing negative test results on debris for accelerants was not introduced by the

government, but was provided to trial counsel. Thompson’s trial counsel brought out the fact

that Wiley

‐ Earls never received the results of the materials she had submitted for testing, but

trial counsel did not cross examine Wiley

‐ Earls on whether testing was recommended or

required by National Fire Protection Association or other standards. The defense did not call

an arson expert, and offered a theory that Carmen Thompson had committed suicide.

The defense called four witnesses: Thompson’s son William, Thompson’s sister, a

defense investigator, and Thompson himself. During Thompson’s direct examination, he

admitted to committing perjury both during his divorce proceedings and during his

bankruptcy proceedings. He also admitted to tax fraud. On cross

‐ examination, he was subject

to additional questions regarding perjury, admitting that he had also committed perjury in

defending a collection suit, that he had lied to his son’s high school in order to obtain financial

aid, and that he had hidden money from the IRS.

On direct appeal, Thompson raised a challenge based on the sufficiency of the evidence,

arguing that Wiley

‐ Earls’s testimony was so conclusory that it did not provide enough support

for a rational jury to find beyond a reasonable doubt that the fire was caused by arson. We

rejected his argument, see United States v. Thompson

, 523 F.3d at 812, finding that Wiley

‐ Earls’s

testimony was but one part of the government’s case. We found that the primary defense was

that Carmen Thompson committed suicide, and therefore any negative test results for

accelerants would not have supported the defense, and that there was sufficient circumstantial

evidence, including Thompson’s financial situation, the mysterious codicil to Carmen

Thompson’s will, and Carmen Thompson’s previous burn incident, that allowed a rational jury

to find that Marc Thompson caused the August 11th fire.

Thompson then filed a petition pursuant to 28 U.S.C. § 2255 alleging ineffective

assistance of trial counsel and a violation of Brady v. Maryland

, 373 U.S. 83 (1963). As to his

ineffective assistance claim, Thompson alleged that trial counsel failed in their duty to

investigate. He argued that Sullivan and Clarke failed to seek the reports of lab testing on the

fire debris, did not ask for a Daubert hearing, did not conduct meaningful cross

‐ examination,

and did not call a defense expert to refute the arson allegation. Thompson also argued that trial

counsel failed to advise him on his decision to testify in his own defense.

In support of his petition, Thompson submitted a 2009 report from Dr. Craig Beyler, a

fire expert, which concluded that Wiley

‐ Earls’s findings were inaccurate. Dr. Beyler wrote thatNo. 10

‐ 2712 Page 5

the burn pattern was likely made by the melting of the foam core of a door and not the ignition

of an accelerant. He opined that the evidence showed that the point of origin of the fire was

in the ceiling, not the floor, and stated that Wiley

‐ Earls’s analysis of the potential sources of the

fire, including the light switch, was incomplete. He concluded that using scientific methods,

the fire “has not been shown to have involved the pouring of a flammable liquid and ignition

of that liquid by an open flame,” and that “the cause of this fire should properly be classified

as undetermined.”

The government filed an answer to the petition and attached an affidavit from one of

Thompson’s trial lawyers, Robert Clarke. John Sullivan did not submit an affidavit. Clarke

stated that Thompson himself “unambiguously demanded that Mr. Sullivan and I advance the

theory” that Carmen Thompson committed suicide by setting the fire. Clarke also stated that

a suicide theory was “also the strategy most likely to lead to an acquittal, as it was the only

theory of the case that would account for, and provide a reasonable explanation regarding, all

of the evidence that was likely to be presented at trial.” (Emphasis in original). Clarke stated

that an expert opinion that the cause of the fire was undetermined would not have made a trial

strategy based on an accidental fire “advisable.” Finally, Clarke stated that he warned

Thompson about the risks of testifying, and that he believed Sullivan had as well.

The district court declined to hold an evidentiary hearing and denied the petition.

Thompson sought to appeal his ineffective assistance of counsel claim, and we granted a

certificate of appealability on that issue.

