Henness v. Bagley

• Citation: 644 F.3d 308
• Decision Date: 02 September 2011
• Docket Number: No. 07–4479.,07–4479.
• Parties: Warren K. HENNESS, Petitioner–Appellant,v.Margaret BAGLEY, Warden, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

644 F.3d 308

Warren K. HENNESS, Petitioner–Appellant,

v.Margaret BAGLEY, Warden, Respondent–Appellee.

No. 07–4479.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 8, 2010.Decided and Filed: July 6, 2011.Rehearing and Rehearing En Banc Denied Sept. 2, 2011.*

ARGUED: Vincent P. Popp, Popp & Tuss, Dayton, Ohio, for Appellant. Seth Kestner, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Vincent P. Popp, Mark A. Tuss, Popp & Tuss, Dayton, Ohio, for Appellant. Seth Kestner, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.Before: BOGGS, SILER, and SUTTON, Circuit Judges.

OPINION

SILER, Circuit Judge.

Warren K. Henness was sentenced to death for aggravated murder. He appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas petition, which alleges numerous violations of his constitutional rights.

The district court granted Henness a certificate of appealability (“COA”) for eight claims, and we granted a COA on three additional issues. We therefore review eleven claims on appeal, alleging: (1) trial counsel rendered ineffective assistance by failing to file a motion to suppress the fruits of an illegal stop and arrest at the time Henness was arrested; (2) the trial court should have granted the motion to suppress statements that Henness made to the police; (3) trial counsel rendered ineffective assistance during the mitigation phase; (4) the State improperly withheld Brady material; (5) the trial court improperly held Tabatha Henness competent to testify; (6) the trial court improperly permitted a coroner to testify on a matter outside his field of expertise; (7) the trial court improperly refused to allow Henness's counsel to withdraw prior to the sentencing phase; (8) appellate counsel rendered ineffective assistance by failing to raise several issues on direct appeal; (9) the trial court improperly admitted the testimony of Robert Curtis; (10) the trial court improperly permitted the prosecutor to lead Curtis's testimony and allowed Curtis to engage in improper speculation; and (11) the court erroneously instructed the jury during the sentencing phase.

For the following reasons, we AFFIRM the district court's denial of the writ.

I. FACTS

Henness was convicted of aggravated murder with specifications and sentenced to death for killing Richard Myers, a fifty-one-year-old laboratory technician from Circleville, Ohio.¹ On the morning of March 20, 1992, Myers told his wife that he had something to do before he reported to work at midnight. Although he did not elaborate, his wife knew that he was an Alcoholics Anonymous volunteer and frequently traveled to Columbus to counsel others about drug and alcohol addictions. When his wife returned home from work that afternoon, Myers was not there. He also failed to report to work that evening.

That same morning, Henness's wife, Tabatha, answered a telephone call at Robert Curtis's residence, where she and Henness were staying. The caller identified himself as “Dick” and asked for Henness. After the phone conversation ended, Henness told Tabatha he was going out. A car subsequently arrived for him. Tabatha recognized the driver as “Dick,” a man who had picked up Henness several other times in the same vehicle.

A few hours later, Henness returned to the residence to pick up Tabatha. He was alone and driving Myers's car. The couple drove to a carwash and smoked crack. In his possession, Henness had checks and credit cards belonging to Myers. Tabatha suggested that they contact Roland Fair, a drug dealer acquaintance, to pose as Myers to “po[p] the checks” and “play on the credit cards.”

The next day, Henness and Tabatha drove to Fair's apartment. Henness told Fair that the owner of the checks, credit cards, and car was in a motel room with two prostitutes who were keeping him drunk. While at Fair's apartment, Tabatha saw Henness washing a knife in the bathroom sink. Later, Fair noticed the knife soaking in the sink. The knife had a dark stain on it. Henness told Fair that it was his knife.

Henness, Tabatha, and Fair traveled to several banks and check-cashing outlets for two days, uttering forged checks and getting cash advances with the credit cards. They used the money to buy drugs. They also used the credit cards to buy merchandise, which they then sold for more drugs.

At some point during this activity, Tabatha suggested that Henness tell Fair the truth about Myers. According to Tabatha, Henness told Fair that the owner of the car, checks, and credit cards had pulled a gun on him, Henness shot him, “and the guy died.” According to Fair, Henness never specifically said what he did to Myers, but he did say, “I did not want to do it. He made me do it.” Later, Henness told Fair that the body was in the Nelson Road area in Columbus. The trio discussed possible ways to dispose of it.

