Henry v. Warden, 12–16552.

• Decision Date: 02 May 2014
• Docket Number: No. 12–16552.,12–16552.
• Citation: 750 F.3d 1226
• Parties: George Russell HENRY, Petitioner–Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

750 F.3d 1226

George Russell HENRY, Petitioner–Appellant,

v.WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent–Appellee.

No. 12–16552.

United States Court of Appeals,

Eleventh Circuit.

May 2, 2014.

Susan Jill Benton, Jeffrey Lyn Ertel, Federal Defender Program, Inc., Atlanta, GA, for Petitioner–Appellant.

Beth Attaway Burton, Sabrina Graham, Attorney General's Office, Atlanta, GA, for Respondent–Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

D.C. Docket No. 1:06–cv–02470–WBH.

Before HULL, WILSON, and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

George Russell Henry, a Georgia prisoner sentenced to death after pleading guilty to the murder of a police officer, Robert Ingram, appeals the denial of his petition for a writ of habeas corpus. Henry argues that he was deprived of a fair trial when the trial court excused a juror from deliberations about his sentence. Henry alleges that the juror was a holdout from voting to sentence him to death. The foreman of the jury informed the trial court that the juror was impeding deliberations, and the juror, who was pregnant, confirmed that fact. After Henry's counsel failed to raise an issue of juror misconduct on appeal, the state courts, on collateral review, refused to consider it. Henry argues that we should excuse his failure to raise the issue on direct appeal because he was deprived of the effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments to the Constitution. We affirm the denial of Henry's petition.

I. BACKGROUND

Police Officer Robert Ingram of Cobb County, Georgia, was on routine patrol when he saw a “suspicious white male dressed in all black carrying some type of a bag.” Henry v. State, 269 Ga. 851, 507 S.E.2d 419, 420 (1998) (internal quotation marks omitted). Officer Ingram approached the man, George Russell Henry, to conduct an investigatory stop. Id. at 420–21. Officer Ingram asked Henry what his bag contained, and Henry began to show him some of its contents. Id. at 421. But Henry, a convicted felon, was carrying a pistol because he had been searching for businesses to burgle before Officer Ingram stopped him. Id. at 420. When Henry realized that Officer Ingram had seen ammunition for the pistol in his bag, Henry feared that a search could lead to his arrest for being a felon in possession of a firearm. Id. at 421. So Henry murdered Officer Ingram by shooting him twice in the head. Id.

Henry eventually confessed to the murder of Officer Ingram and pleaded guilty on the first day of his trial. Id. The trial court then held a sentencing phase. Id. During the first day of jury deliberations, one of the jurors, Beth Hill, had severe abdominal pain and went to the hospital. Hill had learned shortly before trial that she was pregnant, and at the hospital, the doctor informed her that she might be pregnant with twins. The doctor then cleared her to return to the jury deliberations, which the trial court had suspended in her absence. After deliberations began the following day, the jury foreman sent a note to the court that stated Hill wished to be released from the jury out of concern for her child and that the other jurors felt that they could not freely discuss the case in her presence because they feared upsetting Hill, who had been extremely emotional throughout deliberations, and they feared endangering her child.

The trial court called the jury foreman to discuss the note. The foreman explained that an incident in Hill's past had contributed to her emotional state. Both the court and counsel were already aware that, as a child, Hill had witnessed a multiple murder at her school. Hill stated during voir dire that she had difficulty dealing with violent images as a result of her experience. At one point during the trial, Hill became so upset, after viewing a video of the crime scene, that the trial court recessed for her to compose herself. The foreman explained to the court that, when Hill became upset during deliberations, she would become concerned for the welfareof her child and that she would begin to have stomach pain. He stated that Hill had approached him and told him that she wanted the court to remove her from the jury and that both Hill and the rest of the jury believed her removal was necessary.

The court asked whether Hill's presence would impede a free and open discussion among the members of the jury if she were to remain, and the foreman stated that it would. He also confirmed that Hill's condition had already impeded an open discussion in the jury room.

