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Thompson v. State

Alabama Court of Criminal Appeals

November 16, 2018

Devin Darnell Thompson
v.
State of Alabama

          Appeal from Fayette Circuit Court (CC-03-62.60)

          WELCH, JUDGE.

         Devin Darnell Thompson, an inmate on death row at Holman Correctional Facility, appeals the Fayette Circuit Court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., attacking his capital-murder convictions and sentences of death.

         In 2005, Thompson was convicted of six counts of capital murder for murdering Fayette Police Officers Arnold Strickland and James Crump, and police dispatcher Leslie Mealer, during the course of a robbery. The jury recommended, by a vote of 10 to 2, that Thompson be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Thompson to death.

         On direct appeal, this Court affirmed Thompson's convictions and sentences of death. See Thompson v. State, 153 So.3d 84 (Ala.Crim.App.2012). The Alabama Supreme Court and the United States Supreme Court denied certiorari review. See Thompson v. State, 153 So.3d 191 (Ala. 2014); Thompson v. Alabama, 574 U.S., 135 S.Ct. 233 (2013). This Court issued its certificate of judgment on May 6, 2014.

         In April 2015, Thompson filed a timely petition for postconviction relief. In February 2016, Thompson filed an amended petition. The State filed a response and moved to dismiss the petition in June 2016. In July 2017, the circuit court issued a two-page order summarily dismissing Thompson's postconviction petition. This appeal followed.

         On direct appeal, this Court stated the following facts surrounding Thompson's convictions:

"The State's evidence tended to show the following. At approximately 6:00 a.m. on the morning of June 3, 2003, Tim Brown, a paramedic with the Fayette Medical Center, was dispatched to the Fayette Police Department. Brown testified that when he approached the station he saw Mealer's body lying on the other side of the door to the police station, which was locked. After he forced his way inside, Brown said, he discovered that Mealer had been shot in the head. He proceeded through the building and found the bodies of Officer Crump and Officer Strickland. Both, he said, had been shot in the head and were lying in a pool of blood.
"Testimony showed that at around 3:00 a.m. on the morning of June 3, 2003, Officer Crump and Officer Strickland approached a vehicle parked in the lot of a local restaurant and found Thompson asleep in the vehicle. The dispatcher informed them that the vehicle had been stolen, and the officers took Thompson into custody.
"While the officers were booking Thompson they discovered that a dry-cleaning business, near where the car had been stolen, had been burglarized and clothing had been taken from that business. A shoe print had been discovered at the scene of that burglary. The officers removed Thompson's handcuffs in order to take his fingerprints and removed one of his shoes to get a shoe print.
"While Thompson was being fingerprinted, he took Strickland's .40-caliber service pistol and shot Strickland in the head. Thompson then crossed the hall and shot Officer Crump in the head. As Thompson walked toward the exit of the police station he encountered Mealer. He shot Mealer multiple times and left the station.
"Thompson attempted to reenter the station when he realized that one of his shoes was still inside, but the door had automatically locked when it closed, and he was unable to reenter. Thompson proceeded to the Fayette Fire Station, which was located in the same building as the Fayette Police Department, and told two firemen that 'something bad had happened up front.' Thompson then stole a police cruiser and fled the scene. He was arrested later that day near Columbus, Mississippi. The pistol Thompson had taken from Officer Strickland was found in the police cruiser.
"At trial, Thompson did not dispute that he shot and killed the police officers and the dispatcher. His defense was that he was not guilty by reason of mental disease or defect. Thompson presented expert testimony to the effect that he was suffering from post-traumatic stress disorder ('PTSD') at the time of the murders and that he was in a dissociative state; therefore, he argued, he was not responsible for his actions. The State countered Thompson's expert testimony by presenting expert testimony to the effect that Thompson was not in a dissociative state when he committed the murders."

Thompson, 153 So.3d at 101-02.

