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Henderson v. Burt

United States District Court, E.D. Michigan, Southern Division

April 11, 2017

FRANK DOUGLAS HENDERSON, Petitioner,
v.
SHERRY BURT, Respondent.

         HON. ARTHUR J. TARNOW

          OPINION AND ORDER DENYING THE AMENDED HABEAS CORPUS PETITION [9], DECLINING TO GRANT A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          Arthur J. Tarnow Senior United States District Judge.

         This 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 trial.

         Respondent 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.

         The 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.

         I. Background

         The 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 that

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.

         On 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.

         Petitioner 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.)

         In a 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 2463566.

         In an 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).

         On 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.

         Petitioner 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).

         Petitioner 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).

         In 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.

         II. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposed the following standard of review for habeas cases:

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; or
(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).

         “AEDPA 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).

         III. Analysis

         A. Speedy Trial

         Petitioner 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.

         Petitioner 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.

         Petitioner 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 ...


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