Henderson v. Collins

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0399n.06
Filed: June 9, 2006
No. 03-3988/03-4054/03-4080
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JEROME HENDERSON, )
) ON APPEAL FROM THE
Petitioner-Appellee/Cross-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
TERRY COLLINS, Warden, ) OPINION
)
Respondent-Appellant/Cross-Appellee. )
BEFORE: NORRIS, BATCHELDER, and CLAY, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. This appeal requires us to apply the analytical
framework announced last term by the Supreme Court in Gonzalez v. Crosby, 125 S. Ct. 2641
(2005). Henderson is an Ohio prisoner under sentence of death. After his petition for a writ of
habeas corpus was denied by this court, Henderson v. Collins, 262 F.3d 615, 617 (6th Cir. 2001),
cert. denied, 535 U.S. 1002 (2002), he filed two motions for relief from judgment pursuant to Fed.
R. Civ. P. 60(b). The district court granted the first of these motions based upon its reconsideration
of a jury instruction given during the sentencing phase of petitioner’s trial. The warden now
appeals. For his part, Henderson cross-appeals the portion of the district court’s order that rejected
a DNA claim raised in the second Rule 60(b) motion.1
1
Petitioner’s notice of appeal also designated an “unaddressed Batson issue.” That issue was neither briefed
nor argued to this court and is therefore deemed waived.
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For the reasons set out below, we conclude that the Rule 60(b) motions represent “claims”
for habeas corpus relief under 28 U.S.C. § 2254(b). Rather than reach their merits, the district court
should instead have construed them as a second or successive habeas corpus petition, which may
not be filed in the district court without permission from the court of appeals. See 28 U.S.C. §
2244(b)(3)(A). Under the circumstances, the district court should have transferred the case to this
court so that we could decide whether Henderson is entitled to file another habeas petition. See In
re Bowling, 422 F.3d 434, 440 (6th Cir. 2005), cert. denied, 126 S. Ct. 1353 (2006). Accordingly,
we vacate the order of the district court and we construe Henderson’s Rule 60(b) motions and briefs
on appeal as a request for permission to file a second or successive habeas corpus petition. We deny
that permission because Henderson’s claims do not meet the statutory requirements.
I.
Henderson was charged with rape, aggravated burglary, and two counts of aggravated
murder with attached felony-murder specifications.2 The jury acquitted Henderson of rape, but
convicted him of attempted rape and all other counts and specifications. He was sentenced to death
and to consecutive terms of imprisonment for the attempted rape and aggravated burglary. He
unsuccessfully sought relief in state court and then in 1991 filed a federal habeas corpus petition,
which was dismissed without prejudice for failure to exhaust state-court remedies.
In 1994, he refiled his federal petition, specifying twenty-seven grounds for relief. Among
other matters, the petition asserted that the trial court committed constitutional error in instructing
2
While there was but one victim, the indictment charged petitioner based upon two different felony-murder
specifications: aggravated burglary and rape.
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the jurors that they must unanimously reject the death sentence – that is, they had to first “acquit”
Henderson of death – before considering one of two possible life sentences. As a related ground for
relief, the petition cited the failure of appellate counsel to raise this claim, which deprived
Henderson of his Sixth Amendment right to effective assistance of counsel.
Five years later, the district court affirmed the constitutionality of the jury’s finding of guilt,
but conditionally granted the writ with respect to Henderson’s death sentence based upon its
conclusion that the trial court erred when it gave an Allen3 or “dynamite” charge to a deadlocked
jury. “Instead, the trial judge’s supplemental charge to the [jurors] should have informed them that
they should then choose between one of the two life sentences under [Ohio Rev. Code] §
2929.03(D)(2).” Henderson v. Collins, 101 F. Supp. 2d 866, 918 (S.D. Ohio 1999). The warden
appealed; Henderson cross-appealed. As mentioned earlier, this court reversed the grant of the writ.
Henderson v. Collins, 262 F.3d at 617.
On May 7, 2002, Henderson filed a Rule 60(b) motion requesting the district court to grant
him relief from judgment because appellate counsel was ineffective for failing to argue, inter alia,
that the acquittal-first jury instruction, which was challenged in his original petition, was improper.
Henderson later filed a supplemental Rule 60(b) motion in which he requested access to biological
material in the State’s possession so that DNA tests could be performed.
