*1 qualified claim arises context tiffs two other difficul- at least face would here) (as or not. immunity investigation (1) an the absence ties: be plausibly accident could after accident; of this the cause III. alleges, permits nowhere complaint reasons, affirm. For these limited
inference, defendants that the intentional, investigation for scope of the reasons. or reckless
malicious come plaintiffs papers, appellate
In their this —dis much of recognizing
close had a City or its officers
claiming “that the their inves duty to conform
constitutional desires Appellants’ to the tigation and/or Petitioner-Appellant, HENLEY, Steve They argue then 12-13. Br. at dictates.” to an effort really amounts claim that this of access right their
to vindicate Warden, Ricky BELL, Riverbend Plaintiffs, however, not raise did courts. Institution, Security Maximum it their below, plead less much claim Respondent-Appellee. been accordingly it has complaint, and Assocs., Inc. Wyckoff & See J.C. waived. 03-5891. No. Co., 936 F.2d Fire Ins.
v. Standard Appeals, States Court United Cir.1991). Sixth Circuit. correctly court Because the district 28, 2006. Nov. Argued: failed allegations plaintiffs’ concluded May and Filed: Decided law, it a matter of a claim as to state err court did not that the district follows 12(b)(6) motion Rule defendants’
granting by plaintiffs. discovery permitting
before “there is no established
It is well discovery upon filing right
general Yuhasz, at 566. 341 F.3d complaint.” of Fed.R.Civ.P. very purpose
“[T]he chal
12(b)(6) defendants to is to enable sufficiency complaints legal
lenge discov subjecting themselves
without (internal omit marks quotation
ery.” Id. moreover,
ted). Here, did obtain plaintiffs they not as much as discovery, just
some point The salient have
would liked. complaint
that, file plaintiffs when law, matter of as a to state claim
fails about complain
they cannot be heard discovery. additional being provided claim, they cognizable the absence discovery any right no
have —whether *3 SILER, COLE,
Before: COOK, Circuit Judges.
COOK, J., opinion delivered the court, SILER, J., joined. COLE, which 391-96), (pp. J. separate delivered a opinion concurring part and dissenting in part.
OPINION *4 COOK, Judge. Circuit Petitioner Steve Henley was convicted of two counts of aggravated murder and arson in violation of Tennessee law and was sentenced to death. peti- He filed a corpus for habeas alleged twenty- one errors the state-court proceedings. The district court petition, denied but granted a Certificate of Appealability (COA) issue, as to one permitted and we Henley expand the COA to include five additional claims. For the reasons set below, forth we affirm judgment of the district court. Background
I. The Tennessee Supreme Court found the following facts in Henley’s ap- direct peal, v. Henley, State 774 S.W.2d (Tenn.1989): summary the evidence showed that Fred and Edna Stafford lived on Pine Lick Creek Road in County, Jackson just a short farm, distance from the ARGUED: Davidson, Waller, Paul S. by Henley’s owned family, where his Lansden, Davis, Nashville, Dortch & grandmother Ten- lived. day On the of the nessee, for Appellant. Lustre, Alice B. Staffords’ Henley death had visited his Office of General, the Attorney Nashville, grandmother and obtained some me- Tennessee, for Appellee. ON BRIEF: parts chanical for some work he was Paul Davidson, S. Waller, Lansden, Dortch Flatt doing. was with him. Earlier in Davis, & Nashville, Tennessee, Paul R. day they about, had driving been Bottei, Federal Office, Public Defender’s tending to business affairs of Henley’s. Nashville, Tennessee, for Appellant. Alice During that time they had consumed Lustre, B. Office Attorney General, of the beer some and also had taken some Nashville, Tennessee, for Appellee. drugs, referred to in the record as Di- out poured told and do as he was ored to Flatt, they According laudids. he could amount. When a small residence Staffords’ passed gas people the container some took commented, was finish “there his owed it out. pouring road and finished on that him lived some mon- grandfather light it. When Flatt to grandmother directed He then grand- wrong, him they done ey, and not he he could struck Flatt said before, and he wrong years parents up they went the flames and as match collecting about and see stop going truck. ran to the Flatt let them.” money off some The ground. to the house burned The he reached just before