JERRY PAUL HENDERSON, Petitioner-Appellant, versus MICHAEL W. HALEY, Commissioner of the Alabama Department of Corrections, ATTORNEY GENERAL FOR THE STATE OF ALABAMA, Respondents-Appellees.
No. 01-16901
D. C. Docket No. 00-00941-CV-BU-E
United States Court of Appeals, Eleventh Circuit
December 16, 2003
[PUBLISH]
(December 16, 2003)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
ANDERSON, Circuit Judge:
Jerry Paul Henderson (“Henderson“) was convicted of murder in the state courts of Alabama and received a death sentence. The district court denied
I. BACKGROUND
On May 19, 1988, Henderson was found guilty of capital murder and sentenced to death in Talladega County Circuit Court in Talladega, Alabama. His conviction and sentence were subsequently affirmed by the Alabama Court of
A. State Post-Conviction Proceedings
On October 13, 1993, two Maryland attorneys filed a petition in the state courts of Alabama on Henderson‘s behalf, seeking post-conviction relief pursuant to
On April 22, 1997, approximately nine months after Giddens’ appointment, an evidentiary hearing was held in the Rule 32 proceeding. At that hearing, on behalf of Henderson, Giddens moved to dismiss the Rule 32 petition. Giddens explained that he had discussed the petition with Henderson and that his client was satisfied with his trial counsel and did not want to continue the claims of ineffective assistance or pursue any other challenges to his conviction and sentence. Giddens told the court that he believed that Henderson was fully aware of the situation and had plenty of time to consider the decision. Judge Fielding engaged Henderson in an extensive colloquy regarding his decision to dismiss the Rule 32 petition and its possible consequences.4
The court explained that Henderson‘s Rule 32 petition set forth allegations relating to his 1988 trial that would, if true, result in a new trial.5 The court explained to Henderson that the dismissal would significantly impair Henderson‘s chances of any successful appeal from the Rule 32 proceeding as well as any
On appeal, Henderson argued that he “did not voluntarily, knowingly, and intelligently waive his post-conviction remedies under Rule 32,” and asked the court to “reverse the order dismissing his Rule 32 petition and remand it to the circuit court for a full and fair evidentiary hearing.” Henderson argued that he had seen the petition for the first time just the day prior to the dismissal and was never made aware of the specific allegations contained therein. Consequently, he claimed that he could not under those circumstances effectively waive his post-conviction remedies.
On August 14, 1998, the Alabama Court of Criminal Appeals affirmed, holding that the circuit court was correct in finding that Henderson possessed requisite mental competence to dismiss his petition and that he did so voluntarily, knowingly, and intelligently. Henderson v. State, 733 So.2d 484 (Ala.Crim.App. 1998). In reaching its conclusion, the Alabama appellate court considered the
On October 19, 1998, the Supreme Court of Alabama granted Henderson‘s petition for writ of certiorari, but later reconsidered and quashed the writ on April 23, 1999. On October 27, 1999, Henderson filed a second Rule 32 petition in the Talladega County Circuit Court which was dismissed pursuant to Rule 32.2(b) (successive petitions) and (c) (statute of limitations) of the Alabama Rules of Criminal Procedure.
B. Federal Post-Conviction Proceedings
1. The 28 U.S.C. § 2254 Petition
On April 11, 2000, Henderson filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Alabama, pursuant to
As to the claims included in the Rule 32 petition, Henderson argued that he lacked a sufficient understanding of these claims at the time of his motion to dismiss, and therefore, his dismissal was not knowing, voluntary, and intelligent. From that, Henderson argued, the district court should find sufficient “cause and prejudice” to excuse his procedural default. Also, for the first time, Henderson pointed out that Steve Giddens, his Rule 32 counsel, was the brother of one of the prosecutors who participated in his 1988 trial. Rod Giddens,10 Steve‘s brother,
On June 18, 2001, Respondents objected to the holding of an evidentiary hearing, arguing that Henderson had not developed a factual basis for this claim in his state court proceedings, and therefore had not demonstrated that he was entitled to a hearing under
The evidentiary hearing on June 25, 2001, focused on three issues: (1) Was Petitioner‘s attorney, Steve Giddens, acting under a conflict of interest when he represented Petitioner at the hearing wherein Petitioner waived his right to the Rule 32 hearing? (2) If so, was Petitioner aware of it? (3) If there was a conflict of interest, did it prejudice Petitioner, i.e., did Petitioner‘s attorney improperly influence Petitioner to dismiss his Rule 32 proceeding? At the hearing, two witnesses testified: Steve Giddens and Jerry Henderson. Giddens testified that he was admitted to the bar in 1986 and opened a solo practice in Talladega. In 1989, he began to work for Legal Services Corporation of Alabama. Giddens returned to solo private practice in 1991, and continued to practice in that capacity until he was elected Talladega County‘s District Attorney in 1998. Talladega is a town of about 20,000 people with perhaps thirty-five to forty attorneys with offices there with about eight to ten of those attorneys principally involved in the practice of criminal defense law.