Without deciding whether the initial Rule 60(b) motion constituted a second or successive
petition, the district court denied it because it raised claims which the district court had addressed
3
See Allen v. United States, 164 U.S. 492, 501 (1896) (approving supplemental instructions to a deadlocked
jury under certain circumstances).
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and rejected when ruling on the original petition. DNA testing, however, was ordered at court
expense. In early 2003, the outcome of the DNA test was filed under seal, and the district court
ordered the parties to submit briefs on those results.
The court also sua sponte called the parties’ attention to a then days-old decision, Davis v.
Mitchell, 318 F.3d 682 (6th Cir. 2003), in which this court conditionally granted a writ of habeas
corpus based upon its conclusion that the acquittal-first instruction given at trial “would have led
a reasonable jury to apply an unconstitutional standard of unanimity at all stages in the deliberative
process.” Id. at 690. The district court ordered the parties to brief the impact of Davis on the case
sub judice based upon the following concern:
This court notes that the dissenting Judge in Davis cited Henderson v. Collins, 262
F.3d 615, 621-22 (6th Cir. 2001), the appellate decision reversing this Court in the
instant case, to support the opposite conclusion to which the majority came. The
Davis decision and dissent thus may call into question the decision made by the Sixth
Circuit in Henderson v. Collins.
After briefing, the district court concluded that Davis cast “substantial doubt” on the acquittal-first
rationale articulated by this panel in our earlier decision. Therefore, the court vacated its previous
denial of the Rule 60(b) motion and conditionally granted habeas relief with respect to the acquittal-
first instruction. The district court denied the DNA claim, but certified it for appeal.
II.
According to the evidence presented at trial, Mary Acoff and her boyfriend, who lived in
the same building, engaged in sexual intercourse one night in 1985. Around midnight, she left his
apartment and returned to her own. Roughly five hours later, Henderson murdered her in her
apartment. Semen was found in her vagina and on Henderson’s leather coat, which was recovered
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from Henderson’s residence three days after the crime. Blood consistent with Acoff’s was also
found on the coat, and Henderson’s blood-stained shoes matched prints at the scene of the crime.
At trial, the jury learned that, based on then-existing scientific technology (relating to the
blood types of the possible donors), neither Henderson nor the boyfriend could be excluded as the
source of the semen in the vagina.4 The jury acquitted Henderson of rape, but convicted him of
attempted rape and of all other counts and specifications.
Years later, the DNA tests revealed that the semen found in the victim could not have been
Henderson’s, but could have been the boyfriend’s. The semen on the coat, however, could not have
been the boyfriend’s, but could have been Henderson’s. Furthermore, the report summarizing the
test results pointed out that “[s]ince the female blood on the Henderson leather coat . . . is genetically
compatible with Mary Acoff and only a few human beings who have ever lived, this finding does
not support Henderson’s claims of factual innocence in the murder of Mary Acoff.”
III.
Although Henderson’s § 2254 petition was filed prior to the effective date of the Anti-
Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(“AEDPA”), his Rule 60(b) motions were filed post-AEDPA. While the Seventh Circuit has held
that the AEDPA applies to all motions filed after its effective date “unless the movant had
4
Additional facts and evidence tying Henderson to the crimes, such as his fingerprint found inside Acoff’s
apartment, are detailed in the Ohio Supreme Court opinion on direct appeal. See State v. Henderson, 528 N.E.2d
1237, 1238-42 (Ohio 1988).
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reasonably relied on the previous law in holding back a ground presented in the successive motion,”
In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998); see also Pratt v. United States, 129 F.3d 54, 58-
60 (1st Cir. 1997), we have adopted a slightly different approach. When, as here, the original
petition was filed pre-AEDPA, we have held that a reviewing court must analyze whether the second
or successive habeas petition would have survived under the pre-AEDPA “abuse of the writ”
standard5 as set forth in McCleskey v. Zant, 499 U.S. 467, 493-95 (1991). In re Hanserd, 123 F.3d
922, 928-29 (6th Cir. 1997). Otherwise, petitioner’s claim might be subject to the kind of
“impermissible retroactive effect” discussed in Landgraf v. USI Film Prods., 511 U.S. 244 (1994).
As we have observed elsewhere:
When a case implicates a federal statute enacted after the events in suit, and
Congress has not expressly prescribed the statute’s proper reach, the court must
determine whether the new statute would have a retroactive effect, i.e., whether it
would impair rights a party possessed when he acted, increase a party’s liability for
past conduct, or impose new duties with respect to transactions already completed.