truck out were found of the Staffords bodies re- he When house. grandmother’s of Mr. Staf- All that remained ashes. he later had or ten minutes five turned right leg body part of ford’s fifty or stopped They him. with rifle .22 body of Mrs. Staf- the trunk area. where the road yards up seventy-five de- It was similarly burned. ford was into more shells some Henley loaded died from that Mr. Stafford termined jug with plastic filled a also He rifle. chest with wound gunshot he can had five-gallon from a gasoline *5 his heart. Mrs. through passing bullet They proceeded the truck. of the back by caused burns death Stafford’s residence. the Stafford toward on the gases from of noxious inhalation and Mr. and Mrs. they reached there When of medical opinion the It was the fire. the left-hand standing on were Stafford min- a lived examiner that Mrs. Stafford a looking at small road of the side the fire began. longer ute or after work some construction bridge where Henley done. recently been had jury convicted a Tennessee truck, and told jumped out the stopped mur- first-degree counts of of two Henley money, you if don’t them, your “I want arson. aggravated of count and one der here, truck the this man in it to me give sentence. a death recommended jury The directed He then kill me.” going to he’s Henley to death sentenced The trial court Mr. Stafford to the house. go to them im- twenty years to murder and for each money or some- said, “Steve, you if want arson con- aggravated the for prisonment $100, you can $80, maybe got I thing, Court Supreme The Tennessee viction. the them on to forced it.” He have sentence Henley’s and conviction affirmed to told Flatt and gunpoint house a state Henley filed appeal. on direct behind followed rifle as the .22 he bring the in which petition post-conviction 20 or 30 within they got When them. Court Tennessee The court denied. trial give told Flatt he house feet the Henley concluded Appeals Criminal to the truck go and back him the rifle assistance effective receive the did not gasoline. jug of plastic get the of his sentencing phase during counsel he reached As did as directed. Flatt The death sentence. vacated his trial and begin to shoot. he saw porch reversed, over Supreme Tennessee then turned Mr. Stafford He first shot the trial dissent, and affirmed two-justice time or two. Mrs. Stafford shot Henley’s petition. denial court’s the floor moan- laying on she was While (Tenn.1997). State, 960 S.W.2d rifle to he threw groaning ing reopen his state Henley filed motion her and shot Flatt, pistol out his took 1999, and the petition post-conviction told Flatt He pistol. again with it. court denied trial Flatt endeav- gas. pour out some Appeals Court of Criminal affirmed this clearly established federal law as deter- decision. (2) mined Supreme Court; based on an unreasonable determination of petition filed a in the district in light facts presented evidence court pursuant § 28 U.S.C. 2254(d). to the state § courts. 28 U.S.C. alleged twenty-one which grounds district court relief. The denied each clause, Under the “contrary to” petition. claim and dismissed The dis- may grant federal habeas court the writ if granted Henley trict court COA as to the state court arrives at a op conclusion procedurally whether he defaulted his posite to that reached accomplice claim that his falsely testified question law, on a or if the state trial, him his but denied a COA on all court decides a case differently than permitted other issues. We Henley to ex- Court has on a materially set of pand his COA to include the following indistinguishable five facts. Tay Williams v. (1) lor, issues: whether women were underrep- 412-13, (2000). resented the selection of foreperson L.Ed.2d 389 Under the “un Henley’s jury clause, reasonable application” violation of his a federal process rights due right may to a habeas court grant fair the writ if the community cross-section state serving court identifies the governing correct (2) jury; whether legal principle counsel ren- from the Supreme Court’s dered ineffective assistance decisions but during unreasonably applies that trial; sentencing phase of principle whether petitioner’s facts trial improperly court case. instructed the S.Ct. 1495. *6 unanimously that it had to any find miti- may court look to lower courts of (4) in gating factors Henley; decisions, appeals’ binding prece- as prosecutor whether the improperly appeal- dent, but rather to analysis inform the ed to the to jury “send a message” as a Supreme Court holdings to determine reason for sentencing Henley death; to a legal whether principle had been clearly (5) prosecutor improperly whether established Court. Hill v. vouched for testimony of Henley’s ac- Hofbauer, (6th 706, Cir.2003). 337 F.3d 716 complice, Flatt. Terry Finally, the petitioner habeas has the bur- den of rebutting, by clear and convincing
