United States District Court, E.D. Michigan, Southern Division
ARTHUR J. TARNOW
OPINION AND ORDER DENYING THE AMENDED HABEAS CORPUS
PETITION , DECLINING TO GRANT A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
J. Tarnow Senior United States District Judge.
matter has come before the Court on petitioner Frank Douglas
Henderson's pro se habeas corpus petition under
28 U.S.C. § 2254. The habeas petition challenges
Petitioner's state convictions for three counts of
third-degree criminal sexual conduct. See Mich.
Comp. Laws § 750.520d(1)(a) (sexual penetration of a
person at least thirteen years old, but less than sixteen
years old). Petitioner is serving a sentence of fifteen to
twenty-five years. He seeks habeas relief on grounds that he
was denied his right to a speedy trial, his trial and
appellate attorneys were ineffective, and the cumulative
effect of errors deprived him of due process and a fair
Sherry Burt argues in an answer to the habeas petition that:
a portion of Petitioner's speedy-trial claim is not
cognizable on habeas review and also is meritless, and the
state appellate court's decision was not contrary to, or
an unreasonable application of, Supreme Court precedent;
Petitioner's second and third claims regarding trial and
appellate counsel are meritless, and the state courts'
decisions were not contrary to, or an unreasonable
application of, Supreme Court precedent; and Petitioner's
fourth claim is procedurally defaulted, not cognizable on
habeas review, and meritless.
Court agrees that some of Petitioner's claims are not
cognizable on habeas review and that the state courts'
decisions were objectively reasonable. Accordingly, the
petition will be denied.
charges against Petitioner arose from two separate incidents
that occurred in the home of the complainant's aunt in
Lansing, Michigan. Petitioner was tried before a jury in
Ingham County Circuit Court where the testimony established
Henderson was a frequent visitor at the aunt's home
during the time period in question. The first assault
occurred in July or August 2008. The complainant testified
that Henderson came in to the room that she shared with her
brother and cousin and told her that her aunt wanted to see
her. However, instead of taking her to her aunt, Henderson
pulled the complainant into an unoccupied bedroom, where he
pushed her onto the bed, removed her clothes, and penetrated
her vagina with his finger and his penis. The complainant
said that Henderson stopped when one of the other children in
the home at the time was seen in the doorway. The
complainant, then 14 years old, did not immediately notify an
adult about the encounter, but instead told her two younger
relatives not to tell anyone what they had seen. At trial,
the relatives testified that they had witnessed the
complainant and Henderson together in a room at the
aunt's home. [The complainant's] brother specifically
stated that he heard his sister crying and saw Henderson
moving up and down on top of her.
The next incident occurred in September 2008, when the
complainant again stayed at her aunt's house. When
complainant learned that Henderson would be present without
any other adults at the home, she asked her older cousin to
stay, but he refused. Later, Henderson tried to engage the
complainant in conversation, and she tried to leave the room.
He prevented her from leaving, pulled her onto the bed,
pushed her clothes down, and again penetrated her vagina with
his finger and his penis. Afterward, the complainant observed
bleeding in her vaginal area. She did not immediately report
this incident either. However, in November 2008, she
eventually told her mother what had occurred, which led to an
investigation and the trial at issue [here].
People v. Henderson, No. 297994, 2011 WL 2463566, at
*1 (Mich. Ct. App. June 21, 2011.) Petitioner did not
testify, but four defense witnesses testified that Petitioner
was elsewhere at the time of the September 20, 2008 incident
or that he was never alone with the complainant that day.
March 19, 2010, the jury found Petitioner guilty, as charged,
of three counts of third-degree criminal sexual conduct. On
April 21, 2010, the trial court sentenced Petitioner as a
habitual offender to three concurrent terms of fifteen to
twenty-five years in prison.
moved for a new trial on the basis that he was not tried
within 180 days, as required by Michigan law. In the same
motion, Petitioner requested an evidentiary hearing where
medical experts could testify about the complainant's
sexually transmitted infection (STI) and where Petitioner
could argue that he was denied a fair trial by the trial
court's refusal to admit evidence of the
complainant's STI and Petitioner's lack of an
infection. The trial court held oral arguments on the motion
and denied it. (Mot. Hr'g, at 3-4, Oct. 19, 2010.)
subsequent appeal, Petitioner raised the same issues, arguing
that his convictions should be overturned because the State
did not bring him to trial within 180 days, as required by
Michigan law, and that the trial court erred by not granting
an evidentiary hearing with expert medical testimony on the
complainant's STI and Petitioner's lack of infection.
The Michigan Court of Appeals rejected Petitioner's
claims and affirmed his convictions in an unpublished,
per curiam opinion. See Henderson, 2011 WL
application for leave to appeal in the Michigan Supreme
Court, Petitioner raised only the issue about the trial
court's failure to grant an evidentiary hearing on the
complainant's STI and Petitioner's lack of infection.
On November 21, 2011, the Michigan Supreme Court denied leave
to appeal because it was not persuaded to review the issue.
See People v. Henderson, 490 Mich. 912; 805 N.W.2d
203 (2011) (table).