In re Green, 144 F.3d 384, 386 (6th Cir. 1998) (citing Landgraf, 511 U.S. at 280-81). Because we
concluded in Hanserd that Congress did not express any clear intent to apply AEDPA retroactively,
Hanserd, 123 F.3d at 924, the retroactivity inquiry then turns on whether petitioner can overcome
the “abuse of the writ” standard, which “allows a second motion containing a new claim where the
inmate can ‘show cause for failing to raise [the issue in the first motion] and prejudice therefrom.”
Id. at 929 (quoting McCleskey, 499 U.S. at 494). As the First Circuit has observed, “reliance upon
5
“Abuse of the writ” refers to new claims that were not raised in a previous petition, while successive claims
advance grounds identical to grounds heard and decided on the merits in a previous petition. Both were barred
before the enactment of AEDPA unless a petitioner made a showing of cause and prejudice. See Sawyer v. Whitley,
505 U.S. 333, 338 (1992). While the central claim raised in this appeal involves a successive claim, for purposes
of our retroactivity analysis, cases discussing “abuse of the writ” apply with equal force.
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pre-AEDPA law as a basis for permitting a second petition rarely will clear this hurdle. The ‘cause
and prejudice’ test that McCleskey imposed to screen out abusive deployments of the writ is
notoriously difficult to pass.” Pratt, 129 F.3d at 59. The case sub judice re-enforces this point.
Because petitioner raised his ineffective assistance of counsel claim in his first habeas
petition (and it was ruled upon by both the district court and this court), it is successive. Thus, he
must show “cause and prejudice,” which he simply has not done.6 With respect to his DNA claim,
he has likewise failed to establish cause and prejudice. As explained in more detail below and in
Judge Clay’s concurring opinion, not only did petitioner know of, and request, DNA testing prior
to the filing of his first habeas petition, there were strong reasons why counsel attempted to dissuade
petitioner from pursuing DNA testing – reasons that were, in fact, borne out by the results.
In short, petitioner cannot overcome the “abuse of the writ” standard with respect to either
of his claims and, hence, application of AEDPA’s gate-keeping requirements poses no retroactivity
problem.
IV.
In Gonzalez v. Crosby, the Court explained that a Rule 60(b) motion is distinguished from
a second or successive petition under 28 U.S.C. § 2244(b) by the fact that the latter contains one or
more “claims.” A Rule 60(b) motion does not. 125 S. Ct. at 2647-48. For purposes of § 2244(b),
a “claim” is “an asserted federal basis for relief from a state court’s judgment of conviction.” Id.
6
As Judge Clay’s concurrence explains at some length, neither has he shown by clear and convincing evidence
that he is “actually innocent” of the death penalty. That onerous standard requires one to show that, “but for a
constitutional error, no reasonable juror would have found petitioner eligible for the death penalty under the
applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336 (1992).
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at 2647. By contrast, a Rule 60(b) motion attacks “some defect in the integrity of the federal habeas
proceedings.” Id. at 2648.
With respect to his acquittal-first claims, Henderson argues that he is not raising a challenge
to a state-court judgment, but is instead seeking to remedy a defect in the federal habeas
proceedings. The defect to which he points is the district court’s alleged failure to analyze the merits
of the acquittal-first claim underlying the ineffective assistance of appellate counsel claim. See
Mapes v. Coyle, 171 F.3d 408, 427-38 (6th Cir. 1999) (listing considerations for the district court
in assessing a claim of ineffective assistance of appellate counsel, including the strength of the
omitted claim).
We reject this characterization of the district court’s prior opinion. When denying relief on
the ineffective-assistance claim, the district court concluded that the underlying claims, including
the acquittal-first claim, lacked merit. See Henderson, 101 F. Supp. 2d at 888 (denying the
ineffectiveness claim because Henderson had failed to establish prejudice, i.e., that the underlying
claims had merit).7 While the analysis could have been stated in more detail (thus lengthening an
already long opinion), the district court analyzed the underlying claims in order to reach its
conclusion.8 In our view, Henderson confuses conciseness of statement with absence of analysis.
7
His own motion appears to concede as much: “[R]elief is warranted because the Court erroneously concluded
in its [1999] Order that Henderson’s claim of ineffective assistance of appellate counsel . . . , while not procedurally
barred, had no merit.” Rule 60(b) Motion, May 7, 2002 at 1 (emphasis added).