II. Standard of Review evidence, presumption that the state We review de novo a court’s factual findings district court’s correct. were See legal 2254(e)(1); § conclusions and mixed 28 questions Elo, U.S.C. McAdoo v. fact, law 487, (6th and we review 365 Cir.2004); its factual 493-94 F.3d War- findings Smith, for clear error. (6th ren v. Armstrong 358, v. 161 F.3d 360-61 (6th Cir.1998). Morgan, 372 Cir.2004); F.3d O’Dea, Lucas v. 179 F.3d Jury III. Grand Challenge Cir.1999). Under the Antiterrorism and Penalty (AEDPA), Effective Death Act a Henley claims he is entitled to re district grant court shall not peti- habeas lief under the Due Process Clause based tion with respect any claim that was on systematic exclusion of women from adjudicated on the merits in the position state jury foreperson in Jackson courts adjudication unless the resulted in a County, Tennessee. He presents evidence decision to, was contrary or in- that from 1974 to a woman was never volved an of, unreasonable application selected to serve grand fore- issue at some this we discussed At which indicted in Henley was person; rule Campbell’s concluding length, in Tennessee foreperson time, this role be- of retroac- unusually important purposes be traced an cannot played independently Kiff, he was selected 407 U.S. Peters v. tivity cause to either of the member a thirteenth judge as (1972) (plural- 2163, L.Ed.2d 83 Louisiana, Campbell See jury. grand States, 468 Hobby v. United ity opinion), 392, 402, 118 S.Ct. 528 U.S. L.Ed.2d 260 (1998). Thus, the selection L.Ed.2d our (1984). cannot control Although Coe jury’s grand affected the foreperson of the strictures because disposition Campbell, the In composition. helpful.1 AEDPA, reasoning find its standing have defendants held that Court succeed, show he must Henley to For discrimination challenge racial the result compelled or Peters Hobby in- jury used grand composition any conclu- degree that Campbell such addresses Although Campbell them. dict unreason- contrary would be sion to rule this alone, Henley contends race however, Campbell suggests, able. As Coe as well. claims gender-based extends so Hobby or Peters traced to cannot be however, claim, Hen- this order to raise Campbell First, although the clearly. may rely that he must first show ley in conclud- approvingly cited Peters under Campbell rule articulated pro- a due can raise that a defendant ing Lane, Teague retroactivity doctrine of members the exclusion challenge to cess L.Ed.2d S.Ct. jury, a state of another race abili- petitioner’s (1989), limits which their in Peters based only three Justices rules of on new relief based to obtain ty the Constitution on both decision after announced procedure criminal de- they provide read to criminal statute Henley raised final. became conviction Coe, 161 F.3d this entitlement. fendants the Tennessee before claim 497-98, Peters, (citing at 353 petition in his state Appeals Criminal 2163). Justices The other three relief, court denied and the post-conviction that the majority concluded rely on a the six-Justice Henley could not it, finding alone. under from the statute Cavnpbell right stemmed application retroactive *7 505-07, to 92 inquiry Peters, our directs (citing AEDPA Teague. at 400- the Tennessee U.S. Campbell, 523 whether determine S.Ct. contrary 1419). Thus, conclusion was “‘the Appeals’ because Criminal clearly application an unreasonable that to or may be viewed the holding of thus, law; question our federal established con- who by those Members taken position applica- court’s the Tennessee whether is narrowest on the judgments curred holdWe unreasonable. Teague was to stand be said cannot grounds,’ Peters it was not. that constitution that proposition for a due- ability raise ... gave Peters determination, its making In exclusion challenge process favorably decision our court cited state women) jury.” (or grand from his (6th Cir.1998), Blacks Bell, F.3d 320 Coe inapposite because Coe is argument that Coe in distinguishable from is case misplaced as we distinguishing fact before this became final Coe’s conviction determining Hobby, guidance in only its for issued decision look to Coe Supreme Court nevertheless, extensively Hofbauer, in Coe clearly decision established. what law is Hobby com- question whether examined at 716. 