REVISED March 4, 2015.
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Appeals from the United States District Court for the Northern District of Mississippi.
For THOMAS EDWIN LODEN, JR. (#K8126), Petitioner - Appellant: Mark R. McDonald, Morrison & Foerster, L.L.P., Los Angeles, CA; Stacy Leah Ferraro, Flora, MS.
For RICK MCCARTY, INTERIM COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Respondent - Appellee: Marvin Luther White, Jr., Esq., Assistant Attorney General, Office of the Attorney General for the State of Mississippi, Jackson, MS.
Before KING, DAVIS, and ELROD, Circuit Judges.
KING, Circuit Judge:
Petitioner-Appellant Thomas Edwin Loden raped and murdered Leesa Marie Gray in 2000. After pleading guilty, Loden was sentenced to death by a Mississippi state court. Loden now appeals the district court's denial of his petition for a writ of habeas corpus. That petition was premised on the denial of Loden's constitutional right to the effective assistance of counsel during the guilt and sentencing
phases of his trial. For the reasons that follow, we AFFIRM the judgment of the district court.
Thomas Loden worked as a recruiter for the United States Marine Corps in Vicksburg, Mississippi, where he lived with his wife and daughter. He had travelled to Itawamba County, Mississippi, on June 21, 2000 to visit his ailing grandmother, Rena Loden, at her farm. On June 22, Loden claims he spoke to his wife on the phone, and she told him that she had just had " phone sex" with a partner at the law firm at which she worked as a paralegal and that she planned on having sexual intercourse with that partner while Loden was away.
Shortly thereafter, at around 9:00 p.m., Loden went into Comer's Restaurant, where Leesa Marie Gray, the victim, worked as a waitress. He had been in the restaurant earlier that day, and, according to witnesses, he had attempted to flirt with Gray. Loden ordered a cheeseburger to go and then left the restaurant. After Gray left work, at around 10:30 p.m., her car tire went flat on her drive home. Loden claims he saw her car by the side of the road and stopped. Loden then told Gray that he was in the Marine Corps and asked if she would ever be interested in enlisting. He claims that she replied " [n]o, that would be the last thing I'd want to do with my life." Loden states that her response enraged him, and he then kidnapped her in his van. He then raped her repeatedly and strangled her to death. Loden used a camcorder to record a substantial portion of his crime. The video shows Loden forcing Gray to perform fellatio on him, vaginally raping her, digitally penetrating her vagina and anus, and raping her repeatedly with an object, specifically a cucumber. At one point, Loden instructs Gray to smile so that he can see her braces. At another point, after he digitally penetrates her vagina, he states: " You really were a virgin, weren't you?" The video stops, and, when it restarts, Loden is seen twisting the breast of Gray, at that point unconscious, apparently attempting to return her to consciousness. After another break in the video, Gray's dead body is seen posed in the van with the cucumber forced into her vagina. Loden removes and reinserts the cucumber several times before the videotape stops. After Loden had murdered Gray, he went into his grandmother's house and fell asleep.
When Gray did not return home from work that night, the police began investigating her disappearance. Witnesses reported that Loden had arrived at the restaurant in a van shortly before closing and ordered food. They also reported that he had been flirting with Gray earlier in the day. The police went to Loden's grandmother's farm to speak with him, and one of his grandmother's helpers informed them that Loden was asleep in the house. The officers left and returned later. When they returned, they spoke with Loden's grandmother, who informed them that Loden had left to go fishing at a nearby lake. The officers went to look for Loden, but could not find him. When they got back to the house, Ms. Loden gave her consent for the officers to search her property. The officers discovered a pair of shorts with blood on them in Loden's room and a rope tied into a handcuff-style knot in Ms. Loden's car. They then obtained a search warrant for the property and Loden's van. When the crime lab processed the van, they found Gray's body and, among other evidence, the camcorder with the video Loden made of his crime.
That same day, Loden was found lying by the side of a road in Itawamba County, Mississippi. His wrists were slashed and
the words " I'm sorry" were carved into his chest. After he was released from the hospital, he was arrested. The police discovered a fresh grave, along with a shovel, in an out-of-the-way, heavily vegetated area on Loden's grandmother's property. Loden's wife visited him in jail and, after speaking with her, he confessed to raping Gray and to murdering her, though he stated that he did not remember killing her.
Loden was indicted for capital murder, rape, and sexual battery in Mississippi state court. James Johnstone, a private attorney, was appointed to represent Loden. Johnstone asked David Daniels, another attorney, to associate as his co-counsel in Loden's case.
Johnstone and Daniels filed several motions in Loden's case, two of which are relevant for purposes of this appeal. First, they filed a motion to suppress evidence obtained during the search of Loden's grandmother's property, including the vehicles on it, and Loden's confession as obtained in violation of the Fourth and Fifth Amendments, respectively. Second, they moved the court to provide funds so that they could hire an expert in the field of mitigation investigation. The trial court denied both motions, though, as to the second motion, the court told Loden's attorneys, " I'll give you an opportunity to tell me if you can locate any authority for this other than the fact that [the expert has] done it in the past. I would like to know what the courts of this country have said about this before I authorize this expenditure." Johnstone told the court: " We'll look and provide that for you, Your Honor." Neither Johnstone nor Daniels ever furnished any such supplemental authority to the court.
After the motion for funds was denied, Johnstone did not conduct any mitigation investigation during his representation of Loden. Daniels claims that he conducted a mitigation investigation by asking about mitigating issues when he interviewed witnesses, but the witnesses to whom he claims to have spoken contradict his claims. Further, Loden argues that neither of his attorneys spoke to the attorney with whom his wife was having an affair, who could have verified Loden's claim that his wife was taunting him about her infidelity on the night of the murder. Loden also argues that his attorneys failed to interview Loden's military colleagues and to request his military records.
Further, Loden claims that his attorneys provided him with erroneous advice about his appellate rights after a guilty plea. Loden claims that his attorneys told him that if he pleaded guilty and received the death penalty, " the pre-trial motions would be reviewed by the Supreme Court of Mississippi under a heightened scrutiny review which applies to all death sentences." He claims that they assured him " that the rulings on the suppression motions were reviewable by the Supreme Court even if I pled [sic] guilty." A letter Loden sent to Daniels after he pleaded guilty appears to lend credence to Loden's claim that he misunderstood his appellate rights. Johnstone's recollection of his advice is somewhat different. He states in his affidavit:
I told Loden that if he pleaded guilty and was sentenced to death, the Mississippi Supreme Court would review his sentence, and that they would review everything that was in the record. I told Loden that I believed that (1) the rulings on the suppression motions, (2) the order denying the request for funds to hire a mitigation specialist, and (3) the use of Loden's wife Kat to induce Loden to talk with the police on June 30, 2000 were issues that might be reviewed that were potentially viable.
Daniels's recollection differs. In Daniels's affidavit, he states:
Mr. Loden asked me whether if he pleaded guilty to Capital Murder he could appeal his case. I told him there would be no direct appeal by us, but that the Mississippi Supreme Court would automatically review a sentence of death. I told him that we could not guarantee him exactly what the Court might do, or not do upon such review. I told Mr. Loden if he wanted to directly appeal and ...