         Standard of Review

         Thompson appeals the circuit court's summary dismissal of his Rule 32 petition attacking his capital-murder convictions and sentence of death. According to Rule 32.3, Ala. R. Crim. P., "[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief."

         Rule 32.6(b), Ala. R. Crim. P., addresses the burden of pleading and states:

"Each claim in the petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings."

(Emphasis added.)

"The burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy one. Conclusions unsupported by specific facts will not satisfy the requirements of Rule 32.3 and Rule 32.6(b). The full factual basis for the claim must be included in the petition itself. If, assuming every factual allegation in a Rule 32 petition to be true, a court cannot determine whether the petitioner is entitled to relief, the petitioner has not satisfied the burden of pleading under Rule 32.3 and Rule 32.6(b). See Bracknell v. State, 883 So.2d 724 (Ala.Crim.App.2003)."

Hyde v. State, 950 So.2d 344, 356 (Ala.Crim.App.2006). "The pleading requirements of Rule 32 apply equally to capital cases in which the death penalty has been imposed." Taylor v. State, 157 So.3d 131, 140 (Ala.Crim.App.2010).

         "The sufficiency of pleadings in a Rule 32 petition is a question of law. 'The standard of review for pure questions of law in criminal cases is de novo. Ex parte Key, 890 So.2d 1056, 1059 (Ala. 2003).'" Ex parte Beckworth, 190 So.3d 571, 573 (Ala. 2013).

"Although postconviction proceedings are civil in nature, they are governed by the Alabama Rules of Criminal Procedure. See Rule 32.4, Ala. R. Crim. P. The 'notice pleading' requirements relative to civil cases do not apply to Rule 32 proceedings. 'Unlike the general requirements related to civil cases, the pleading requirements for postconviction petitions are more stringent....' Daniel v. State, 86 So.3d 405, 410-11 (Ala.Crim.App.2011). Rule 32.6(b), Ala. R. Crim. P., requires that full facts be pleaded in the petition if the petition is to survive summary dismissal. See Daniel, supra. Thus, to satisfy the requirements for pleading as they relate to postconviction petitions, Washington was required to plead full facts to support each individual claim."

Washington v. State, 95 So.3d 26');">95 So.3d 26, 59 (Ala.Crim.App.2012). In discussing the pleading requirements of Rule 32.6(b), Ala. R. Crim. P., we have stated:

"'Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.' Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion 'which, if true, entitle[s] the petitioner to relief.' Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R. Crim. P., to present evidence proving those alleged facts."

Boyd v. State, 913 So.2d 1113, 1125 (Ala.Crim.App.2003).

         The majority of claims raised by Thompson in his amended petition involve allegations that his counsel's performance was deficient at his trial and sentencing. When considering a claim of ineffective assistance of counsel we apply the standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The petitioner must establish: (1) that counsel's performance was deficient; and (2) that he was prejudiced by that deficient performance. When pleading claims of ineffective assistance of counsel, this Court has stated:

"To sufficiently plead an allegation of ineffective assistance of counsel, a Rule 32 petitioner not only must 'identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,' Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also must plead specific facts indicating that he or she was prejudiced by the acts or omissions, i.e., facts indicating 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' 466 U.S. at 694, 104 S.Ct. 2052. A bare allegation that prejudice occurred without specific facts indicating how the petitioner was prejudiced is not sufficient."

Hyde v. State, 950 So.2d 344, 356 (Ala.Crim.App.2006).

"[T]o satisfy the burden of pleading a claim of ineffective assistance of counsel, a petitioner cannot merely allege that prejudice occurred or that there was some conceivable effect on the outcome of the trial; a petitioner must allege 'specific facts indicating how the petitioner was prejudice,' i.e., how the outcome of the trial would have been different."

Mashburn v. State, 148 So.3d 1094, 1116 (Ala.Crim.App.2013).