337 F.3d Any Campbell. decision in the Court’s pelled States, (citing Marks United provided case detail on the extent of 188, 193, protection. L.Ed.2d 260 The casual manner in (1977)). sound, find reasoning We which these cases suggest such an ex- appel- cannot show the Tennessee mean, tension however, does not concluding late court’s decision that Peters holdings necessarily followed fails to authorize process the instant due “existing precedent.” Indeed, the fail- challenge is contrary unreasonable or ure of Hobby even to mention gen- clearly established federal law. der/standing question paved way conclusions such as the one we reached Hobby, As for Campbell court cited later in Ford v. Seabold F.2d [841 Hobby approvingly, Hobby but cannot be (6th Cir.1988)]. said to have compelled Campbell’s result retroactivity (citations purposes. omitted). As Coe ex- Id. at 354 Coe also plained, noted that Justice Marshall issued a dis- senting opinion from the denial of certiora- Hobby,
In a white male defendant ri in Ford v. Kentucky, 985- challenged his indictment because he (1984), L.Ed.2d grand said that the jury excluded Blacks ease Hobby, decided after in which he com- and women. Hobby’s Because claim mented that the third-party standing issue had law, been dismissed as a matter of was not definitively resolved and that Supreme Court assumed that Court had issued conflicting pronounce- violation had proceeded occurred and ments on sum, the issue. Id. In consider if Coe’s Hobby any remedy. had reasoning convinces us that the Tennessee Court began by noting purposeful court’s conclusion was neither contrary to exclusion of women Blacks from nor an application unreasonable Teague. unconstitutional, service was Moreover, noted, as Coe when we exam- without distinguishing gender between ined this issue Ford v. Seabold we and race. con- proceeding next to the cluded that a defendant did not question “have remedy, therefore, the Court standing to challenge composition seemed to assuming be implicitly that grand jury pool process under the due Hobby had standing claim, to raise his Cir.1988). clause.” 841 F.2d both on gender and racial grounds, Seabold bolsters our conclusion in that it though it noted the narrow holding of provides a perspective on the state of fed- end, Peters. In the the Court decided (for eral law at quite a time relevant us) reasons that our do concern determination of this issue: after Hobby Hobby, was not entitled a remedy. but Campbell. before Hofbauer, See The Campbell Court read Hobby ap- *8 F.3d at 716. provingly, as establishing some sort of due-process protection with regard to Henley also unpersuasively relies on (the race only Campbell pursued), issue Rose v. Mitchell proposition for the that an though it left the determination of the “indictment returned [an] unconstitu- bounds protection, of that which it said tionally grand constituted jury [must] be were open,” “still for the lower court to quashed.” 545, 551, determine on remand. (1979). 61 Rose, L.Ed.2d 739 howev-
We do not er, doubt that Hobby and concerned an African-American defen- Campbell can be read as extending due- dant challenging the exclusion of African- process protection to men challenging Americans grand jury and relied women, exclusion of though on the principle neither criminal “[a] defen-
387 ton, require 466 104 ‘is to the State U.S. dant entitled (1984). L.Ed.2d aside deliberately systematically deny Putting ques- to not of performance, tions counsel’s we to find right partici- his race members of nothing in the unreasonable Tennessee Su- of jurors as administration pate ” preme Henley Court’s conclusion that was v. Louisi- justice.’ (quoting Alexander prejudiced by alleged counsel’s errors. ana, 625, 628-29, 92 S.Ct. Therefore, reject we his added)). ineffective-assis- (1972) (emphasis L.Ed.2d tance claim. gender, Henley, a Even if Rose reaches male, only challenge of could the exclusion confirms Our review of the record Thus, jury. grand males from the other it that was unreasonable for Ten on Hen- not alter our conclusion Rose does Supreme nessee conclude that no ley’s process claim. due prejudice resulted from counsel’s failure to lay Henley’s call additional witnesses.