August 8, 2012, Petitioner commenced this action by filing a
pro se habeas corpus petition and a motion to hold
the petition in abeyance. On September 18, 2012, the Court
granted Petitioner's motion, held his petition in
abeyance pending exhaustion of additional state remedies, and
closed this case for administrative purposes. See
Order Granting Mot. to Hold Pet. in Abeyance, ECF No. 4.
then returned to the state trial court and filed a motion for
relief from judgment. He argued that his state and federal
rights to a speedy trial were violated and that his trial and
appellate attorneys were ineffective. The trial court's
successor determined that it was barred from granting relief
on Petitioner's claims about trial counsel and the
alleged lack of a speedy trial because the Michigan Court of
Appeals had decided those issues on direct appeal. The trial
court also stated that trial counsel's decision not to
pursue an evidentiary hearing was a strategic decision, which
did not constitute ineffective assistance. Finally, the trial
court held that appellate counsel was not ineffective for
failing to raise a claim about trial counsel's
performance, because Petitioner failed to demonstrate that
trial counsel's performance was deficient. See People
v. Henderson, No. 08-1406-FH, Op. and Order (Ingham Cty.
Cir. Ct. Apr. 3, 2013). Petitioner moved for reconsideration,
but the trial court denied his motion after concluding that
his arguments were unpersuasive and that he was presenting
the court with issues that the court had previously
considered and decided. See People v. Henderson, No.
08-1406-FH, Order Denying Def't's Mot. for
Reconsideration (Ingham Cty. Cir. Ct. Apr. 30, 2013).
appealed the trial court's decision on grounds that (1)
the trial court violated Michigan Court Rule 6.508(E) by not
reaching the merits of his claims, (2) he was entitled to a
remand for a hearing and a merits decision, (3) his
constitutional right to a speedy trial was denied, (4) trial
counsel was ineffective, (5) appellate counsel was
ineffective for not raising these issues on appeal, and (6)
structural error occurred. The Michigan Court of Appeals
declined to remand Petitioner's case and denied his
application for leave to appeal on the basis that Petitioner
had failed to establish entitlement to relief under Michigan
Court Rule 6.508(D). See People v. Henderson, No.
318404 (Mich. Ct. App. Jan. 23, 2014). On September 5, 2014,
the Michigan Supreme Court denied leave to appeal for the
same reason. See People v. Henderson, 497 Mich. 853;
852 N.W.2d 177 (2014) (table).
December of 2014, Petitioner filed another habeas corpus
petition in this District. See Henderson v. Burt,
No. 14-14625 (E.D. Mich. Dec. 8, 2014). The Clerk of the
Court randomly assigned the 2014 petition to another judge in
this District, but because the 2014 petition challenged the
same convictions as the 2012 petition, it was subsequently
reassigned to this Court. On December 23, 2014, the Court
consolidated the two cases, re-opened this case, amended the
caption, and closed the 2014 case. See Order of
Consolidation, ECF No. 6. Respondent Sherry Burt subsequently
filed an answer to the petition, ECF No. 12, and Petitioner
filed a reply, ECF No. 14.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), imposed the following standard of review for habeas
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceedings.
28 U.S.C. § 2254(d).
thus imposes a ‘highly deferential standard for
evaluating state-court rulings, ' Lindh v.
Murphy, 521 U.S. 320, 333 n.7 (1997), and ‘demands
that state-court decisions be given the benefit of the doubt,
' Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam).” Renico v. Lett, 559
U.S. 766, 773 (2010). In fact,
“[a] state court's determination that a claim lacks
merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct.
770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d
938 (2004)). The state court decision must be “so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” White v.
Woodall, 572 U.S.___, ___, 134 S.Ct. 1697, 1702, 188
L.Ed.2d 698 (2014) (internal quotation marks omitted).
Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016).
Additionally, this Court must presume the correctness of a
state court's determination of factual issues unless the
petitioner rebuts the presumption with clear and convincing
evidence. Holland v. Rivard, 800 F.3d 224, 242 (6th
Cir. 2015) (citing 28 U.S.C. § 2254(e)(1)),
cert. denied, 136 S.Ct. 1384 (2016).
alleges that he was denied his state and federal right to a
speedy trial. Petitioner raised this issue in the Michigan
Court of Appeals on direct appeal. The Court of Appeals
determined that the Michigan statute on which Petitioner
relied and the corresponding court rule were not applicable
because the statute and rule were limited to state prisoners,
and Petitioner was a county detainee at the time. The Court
of Appeals also stated that, to the extent Petitioner
challenged the delay on constitutional grounds, his argument
failed because he did not raise the issue of prejudice.
also raised his speedy trial claim in his motion for relief
from judgment and the subsequent appeal. The state trial
court concluded that it was barred from granting relief
because the issue was decided against Petitioner on direct
appeal and there had been no retroactive change in the law
that undermined the appellate court's decision.
contends that the trial court erred by failing to provide a
reasoned analysis of his constitutional claim. Petitioner
also contends that the delay in trying him was ...