         At the pleading stage of postconviction proceedings, the petitioner has no burden to plead the absence of a ground of preclusion. See Ex parte Beckworth, 190 So.3d 571, 575 (Ala. 2013) ("Beckworth's Rule 32 petition should not have been dismissed on the ground that his claim for relief under Rule 32.1(a) lacked allegations negating the preclusive bars of Rule 32.2(a)(3) and (5).").

         Moreover,

"[a]n evidentiary hearing on a [Rule 32] petition is required only if the petition is 'meritorious on its face.' Ex parte Boatwright, 471 So.2d 1257 (Ala. 1985). A petition is 'meritorious on its face' only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts) sufficient to show that the petitioner is entitled to relief if those facts are true. Ex parte Boatwright, supra; Ex parte Clisby, 501 So.2d 483 (Ala. 1986)."

Moore v. State, 502 So.2d 819, 820 (Ala. 1986). When considering the sufficiency of pleadings, the postconviction court must consider each claim individually. Mashburn, 148 So.3d at 1117. "[T]he full factual basis for the claim must be included in the petition itself." Mashburn, 148 So.3d at 1124. Last, "'[w]hen reviewing a circuit court's rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason.'" Washington v. State, 95 So.3d 26');">95 So.3d 26, 37 (Ala.Crim.App.2012), quoting Smith v. State, 122 So.3d 224, 227 (Ala.Crim.App.2011).

         With these principles in mind, we review the claims raised by Thompson in his brief to this Court.

         I.

         Thompson argues that the postconviction court erred in summarily dismissing his petition without first making findings of fact concerning each claim raised. Specifically, he argues that he raised many claims of ineffective assistance of trial counsel and because the judge presiding over the postconviction proceedings was not the same judge who presided over Thompson's trial, the postconviction court could not summarily dismiss his ineffective assistance of counsel claims. He further argues that he had no burden to prove his claims by a preponderance of the evidence at the pleading stage of the postconviction proceedings.

         "Rule 32.9(d), Ala. R. Crim. P., requires that if an evidentiary hearing is conducted on the Rule 32 petition, '[t]he court shall make specific findings of fact relating to each material issue of fact presented.'" Anglin v. State, 719 So.2d 855, 857 (Ala.Crim.App.1996) (emphasis added). "Contrary to [the appellant's] argument, '"Rule 32.9(d), Ala. R. Crim. P., requires the circuit court to make specific findings of fact only after an evidentiary hearing or the receipt of affidavits in lieu of a hearing.'" Daniel v. State, 86 So.3d 405, 412 (Ala.Crim.App.2011), quoting Chambers v. State, 884 So.2d 15, 19 (Ala.Crim.App.2003).

"No evidentiary hearing was held in this case --the circuit court summarily dismissed Daniel's petition. 'Because the trial court did not hold an evidentiary hearing, it was not required to make specific findings of facts as to each claim.' Beckworth v. State, [Ms. CR-07-0051, May 1, 2009] So. 3d, (Ala.Crim.App.2009). '[R]ule 32.9(d), Ala. R. Crim. P., requires findings of fact only if an evidentiary hearing is held. Findings are not required if the petition is dismissed.' Fowler v. State, 890 So.2d 1101, 1103 (Ala.Crim.App.2004). 'Rule 32.9(d), Ala. R. Crim. P., requires the circuit court to make specific findings of fact only after an evidentiary hearing or the receipt of affidavits in lieu of a hearing.' Chambers v. State, 884 So.2d 15, 19 (Ala.Crim.App.2003). See also Ex parte McCall, 30 So.3d 400 (Ala. 2008). The circuit court did not err in failing to make written findings of fact concerning Daniel's claims."

Daniel, 86 So.3d at 412.