II. ANALYSIS

Upon a denial of a § 2255 motion, we review the district court’s findings of fact for clear

error and its rulings of law de novo. Sandoval v. United States

, 574 F.3d 847, 850 (7th Cir. 2009).

A § 2255 petitioner is entitled to an evidentiary hearing on his claim where he alleges facts that,

if true, would entitle him to relief. Id.; Lafuente v. United States

, 617 F.3d 944, 946 (7th Cir. 2010).

A hearing, though, is not required when “the files and records of the case conclusively show

that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); Cooper v. United States

, 378 F.3d

638, 641

‐ 42 (7th Cir. 2004). This court reviews a district court’s decision not to grant an

evidentiary hearing for abuse of discretion. Galbraith v. United States

, 313 F.3d 1001, 1009 (7th

Cir. 2002).

In order to succeed on a claim of ineffective assistance of counsel, Thompson must

demonstrate both deficient performance and prejudice. Strickland v. Washington

, 466 U.S. 668,

690, 694 (1984). Specifically, he must show that defense counsel’s performance fell “outside the

wide range of professionally competent assistance” and “there is a reasonable probability that,No. 10

‐ 2712 Page 6

but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id. ; Johnson v. United States

, 604 F.3d 1016, 1019 (7th Cir. 2010). Our review of the effectiveness

of counsel’s assistance is “highly deferential,” Strickland

, 466 U.S. at 689; Earls v. McCaughtry

,

379 F.3d 489, 494 (7th Cir. 2004), and we give “wide latitude for behavior stemming from trial

strategies,” Earls

, 379 F.3d at 494.

Thompson argues that defense counsel failed to make a reasonable investigation

regarding the cause of the fire, and accepted Wiley

‐ Earls’s conclusions without consulting an

independent expert. It is well established that trial counsel has a duty “to make reasonable

investigations or to make a reasonable decision that makes particular investigation

unnecessary.” Strickland

, 466 U.S. at 691; Stanley v. Bartley

, 465 F.3d 810, 813 (7th Cir. 2006).

In his affidavit, Robert Clarke acknowledged that an expert was not sought to counter

the government’s arson theory, but stated that Thompson himself “demanded” that Sullivan

and Clarke advance a theory that Carmen Thompson committed suicide by setting the fire, and

that such a defense was a plausible explanation given the additional evidence at trial.

Thompson denied in a declaration that he had insisted on a suicide defense, and asserted that

he asked counsel to seek an arson expert. The district court did not resolve the factual dispute,

but found that even if the defense had pursued an “accidental” fire strategy, it would not likely

have resulted in acquittal given the additional evidence, namely, the timeline of events,

Thompson’s financial situation, and Carmen Thompson’s earlier burn injury. The district court

found the “suicide” strategy objectively reasonable.

We have found that “[i]f the need for an expert was clear and one was reasonably

available, counsel should at least consult with one.” Ellison v. Acevedo

, 593 F.3d 625, 634 (7th Cir.

2010) (citing Miller v. Anderson

, 225 F.3d 455, 459 (7th Cir. 2001), vacated by agreement of the

parties

, 268 F.3d 485 (7th Cir. 2001)). Given the defense’s chosen “suicide” strategy, the “need”

for a fire expert who would have testified that the cause of the fire was either accidental or

undetermined becomes less clear. While Thompson now calls into question the wisdom of that

strategy, he cannot show that his lawyers’s decision not to seek an arson expert was

unreasonable under prevailing professional norms.

