Lymon Henson v. Mark Nooth ( 2017 )

FILED
NOT FOR PUBLICATION
APR 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYMON HENSON, No. 15-35830
Petitioner-Appellant, D.C. No. 2:12-cv-01353-AA
v.
MEMORANDUM*
MARK NOOTH,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted March 10, 2017
Portland, Oregon
Before: LEAVY and FRIEDLAND, Circuit Judges, and BENITEZ,** District
Judge.
Petitioner Lymon Henson appeals the district court’s judgment dismissing
his petition for writ of habeas corpus. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
§§ 1291 and 2253. We review de novo, see Dyer v. Hornbeck, 706 F.3d 1134,
1137 (9th Cir. 2013), and we affirm.
1. Background. Henson was convicted in 2005 of first-degree
manslaughter, driving under the influence of intoxicants, and lesser offenses
relating to an automobile accident that occurred in 2001. On direct appeal, Henson
raised two assignments of error, neither of which concerned ineffective assistance
of his trial counsel or the Sixth Amendment right to an impartial jury. The Oregon
Court of Appeals affirmed without opinion and the Oregon Supreme Court denied
review.
Henson then filed a state petition for post-conviction relief, raising several
different ineffective assistance claims. One claim asserted that his trial counsel
provided ineffective assistance when he “failed to excuse” a certain juror whose
wife was the first person to arrive at the aftermath of the automobile accident. The
post-conviction trial court concluded that counsel was not ineffective and
determined trial counsel’s “[s]trategy not to excuse juror sound.”
In his post-conviction opening brief to the Oregon Court of Appeals, Henson
presented a “slightly different” argument—that he was denied his “constitutional
right to an impartial jury.” Henson stated, “Thus, insofar as the claim in his
petition relates to trial counsel’s ineffectiveness or inadequacy, petitioner is not
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making that claim on appeal.” The Oregon Court of Appeals affirmed without
opinion and the Oregon Supreme Court denied review.
Henson next petitioned pro se for a writ of habeas corpus in federal district
court. The habeas petition asserted an impartial jury claim, but not an ineffective
assistance juror-challenge claim. The district court eventually appointed counsel.
Counsel did not file an amended habeas petition, but did file a brief in support of
Henson’s pro se habeas petition. The district court denied the habeas petition but
issued a certificate of appealability. The district court also denied Henson’s
motion to amend his habeas petition.
2. Ineffective assistance claim. The district court did not err in concluding
that Henson’s ineffective assistance juror-challenge claim was not pled in his
federal habeas petition and, in any event, was procedurally defaulted.
Henson contends that, although the ineffective assistance claim was not
squarely raised in his petition, the district court should have liberally construed
Henson’s pro se federal habeas petition to assert such a claim by viewing the Sixth
Amendment impartial jury claim “through the lens of ineffective assistance.” But
even if construed liberally, Henson’s federal habeas petition plainly does not
include the ineffective assistance juror-challenge claim. The district court did not
abuse its discretion in denying Henson’s motion to amend his habeas petition to
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add that claim because Henson provided no new facts or satisfactory explanation
for his failure to develop the contentions originally. See Bonin v. Calderon, 59
F.3d 815, 845 (9th Cir. 1995) (stating standard of review and considerations for
amendments). Moreover, any amendment would be futile because Henson
specifically and explicitly did not raise the ineffective assistance juror-challenge
claim to the Oregon appellate courts and the claim is therefore procedurally barred.
See Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc); see
also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (exhaustion requires a
petitioner to “give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review
process”).
Henson acknowledges that he did not explicitly raise the ineffective
assistance juror-challenge claim to the Oregon appellate courts, but he contends
that the claim was sufficiently raised by the state in its post-conviction appellate
briefing to the Oregon Court of Appeals. We reject this contention because the
state only mentioned Henson’s ineffective assistance juror-challenge claim in its
answering brief to argue that “[a]lthough petitioner does not argue on appeal that
the post-conviction court erred in denying his ineffective-assistance-of-counsel
claim with regard to the juror issue, such a claim would have failed.” The state’s
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brief treatment of that issue was insufficient to alert the appellate courts to a claim
that Henson had specifically and explicitly abandoned. See Peterson, 319 F.3d at
1157 (holding that the circumstances were insufficient to alert the state appellate
court that petitioner was seeking review of a particular federal issue).
3. Impartial jury claim. The district court did not err in concluding that
Henson’s impartial jury claim was also procedurally defaulted. Henson did not
raise the claim at trial or on direct appeal, which would ordinarily result in
procedural default of a claim arising from trial error. See Palmer v. State, 867 P.2d
1368, 1369-73 (Or. 1994) (holding that a post-conviction petitioner generally may
not raise claims that could have been raised during the underlying criminal
proceeding and direct appeal). Oregon procedural law, however, provides for the
assertion in post-conviction proceedings of claims that “could not reasonably have
been asserted in the direct appellate review process,”1 OR. REV. STAT.
§ 138.550(2), such as claims that require further factual development, see Kellotat
v. Cupp, 719 F.2d 1027, 1030 (9th Cir. 1983) (explaining that post-conviction
1
Accordingly, Henson’s argument that Oregon provides no procedural
mechanism through which he could assert his impartial jury claim and, therefore,
that he should be excused from the exhaustion requirement, 28 U.S.C.
§ 2254(b)(1)(B), is unpersuasive.
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review is available in Oregon “[f]or violations of a defendant’s rights that occur
after trial, or that require a further evidentiary hearing for their determination”).
For that reason, Henson’s impartial jury claim, which depended on evidence
beyond the trial record, likely was not procedurally defaulted due to his failure to
raise the claim on direct appeal. See Or. R. App. P. 3.05 (review on direct appeal
limited to trial record).
Nonetheless, the claim was procedurally defaulted because Henson failed to
assert it in his original post-conviction petition. See OR. REV. STAT. § 138.550(3)
(“All grounds for relief . . . must be asserted in the original or amended petition,
and any grounds not so asserted are deemed waived.”); see also Pratt v.
Armenakis, 112 P.3d 371, 374-75 (Or. Ct. App. 2005) (holding that Oregon
appellate courts have no authority to consider new post-conviction claims raised
for the first time on appeal).
AFFIRMED.
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