Henderson v. Collins, No. C-1-94-106.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtSpiegel
Citation101 F.Supp.2d 866
PartiesJerome HENDERSON, Petitioner, v. Terry COLLINS, Respondent.
Docket NumberNo. C-1-94-106.
Decision Date04 August 1999
101 F.Supp.2d 866
Jerome HENDERSON, Petitioner,
v.
Terry COLLINS, Respondent.
No. C-1-94-106.
United States District Court, S.D. Ohio, Western Division.
August 4, 1999.

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Harry R. Reinhart, Columbus, OH, Gerald Gordon Simmons, Columbus, OH, for Jerome Henderson, petitioner.

Lee I. Fisher, Ohio Attorney General, Columbus, OH, Jonathan R. Fulkerson, Assistant Attorney General, Capital Crimes Section, Columbus, OH, Stuart W. Harris, Stephanie L. Watson, Ohio Attorney General, Corrections Litigation, Columbus, OH, for Terry Collins, Warden SOCF, respondent.

ORDER

SPIEGEL, Senior District Judge.


This matter is before the Court on Petitioner Jerome Henderson's Petition for a Writ of Habeas Corpus (doc. 4); Respondent's Return of Writ (doc. 12); and Petitioner's Motion for Leave to File Traverse, Memorandum of Procedural Default, Motion to Expand the Record, and Motion to Compel Respondent to Complete the Record Instanter (doc. 77). The Court also takes into consideration Petitioner's Post-Hearing Memorandum (doc. 94) and Respondent's Post-Oral Argument Brief (doc. 97).

 Table of Contents
                I. Introduction ............................................................ 875
                 II. Factual Background .................................................... 876
                III. Standard of Review .................................................... 878
                 IV. Applicability of the AEDPA ............................................ 878
                 V. Analysis of Petitioner's Claims ....................................... 878
                 A. The Doctrine of Procedural Default ................................. 879
                 B. Petitioner's Claim of Ineffective Assistance of Appellate Counsel... 880
                 — Claims 13 & 27 ................................................. 880
                 C. Other Claims Respondent Asserts Were Procedurally Defaulted ........ 888
                 — Claim 2(A) ..................................................... 880
                 — Claim 8 ........................................................ 889
                 — Claim 10 ....................................................... 890
                 — Claim 10(A) .................................................... 891
                 — Claim 10(B) .................................................... 892
                 — Claim 11 ....................................................... 895
                 — Claim 12 ....................................................... 896
                

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 — Claim 14 ....................................................... 896
                 — Claims 17(A) & 24 .............................................. 897
                 — Claim 19 ....................................................... 897
                 — Claim 25 ....................................................... 898
                 — Claim 26 ....................................................... 898
                 D. Claims That Must Be Addressed On The Merits ........................ 899
                 — Claim 1 ........................................................ 899
                 — Claim 2 ........................................................ 902
                 — Claim 3 ........................................................ 904
                 — Claim 4 ........................................................ 905
                 — Claim 5 ........................................................ 908
                 — Claim 6 ........................................................ 910
                 — Claim 7 ........................................................ 911
                 — Claim 9 ........................................................ 913
                 — Claim 16 ....................................................... 918
                 — Claim 17 ....................................................... 919
                 — Claim 18 ....................................................... 920
                 — Claims 20, 21, 22 & 23 ......................................... 923
                 — Claim 26 (Merits) .............................................. 924
                 — Claims 10(A) and 10(B) (Merits) ................................ 928
                 E. Conclusion ......................................................... 929
                

I. INTRODUCTION

This is a capital case. Petitioner Henderson has been sentenced to death by the State of Ohio.

Petitioner was convicted of aggravated murder and sentenced to death by the Hamilton County Court of Common Pleas for the murder of Mary Acoff in her home at 1944 Highland Avenue in Cincinnati, Ohio on or about March 3, 1985. The jury recommended the state court sentence Petitioner to death for the aggravated murder conviction. The jury also recommended that Petitioner be sentenced to consecutive prison terms of seven to twenty-five years for the aggravated burglary conviction and eight to fifteen years for the attempted rape conviction (Appendix to Return of Writ ("R.O.W."), Vol. I, Ex. B). At his capital trial, Petitioner was represented by attorney Clayton Shea.