         Also, in Bryant v. State, 181 So.3d 1087 (Ala.Crim.App.2011), we stated:

"[A] circuit court may, in some circumstances, summarily dismiss a postconviction petition based on the merits of the claims raised therein. Rule 32.7(d), Ala. R. Crim. P., provides:
"'If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition. Leave to amend shall be freely granted. Otherwise, the court shall direct that the proceedings continue and set a date for hearing.'
"'"Where a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition."' Bishop v. State, 608 So.2d 345, 347-48 (Ala. 1992) (emphasis added) (quoting Bishop v. State, 592 So.2d 664, 667 (Ala.Crim.App.1991) (Bowen, J., dissenting)). See also Hodges v. State, 147 So.3d 916, 946 (Ala.Crim.App.2007) (a postconviction claim is 'due to be summarily dismissed [when] it is meritless on its face')."

181 So.3d at 1102.

         Neither this Court or the Alabama Supreme Court has ever held that a new judge presiding over postconviction proceedings may not dismiss a petition on the merits because that judge did not preside over the petitioner's trial. Indeed, there is no such limitation in Rule 32.7(d), Ala. R. Crim. P.

         Also, while we are aware that Thompson had no burden to prove his claims in the pleading stage, this Court has frequently noted that the burden of pleading in Rule 32, Ala. R. Crim. P., is a "heavy burden" and that "full facts" are required to survive the pleading stage of a postconviction proceeding. Based on the following, we hold that Thompson's postconviction petition was properly summarily dismissed.

         II.

         Thompson next argues that the postconviction court erred in summarily dismissing his claim that his trial counsel's performance was deficient because counsel failed to object to the State's evidence and failed to present evidence at his hearing for treatment as a Youthful Offender ("YO").

         In Thompson's amended petition, he pleaded the following, in part:

"Trial counsel's failure to present any evidence in support of Mr. Thompson's application converted the record of the hearing on the Youthful Offender Application into an entirely one-sided story, with the emphasis only on the tragic events of June 7, 2003. Trial counsel did not present any witness about Mr. Thompson's family circumstances, mental status, or even remorse. ... Trial counsel did not present any mental health information for Mr. Thompson at this hearing despite the fact that by September 22, 2003, Dr. Marianne Rosenzweig, a clinical psychologist, had already met with Mr. Thompson three times and had scored and interpreted one of her tests administered to Mr. Thompson."

(C. 146-48.)

         This claim was correctly summarily dismissed; the pleadings contain mere conclusions with no recitation of specific facts to support those conclusions. Thompson failed to specifically plead what evidence counsel should have presented at the YO hearing that would have supported his application. Nor did Thompson plead what medical evidence Dr. Marianne Rosenzweig could have presented at the YO hearing.[1] Therefore, Thompson failed to comply with the full-fact pleading requirements of Rule 32.3 and Rule 32.6(b), Ala. R. Crim. P., and this claim was correctly dismissed on that basis.

         In Hyde v. State, this Court addressed an identical claim:

"Hyde alleged that [his trial counsel] failed to submit 'materials or information' in support of the application for youthful-offender status (C. 76); however, Hyde failed to identify what materials and information he believes should have been submitted. Hyde also alleged that [trial counsel] failed to make any argument regarding Hyde's 'family circumstances, education, substance abuse, or remorse, or present any other relevant evidence' (C. 77); however, Hyde failed to allege exactly what information regarding his family circumstances, education, substance abuse, or remorse he believes [trial counsel] should have presented and/or argued. Therefore, Hyde failed to plead sufficient facts to satisfy the pleading requirements of Rule 32.3 and 32.6(b)."

Hyde, 950 So.3d at 359.

         Moreover,

"[i]n determining whether to treat a defendant as a youthful offender, the trial court has nearly absolute discretion. Morgan v. State, 363 So.2d 1013 (Ala. Cr. App. 1978); see also, Ex parte Farrell, 591 So.2d 444, 449-50, n. 3 (Ala. 1991). There is no set method for considering a motion requesting such treatment. Edwards v. State, 294 Ala. 358, 317 So.2d 512 (1975). However, the Youthful Offender Act, § 15-19-1, Ala. Code 1975, requires that the court conduct a factual investigation into the defendant's background. Ware v. State, 432 So.2d 555 (Ala. Cr. App. 1983). Generally, the trial court considers the nature of the crime charged, any prior convictions, the defendant's age, and any other matters deemed relevant by the court. Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975). Moreover, the trial court need not articulate on the record its reasons for denying the defendant youthful offender status. Garrett v. State, 440 So.2d 1151, 1152-53 (Ala. Cr. App. 1983), cert. denied (1983). Accord, Goolsby v. State, 492 So.2d 635 (Ala. Cr. App. 1986)."