Henley also raises Sixth Amendment gave a challenge grandmother “favorable and de to the fore fair-cross-section course, description” Henley. tailed Of jury. Regardless his person of out, appellate pointed state court it logical arguing soundness of that one “possible” might that the have been fair person represent should cross-sec Henley’s grandmother. hostile toward community, Supreme tion of a State, Henley No. C01-9506-CC- challenge has allowed defendants never * (Tenn. 1996 WL at grand juries their based composition 1996). May 9, CrimApp. But other Amendment. While some Sixth lay likely have painted witnesses would not permitted a fair-cross- federal courts have light a better of “their picture limited see, challenge jury, a state grand section relationship Henley with the time of the Johnson, e.g., Murphy F.3d personal murders” and knowledge “their Delo, Cir.2000); O’Neal v. 817-19 drug of his use at the time of mur (8th Cir.1995); Ramseur v. F.3d Henley, 960 ders.” See S.W.2d at 582. (3d Beyer, F.2d 1236-37 Cir. say cannot it was unreasonable We 1992), may grant if Henley only relief we Court to con right clearly established failure to call clude that counsel’s addition 1999, and hold Supreme Court as of lay did not preju al lackluster witnesses that it not. mitigation phase. at the dice IV. Ineffective Assistance Counsel similarly reject argu We unreasonably Henley argues his counsel’s failure to ment the state court no investigate background present prejudice and to found counsel’s failure testify, psychiatric expert at his hear- coun mitigating evidence call words, deprived right learning him “has dis ing of his sel’s constitutional school, out prevail dropped assistance. can abilities and to effective offense, was, only suffering if time the Tennessee Court’s depression acting claim from out char denial of ineffective-assistance and/or itself, clearly light estab- acter.” In Strickland was unreasonable *9 2052, 676, 700, precedent. Supreme re- 104 lished Our S.Ct. arising from determining prejudice is no essentially view limited to Court found psychiatric expert the Tennessee Court’s counsel’s failure call whether testify was “chroni contrary decision was to or an unreason- that the defendant due Washing- cally depressed” to his application able of Strickland v. frustrated and 38 8 family 446, his
inability
support
financially.
Carpenter,
451,
Edwards v.
529 U.S.
1587,
(2000).2
depression resulting
Henley’s alleged
from 120 S.Ct.
officials’ Supreme Court The Tennessee oppose, did not least supported, review Henley on direct relief to denied assuming Even release. early Flatt’s prosecutor’s any error holding surrepti a suggest circumstances these Henley, was harmless. for Flatt vouching why he explains deal, Henley never tious response to credi In at 911. 774 S.W.2d post-conviction state them present did counsel, prose by defense bility attack pr more pended oceedings—which commented, thought Flatt made “I cutor release. parole after Flatt’s years six than seen.” I’ve ever witnesses the best one of reasons, hold we these For comment began to also prosecutor Id. The sufficient “cause” to establish has failed “was but bargain process” “plea on the Brady procedural default excuse of defense objection by the interrupted claims. line of ar and he abandoned counsel Su Tennessee Although the
gument.”
under
these claims
analyzed
Misconduct
Court
preme
Prosecutorial
VI.
spurred
law,
prejudice
the absence
state
miscon-
prosecutorial
two
Henley raises
the first
labeled
the court
rejection:
its
im-
(1)
prosecutor
claims:
duct
the second
viewed
and
“innocuous”
remark
during
a witness
vouched
properly
atmosphere
a tense
from
resulting
as
(2)
prosecu-
that the
phase,
the guilt
improper on
argument
“the
where
to send
asked
improperly
tor
States v.
Id.;
United
see also
sides.”
both
phase.
sentencing
during
message
1038,
Young, 470 U.S.