On July 22, 1986, Petitioner pursued a direct appeal of his conviction in the Ohio Court of Appeals, asserting fourteen assignments of error related to his trial proceedings (Id., Ex. D). Additionally, after noting that issues of proportionality review could not be raised as an assignment of error, Petitioner objected to the adequacy of the court's proportionality review in a separate section of his appeal (Id. at 48). Subsequent to the State filing its brief in opposition, Petitioner filed a pro se motion for leave to rebrief and file additional issues on September 25, 1986 (Id., Ex. NN).1 In his pro se motion, Petitioner maintained that his appellate counsel failed to raise several issues that he believed should have been raised. The court denied Petitioner's motion for leave to rebrief and file additional issues on October 15, 1986 (Id., Vol. IV, Ex. PP). The Court of Appeals also affirmed his conviction and sentence of death on January 14, 1987 (Id., Vol. I, Ex. F). In his direct appeals, Petitioner was represented by attorneys D. Shannon Smith and Timothy A. Smith.

Petitioner appealed to the Ohio Supreme Court (Id., Ex. G). The Ohio Supreme Court affirmed his conviction and sentence on September 28, 1988 (Id., Ex. I). State v. Henderson, 39 Ohio St.3d 24, 26, 528 N.E.2d 1237, 1240 (1988). He was again represented by attorneys D. Shannon Smith and Timothy A. Smith. Petitioner then filed a Petition for Writ of Certiorari to the United States Supreme Court. However, the Supreme Court denied the Petition. See Henderson v. Ohio, 489 U.S.

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1072, 109 S.Ct. 1357, 103 L.Ed.2d 824, reh'g denied, 490 U.S. 1042, 109 S.Ct. 1947, 104 L.Ed.2d 417 (1989).

Thereafter, Petitioner pursued post-conviction relief in the Ohio courts on November 15, 1989 (Appendix to R.O.W., Vol. II, Ex. L). The State moved to dismiss each of the claims in Petitioner's post-conviction petition. Petitioner subsequently moved to amend his post-conviction petition to assert a claim of ineffective assistance of appellate counsel (Id., Ex. O). Petitioner asserted that his counsel on appeal had failed to raise the claim of ineffective assistance of trial counsel. Petitioner also moved that the court hold an evidentiary hearing on the claim to address matters outside the record. The court dismissed each of Petitioner's post-conviction claims on the grounds of res judicata, except for his eighth claim of ineffective assistance of trial counsel (Id., Ex. Q). The court conducted an evidentiary hearing on December 17 and 18, 1990, to address Petitioner's claim of ineffective assistance of trial counsel. The court denied Petitioner's motion to amend his post-conviction petition and struck the motion from the record (Id., Ex. S).

Petitioner filed a notice of appeal to the Hamilton County Court of Appeals on February 22, 1991 (Id., Ex. T). On March 7, 1991, the court ordered the cause dismissed on the grounds that the notice of appeal was untimely (Id., Vols. II & III, Exs. V & W). Petitioner next appealed to the Ohio Supreme Court; however, the Ohio Supreme Court sustained the dismissal (Id., Vol. IV, Ex. AA). The Ohio Supreme Court also denied a motion by Petitioner for a rehearing on September 18, 1991 (Id., Ex. FF).

On December 5, 1991, Petitioner filed a Petition for a Writ of Habeas Corpus with this Court. However, on September 22, 1992, this Court dismissed the petition without prejudice to enable Petitioner to exhaust his claim of ineffective assistance of appellate counsel in the Ohio courts (See Order issued September 22, 1992).

On November 23, 1992, Petitioner filed an Application for delayed Reconsideration in the Hamilton County Court of Appeals (R.O.W., Ex. GG). On March 12, 1993, the court of appeals denied Petitioner's Application (R.O.W., Ex. HH). On May 7, 1993, Petitioner appealed the decision of the court of appeals to the Ohio Supreme Court. However, the Ohio Supreme Court affirmed the appellate court's decision on October 27, 1993 (Id., Ex. MM).

Petitioner then filed the current Petition for a Writ of Habeas Corpus in this Court pursuant to Title 28 U.S.C. § 2254 on February 4, 1994 (doc. 4). Respondent filed his Return of Writ on June 10, 1994 (doc. 12). After a flurry of filings by the parties and orders by the Court, the Court held a hearing on the Petition for a Writ of Habeas Corpus on December 3, 1997. Subsequent to the hearing, Petitioner filed a post-hearing memorandum on January, 12, 1998. Respondent also filed a post-hearing memorandum on January 16, 1998.