Reese v. State, 677 So.2d 1239, 1240 (Ala.Crim.App.1995).

         A review of the trial record[2] shows that, at the conclusion of the YO hearing, the circuit court stated:

"Based on the investigation and examination of the Court to determine [Thompson's] youthful offender petition, or the request to be treated as a youthful offender, the Court has considered the report of the investigation of the Alabama Board of Pardons and Paroles, also the offer of proof as agreed upon by [Thompson] and the State for the purposes of this hearing only, including the statement of [Thompson], and also a review of a crime scene videotape, and the Court finds that based upon that, the nature of the fact situation, the manner in which the crime was executed, including the use of a firearm, that the petition for youthful offender is denied."

(R. 30-31) (emphasis added).

         The circuit court denied Thompson's application for YO status based on the nature of the crime charged -- a triple homicide involving the shooting of two police officers and a police dispatcher. "[W]e hold that the nature of the fact situation on which a charge is based may, alone, be a sufficient reason for denying youthful offender status." Ex parte Farrell, 591 So.2d 444, 449 (Ala. 1991). Thus, any argument concerning Thompson's mental health and his family background would not have changed the circuit court's decision to deny YO status. Cf. Staton v. State, 902 So.2d 102, 117 (Ala.Crim.App.2003) (holding that attorney was not ineffective for failing to request YO status when he knew that such a request would be futile). Thus, Thompson suffered no prejudice as a result of counsel's actions at the YO hearing, and this claim was correctly summarily dismissed pursuant to Rule 32.7(d), Ala. R. Crim. P. Thompson is due no relief on this claim.

         III.

         Thompson next argues that the postconviction court erred in summarily dismissing his claim that his trial counsel's performance was ineffective for advising Thompson to waive his right to move for a change of venue. Specifically, he argues that he could not obtain a fair and impartial trial in Fayette County because, he says, the pretrial publicity in the case saturated the community.

         The majority of Thompson's pleadings on this claim consist of the lengthy procedural history of the case, the demographics of Fayette County, and a synopsis of articles published concerning the case. Thompson does quote the voir dire examination of prospective juror A.B.[3] and that quote does reflect that A.B. had heard about the case. However, A.B. did not serve on Thompson's jury. (Trial R. 1863.) Thompson also pleaded that two jurors, M.S. and L.E., served on Thompson's jury and that they had heard about the case. However, the record shows that juror L.E. was an alternate juror and that he was excused before the case was submitted to the jury. (Trial R. 3847.) On direct appeal, this Court addressed Thompson's claim regarding juror M.S. and noted that juror M.S. was struck for cause. Thompson, 153 So.3d at 121. None of the jurors cited in Thompson's pleadings were members of the jury that ultimately rendered a verdict of guilt and recommended a sentence of death.

         The trial record shows that in April 2004 Thompson moved for a change of venue. (Trial C. 100.) That motion was not opposed by the State. In August 2004, the circuit court granted the motion and issued an order directing that the trial be moved to Lauderdale County. Later, the circuit court rescinded its August 2004 order stating that Lauderdale County was not the closest county free from publicity and that the trial would be moved to Lamar County instead. (Trial C. 207-08.) Defense counsel objected to the court moving the trial to Lamar County "and argued that § 15-2-24, Ala. Code 1975, prohibited the court from changing venue a second time once venue had been changed." Thompson, 153 So.3d at 103. The circuit court declined to change its ruling. Defense counsel then withdrew his motion for a change of venue and stated that Thompson was voluntarily and intelligently waiving his right to move for a change of venue. The circuit court then questioned Thompson on the record. Thompson indicated that he was waiving this right.