Court
Supreme
Tennessee
Because
(1985)
error
(noting that invited
L.Ed.2d
on direct
claims
of these
each
considered
an im
determines
how a court
affect
can
910-11,
774 S.W.2d
Henley,
appeal,
trial as
on
effect
remark’s
proper
court’s
assess whether
913, must
recent Unit
whole).
Darden,
most
In
contrary
claims
these
treatment
avail
precedent
Court
Supreme
ed States
clearly
application
unreasonable
or an
itas
Court
Supreme
to the Tennessee
able
precedent.
Supreme Court
established
assessed
the Court
Henley,
decided
improper, some
as
argument
prosecutor’s
States,
v. United
Berger
balance, concluded
invited,
on
of it
States
United
Court counseled
Supreme
trial.
fair,
perfect,
if not
received
Darden
meth
improper
from
“to refrain
Attorneys
Based
182, 106 S.Ct.
477 U.S.
con
wrongful
produce
calculated
ods
the prosecutor’s
nature
limited
both
55 S.Ct.
295 U.S.
viction.”
case,
light
of Dar
in this
comment
however,
was,
(1935). Berger
L.Ed.
Tennessee
Young,
den
Court
where
review
on direct
decided
vouch
improper
of relief
denial
Court’s
supervisory
“broad[ly]
[its]
exercise
could
an unrea
contrary to nor
neither
ing was
Wainwright,
Darden
power.”
application
sonable
2464, 91 L.Ed.2d
precedent.
DeChristoforo,
Donnelly
(citing
arising the claim
As for
1868, Su
hearing,
(1974)).
stage,
this habeas
At
L.Ed.2d
the prosecutor’s
held that
preme
any prosecutorial
show
Henley must
an area
...
deterrence
“reference
un
trial with
“so infected
misconduct
not venture.”
may
he
which
into
convic-
resulting
make the
as to
fairness
*11
held,
Arizona,
court
Ring
584,
at 913. That
then
how-
ists. See
S.W.2d
(2002).
ever,
prose-
2428,
that
that it was “satisfied
the
122 S.Ct.
VII.
Instruction
outweighed by
[is]
one or
mitigat-
more
Henley complains
jury
circumstance,
ing
punishment
shall
instructions and verdict forms
word
were
imprisonment....
be life
jury
require
unanimously
ed so as to
The verdict form for sentencing Henley to
find the existence of
factor.
mitigating
death read:
attempted
He
raise this claim his We,
Jury,
unanimously find the fol-
post-conviction proceedings,
state
but the
lowing
statutory
listed
aggravating cir-
seems)
(erroneously,
state
it
courts
con
cumstance or circumstances....
Sec-
it
cluded that
had been raised on direct
we,
ondly,
Jury,
unanimously find
appeal and therefore refused to consider
there are no mitigating circum-
post-conviction
None
claim.
stances sufficiently substantial
to out-
procedural
courts
invoked a
ever
bar as to
weigh
statutory aggravating
circum-
issue,
but none of the
courts
state
stance
circumstances
so listed
adjudicated
merits,
the claim on its
ei
above....
circumstances,
ther—in these
review
question
The
here is
either
whether
Rose,
de novo. See Linscott v.
436 F.3d
requires
these
jury
admonitions
to be
Cir.2006).
unanimous in determining
mitigat-
that a
must be
ing
unanimous in
factor exists. Mills established that if
determining that an aggravating factor ex-
there is a
possibility”
“substantial
that the
*12
Henley’s
of
testimony
the
for
erly vouch
for
remand
must
court
yes, the
is
answer
(4)
Flatt;
Henley
and
Terry
accomplice,
S.Ct.
