Henderson v. Campbell
| Decision Date | 16 December 2003 |
| Docket Number | No. 01-16901.,01-16901. |
| Citation | 353 F.3d 880 |
| Parties | Jerry Paul HENDERSON, Petitioner-Appellant, v. Donal CAMPBELL, Commissioner of the Alabama Department of Corrections, Attorney General for the State of Alabama, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Patrick Burkett, Justin C. Ravitz, Richard L. Groffsky, Southfield, MI, for Petitioner-Appellant.
J. Clayton Crenshaw, Montgomery, AL, for Respondents-Appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
Jerry Paul Henderson ("Henderson") was convicted of murder in the state courts of Alabama and received a death sentence. The district court denied Henderson's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on each of the several asserted constitutional claims for relief. In denying Henderson's petition, the district court concluded that many of Henderson's claims, including those alleging ineffective assistance of trial counsel, had been procedurally defaulted by Henderson's voluntary dismissal of his Rule 32 state post-conviction petition prior to any adjudication on the merits. After denying the writ, the district court granted Henderson a certificate of appealability to review the district court's rejection of the following two alternative arguments of "cause" to excuse his procedural default: (1) Henderson's waiver of his right to proceed under Alabama Rule 32 was not knowing, voluntary, and intelligent, because Henderson lacked a sufficient understanding of his rights and the actual legal claims being dismissed; and (2) Henderson's waiver was involuntary because it was the product of the undue influence of a Rule 32 counsel saddled by conflicting interests.
On May 19, 1988, Henderson was found guilty of capital murder and sentenced to death in Talladega County Circuit Court in Talladega, Alabama. His conviction and sentence were subsequently affirmed by the Alabama Court of Criminal Appeals. Henderson v. State, 583 So.2d 276 (Ala. Crim.App.1990).1 The Supreme Court of Alabama affirmed, Ex parte Henderson, 583 So.2d 305 (Ala.1991), and the Supreme Court of the United States denied Henderson's petition for writ of certiorari, Henderson v. Alabama, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992).
On October 13, 1993, two Maryland attorneys filed a petition in the state courts of Alabama on Henderson's behalf, seeking post-conviction relief pursuant to Alabama Rule of Criminal Procedure 32.2 Shortly thereafter, the two attorneys sought and received a withdrawal as counsel due to financial inability to continue on Henderson's behalf. The court then sought to replace Henderson's counsel, first seeking the assistance of Lisa Borden, an Alabama attorney who had appeared as local counsel along with the two Maryland attorneys. After Borden was unable to find substitute counsel for Henderson, Judge Fielding3 granted her motion to withdraw on July 30, 1996, and appointed Steve Giddens ("Giddens") of Talladega to represent Henderson in the Rule 32 proceeding.
On April 22, 1997, approximately nine months after Giddens' appointment, an evidentiary hearing was held in the Rule 32 proceeding. At that hearing, on behalf of Henderson, Giddens moved to dismiss the Rule 32 petition. Giddens explained that he had discussed the petition with Henderson and that his client was satisfied with his trial counsel and did not want to continue the claims of ineffective assistance or pursue any other challenges to his conviction and sentence. Giddens told the court that he believed that Henderson was fully aware of the situation and had plenty of time to consider the decision. Judge Fielding engaged Henderson in an extensive colloquy regarding his decision to dismiss the Rule 32 petition and its possible consequences.4
The court explained that Henderson's Rule 32 petition set forth allegations relating to his 1988 trial that would, if true, result in a new trial.5 The court explained to Henderson that the dismissal would significantly impair Henderson's chances of any successful appeal from the Rule 32 proceeding as well as any chances of success in any subsequent action in federal court.6 The court explained that the dismissal could speed up the date of his execution and would bring Henderson a step closer to having his sentence of death carried out.7 To each of the court's explanations, Henderson acknowledged that he understood.8 He also agreed that he was making his decision out of his own free will, knowingly, and voluntarily, and that no one had threatened, coerced, made promises, or tricked him into dismissing the petition.9 After this extensive colloquy, the court found that Henderson's motion to dismiss his Rule 32 petition was being made knowingly, intelligently, and voluntarily. As a result, Judge Fielding granted Henderson's motion to dismiss from the bench, and on May 29, 1997 entered a formal order with findings of fact and conclusions of law consistent with his findings.