8
We note that Mapes also includes the following consideration as part of the inquiry into an ineffective
assistance of appellate counsel claim: “Were the omitted issues dealt with in other assignments of error?” Mapes,
171 F.3d at 428; accord Greer v. Mitchell, 264 F.3d 663, 679-80 (6th Cir. 2001). In the case before us, the district
court considered the acquittal-first instruction at some length in its discussion of the Allen charge. Henderson, 101
F. Supp. 2d at 916-18.
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Because the district court reviewed the ineffective-assistance claim in a manner consistent with
Mapes, Henderson’s Rule 60(b) motion cannot be viewed as an attempt to rectify a defect “in the
integrity of the federal habeas proceedings.” Gonzalez, 125 S. Ct. at 2648. Rather, the motion
reasserts the substance of those claims, thereby impermissibly “attack[ing] the federal court’s
previous resolution of a claim on the merits.” Id. In short, Henderson’s argument concerning the
acquittal-first instruction raises a “claim” as defined by Gonzalez and thus his Rule 60(b) motion
with respect to that issue is the equivalent of a successive petition.
Henderson likewise contends that his DNA claim also properly falls under Rule 60(b)’s
purview because he is challenging unfairness in the federal proceedings. He does not, however,
specify the precise nature of that unfairness. If viewed as an insufficiency of the evidence claim,
then the defect cannot be the same “failure to analyze” alleged with respect to his acquittal-first
claim. The district court explained in detail why the evidence of attempted rape was not only
sufficient, but overwhelming. Henderson v. Collins, 101 F. Supp. 2d at 902-04. We discern no
defect in the integrity of the federal habeas proceedings and conclude that, like his first Rule 60(b)
motion, his supplemental motion raises a “claim” as defined by Gonzalez and therefore must be
treated as a second or successive petition. See generally Post v. Bradshaw, 422 F.3d 419, 424-25
(6th Cir. 2005) (observing that a Rule 60(b) motion is a successive petition if it seeks to introduce
newly discovered evidence in support of a claim previously denied) (quoting Gonzalez, 125 S. Ct.
at 2647).
Under AEDPA, a state prisoner may not file a second or successive habeas corpus petition
until the court of appeals issues an order authorizing the district court to consider the petition. 28
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U.S.C. § 2244(b)(3)(A). Given the nature of the claims that Henderson’s Rule 60(b) motions
advanced, the district court should have transferred them to us as a request for permission to file
such a petition. See In re Bowling, 422 F.3d at 440. We will remedy this error by construing
Henderson’s Rule 60(b) motions and appellate briefs as making that request. Id.
Permission may be granted to file a second or successive petition only if the proposed claims
satisfy certain gate-keeping requirements. A claim presented in a successive petition that was
presented in a prior § 2254 petition shall be dismissed. 28 U.S.C. § 2244(b)(1). Claims not
presented in a prior § 2254 petition shall be dismissed from a second petition unless
(A) the applicant shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(B) (i) the factual predicate for the claim could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2244(b)(2). Henderson’s claims do not meet these requirements.
As explained already, Henderson’s acquittal-first claim has already been presented and must
be dismissed.9 28 U.S.C. § 2244(b)(1).
9
While we respect the concern of the district court that our prior opinion may have been called into question
by Davis v. Mitchell, we note that the majority in Davis did not cite our opinion, much less discuss its reasoning.
Furthermore, “A panel of this Court cannot overrule the decision of another panel. The prior decision remains
controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of
the decision or this Court sitting en banc overrules the prior decision.” See Salmi v. Sec’y of Health and Human
Servs., 774 F.2d 685, 689 (6th Cir. 1985). Finally, in determining whether a habeas petitioner may file a successive
petition, we must look to new rules of constitutional law handed down by the Supreme Court, not new
interpretations of the law from this court.
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With respect to his DNA claim, Henderson appears to argue that the DNA-test results render
the evidence of the attempted-rape conviction constitutionally insufficient and, by extension, call
into question its use as a statutory aggravating factor. There are two problems with this position.
First, Henderson has already advanced that claim, see Henderson, 101 F. Supp. 2d at 902-04, and
may not do so again, 28 U.S.C. § 2244(b)(1). Second, the newly discovered evidence does not apply
to an insufficiency claim, which evaluates the evidence that was presented without regard to
potentially contrary evidence that might have been presented had the more sophisticated DNA
analysis been available. See Herrera v. Collins, 506 U.S. 390, 402 (1993).