108
U.S. at
resentencing. 486
claim that
on his
defaulted
procedurally
of
language
both
the plain
But
1860.
for an
exchange
in
falsely
Flatt
testified
require
form
the verdict
and
instructions
I
prison.
from
early release
of
assurance
aggrava-
of
weighing
to the
unanimity as
disagree
I
with
separately because
the write
circumstances —not
mitigating
ting and
Henley’s due-
disposition
majority’s
In the
mitigating circumstance.
aof
existence
his
the selection
challenge to
process
and
simply
words,
admonitions
these
other
ineffective-
and his
foreperson
grand-jury
ver-
unanimous
require a
unobjectionably
claim.
assistance-of-counsel
instructions
identical
reviewed
dict. We
concluded
in
and
Coe
forms
and verdict
Henley’s
that
concludes
majority
The
“unanimity
required
form
and
instructions
that women
claim, alleging
due-process
this
weighing, but
the results
as to
selection
underrepresented
were
requiring
than
matter
different
a far
is
because
fails
foreperson,
grand-jury
his
mitigat-
aof
presence
as to
unanimity
Louisiana,
523 U.S.
v.
Campbell
Coe,
As in
F.3d at
ing factor.”
(1998), an-
140 L.Ed.2d
S.Ct.
reason-
could
language
in
“[njothing
law.
constitutional
rale of
new
nounced a
toas
unanimity
require
taken to
ably be
however,
announce
does not
Campbell,
factor.
mitigating
aof
presence
rather
is dictated
rule but
new
correctly that
clearly
say
and
instructions
in Peters
decisions
prior
Supreme Court’s
verdict,
a unanimous
to obtain
in order
92 S.Ct.
Kiff,
U.S.
v.
miti-
conclude
must
juror
each
(1972)
and
opinion),
(plurality
L.Ed.2d 83
aggravators.”
outweigh the
do not
gators
States,
v.
Hobby United
court
Tennessee
Thus,
we hold
(1984).
More-
3093, 82 L.Ed.2d
unanimous
jury to be
require
did not
that it was
conclusion
over,
majority’s
mitigating
aof
existence
finding
Su-
not unreasonable
court’s
district
affirm the
factor,
and
Henley was
to conclude
preme Court
this claim.
denial
defi-
by his trial counsel’s
prejudiced
not
incorrect.
performance
cient
Conclusion
VIII.
perform-
counsel’s
his trial
has shown
reasons,
we affirm
foregoing
For the
prejudicial
both deficient
ance was
judgment.
court’s
district
Washington,
under Strickland
(1984).
2052, L.Ed.2d 674
PART,
IN
CONCURRING
grant
I would
because
Accordingly,
IN
DISSENTING
ineffective-assistanee-
habeas relief
PART
grant
would
claim
of-counsel
due-process
hearing on
evidentiary
Jr.,
Judge,
COLE,
an
Circuit
R. GUY
dissent.
respectfully
I
dissenting
part.
challenge,
part
concurring
majority’s conclusion
with the
agree
I
Challenge To The Se-
Due-Process
A.
improperly
not
did
(1)
court
the trial
Grand-Jury
Of
lection
to unanimous-
it had
jury that
instruct
Foreperson
sentencing
factors
mitigating
any
ly find
challenge
due-process
Henley asserts
improp-
(2)
did
prosecutor
Henley;
women, in
exclusion
systematic
to the
mes-
to “send
erly appeal
posi-
Tennessee,
County,
Jackson
Henley to
a reason
sage” as
The Ten-
foreperson.
grand-jury
improp-
did
death;
prosecutor
nessee
Appeals
Criminal
deter
its
Rose,
decision in Rose. In
Peters,
inas
Campbell
rule,
mined that
declared a new
the Court expressed its concern that “[se-
and the court
therefore concluded that
lection of
of a grand
members
jury be-
Lane,
Teague
they
cause
are of one race and not another
(1989),
L.Ed.2d 334
retro
barred
destroys the appearance
justice
application
active
of Campbell to Henley’s
thereby casts
*13
on the integrity
doubt
of the
claim. Both the Tennessee Court of Crim
judicial
Rose,
process.”
A
the selection
Campbell
conclusion that
is dictated
(and
by precedent
jury and grand-jury
therefore does
an-
foreperson that
law)
nounce a
indicted them
new rule of
for murder.
constitutional
is
In addressing
supported by
the harm
by
caused
such
prior
Court’s
discrimination,
Peters,
in
decisions
the Court
Hobby,
stated that
Rose v. Mitch-
ell,
545,
2993,
443 U.S.
99 S.Ct.
61 L.Ed.2d
harm
[t]he
[from discrimination] is not
(1979),
739
Ohio,
and Powers v.