Giddens testified that his brother, Rod Giddens, was a former assistant district attorney in Talladega County, and was one of the prosecuting attorneys at
Steve Giddens also testified that he is friends with Billy Haney, a local police officer and brother of the victim. Their friendship dates back to the 1970s. Giddens testified that he expressed his condolences to Billy Haney upon the death of his brother. Giddens admitted that he never told Henderson about his relationship with the victim‘s brother.
Giddens testified that at some point after Judge Fielding appointed him to represent Henderson in the Rule 32 proceeding, he reviewed the court file
Giddens stated that he first met Henderson at the county jail the day before the April 22, 1997 hearing on the Rule 32 petition. During the approximately nine months that had transpired since his appointment, no prior communication of any sort had taken place with Henderson via mail, telephone, personal contact, or
Giddens did not recall reviewing any parts of the transcript of the penalty phase and did not “have an opinion” as to whether trial counsel had adequately presented mitigating circumstances to the jury. Giddens conceded that ineffective
Henderson was the only other person who testified at the evidentiary hearing. Henderson testified that he was not aware that he had been appointed Rule 32 counsel after his Maryland attorneys withdrew as counsel. When he was transported from prison to the Talladega County Jail in April of 1997 for the Rule 32 proceeding, he did not know the purpose of the trip. Then, when Henderson met Giddens, he told Giddens that he did not know “what all of the Rule 32 meant.” Giddens told him that he was claiming ineffective assistance of counsel.
On cross-examination, Henderson acknowledged that, at the hearing that following day, Judge Fielding explained the consequences of withdrawing his Rule 32 petition. Also, Henderson conceded that, in his opinion, Giddens did not prompt him to dismiss his Rule 32 petition: “Prompt? I don‘t think he [Giddens] prompted me to. I think we settled our conversation and it basically come down to that‘s what I thought I wanted to do.”
3. Habeas Petition Denied
On September 24, 2001, the magistrate judge filed a Report and Recommendation to deny Henderson‘s habeas petition. In this report, the magistrate judge determined that each of the claims that were raised in the Rule 32 petition that Henderson dismissed prior to an adjudication on the merits were
[P]etitioner asserts that this waiver was not knowingly and intelligently made, even if voluntary. This argument is without merit. The record evidence is clear that petitioner knew he was giving up his right to a Rule 32 hearing. He may not have understood all of the issues that he was foregoing, but that is not necessary. What is important is that he understood that he was giving up whatever rights he had and that the result of that decision would hasten his execution. The purpose of the “knowing and voluntary” inquiry is to determine whether the defendant actually understands the significance and consequences of a particular decision and whether the decision is uncoerced. Clearly, petitioner understood the significance of what he was doing and the consequences thereof.
Furthermore, the undersigned magistrate judge concludes that petitioner‘s Rule 32 counsel, Mr. Steve Giddens, was unaware of his brother‘s prior involvement in the original prosecution of Henderson and . . . there is no evidence that he exerted any undue influence on petitioner for that or any other reason. In short, Mr. Giddens’ relationship to a prosecutor in this case was not a factor in petitioner‘s
decision to waive his Rule 32 proceedings.
Consequently, the undersigned magistrate judge finds that petitioner has waived those issues raised in his Rule 32 petition because he dismissed that petition and cannot show cause and prejudice sufficient to overcome this procedural default.
Report and Recommendation at 50 (internal citations omitted).
On October 31, 2001, the district court adopted the recommendation of the magistrate judge and entered final judgment denying Henderson‘s federal habeas petition. In its final order, the district court indicated that it had carefully considered the magistrate judge‘s report and recommendation, as well as Henderson‘s objections, and found that only one claim carried any “weight.” That claims was whether “Rule 32 counsel‘s relationship as the brother of the prosecutor who played a minor role14 in the trial resulted in a conflict of interest which in turn resulted in petitioner waiving the Rule 32 proceeding in a manner that was not knowing or voluntary.” The district court explained that it was “unpersuaded that this argument is meritorious under the facts developed at the evidentiary hearing in this case and concurs with the Magistrate Judge‘s recommendation that this petition be denied.”