Alternatively, to the extent that Henderson advances a freestanding claim of actual
innocence, see Herrera, 506 U.S. at 429 (White, J., concurring), it too fails because 1) he is not
relying on a new rule of constitutional law, 28 U.S.C. § 2244(b)(2)(A), and 2) he did not show due
diligence in discovering this new evidence. See 28 U.S.C. § 2244(b)(2)(B)(i). By Henderson’s own
admission, it was scientifically possible to perform the DNA tests by at least 1993 – one year before
Henderson refiled his federal petition. Thus, at the time of his first petition, he could have sought
court funding, which he later received, for tests in support of a potential DNA claim.
Moreover, even if AEDPA’s gate-keeping requirements had been satisfied, the DNA tests
would not help Henderson. Had the jurors found the semen in the victim’s vagina to be his, that
would have established penetration and, given the other facts in this case, rape. However, the jury
convicted him of attempted rape. Hence, they could not have found the semen to be his and must
have found the attempted rape based upon other evidence, such as the time of the attack, the
defensive wounds, or the victim’s state of undress. In short. Henderson’s new evidence does not
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– and, as a logical matter, cannot – undercut any evidence supporting the charges of which the jury
actually convicted him.
V.
The order of the district court filed July 10, 2003 is vacated. Pursuant to 28 U.S.C. § 2244,
petitioner’s Rule 60(b) Motion for Relief from Judgment and Supplemental Rule 60(b) Motion for
Relief from Judgment, filed May 7, 2002 and May 30, 2002 respectively, are construed as
applications to file a second or successive petition for a writ of habeas corpus and are denied.
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CLAY, Circuit Judge, concurring. Were this the first instance in which Petitioner raised
his claim of ineffective assistance of counsel due to counsel’s failure to raise the underlying claim
of “acquittal first” jury instructions, Petitioner’s claim would warrant the grant of habeas relief. As
explained in my dissent in the 2001 Henderson decision, the penalty phase of Petitioner’s trial was
defective, as the initial jury instructions were acquittal first jury instructions, which improperly
biased the jury in favor of a death sentence. Henderson v. Collins, 262 F.3d 615, 625-26 (6th Cir.
2001) (Clay, J., concurring). Petitioner’s state court appellate counsel provided ineffective
assistance to Petitioner, as it failed to assert a claim based on these instructions on direct review.
Id. at 635-36. Since, however, Petitioner first raised these claims in a prior habeas application, and
since this Court rejected these claims in the 2001 Henderson decision, Petitioner must demonstrate
that this Court may now review his second or successive habeas petitions at issue in this case. This
is a heavy burden, one which Petitioner has failed to meet.
As the majority points out, this Court has specifically outlined the analysis a reviewing court
must undertake in deciding whether AEDPA applies to a second or successive habeas petition, when
the petitioner files his first habeas petition before AEDPA’s effective date and his second or
successive habeas petition after AEDPA’s effective date. In both In re Hanserd, 123 F.3d 922 (6th
Cir. 1997), and In re Sonshine, 132 F.3d 1133 (6th Cir. 1997), this Court held that a reviewing court
must analyze whether the second or successive habeas petition would have survived under the pre-
AEDPA “abuse of the writ” standard. In re Sonshine, 132 F.3d at 1135. If the second or successive
habeas petition meets that standard, then a reviewing court may not apply the AEDPA standard to
that petition, as such an application would have an impermissible retroactive effect under Landgraf
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v. USI Film Prods., 511 U.S. 244 (1994). Id. If the second or successive habeas petition does not
meet the abuse of the writ standard, then application of the AEDPA standard to that petition would
pass muster under Landgraf, as such application would not “attach new legal consequences” to the
petitioner’s pre-AEDPA conduct, i.e., the filing of the first petition. Id.
Under the “abuse of the writ” standard, the Court may not reach the merits of Petitioner’s
successive petition absent cause and prejudice. Schlup v. Delo, 513 U.S. 298, 319 (1995) (citing
Kuhlmann v. Wilson, 477 U.S. 436 (1986)). A successive petition “raises grounds identical to those
raised and rejected on the merits on a prior petition.” Kuhlmann, 477 U.S. at 444 n.6. In this case,
Petitioner raised the ineffective assistance of counsel claim in his first habeas petition, the district
court rejected the claim, and this Court affirmed the district court decision; thus, Petitioner’s petition
is successive. Petitioner must show cause and prejudice for twice raising this claim:
“[C]ause” in the context of successive habeas petitions . . . mean[s] “cause for
bringing a petition that fails to present a new ground for relief. In other words, a
petitioner must show cause for seeking review of the same claim twice--such as the
discovery of new facts, or an intervening change in the law, that warrants
reexamination of the same ground for relief raised in an earlier petition.”
