Loden v. State


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Docket Number: 2007-DR-01758-SCT
Linked Case(s): 2007-DR-01758-SCT

Supreme Court: Opinion Link
Opinion Date: 04-15-2010
Opinion Author: Randolph, J.
Holding: Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief filed by petitioner is denied.

Additional Case Information: Topic: Death penalty post-conviction - Ineffective assistance of counsel - M.R.A.P. 22(b) - Voluntariness of plea - Expert report - Waiver of jury - Denial of access to evidence - M.R.A.P. 22(c)(4)(ii)
Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Dickinson, Lamar, Kitchens, Chandler and Pierce, JJ.
Procedural History: PCR
Nature of the Case: CIVIL - DEATH PENALTY - POSTCONVICTION

Trial Court: Date of Trial Judgment: 09-21-2001
Appealed from: Itawamba County Circuit Court
Judge: Thomas J. Gardner
Disposition: On September 21, 2001, Thomas E. Loden, Jr., an eighteen-year veteran of the United States Marine Corps who had attained the rank of gunnery sergeant (E-7), waived his right to a jury at trial and sentencing, and pleaded guilty to capital murder, rape, and four counts of sexual battery. After conducting an extensive hearing on the knowing, intelligent, and voluntary nature of said waivers, the Circuit Court of Itawamba County accepted Loden’s pleas and adjudged him guilty on each count. The circuit court sentenced Loden to death.
Case Number: CR00-068

  Party Name: Attorney Name:  
Appellant: Thomas Edwin Loden, Jr.




OFFICE OF CAPITAL POST-CONVICTION COUNSEL: GLENN S. SWARTZFAGER, CHARLES E. PATTERSON, CHARLES S. BARQUIST, MARK R. McDONALD, OLGA A. TKACHENKO, ELINA KREDITOR



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: MARVIN L. WHITE, JR.  

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Topic: Death penalty post-conviction - Ineffective assistance of counsel - M.R.A.P. 22(b) - Voluntariness of plea - Expert report - Waiver of jury - Denial of access to evidence - M.R.A.P. 22(c)(4)(ii)

Summary of the Facts: Thomas E. Loden, Jr. waived his right to a jury at trial and sentencing, and pleaded guilty to capital murder, rape, and four counts of sexual battery. The circuit court sentenced Loden to death. Subsequently, Loden filed a “Motion to Vacate Guilty Plea” only as to capital murder, and now asks the Court to disregard his sworn testimony and out-of-court declarations that he preferred death to life in prison. Loden neither sought to vacate his guilty pleas to rape and four counts of sexual battery, nor appealed the convictions or sentences which followed his guilty pleas. The circuit court dismissed Loden’s motion for post-conviction relief, and Loden appeals.

Summary of Opinion Analysis: Issue 1: Ineffective assistance of counsel Loden argues that his trial counsel’s failure to perform any mitigation investigation, to litigate pre-trial motions competently, to assist the independent psychologist in his evaluation of Loden, to advise Loden competently regarding his guilty plea and sentencing, and to present any mitigation evidence resulted in a denial of Loden’s Sixth Amendment right to competent counsel. There is no ineffective assistance of counsel with respect to either the investigation or the presentation of mitigation evidence when counsel is specifically instructed not to present mitigation evidence. As Loden waived presentation of mitigation evidence in sentencing, defense counsel acting in accord with Loden’s instructions was not deficient. Likewise, Loden’s investigation argument is without merit because even if additional mitigation evidence had been discovered, pursuant to Loden’s instructions, it could not be presented during the sentencing phase of the trial. Loden argues it was entirely unreasonable for defense counsel to advise Loden to waive jury sentencing in light of the judge’s capital sentencing record. Loden’s argument is dubious, for it lacks credibility when compared to his statements to his mental health expert that he preferred death over life and that he would like to plead so that he will receive the death penalty. The record is replete with evidence beyond all doubt that Loden knowingly, intelligently, and voluntarily waived jury sentencing. In addition, Loden’s affidavit fails to provide any details of his discussion with defense counsel regarding the waiver of jury sentencing. Absent the details of such advice, the deficiency thereof cannot be determined. Loden argues that the Mississippi State Hospital report contained a number of biased, disparaging and unsupported allegations, upon which defense counsel had an obligation to discuss the downside of admission so that Loden could have made a somewhat informed decision. Because defense counsel acted in accord with Loden’s instructions, their performance was not deficient. With regard to Loden’s claim concerning a motion for funds for expert mitigation assistance, as the underlying substantive issue was found both to be without merit and moot on account of Loden’s decision not to present mitigation evidence, Loden cannot establish prejudice. Loden also cannot establish any prejudice resulting from defense counsel’s alleged failure to make adequate use of the psychologist, because it was his decision not to present mitigation evidence. In addition, Loden’s allegedly ineffective defense counsel was able to secure a discretionary, second evaluation by the psychologist from the circuit court. Loden argues that the police officers’ account of the search was riddled with inconsistencies, and that defense counsel’s failure to inquire into these issues at the suppression hearing was ineffective representation. This claim is procedurally barred under M.R.A.P. 22(b). Loden also argues that his appellate counsel provided ineffective assistance of counsel because if appellate counsel had presented the evidence contained in the instant Petition and informed the court of all factors surrounding Loden’s decision to plea, then there is at least a reasonable probability that the court would have altered its credibility ruling and Loden’s Motion to Vacate his guilty plea would have been successful. However, the submissions by Loden are woefully insufficient to rise to the level necessary to invalidate his express plea-colloquy statements to the circuit judge, so as to create a reasonable probability that his Motion to Vacate Guilty Plea would have been granted Issue 2: Voluntariness of plea Loden argues that his plea was neither knowing, nor intelligent nor voluntary. His claim is procedurally barred as it was considered in his first PCR appeal. Issue 3: Expert report Loden argues that the disparaging, unsupported allegations of criminal activity and general bad character in the full Mississippi State Hospital report tainted the reliability and accuracy of the sentencing in violation of the Eighth Amendment; violated the Confrontation Clause of the Sixth Amendment because he had no opportunity to cross-examine the conclusions of the state doctors and the highly damaging hearsay statements in the report; and generally deprived him of due process. However, the record does not indicate that the circuit judge was presented with the full Mississippi State Hospital report at issue, but only with a summary report which does not include the complained-of allegations. Also, as Loden was represented by new counsel on appeal, and the issue of objection to evidence at the sentencing hearing is based on facts fully apparent from the record, he is procedurally barred by M.R.A.P. 22(b) from presenting it for the first time in this Petition for Post-Conviction Relief. Issue 4: Waiver of jury Loden’s argument fails to take into account the repeated opportunities in which he was apprised of the implications of waiving jury sentencing, yet proceeded nonetheless. Thus, the record clearly establishes that Loden knowingly, intelligently, and voluntarily waived jury sentencing. Issue 5: Denial of access to evidence Loden argues that the State’s denial of access to the evidence necessary to conduct a full and complete investigation of the facts of Loden’s case has violated Loden’s due process rights and prevented the presentation of all potentially meritorious claims in his Petition. Loden fails to prove that he is entitled to any relief on this ground. The circuit court’s decision to deny Loden’s Motion to Compel was not an abuse of discretion under M.R.A.P. 22(c)(4)(ii). In fact, contrary to Loden’s assertions, he was not denied access to the evidence. Rather, his access was merely limited, which was perfectly permissible in light of the sensitive nature of the evidence.


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