Thompson relies in part on Dugas v. Coplan

, 428 F.3d 317 (1st Cir. 2005) for the

proposition that failure to consult an expert amounts to deficient performance. However, in

Dugas

, defense counsel specifically chose a “not arson” defense, and the court’s inquiry was

limited to whether “the investigation supporting [counsel’s] pursuit of the defense was itself

reasonable.” The court specifically emphasized that “the question is not whether [defense

counsel] should have presented a ‘not arson’ defense.” Id

. at 328. The court wrote that the

chosen “not arson” defense depended on defense counsel’s “ability to convince the jurors thatNo. 10

‐ 2712 Page 7

the State’s experts might be wrong in concluding that the fire was arson.” Id

. At 329. Defense

counsel, however, relied only on his own rudimentary knowledge about arson in presenting

a “not arson” defense, and, given the facts as a whole, the First Circuit found that his failure to

conduct a thorough investigation regarding the chosen defense amounted to deficient

performance. In this case, by contrast, Thompson challenges the choice not to pursue a “not

arson” defense, something the First Circuit specifically did not address in Dugas

. Similarly, in

Showers v. Beard

, 635 F.3d 625 (3d Cir. 2011), the Third Circuit found counsel’s performance

deficient where counsel did not consult experts suggested to him, when those experts would

have testified to a matter supporting Showers’ chosen suicide defense. In that case, Showers was

convicted of first degree murder and claimed that the lethal dose of morphine consumed by the

victim was for the purposes of suicide. Id

. at 627. The central issue in the case was whether the

liquid morphine was capable of being disguised or “masked,” an assertion, which, if

contradicted by an expert, would have assisted the defense’s chosen strategy. Id

. Again, that

is not the case here.

In Richey v. Bradshaw

, 498 F.3d 344, 363 (6th Cir. 2007), the Sixth Circuit did fault defense

counsel for failing to investigate whether a fire was in fact caused by arson, as the state planned

to argue, before deciding not to mount a “not arson” defense. In Richey

, the defendant made

statements that the building housing his ex

‐ lover would “burn” and that he would “torch” the

place. Id

. at 347. That night, a fire occurred in the unit directly above his ex

‐ lover’s apartment,

killing a two

‐ year old girl. The state put on two expert witnesses who testified to the use of

accelerants, and supported the state’s theory that Richey stole gasoline and paint thinner and

used them to start the fire. Id

. Defense counsel did retain someone to investigate the cause of

the fire, but the investigator did not have any special expertise in arson investigations, and

defense counsel did not inquire about the investigator’s conclusion that the state’s conclusion

was correct. Id

. at 347

‐ 48. The defense did not introduce any competing scientific evidence.

The Sixth Circuit found that counsel’s performance was deficient. The court held that

the scientific evidence of arson was “fundamental” to the state’s case, and Richey’s counsel did

next to nothing to determine if the state’s arson conclusion was subject to attack. Id

. at 362. The

court found that the record showed that “Richey’s counsel did not conduct the investigation

that a reasonably competent lawyer would have conducted into an available defense–that the

fire was not caused by arson–before deciding not to mount that defense.” Id

. The court

acknowledged that counsel did not have a duty to shop around for an expert that would have

countered the state’s conclusion, but that he “had a duty to know enough to make a reasoned

determination about whether he should abandon a possible defense based on his expert’s

opinion.” Id

. at 363. The court, however, also stated that:No. 10

‐ 2712 Page 8

. . . we can discern no strategic reason why counsel would have so readily ceded

this terrain to the prosecution. Nor was it sufficient for counsel to attempt to

poke holes in the State’s arson case by focusing on the identity of the arsonist.

At the very least, Richey’s comments

. . . and the defense’s failure to point the

finger at any other possible culprit, made such a choice unreasonable.

Id

. In finding counsel’s performance deficient, the court relied on the fact that defense counsel

failed to provide a reasonable alternative defense. Here, by contrast, the suicide defense was

reasonable in light of the evidence as a whole, including Thompson’s own statements and

Carmen Thompson’s previous burn injury.

Thompson makes much of the fact that the district court did not comment on trial

counsel’s assertion that Thompson himself insisted on a suicide defense. We do not find that

the district court’s silence on this matter warrants an evidentiary hearing. Whether or not

Thompson himself demanded the defense, it was an objectively reasonable strategy in light of

the evidence. We give great deference to counsel’s judgment, recognizing that there is a wide

range of reasonable defense strategies, Strickland

, 466 U.S. at 689; United States v. Recendiz

, 557

F.3d 511, 531 (7th Cir. 2009), and we analyze the reasonableness of counsel‘s performance in

the context of the facts of the particular case, Strickland

, 466 U.S. at 688

‐ 89.

