Henry v. Hooper
| Decision Date | 25 February 2022 |
| Docket Number | Civil Action 20-3058 |
| Parties | TYRONE HENRY v. TIMOTHY HOOPER, WARDEN |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION “D” (4)
REPORT AND RECOMMENDATION
This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).[1]
I. Factual Background
The petitioner, Tyrone Henry (“Henry”), is a convicted inmate incarcerated in the Dixon Correctional Institute, in Jackson, Louisiana. On November 3, 2016, Henry was charged in Orleans Parish with two counts of first degree rape in violation of La. Rev. Stat. § 14:42 and one count of attempted first degree rape in violation of La. Rev Stat. § 14:42.1.[2] Henry entered a plea of not guilty in the case.[3] On May 31, 2018, pursuant to a plea agreement, charges were amended to two counts of second degree rape and one count of attempted second degree rape.[4] On May 31, 2018, Henry withdrew his former plea and, pursuant to the plea agreement with the State, Henry pled guilty to all three counts.[5]
On June 5, 2018, pursuant to the plea agreement, the Trial Court sentenced Henry to twenty years as to count three and forty years as to counts one and two, to be served at hard labor and to run concurrent.[6] His conviction became final under federal law thirty days later, on July 5, 2018, because he did not seek reconsideration of the sentence or move for leave to appeal. La. Code Crim. P. art. 914.[7] Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) () (quoting Roberts v Cockrell, 319 F.3d 690, 694 (5th Cir. 2003)).
On June 13, 2018, Henry filed an application for post-conviction relief asserting the following claims for relief: (1) ineffective assistance of counsel prior to and at sentencing; (2) the sentence imposed is excessive; and (3) he did not knowingly and intelligently enter into the plea agreement, which he entitled “Breach of the Plea Bargain Agreement.”[8] On July 1, 2019, the Trial Court denied the application finding his claims were not cognizable for post-conviction review and citing La. Code Crim. P. 930.3 and State ex rel Melinie v. State, 665 So.2d 1172 (La. 1996).[9]
The Louisiana Fourth Circuit denied Henry's related writ application.[10] The court found that the Trial Court correctly denied Henry's excessive sentence and ineffective assistance of counsel in sentencing claims, citing State ex rel. Melinie.[11] The court found that Henry's challenge to his guilty plea was cognizable, but that he had not made a threshold showing that he was entitled to post-conviction relief.[12]
On February 26, 2020, the Louisiana Supreme Court denied Henry's related writ application finding it untimely pursuant to La. S.Ct. R. X §5.[13] On March 6, 2020, Henry requested rehearing, explaining that, due to a typographical error made by the Clerk's Office, he did not receive the decision from the Louisiana Fourth Circuit until October 19, 2019, and that he filed his writ application within thirty days of that date.[14] On November 24, 2020, the Louisiana Supreme Court granted Henry's request for reconsideration and denied his writ application.[15]
II. Federal Habeas Petition
On October 21, 2020, Henry filed his original petition for federal habeas corpus.[16] Henry raises the following claims for relief: (1) ineffective assistance of counsel for misadvising him that he would receive a ten-year sentence and for failing to (a) request DNA tests to be performed on the victim and gather medical evidence; (b) file a motion to suppress his statement to police; (c) hire an investigator to “explore the sexual activities of the victim's multiple boyfriends and acquaintances;” (d) call witnesses to rebut the victim's testimony; and (e) request a presentence report and argue mitigating circumstances at sentencing due to his lack of criminal history; (2) his sentence is excessive; (3) “breach of plea agreement” in that his guilty plea was not knowing and intelligent; and (4) he is entitled to a full and fair evidentiary hearing.[17]
The State filed a response claiming that Henry's petition is untimely.[18] The State further claims that Henry failed to exhaust his third and fourth claims and that they are technically procedurally barred.[19] Alternatively, it claims that all of Henry's claims are meritless
III. General Standards of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, [20] applies to this petition, which was filed in this Court under the mailbox rule on October 21, 2020.[21] The threshold questions on habeas review under the amended statute are whether the petition is timely and whether the claim raised by the petitioner was adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and the claims must not be in “procedural default.” Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
The State claims that Henry's federal petition was not timely filed. The State asserts that Henry allowed more than one year from finality of his conviction to lapse before filing his federal petition. The AEDPA requires that a Section 2254 petition must ordinarily be filed within one year of the date the conviction became final.[22] Duncan v. Walker, 533 U.S. 167, 179-80 (2001).
The State's limitations calculation fails to acknowledge that, after the Louisiana Supreme Court found his writ application untimely, Henry moved for rehearing and provided evidence that he received late notice of the denial of his writ application by the Louisiana Fourth Circuit. After Henry filed his habeas petition, the Louisiana Supreme Court granted Henry's request for rehearing and denied his writ application. By granting his request for rehearing, the Louisiana Supreme Court implicitly found Henry's writ application timely under the circumstances. Thus, 342 days after his conviction became final, Henry filed his application for post-conviction relief and the matter remained pending in state court until the Louisiana Supreme Court granted rehearing and denied his related writ application on November 24, 2020. As Henry filed his habeas petition on October 21, 2020, it is timely. The Court therefore recommends that the State's limitations defense be rejected.
The States also argues that all of Henry's claims are unexhausted because they were not fairly presented to the Louisiana Supreme Court. The State urges that, even if Henry's “mere filing of his application for writs” exhausted certain claims, he failed to assert his third and fourth claims.[23] The State continues that, because Henry can no longer litigate those claims in state court, his claims are technically exhausted and technically procedurally barred. For the reasons explained in section IV, The record does not support the State's defense of procedural default based on alleged failure to exhaust and that defense must also be rejected.
While the State did not address procedural default as to the portion of claim one as it relates to ineffective assistance of counsel at sentencing and claim two alleging excessive sentence, the record reflects that the state courts imposed a procedural bar as to those claims. The State's oversight of Henry's procedural default of a portion of claim one and claim two is clearly error. That error, however, is not an express waiver of the defense. The Fifth Circuit has held that where there is no express waiver, the district court may, in its discretion, raise this affirmative defense sua sponte. Prieto v. Quarterman, 456 F.3d 511, 518 (5th Cir. 2006) (citing Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998)) (addressing procedural default). When the court exercises its discretion to do so sua sponte, it must assure that the petitioner has notice that the issue is being considered. Fisher v. Texas, 169 F.3d 295, 301 (5th Cir. 1999); Magouirk, 144 F.3d at 358. Therefore, to the extent necessary, the Court hereby gives Henry express notice that the Court is considering procedural default as to claim two and a portion of claim one. Fisher, 169 F.3d at 301; Magouirk, 144 F.3d at 358. Accordingly, petitioner is hereby specifically instructed that this report and recommendation is notice to her that this Court is sua sponte raising the issue of procedural default as to these claims and that petitioner must submit any evidence or argument concerning the default of these claims as part of any objections he may file to this report. Magouirk, 144 F.3d at 348.
IV. Exhaustion Doctrine
As outlined previously, Henry asserts in his federal petition that: (1) he was denied effective assistance of counsel; (2) his sentence is excessive; (3) his plea was not knowing and voluntary; and (4) he is entitled to an evidentiary hearing. The State argues that none of the claims are exhausted because the Louisiana Supreme Court denied Henry's writ application as untimely. Alternatively, the State argues that Henry did not allow the state courts to review his third and fourth claims before seeking federal habeas relief, and the unexhausted claims are not properly before this federal habeas court.
Exhaustion of all claims through available state court review is a fundamental prerequisite to federal habeas relief under §...
To continue reading
Request your trial