4. Certificate of Appealability Granted in Part
A certificate of appealability is GRANTED as to petitioner‘s claim that the waiver of his right to proceed under
Alabama Rule 32 was not knowing, voluntary, intelligent and that petitioner was unduly influenced by an attorney with a conflict of interest, in that petitioner has made a substantial showing of the denial of a constitutional right.A certificate of appealability is DENIED as to all other claims raised by petitioner because he has not made a substantial showing of the denial of a constitutional right.
Henderson then moved this Court to expand the certificate and to stay the briefing schedule pending consideration of that motion. This Court granted the motion to stay the briefing schedule and, in a later order, denied the motion for expansion of the certificate of appealability.
II. STANDARD OF REVIEW UNDER AEDPA
AEDPA “places a new constraint on a federal habeas court‘s power to grant a state prisoner‘s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court” by establishing a deferential standard for reviewing state court judgments in these cases. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Subsection (d) of § 2254 provides:
(d) 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 proceeding.
Thus, section 2254(d)(1), with its “contrary to” and “unreasonable application of” prongs, sets forth two narrow circumstances in which a federal court may grant a writ of habeas corpus to a state prisoner. Section 2254(d)(2) sets forth one more. This third and last situation is where the state court‘s conclusion is based on an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
AEDPA also makes clear that substantial deference is to be accorded a state court‘s findings of fact. Section 2254(e)(1) provides that “a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”
The district court‘s determination of whether this standard has been met is subject to de novo review. Harrell v. Butterworth, 251 F.3d 926, 930 (11th Cir. 2001).
III. ISSUES PRESENTED
The district court granted a COA to review its conclusion that Henderson had not established cause to overcome the procedural default of the claims that he waived by dismissing his Rule 32 petition in the state court. In reaching this conclusion, the district court rejected the following two arguments for cause: (1) the waiver of his right to proceed under
IV. DISCUSSION
Each of the federal habeas claims that Henderson had initially raised in his Rule 32 petition, but later dismissed prior to an adjudication on the merits, are procedurally defaulted. “A state prisoner seeking federal habeas relief cannot
Henderson does not challenge the district court‘s conclusion that these claims have been procedurally defaulted. Acknowledging his state procedural
Henderson attempts to overcome the procedural default in this case by
Recognizing that he has no argument for cause based on any purported
A. Lack of Understanding
Henderson‘s first argument for cause is based on his alleged lack of a sufficient understanding of the actual claims contained in the Rule 32 petition he dismissed. Henderson argues that because of this failure, his dismissal was not a “knowing, voluntary, and intelligent” waiver of his legal rights. Henderson argues that under prevailing law, his waiver is ineffective unless it was “an intentional relinquishment or abandonment of a known right or privilege,” and, according to Henderson, his was not. Thus, he argues that this court should find cause and excuse the procedural default created by the premature dismissal of his Rule 32 claims.
Henderson‘s argument that he lacked a sufficient understanding of the
Language from the Supreme Court‘s decision in Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), has consistently been cited as setting forth the controlling legal standard for assessing the validity of a death row inmate‘s choice to forego post-conviction review. In Lonchar v. Zant, 978 F.2d 637, 641 (11th Cir. 1992), this Circuit addressed the question of whether Lonchar was competent to waive his right to collaterally challenge his conviction and death
Competency to forego further legal proceedings depends on whether the person whose competency is in question “has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.”
Lonchar, 978 F.2d at 641 (Rees, 384 U.S. at 314, 86 S.Ct. at 1506). Applying this Rees test in Lonchar, this Circuit affirmed the district court and held that the condemned person could forego further review of his conviction and sentence. Id. at 642. This Court noted that the district court had “found that Lonchar was able to understand his legal position and the options available to him” and “the consequences of not pursuing review of his conviction.” Id. It concluded that “Lonchar could make a rational choice among his options,” and according to testimony from a psychiatrist, after “considering his options and the quality of life in prison, [Lonchar] had decided not to oppose his conviction.” Id.