         First, this claim was insufficiently pleaded. Thompson waived his right to move for a change of venue, and the circuit court questioned Thompson about his waiver of this right on the record. In his amended petition, Thompson did not cite to any facts showing that Thompson's waiver was involuntary or coerced. Therefore, Thompson failed to plead the full facts in support of this claim, and it was correctly summarily dismissed. See Rule 32.7(d), Ala. R. Crim. P.

         Second, Thompson pleaded the name of no juror who served on Thompson's jury who was biased against him based on pretrial publicity. As we have stated:

"[Moody] pleaded no facts about the actual extent or nature of the media coverage that would indicate that it was biased or prejudicial or that it had saturated the community. In addition, he did not name a single juror who sat on his jury who had read or heard about the case. Contrary to Moody's apparent belief, 'the existence of widespread publicity does not require a change of venue.' McGahee v. State, 885 So.2d 191, 211 (Ala.Crim.App.2003). Because Moody failed to allege sufficient facts in his petition that would indicate that he would have been entitled to a change of venue, he failed to plead sufficient facts to indicate that his appellate counsel was ineffective for not raising this claim on appeal. Therefore, summary dismissal of this claim of ineffective assistance of appellate counsel was proper."

Moody v. State, 95 So.3d 827, 845 (Ala.Crim.App.2012).

         Furthermore, the Alabama Supreme Court in State v. Luong, 199 So.3d 139 (Ala. 2014), [4] recognized the difficulty of establishing that a motion for a change of venue is warranted based on a claim of prejudicial pretrial publicity. The Supreme Court stated:

"'If, in this age of instant, mass communication, we were to automatically disqualify persons who have heard about an alleged crime from serving as a juror, the inevitable result would be that truly heinous or notorious acts will go unpunished. The law does not prohibit the informed citizen from participating in the affairs of justice. In prominent cases of national concern, we cannot allow widespread publicity concerning these matters to paralyze our system.'"

Luong v. State, 199 So.3d 139, 150 (Ala. 2014), quoting Calley v. Callaway, 519 F.2d 184, 210 (5th Cir. 1975).

         This Court has examined the articles cited in the petition and also the extensive voir dire of the prospective jurors conducted in Thompson's case. The publicity did not rise to the level involved in Luong, nor was the publicity as prejudicial as that involved in Luong. Based on the Supreme Court's holding in Luong, Thompson would not have been entitled, as a matter of law, to a change of venue.

"Appellant also says that trial counsel was defective because they failed to request a change of venue due to the excessive pretrial publicity and because they did not conduct an adequate voir dire. As previously shown, the voir dire was adequate to uncover any bias or prejudice from prospective jurors. Furthermore, counsel made reasonable attempts to question jurors about their biases and whether they were affected by the pretrial publicity. Trial counsel's failure to request a change of venue is not tantamount to ineffective assistance of counsel. A change of venue is not automatically granted where there is extensive pretrial publicity. Instead, the decision to grant a change of venue rests largely within the discretion of the trial court. State v. Maurer (1984), 15 Ohio St.3d 239, 250, 15 OBR 379, 388-389, 473 N.E.2d 768, 780. Even if it would have been prudent to request a change of venue, we find that the empaneled jury was not prejudiced by the pretrial publicity. Thus, there was no prejudice stemming from defense counsel's failure to make this request."

State v. White, 82 Ohio St.3d 16, 24-15, 693 N.E.2d 772, 780 (1998).

         This claim was also correctly summarily dismissed based on Rule 32.7(d), Ala. R. Crim. P., because it failed to state a claim upon which relief could be granted. See Rule 32.7(d), Ala. R. Crim. P., thus, Thompson is due no relief.

         IV.

         Thompson next argues that the postconviction court erred in summarily dismissing his claim that his trial counsel's performance was deficient because, he says, counsel failed to conduct ...


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