A few days later, Tabatha saw Henness with a gold wedding ring that was too big for him. Henness told her it was Myers's ring. Henness also sold Myers's car to a sixteen-year-old drug dealer for $250. Henness forged a bill of sale and signed it “Richard Myers.” The following day, the police recovered the car and impounded it because its owner was reported missing. The police questioned the sixteen-year-old, who told them about Henness.

On March 25, the police received an anonymous telephone call alerting them to the body of a dead man in an abandoned water purification plant. There, police discovered the body of Myers. His shoe laces were tied together, his mouth was gagged, and his hands were bound together behind his back with a coat hanger. They found four shell casings and one live round near his body. The four casings were all ejected from the same weapon. Myers had been shot five times in the head. One bullet had penetrated his brain, killing him. He had a large cut on his neck. Abrasions on his knees showed that his knees had struck a hard surface, and were consistent with being forced to kneel on a concrete floor. Myers's left ring finger had been severed six to eight hours after death.

Columbus police arrested Henness on an unrelated charge. Because he was also a suspect in Myers's murder, homicide detectives questioned him. During the interrogation, Henness claimed Fair approached him with the checks and credit cards, and suggested that Fair may have committed the murder. Henness also told detectives he had not owned a gun since 1990. However, Tabatha and Curtis testified that Henness had a handgun that he sold to a drug dealer about two weeks after Myers's murder.

Henness was later interrogated for a second time. He admitted he was with Myers on March 20, and Myers was helping him seek drug counseling and treatment for Tabatha. He also admitted that Fair was not involved in the murder. Instead, he blamed the murder on some Cubans who were trying to settle a score with him. He stated Myers happened to be at the wrong place at the wrong time.

II. PROCEDURAL HISTORY

Henness was indicted in Ohio on three counts of aggravated murder: (1) murder with prior calculation and design; (2) aggravated robbery-murder; and (3) kidnap-murder. He was also charged with aggravated robbery, kidnapping, forgery, and having a weapon while under disability. He pleaded guilty to the forgery counts and elected to try the weapon charge before the trial court, which found him guilty. A jury convicted him of the remaining counts and recommended a death sentence. The trial court adopted the jury's recommendation and sentenced Henness to death. On direct appeal, the Ohio Court of Appeals affirmed Henness's convictions and sentence of death. State v. Henness, No. 94APA02–240, 1996 WL 52890 (Ohio App. Feb. 6, 1996) (unpublished). The Ohio Supreme Court also affirmed. Henness, 679 N.E.2d at 700.

In 1996, Henness filed a state post-conviction petition, which the trial court denied. The Ohio Court of Appeals affirmed the trial court's denial of his petition. State v. Henness, No. 97APA04–465, 1999 WL 739588 (Ohio App. Sept. 23, 1999) (unpublished). The Ohio Supreme Court denied Henness permission to further appeal this decision.

In 2001, Henness's counsel filed a motion to reopen his direct appeal under Ohio App. R. 26(B) with the Ohio Court of Appeals. Henness also filed a pro se Rule 26(B) motion. The court denied both motions because Henness had not established good cause for his failure to timely file the motions. Although Henness attempted to appeal this decision to the Ohio Supreme Court, the court rejected his appeal as untimely.

In 2001, Henness also filed a § 2254 petition in federal court, alleging numerous violations of his constitutional rights. The district court subsequently dismissed his petition as meritless. Henness v. Bagley, No. 2:01–cv–043, 2007 WL 3284930 (S.D.Ohio Oct. 31, 2007).

III. STANDARD OF REVIEW

We review a district court's dismissal of a § 2254 petition de novo. Garcia v. Andrews, 488 F.3d 370, 373 (6th Cir.2007). We review the court's factual findings for clear error. Hill v. Hofbauer, 337 F.3d 706, 710 (6th Cir.2003). Because Henness filed his petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), that statute governs our review of this case. Under AEDPA, the district court may not grant a habeas petition with respect to any claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of, clearly established federal law; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d).

IV.

A. Ineffective Assistance of Trial and Appellate Counsel

Henness argues that his trial counsel rendered ineffective assistance by failing to file a motion to suppress the fruits of an illegal stop and arrest. Because the Ohio Supreme Court did not rule on the...