Rosales-Garcia v. Holland, 322 F.3d 386, 399 n.15 (6th Cir. 2003) (quoting Campbell v. Blodgett,
997 F.2d 512, 524 (9th Cir. 1992)). In this case, Petitioner has not presented discovery of new facts,
nor has he presented an intervening change in the law. Petitioner has no valid reason for raising the
same claim in his successive habeas application.
Although Petitioner has failed to show cause for raising his successive claim of ineffective
assistance of counsel, he may still prevail under the abuse of the writ standard. “Federal courts
retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a
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petitioner’s failure to show cause for a procedural default. These are extraordinary instances when
a constitutional violation probably has caused the conviction of one innocent of the crime.”
McCleskey v. Zant, 499 U.S. 467, 494 (1991). Because Petitioner raises his ineffective assistance
of counsel claim only with respect to the sentencing phase of his trial, Petitioner asserts only that
he was not eligible for the death penalty. In order to substantiate this assertion, Petitioner must
“‘show by clear and convincing evidence that, but for a constitutional error, no reasonable juror
would have found the petitioner eligible for the death penalty under the applicable state law.’”
Williams v. Bagley, 380 F.3d 932, 973 (6th Cir. 2004) (quoting Sawyer v. Whitley, 505 U.S. 333, 336
(1992)).
Petitioner’s claim is that his appellate counsel was ineffective in failing to raise a claim of
acquittal first jury instructions on direct review. Under Bagley, the question then becomes whether
Petitioner has shown by clear and convincing evidence that, properly instructed, “no reasonable
juror would have found the petitioner eligible for the death penalty.” Id. Petitioner does not meet
this high standard. Even if the state court gave proper instructions, as opposed to the acquittal first
jury instructions it did give, a reasonable juror could have still found that the aggravating
circumstances in the case outweighed the mitigating circumstances, so that Petitioner was eligible
for the death penalty. The evidence establishing aggravating circumstances was not de minimus;
the evidence produced at trial amply supported the position that Defendant committed the murder
during the commission of an aggravated burglary and an attempted rape. See infra. Moreover,
while the state court instructed the jury to consider Petitioner’s history and background, as well as
any other mitigating circumstances, there is no evidence in the record that in fact mitigating
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circumstances existed in Petitioner’s case. In short, there is no clear and convincing evidence that
no reasonable juror would have sentenced Petitioner to death, absent the acquittal first jury
instructions. Petitioner has therefore failed to demonstrate that he is eligible to avoid the death
penalty, so as to warrant relief under the abuse of the writ standard. Because Petitioner does not
meet the requirements of the abuse of the writ standard, application of AEDPA to his successive
habeas petition will not have an impermissible retroactive effect under Landgraf, so that such
application is valid. As the majority discusses, Petitioner does not meet the requirements of AEDPA
for his successive claim of ineffective assistance of counsel; as a result, this Court may not review
this claim.
This Court must undertake a similar analysis of Petitioner’s second habeas petition that
addresses certain DNA evidence. With respect to cause, Petitioner first learned of polymerase chain
reaction (“PCR”) DNA testing in Fall 1988. He immediately sent correspondence to a laboratory
in California inquiring about whether DNA testing would be appropriate for his case. The
laboratory contacted Petitioner’s counsel, and his counsel told the laboratory that testing was
inappropriate at that time. Petitioner’s counsel contacted Petitioner and told him that DNA testing
would “have to wait” until post-conviction motions. When Petitioner was appointed new counsel
in early 1989, he again requested DNA testing, but his new counsel did not obtain such testing. In
1992, the Ohio Public Defender circulated a letter asking death penalty inmates to express concerns
about their representation. In response, Petitioner wrote a letter to the Ohio Public Defender
expressing that his counsel was reluctant to have DNA testing performed. Petitioner offered a letter
from his counsel dated May 17, 1993, in which his counsel stated that DNA testing would be
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unhelpful, because the jury must have relied on evidence other than the semen found in the victim’s
body to convict Petitioner of attempted rape, as the jury had acquitted Petitioner of rape.