Following the dismissal, Giddens and Henderson had no further communications with each other. On July 10, 1997, counsel from the Equal Justice Initiative in Montgomery, Alabama, filed a notice of appeal from the order dismissing Henderson's Rule 32 petition. In October of 1997, Henderson's current counsel took over and submitted a brief on behalf of Henderson to the Alabama Court of Criminal Appeals.
On appeal, Henderson argued that he "did not voluntarily, knowingly, and intelligently waive his post-conviction remedies under Rule 32," and asked the court to "reverse the order dismissing his Rule 32 petition and remand it to the circuit court for a full and fair evidentiary hearing." Henderson argued that he had seen the petition for the first time just the day prior to the dismissal and was never made aware of the specific allegations contained therein. Consequently, he claimed that he could not under those circumstances effectively waive his post-conviction remedies.
On August 14, 1998, the Alabama Court of Criminal Appeals affirmed, holding that the circuit court was correct in finding that Henderson possessed requisite mental competence to dismiss his petition and that he did so voluntarily, knowingly, and intelligently. Henderson v. State, 733 So.2d 484 (Ala.Crim.App.1998). In reaching its conclusion, the Alabama appellate court considered the colloquy between Judge Fielding and Henderson, and noted that Henderson was responsive and coherent during the colloquy and demonstrated "that he moved for a dismissal of the petition voluntarily, knowingly, and intelligently with an awareness of the consequences." Id. at 490. The court was satisfied that the record adequately illustrated that Henderson "understood the legal options available to him, and that he made a rational choice from those options." Id.
On October 19, 1998, the Supreme Court of Alabama granted Henderson's petition for writ of certiorari, but later reconsidered and quashed the writ on April 23, 1999. On October 27, 1999, Henderson filed a second Rule 32 petition in the Talladega County Circuit Court which was dismissed pursuant to Rule 32.2(b) (successive petitions) and (c) (statute of limitations) of the Alabama Rules of Criminal Procedure.
On April 11, 2000, Henderson filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Alabama, pursuant to 28 U.S.C. § 2254, setting forth numerous constitutional claims for relief. Respondents, Michael Haley as Commissioner of the Alabama Department of Corrections, and William H. Pryor, Jr., the Attorney General of the State of Alabama, argued that all of Henderson's claims that could have been raised in the Rule 32 proceeding, including his claims of ineffective assistance of counsel, had been procedurally defaulted. Some of these claims were raised in the Rule 32 petition dismissed by Henderson, while other claims could have been but were never raised in the state courts at all. Alabama argued that Henderson failed to properly exhaust these claims, and because the claims could no longer be raised in the state courts, they had been procedurally defaulted. Several of Henderson's § 2254 claims, however, were raised either at trial or on direct appeal, and could not have been raised in the Rule 32 petition. Respondents challenged these particular claims only on the merits, conceding that they were not procedurally defaulted.
As to the claims included in the Rule 32 petition, Henderson argued that he lacked a sufficient understanding of these claims at the time of his motion to dismiss, and therefore, his dismissal was not knowing, voluntary, and intelligent. From that, Henderson argued, the district court should find sufficient "cause and prejudice" to excuse his procedural default. Also, for the first time, Henderson pointed out that Steve Giddens, his Rule 32 counsel, was the brother of one of the prosecutors who participated in his 1988 trial. Rod Giddens,10 Steve's brother, second-chaired Henderson's prosecution, examined several witnesses, and delivered parts of the state's closing argument in both the guilt-innocence and penalty phases of the trial. Henderson also noted for the first time in his federal petition, that Steve Giddens was a lifelong friend of the murder victim's brother, a local police officer named Billy Haney. Because of alleged conflicts arising from these relationships, Henderson argued that the dismissal of his Rule 32 petition was the product of the undue influence of Steve Giddens, his Rule 32 counsel, and therefore was not a knowing, voluntary, and intelligent waiver. On January 18, 2001, the magistrate judge entered an order directing an evidentiary hearing to be held.11
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...had a right to counsel." Id. In addition to establishing cause, the petitioner must be able to establish prejudice. Henderson v. Campbell, 353 F.3d 880, 882 (11th Cir. 2003). A petitioner can make this showing by establishing that "there is at least a reasonable probability that the result ......
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