Then, in Ford v. Haley, 195 F.3d 603, 605 (11th Cir. 1999), our Circuit considered another case where a death row inmate sought to dismiss his counsel and forego all further collateral challenges to his conviction and sentence. The district court found the inmate competent to forego further collateral relief. In so concluding, “[t]he district court held that under Lonchar, Ford need not understand
In Hauser ex. rel. Crawford v. Moore, 223 F.3d 1316 (11th Cir. 2000), a death row inmate “filed a waiver of all collateral and/or post-conviction relief proceedings.” Id. at 1319. The state court appointed an attorney to represent the inmate. Id. The inmate filed a motion to dismiss the counsel and for permission to proceed pro se. Id. Despite the inmate‘s desire to proceed pro se and waive all rights to collaterally challenge his death sentence, attorneys from the Capital Collateral Regional Counsel (“CCRC“) and Hauser‘s biological mother, purporting to act on Hauser‘s behalf, attempted to challenge the conviction and sentence in both state and federal court. Id. at 1319-20. On appeal from a
Applying the standard derived from the foregoing cases, we readily conclude that the state court‘s determination, see Henderson v. State, 733 So.2d 484 (Ala.Crim.App. 1998), in this case was not “contrary to, or [did not] involve an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States.” See
Henderson‘s second argument for cause is that his decision to dismiss his Rule 32 petition was not made voluntarily because it was the result of the undue influence of Steve Giddens, his Rule 32 counsel. This argument is based on the evidence presented at the evidentiary hearing in the district court including evidence that Giddens’ brother second-chaired Henderson‘s 1988 trial, and that Giddens’ friend Billy Haney, a local law enforcement officer in Talladega, was the brother of the victim of the murder committed by Henderson. The district court considered the testimony of Giddens and Henderson, and concluded that Giddens’ relationships were “not a factor” in Henderson‘s decision to waive his Rule 32 proceedings. Henderson argues that this Court should reject the district court‘s determination that he was not unduly influenced by Giddens to dismiss his Rule 32 petition.
There is a threshold procedural issue that precedes any consideration of the merits of Henderson‘s argument that he was unduly influenced by Giddens. Respondents argue that this argument was not properly exhausted in the state courts, has been procedurally defaulted, and therefore is now barred and should not be considered by this Court. It is undisputed that Henderson did not present
A state prisoner is ordinarily not able to obtain a writ of habeas corpus from a federal court unless he has exhausted the remedies available in the courts of the state. A claim is procedurally defaulted for the purposes of federal habeas review where “the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 2557 n.1, 115 L.Ed.2d 640 (1991). Therefore, given the facts of this case, before we consider whether Henderson‘s undue influence argument provides cause to excuse the procedural default of his ineffective assistance claims, we must first determine whether this argument for cause can even be considered or whether it has itself been
In this case, the issue is not whether an actual constitutional claim being asserted as a basis for habeas relief is procedurally defaulted. Rather, we consider whether an argument for cause to excuse a procedural default of a constitutional claim is procedurally defaulted in its own right. Because this would involve a double-layered application of the exhaustion and procedural default rules, we must first address whether these rules are even applicable in these circumstances to potentially bar Henderson from raising the undue influence argument as cause to excuse the procedural default of the constitutional claims asserted in the Rule 32 petition he dismissed.
While there are very few record cases involving a double-layered application of the doctrine of procedural default, the Supreme Court fairly recently made clear that an ineffective assistance of counsel claim being used for cause to excuse a procedural default of another claim is not itself excepted from the doctrine of procedural default. In Edwards v. Carpenter, 529 U.S. 446, 451-52, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000), a habeas petitioner argued ineffective assistance of counsel as cause for his procedural default of other constitutional claims in his
With its decisions in Edwards v. Carpenter and Murray v. Carrier, see supra n.22, the Supreme Court has made clear that a procedurally defaulted ineffective assistance of counsel claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the “cause and prejudice” standard with respect to the ineffective assistance claim itself. While the present case does not involve the attempted use of ineffective assistance of counsel as cause, we believe the rule set forth in Edwards applies to Henderson‘s argument for cause based on undue influence.
We believe this is an obvious and natural extension of Edwards and Murray,
Thus, we hold that Henderson‘s undue influence claim is subject to the exhaustion requirement and doctrine of procedural default. Concluding that both of these rules apply, we will consider whether the rules were satisfied in this case. It is undisputed that Henderson has never argued, at any level of his Rule 32 proceedings in the Alabama state courts, that his Rule 32 dismissal was involuntary as the product of the undue influence of Rule 32 counsel. Rather, this argument for cause was raised for the first time in the district court
In this case, Henderson prosecuted an appeal of his dismissal of his Rule 32 petition. In that appeal, with the assistance of current counsel, he sought to have his Rule 32 dismissal vacated, thus reinstating his Rule 32 petition. As grounds for the relief he sought, Henderson argued that he lacked a sufficient understanding of his claims and legal rights to have made a legally valid “knowing, voluntary, and intelligent” waiver of rights. Instead of seeking relief only on this ground, Henderson could have also pressed his alternative argument that his dismissal was involuntary and should be set aside because it was the product of the undue influence of Steve Giddens. Additionally, Henderson likely could have sought post-judgment relief in the Rule 32 trial court, such as by filing a motion for new trial brought pursuant to
A claim is procedurally defaulted for the purposes of federal habeas review where “the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman v.
