Henderson v. Palmer
| Citation | 730 F.3d 554 |
| Decision Date | 12 September 2013 |
| Docket Number | No. 11–1943.,11–1943. |
| Parties | Terrence HENDERSON, Petitioner–Appellant, v. Carmen PALMER, Warden, Respondent–Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
OPINION TEXT STARTS HERE
ON BRIEF:John K. Crisham, Andrew C. Phillips, Kirkland & Ellis LLP, Washington, D.C., for Appellant. Mark G. Sands, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.
Before: COLE and DONALD, Circuit Judges; MARBLEY, District Judge. *
Petitioner–Appellant Terrence Henderson appeals the district court's denial of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. He contends that the district court erred in finding his first, second, third, and fifth claims of error to be procedurally defaulted. The basis for finding procedural default was the lateness of Henderson's application for leave to appeal the trial court's denial of his first motion for reconsideration. The late arrival caused the Michigan Court of Appeals to dismiss his application as untimely. Henderson argues that the district court's decision neglected controlling Sixth Circuit law, specifically, Maples v. Stegall, 340 F.3d 433 (6th Cir.2003). The Appellee concedes that the district court neglected Maples, but proposes alternative grounds for finding Henderson's claims to be procedurally defaulted. We reverse the district court.
On February 7, 2003, in Lansing, Michigan, the Petitioner–Appellant, Terrence Henderson, was stopped by a police officer for driving 35 miles per hour in a 25 miles per hour zone. When the officer entered the vehicle's information into the police database, he discovered that the vehicle had been reported stolen in Detroit. The officer arrested Henderson and transferred him to the custody of the Detroit Police Department. In Detroit, Officer Mark Burke attempted to organize a live lineup, but could not locate five males of defendant's description. Officer Burke “called around to the different precincts [in Detroit, Michigan] but could not find any black males in custody that fit defendant's description.” Officer Burke then decided to conduct a photographic lineup, at which Henderson was identified as the suspect in a carjacking. Police records state that an attorney representing Henderson's interests, Timothy Corr, was present for the photographic lineup. After Henderson's conviction, however, Corr wrote a letter to Henderson stating that he had not been present at the lineup and that any record to the contrary was erroneous.
At trial, Henderson's counsel neither challenged the admission of the photographic lineup, nor testimony regarding it. In fact, Henderson's counsel chose not to present any evidence at trial. The jury found Henderson guilty of armed robbery and carjacking.
Henderson appealed his conviction to the Michigan Court of Appeals. Once Henderson received the letter from Corr, he requested that his appellate counsel include it in a supplemental brief. Appellate counsel refused, stating that Henderson must first pay him for the work he had already performed. He also informed Henderson that Henderson himself could file a brief. Appellate counsel did not object to the prosecutor's alleged solicitation of false evidence. The court of appeals denied Henderson's appeal.
Appellate counsel then erroneously informed Henderson that he had until April 15, 2005 to apply for leave to appeal to the Michigan Supreme Court when the actual deadline was April 7, 2005. Henderson's application, which arrived on April 8, 2005 was rejected as untimely.
On November 11, 2005, Henderson filed his first motion for relief from judgment in the original trial court. He raised four claims:
(1) Trial counsel was ineffective for failing to challenge admission of the photographic lineup;
(2) The prosecutor violated Henderson's right to a fair trial by soliciting false evidence and testimony about the presence of an attorney at the photographic lineup;
(3) Trial counsel was ineffective for failing to investigate whether there was an attorney present at the photographic lineup; and
(4) Appellate counsel was ineffective for failing to raise the first three issues on direct appeal.
In a two-page decision, the trial court denied Henderson's motion pursuant to Michigan's Rule of Criminal Procedure 6.504(B)(2), finding that “it appears from the face of the materials presented that defendant is not entitled to relief.”