II. FACTUAL BACKGROUND

The charges against Petitioner arose from events that occurred on March 3, 1985. The following factual background comes directly from the Ohio Supreme Court's opinion in this case, in which the court affirmed the conviction and sentence of Petitioner.

Around 10:45 p.m., March 2, 1985, [Mary] Acoff left her basement-level apartment at 1944 Highland Avenue in Cincinnati and went to the apartment of her boyfriend, James Martin, who lived in the same building. Martin and Acoff engaged in sexual intercourse. Acoff left...

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18 practice notes
  • Davie v. Mitchell, No. 1:99CV2400.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 6, 2003
    ...no federal constitutional requirement that a state appellate court conduct comparative proportionality review." Henderson v. Collins, 101 F.Supp.2d 866, 920 (S.D.Ohio 1999), aff'd in part and rev'd in part on other grounds, 262 F.3d 615 (6th Cir.2001) (citing Pulley v. Harris, 465 U.S. 37, ......
  • Franklin v. Anderson, No. 03-3636.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 9, 2006
    ...whether there are substantive grounds for relief. Murnahan, 584 N.E.2d at 1209 (footnotes omitted); see also Henderson v. Collins, 101 F.Supp.2d 866, 887 (S.D.Ohio 1999) (concluding that "neither the Murnahan decision nor Ohio App. R. 14(B) set an outer limit or absolute deadline that would......
  • Adams v. Tribley, CASE NO. 2:13-CV-10735
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • January 4, 2016
    ...right to present pro se briefs on direct appeal. Myers v. Johnson, 76 F. 3d 1330, 1335 (5th Cir. 1996); see also Henderson v. Collins, 101 F. Supp. 2d 866, 881 (S.D. Ohio 1999); aff'd in part, vacated in part on other grds 262 F. 3d 615 (6th Cir. 2001)(defendant who was represented by couns......
  • Foster v. Smith, Case No. 16-cv-11898
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • June 4, 2019
    ...right—to present pro se briefs on direct appeal. Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996); see also Henderson v. Collins, 101 F. Supp. 2d 866, 881 (S.D. Ohio 1999) aff'd in part, vacated in part on other grounds 262 F.3d 615 (6th Cir. 2001) (defendant who was represented by coun......
  • Request a trial to view additional results
18 cases
  • Davie v. Mitchell, No. 1:99CV2400.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 6, 2003
    ...no federal constitutional requirement that a state appellate court conduct comparative proportionality review." Henderson v. Collins, 101 F.Supp.2d 866, 920 (S.D.Ohio 1999), aff'd in part and rev'd in part on other grounds, 262 F.3d 615 (6th Cir.2001) (citing Pulley v. Harris, 465 U.S. 37, ......
  • Franklin v. Anderson, No. 03-3636.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 9, 2006
    ...whether there are substantive grounds for relief. Murnahan, 584 N.E.2d at 1209 (footnotes omitted); see also Henderson v. Collins, 101 F.Supp.2d 866, 887 (S.D.Ohio 1999) (concluding that "neither the Murnahan decision nor Ohio App. R. 14(B) set an outer limit or absolute deadline that would......
  • Adams v. Tribley, CASE NO. 2:13-CV-10735
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • January 4, 2016
    ...right to present pro se briefs on direct appeal. Myers v. Johnson, 76 F. 3d 1330, 1335 (5th Cir. 1996); see also Henderson v. Collins, 101 F. Supp. 2d 866, 881 (S.D. Ohio 1999); aff'd in part, vacated in part on other grds 262 F. 3d 615 (6th Cir. 2001)(defendant who was represented by couns......
  • Foster v. Smith, Case No. 16-cv-11898
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • June 4, 2019
    ...right—to present pro se briefs on direct appeal. Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996); see also Henderson v. Collins, 101 F. Supp. 2d 866, 881 (S.D. Ohio 1999) aff'd in part, vacated in part on other grounds 262 F.3d 615 (6th Cir. 2001) (defendant who was represented by coun......
  • Request a trial to view additional results

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