The facts show that Petitioner had consistently asked for DNA testing right up to when his
first federal habeas petition was filed on February 15, 1994. His counsel did not undertake such
testing for a variety of reasons, as explained above. Respondent’s claim that Petitioner had
deliberately bypassed DNA testing is incorrect; the party responsible for bypassing the testing was
Petitioner’s counsel. Petitioner had always sought DNA testing, only to be rebuffed by counsel.
The question then becomes whether counsel’s refusal to have DNA testing performed
constitutes cause. Not all attorney error is sufficient to constitute cause for failure to raise a claim
in a previous habeas application; only attorney error that reaches the threshold of ineffective
assistance of counsel as set out by Strickland constitutes cause. Murray v. Carrier, 477 U.S. 478,
488-89 (1986). Under Strickland, Petitioner must show that (1) counsel’s performance was
objectively deficient, and (2) there is a reasonable probability that, but for counsel’s deficient
performance, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-
94 (1984).
Petitioner’s counsel’s refusal to obtain DNA testing for the first federal habeas petition was
not objectively deficient performance. In his letter to Petitioner concerning the matter, counsel
stated:
There is another problem with testing of the kind you suggest. Assume that the test
results absolutely eliminate you as the source of the evidence found in the victim.
That would mean that you could not have had sexual intercourse with the victim.
However, the jury acquitted you of rape. You were convicted of attempted rape and
that conviction must have been based on evidence other than the semen. This is true
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regardless of what the test results would have established. . . . The jury must have
relied on the time the crime occurred, the position of the body, the state of undress,
the defensive wounds and various other circumstances to find attempted rape.
The bottom line on this is that I am not sure how the test could help us given these
facts, and there is always the possibility that a test could turn up bad evidence.
(J.A. at 405.) The DNA test, even if it showed that Petitioner was not the source of the semen found
in the victim’s body, would be of very limited value in negating attempted rape. Such a result would
be strong exculpatory evidence that Petitioner did not rape the victim; however, the jury acquitted
Petitioner of the rape charge and convicted him of attempted rape. The Ohio Supreme Court viewed
the situation in this manner:
[T]o find attempted rape, the jury only had to find beyond a reasonable doubt that
appellant purposely took a substantial step toward committing the rape of [the
victim]. State v. Woods, 357 N.E.2d 1059 (1976). “To constitute a substantial step,
the conduct must be strongly corroborative of the . . . [appellant’s] criminal purpose.”
Id. Here, the victim’s body was found nude, with legs spread. Appellant is a type
O secretor and semen consistent with such a person was present on the appellant’s
coat. Semen was also found in the victim’s vagina. The pattern of blood from
injuries inflicted on the victim’s body indicated that most were inflicted while she
was in a horizontal position. Her body also had a bloody smear across her right
breast. There was also no evidence of theft or any non-sexual crime for appellant’s
being in the apartment. Taken together, these facts, as established by circumstantial
evidence, meet the Woods test. Circumstantial evidence is sufficient to establish an
element of any crime, including attempted rape. State v. Graven, 374 N.E.2d 1370,
1373 (1978).
State v. Henderson, 528 N.E.2d 1237, 1241-42 (Ohio 1988) (third alteration in the original). The
district court observed:
[The victim’s] left hand had been cut and wrapped in a towel. This fact may have
led the jury to infer that there was some lapse in time between the first aggressive act
toward [the victim] and her eventual demise. Coupling the inference of a break in
the time of Petitioner’s first aggressive act toward [the victim] with the coroner’s
conclusion that she was eventually murdered in a horizontal position as well as the
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Henderson v. Collins
fact that her body was found nude with her legs spread apart, we believe that there
was sufficient evidence from which a jury could conclude that Petitioner attempted
to make [the victim] submit by force or the threat of force to sexual intercourse . . .
.
Henderson v. Collins, 101 F. Supp. 2d 866, 904 (S.D. Ohio 1999). Even if the DNA tests proved
Petitioner was not the source of the semen found in the victim’s body, the circumstantial evidence
of attempted rape was substantial. Moreover, on federal habeas review, the district court must view
the evidence and inferences drawn therefrom in favor of the prosecution. Jackson v. Virginia, 443
U.S. 307, 326 (1979). Faced with the unfavorable circumstantial evidence and the unfavorable
standard of review, counsel’s decision not to undertake DNA testing for the first federal habeas
petition was not objectively deficient performance.