Under Michigan law as it stood then, Henderson had one year during which to file an appeal, giving him until December 5, 2006. Henderson proceeded pro se in preparing his appeal and submitted his filing packet to the prison mailroom on November 30, 2006. As a result of failings by the prison's mail system, Henderson's packet did not arrive until one day after the filing deadline. The court of appeals dismissed Henderson's application for lack of jurisdiction on account of its lateness. Henderson appealed the dismissal, but the Michigan Supreme Court also denied his application for leave to appeal, without considering the merits.
On November 2, 2007, Henderson filed a petition for habeas corpus in the United States District Court for the Eastern District of Michigan. The district court held the petition in abeyance to allow Henderson to exhaust certain claims, none of which is presented by the appeal sub judice, not previously presented to Michigan courts.
Again, the original trial court denied Henderson's motion for relief, finding no new evidence or retroactive change in the law necessary to support such a motion. Henderson applied for leave to appeal, but Michigan Rule of Criminal Procedure 6.502(G) prohibits an appeal from “the denial or rejection of a successive motion [for relief from judgment].” Accordingly, the court of appeals denied his application.
The district court then lifted the stay on Henderson's habeas petition. The petition presented twelve claims of error. The district court found that four of the claims were procedurally defaulted because Henderson “did not fairly present them to the Michigan Supreme Court because his application for leave to appeal was untimely and not accepted for filing.” The district court also found that five claims were procedurally defaulted. Henderson had presented those five claims for the first time in his second motion for relief from judgment. Thus, the state courts had disposed of the claims on procedural grounds and they had not been exhausted. No remedy remained to exhaust those claims and Henderson had not established the necessary elements, cause and prejudice, to excuse his default. Contrary to the district court's understanding, however, Henderson's claim that appellate counsel was ineffective for failing to raise certain errors of trial counsel had actually been presented in Henderson's first motion for relief from judgment. Finally, the district court denied Henderson's second, third, and fifth claims because his application for leave to appeal the trial court's denial of his first motion for relief from judgment was rejected when it failed to arrive at the court of appeals within the 12–month deadline, for reasons discussed supra. Henderson filed a motion for reconsideration which the district court also denied.
Proceeding pro se, Henderson then applied to this Court for a certificate of appealability, arguing, in relevant part, that the district court had erred in finding the claims presented by his first motion for relief from judgment to be procedurally defaulted. The first certificate of appealability granted Henderson leave to proceed on the second, third, and fifth claims of his habeas petition:
II. The prosecutor violated Mr. Henderson's rights to a fair trial under the Fourteenth Amendment of the United States Constitution and Michigan Constitution 1963, Art. 1, § 17, by the soliciting of false evidence and testimony to obtain a conviction.
III. Mr. Henderson was denied the effective assistance of trial counsel in violation of the Sixth Amendment where trial counsel (1) failed to investigate [ sic ] (2) failed to uphold and protect Mr. Henderson's state and federal due process rights.
V. Defendant was denied his Sixth Amendment right to the effective assistance of counsel, when his counsel failed to seek suppression of the photographic show up [ sic ] that was conducted with the complainant while Defendant was in custody.
On Henderson's motion for reconsideration, this Court subsequently expanded the certificate of appealability to include Henderson's first claim:
I. Petitioner was denied the effective assistance of appellate counsel where counsel failed to raise the [preceding] issues [II and III], and where counsel gave Mr. Henderson inaccurate advice.
Since that claim had actually been raised in Henderson's first motion for relief from judgment, it was not procedurally defaulted.
Hence, we now consider the first, second, third, and fifth claims in Henderson's habeas petition. For the reasons stated herein, the district court's denial of those claims as procedurally defaulted is VACATED. We remand all four claims to the district court for further proceedings consistent with this opinion.
Petitioner appeals the denial of his petition for habeas corpus by the district court, pursuant to 28 U.S.C. § 2254. We have jurisdiction to consider the appeal pursuant to 28 U.S.C. §§ 1291 and 2253.
In a habeas proceeding, we review the district court's legal conclusions de novo and its factual findings for clear error. Adams v. Holland, 330 F.3d 398, 400 (6th Cir.2003). Pursuant to the Antiterrorism and Effective Death Penalty Act, habeas relief is available to a state prisoner only where “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(a). Generall...
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