Additionally, we note that while the report submitted by Dr. Beyler may have shown

that the cause of the fire was “undetermined,” meaning that causes other than arson could not

be ruled out, such a finding would not necessarily have altered the result at trial given the

additional evidence, and therefore Thompson also fails to meet the prejudice prong of the

Strickland standard. As we noted on direct appeal, there was “plenty of other evidence from

which a rational jury could find that Thompson caused the fire,” Thompson

, 523 F.3d at 810,

even a fire with an “undetermined” origin. To be sure, the relevant inquiry in this habeas

matter does not concern the sufficiency of the evidence, rather, it is whether counsel’s

performance was constitutionally deficient, and if so, whether Thompson was prejudiced. See,

e.g., Richey

, 498 F.3d at 364 (“Although circumstantial evidence alone might have led to a

conviction, the question before us is not one of the sufficiency of the evidence, but of

undermining our confidence in the reliability of the result.”). We, however, find that under

these facts, the circumstantial evidence in this case, and the jury’s ability to rely on such

evidence, prevents a finding of prejudice. See United States v. Reyes

, 270 F.3d 1158, 1169 (7th Cir.

2001) (“Circumstantial evidence is of equal probative value to direct evidence and in some

cases is even more reliable.”) (internal citations omitted).

The district court also made a determination that Thompson’s affidavit was insufficient

to meet his burden of showing that he was not warned of the risks of testifying, and found thatNo. 10

‐ 2712 Page 9

Thompson’s statements lacked credibility. The district court found that Thompson “is an

admitted perjurer, having lied under oath numerous times in his divorce and bankruptcy

proceedings.” The court also found that his claim was unsupported by the record as Thompson

acknowledged his history of lying and fraud on direct examination. We normally “accord the

district court’s credibility findings exceptional deference,” Tezak v. United States

, 256 F.3d 702,

715 (7th Cir. 2001), but such deferential review comes after the district court has held an

evidentiary hearing, see, e.g., Gant v. United States

, 627 F.3d 677, 681 (7th Cir. 2010). Where the

only evidence before the district court consists of conflicting, sworn affidavits, this court has

held that “a determination of credibility cannot be made on the basis of an affidavit.” Daniels

v. United States

, 54 F.3d 290, 295 (7th Cir. 1995) (citing Castillo v. United States

, 34 F.3d 443, 445

(7th Cir. 1994)). However, in this case, the credibility determination was not based on

Thompson’s affidavit, it was based on Thompson’s previous commissions of perjury and his

conduct at trial, a trial for which the district court judge was present. Accordingly, we do not

disturb the district court’s credibility determination, nor do we find the district court’s denial

of an evidentiary hearing on this matter to be an abuse of discretion.

Finally, Thompson also argues that trial counsel failed to move to exclude evidence of

Carmen Thompson’s earlier burn injury and hospital visit. Thompson argues that the exclusion

of this evidence, along with a challenge to the government’s expert, would have allowed a “no

arson” theory to succeed. First, we decline to engage in a hypothetical reconstruction of a

possible defense strategy. United States v. Malone

, 484 F.3d 916, 920 (7th Cir. 2007) (“[W]e will

not play ‘Monday morning quarterback’ when reviewing claims that an attorney rendered

constitutionally deficient representation in making decisions on how best to handle a case.”)

(citations omitted). Furthermore, as the district court noted, the evidence was relevant to the

government’s case as well, and we cannot in hindsight say that there was reasonable

probability that a challenge to the admission of the hospital visit would have succeeded. See,

e.g., Bond v. United States

, 77 F.3d 1009, 1014 (7th Cir. 1996) (finding that in raising ineffective

assistance of appellate counsel argument for failure to raise a claim on appeal, petitioner “must

show that if appellate counsel had raised the claim on direct appeal, there would have been a

reasonable probability that it would have succeeded”).

For the foregoing reasons, the judgment of the district court is AFFIRMED.