Even though we conclude that Henderson has procedurally defaulted his undue influence argument for cause, our inquiry does not end there. “To hold, as we do, than [Henderson‘s undue influence] claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that that procedural default may not itself be excused if the prisoner can satisfy
Steve Giddens’ representation of Henderson ceased on the date of Henderson‘s dismissal of his Rule 32 petition, and no further communications occurred between these two individuals. Thus, any alleged undue influence ceased long before Henderson‘s Rule 32 proceeding made its way completely through the Alabama state courts. The Equal Justice Initiative timely filed a notice of appeal from the Rule 32 dismissal, and Henderson‘s current counsel prosecuted the merits of the appeal in the Alabama Court of Criminal Appeals. Nevertheless, no undue influence argument was presented. No claim has been made that Henderson or his counsel were ever denied any documents containing information regarding Henderson‘s capital trial and its participants and witnesses, including the trial transcripts. Not only is a plausible argument for cause not discernable by this Court upon its independent review of this record, Henderson has not advanced any argument of his own that his failure to raise the undue influence issue in the state court following the Rule 32 dismissal should be excused by this Court, and has presented no facts to this Court that could reasonably serve as a basis for excusing
Even if it was not procedurally barred, we would still reject Henderson‘s undue influence claim on the merits. The magistrate judge held an evidentiary hearing in this case to determine whether Henderson‘s decision to dismiss his Rule 32 petition was involuntary as the product of the undue influence of Steve Giddens. After hearing substantial testimony from both Giddens and Henderson, and considering the arguments of counsel, the magistrate judge made factual findings that Giddens was unaware, during his representation of Henderson, that his brother had participated in Henderson‘s prosecution, and that Giddens in no way exerted any undue influence on Henderson for that or any other reason. Put another way, the magistrate judge expressly found that Giddens’ relationship to his
This finding of fact has ample support in the record. Henderson‘s own testimony at the evidentiary hearing supports the magistrate judge‘s finding. Asked by his own counsel on direct examination whether he was prompted by Giddens to dismiss his Rule 32 petition, Henderson responded as follows: “Prompt? I don‘t think he prompted me. I think we settled our conversation and it basically came down to that‘s what I thought I wanted to do.” From this testimony and from the testimony of Giddens, the district court found that Henderson was not unduly influenced into dismissing his Rule 32 petition. We conclude that this finding is not clearly erroneous. Thus, Henderson‘s “undue influence” claim also fails on the merits.28
V. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
- What petitioner was told by his attorney, Steve Giddens, prior to dismissing his Rule 32 petition in state court;
- Whether Steve Giddens was aware at the time of petitioner‘s Rule 32 proceeding that his brother had prosecuted petitioner; whether he discussed this fact with petitioner; and if he did not discuss this fact with petitioner, why he did not do so; and
- If Steve Giddens did not discuss with petitioner the fact that his brother had prosecuted petitioner, whether the lack of disclosure deprived Henderson of the opportunity to make a knowing, intelligent and voluntary waiver of his right to pursue collateral relief, such that the state court‘s finding that petitioner knowingly, intelligently and voluntarily waived his right to pursue collateral relief is an unreasonable determination in light of the evidence presented.
Putnam v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (internal citations and quotations omitted). Also, “[i]n applying the ‘contrary to’ prong ofThe “contrary to” and “unreasonable application” clauses of
§ 2254(d)(1) are separate bases for reviewing a state court‘s decisions. A state court decision is “contrary to” clearly established federal law if either (1) the state court applied a rule that contradicts the governing law set forth by Supreme Court case law, or (2) when faced with materially indistinguishable facts, the state court arrived at a result different from that reached in a Supreme Court case.A state court conducts an “unreasonable application” of clearly established federal law if it identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner‘s case. An unreasonable application may also occur if a state court unreasonably extends, or unreasonably declines to extend, a legal principle from the Supreme Court case law to a new context. Notably, an “unreasonable application” is an “objectively unreasonable” application.
Lastly,
§ 2254(d)(1) provides a measuring stick for federal habeas courts reviewing state court decisions. That measuring stick is “clearly established Federal law.”28 U.S.C. § 2254(d) . Clearly established federal law is not the case law of the lower federal courts, including this Court. Instead, in the habeas context, clearly established federal law refers to the holdings, as opposed to the dicta, of the Supreme Court‘s decisions as of the time of the relevant state court decision.