The trial court called Hill next. The court asked Hill why she had requested that the court remove her from the jury. Hill responded that it was a combination of her traumatic past and her pregnancy: “[W]ith the combination of the two, ... I just feel that I can't handle it anymore.... I've tried, but I don't feel I can.” She also explained that the other jurors were afraid to voice their opinions out of fear that it would upset her, and when the court asked whether she believed that her presence was impeding deliberations, she replied, “I know it is, yes.” She explained that the jury was concerned about her and the safety of her child. The court also asked Hill if fear for her child prevented her from “becoming an open participant” in deliberations. Hill responded, “Probably, yes,” and then, “Yes, it does.”

After hearing from counsel for both sides, the trial court excused Hill from the jury. The court made a finding of fact that, with Hill on the jury, “the jury [could] not continue to freely discuss this case and have an open, unfettered discussion of ideas, which is required and which is desired, of course, in all jury deliberative processes.” The court replaced Hill with an alternate juror and directed Hill to the judge's chambers to collect payment for her service. Hill never protested her removal nor asked to speak to the judge alone. After her excusal, the jury voted to sentence Henry to death. See Henry, 507 S.E.2d at 420 n. 1.

After his sentencing, Henry's counsel moved for investigative assistance, including funds to interview jurors, but the trial court denied the motion. Henry next filed a motion for new trial and included a one-sentence argument alleging that the trial court erred when it excused Hill from deliberations. The trial court denied the motion.

In his appeal to the Supreme Court of Georgia, Henry failed to raise a claim that the excusal of the pregnant juror deprived him of a fair trial in violation of the Constitution. The Supreme Court of Georgia affirmed Henry's sentence, Henry, 507 S.E.2d at 423, and the Supreme Court of the United States denied his petition for a writ of certiorari, Henry v. Georgia, 526 U.S. 1118, 119 S.Ct. 1768, 143 L.Ed.2d 798 (1999), reh'g denied,527 U.S. 1054, 120 S.Ct. 15, 144 L.Ed.2d 819 (1999).

Henry later filed a state petition for a writ of habeas corpus, in which he alleged a claim of juror misconduct. Henry contended that the jury conspired to remove Hill because she was a holdout in favor of a life sentence and that this misconduct deprived him of a fair and reliable sentencing trial in violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments when the trial court removed Hill from the jury. He also contended that ineffective assistance of counsel provided cause and prejudice to overcome the procedural default of failing to raise a claim of juror misconduct on appeal. The state court denied Henry's petition and ruled that his claim of juror misconduct was procedurally defaulted because he did not raise it on direct appeal and could not establish cause and prejudice to overcome the default. Henry then applied to the Supreme Court of Georgia for a certificate of probable cause to appeal, but the court denied his application. He also filed a petition for a writ of certiorari in the Supreme Court of the United States, which denied his petition. Henry v. Terry, 549 U.S. 909, 127 S.Ct. 241, 166 L.Ed.2d 190 (2006).

Henry then filed a federal petition for a writ of habeas corpus in the district court and alleged several claims for relief, including a claim of juror misconduct. He requested discovery and an evidentiary hearing for his claim of juror misconduct, which the district court denied. The district court then denied his petition and ruled that his claim of juror misconduct was procedurally defaulted. The district court granted Henry a certificate of appealability for his claim of juror misconduct and the related orders that denied Henry's requests for discovery and an evidentiary hearing.

II. STANDARD OF REVIEW

We review de novo the determination of a district court that a habeas petitioner is procedurally barred from raising a claim in federal court. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1345 (11th Cir.2004).

III. DISCUSSION

The federal doctrine of procedural default may bar a district court from reviewing a petitioner's claim if a state court rejected it on a state procedural ground. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001). The state procedural ruling ordinarily provides an “adequate and independent” ground to deny relief under state law, which bars federal review of the underlying claim. See Marek v. Singletary, 62 F.3d 1295, 1301 (11th Cir.1995). But if a claim is procedurally defaulted, a federal court may still address the merits of the claim if the petitioner establishes cause for the default and actual prejudice. See Wainwright v. Sykes, 433 U.S. 72, 87–88, 97 S.Ct. 2497, 2506–07, 53 L.Ed.2d 594 (1977). To establish cause, the petitioner must identify “some objective factor external to the defense” that impeded his ability to raise the claim in state court. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). We have determined that a claim for ineffective assistance of counsel, if both exhausted and not procedurally defaulted, may constitute cause. See Hill v....