This is especially true in light of the inculpatory evidence the DNA testing could and did in
fact produce. The tests showed that the blood found on Petitioner’s coat belonged to the victim.
This evidence inculpated Petitioner in the crime of murder, especially considering that Petitioner
claimed he did not know the victim and was not present in her apartment the night of the murder.
Petitioner raised many errors with respect to the guilt phase of his trial in his first habeas petition;
many of these claims would be in jeopardy if such inculpatory evidence were to surface.10 The
relatively minuscule benefit of subtracting the semen found in the victim’s body from the attempted
rape calculus was greatly outweighed by the danger that the DNA tests could return this inculpatory
10
For example, Petitioner would have difficulty claiming a “fundamental miscarriage of
justice” for those claims that were procedurally defaulted.
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evidence. As a result, Petitioner cannot show cause for failing to offer DNA evidence in his first
federal habeas petition.
Likewise, Petitioner cannot show a “fundamental miscarriage of justice” if this Court does
not examine this claim. A fundamental miscarriage of justice encompasses the situation where “a
constitutional violation has probably resulted in the conviction of one who is actually innocent.”
Murray, 477 U.S. at 496. As explained above, the circumstantial evidence in this case does not
support Petitioner’s actual innocence of attempted rape. Because Petitioner has not demonstrated
cause for failing to raise this claim on his first habeas petition, and because Petitioner has not
demonstrated a fundamental miscarriage of justice, Petitioner does not meet the requirements for
relief under the abuse of the writ standard. Application of AEDPA to this second habeas petition
thus would not have an impermissible retroactive effect, and, as the majority notes, such application
leads to the conclusion that this Court may not review this second habeas petition.
Despite my concurrence with the majority opinion, I write separately to reiterate that
Petitioner’s death sentence was the product of an unfair penalty phase due to the “acquittal first” jury
instructions, and Petitioner’s state court appellate counsel was ineffective in failing to raise this
claim on direct appeal. During the penalty phase, the jury was given initial jury instructions that
“communicated to the jury that all twelve members must agree on recommending or not
recommending the death penalty before the could consider a life sentence. . . . Of great significance,
however, the jury instructions did not communicate to the jury that one juror could prevent the
imposition of the death penalty.” Henderson v. Collins, 262 F.3d 615, 626 (6th Cir. 2001) (Clay,
J., dissenting). These jury instructions created an impermissible bias towards the death penalty;
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indeed, the Ohio Supreme Court previously addressed similar instructions and found them to be
unconstitutional:
In Ohio, a solitary juror may prevent a death penalty recommendation by finding that
the aggravating circumstances in the case do not outweigh the mitigating factors.
Jurors from this point forward should be so instructed.
...
The record reflects that the jury in this case was instructed in a manner completely
contrary to law, making it less likely for [the defendant] to benefit from the opinion
of one juror that the death penalty was inappropriate. . . . [I]f a juror believed his one
vote could not affect the ultimate result, he might acquiesce in the death sentence.
In this case, the jury instruction undermined the reliability of the jury verdict and
risked erroneous imposition of the death sentence, thereby materially prejudicing
[the defendant’s] right to a fair trial.
State v. Brooks, 661 N.E.2d 1030, 1042 (Ohio 1996) (emphasis supplied). Petitioner’s initial jury
instructions did not explain to the jury that the jury need not acquit Petitioner of the death penalty
before it could consider a life sentence, nor did they explain that a single juror could prevent a death
penalty recommendation. Those instructions were therefore contrary to the law of Ohio and
“undermined the reliability of the jury verdict and risked erroneous imposition of the death
sentence.” Id. These faulty instructions violated Petitioner’s constitutional right to a fair trial, so
that this Court should have affirmed the grant of federal habeas relief to Petitioner in 2001.
This reasoning, however, was not adopted by the majority of the original Henderson panel,
and we are bound to adhere to that decision today. The majority rejected Petitioner’s ineffective
assistance of counsel claim, and Petitioner’s attempt to raise that same claim again is properly
characterized as a successive petition that does not meet the standards of AEDPA. Petitioner’s claim
raising DNA evidence is likewise a second habeas petition that does not meet the standards of
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AEDPA. Petitioner’s Rule 60(b) motions, construed as applications to file second or successive
habeas petitions, are properly denied.
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