499 U.S.
only
accused,
to the
indicted
as he is
400,
1364,
111 S.Ct.
In
instance,
where a white
Id. (quoting
States,
Ballard v. United
defendant claimed that his due-process
187, 195,
U.S.
The Court’s concern with
integrity
clin[ing] to
reverse
course of decisions of
judicial
system
apparent
was also
in long standing
against
directed
racial dis-
deciding
assumed without
Hobby
in
jus- Court
the administration
in
crimination
question
third-party-standing
Texas,
Cassell
(quoting
tice.”
stated that
Campbell nonetheless
in
L.Ed. 839
282, 290, 70 S.Ct.
U.S.
on the
“proceeded
Hobby
in
its decision
concurring
judg-
(Frankfurter, J.,
defendant
that white
assumption
implied
ment)).
objec
process
raise
due
standing to
had
reiterated
Campbell,
aof
discriminatory appointment
tion to
at
race “strikes
based on
discrimination
foreperson.”
grand-jury
federal
sys-
judicial
our
values
the fundamental
Thus,
holding
[ojnce
Court
again,
precedent,
Campbell
Court’s
can
concern is fo-
be retroac-
cused on
integrity
tively
applied
judicial
to Henley’s claim. As a
process in the
result,
selection
Supreme
Tennessee
Court’s de-
foreperson. By applying rules estab-
cision, that Henley lacks standing to bring
lished in prior cases, the Court conduct- his due-process claim, is an unreasonable
ed precisely the
analysis
same
founded
application of Teague. Thus, Henley is
in maintaining judicial
integrity as in entitled to an evidentiary hearing to deter-
Powers.
mine
claim,
whether his
that women where
under-represented in the selection of his
The Fifth Circuit also concluded that
grand-jury
foreperson in Jackson County,
due-process portion of Campbell was dic- Tennessee, from
1974 to
is valid.
in-
particular
that makes
decision
sonable
of Counsel
Assistance
B.
Ineffective
at
466 U.S.
unnecessary.”
vestigations
concludes
also
majority
case, an
capital
104 S.Ct.
not unrea-
did
Court
Tennessee
defen-
duty
speak
attorney has
it held that
when
Strickland
sonably apply
back-
the defendant’s
family about
dant’s
during
sen-
errors
alleged
counsel’s
of them
possibility
about
and
ground
I
Henley.
prejudice
did not
phase
tencing
hearing. See
sentencing
testifying at
habeas
grant
would
disagree
at
Wiggins,
claim.
on
relief
coun-
case trial
capital
that in a
(explaining
my conclusion
alone
am not
I
all reason-
undertake “to discover
sel must
sentencing was consti-
at
Henley’s counsel
evi-
mitigating evidence
ably available
judges on
Three
tutionally deficient:
evidence
aggravating
any
to rebut
dence
Appeals
of Criminal
prosecu-
may be introduced
the Tennessee
judges
two
Ap-
tor”)
Guidelines
(quoting ABA
conclusion.
the same
reached
also
of Counsel
Performance
pointment
State,
01No. C01-9506-CC-
Henley v.
See
11.4.1(C) (1989));
Penalty Cases
Death
*10-12,
00198, 1996 WL
Strickland,
293, at *31-36
Tenn.Crim.App. LEXIS
duty to make
has
(noting that “counsel
Tennessee, 960
1996);
(May
Moreover,
investigations”).
reasonable
Birch,
(Reid,
(Tenn.1997)
J. &
S.W.2d
proper
Henley’s counsel conducted
had
Henley’s post-convic-
J., dissenting). At
it
Henley’s background,
investigation into
evidence
presented
hearing,
evi-
mitigating
other
have revealed
may
family mem-
although several
just a
persuaded
have
that could
dence
on his behalf
testified
have
would
bers
life in
Henley to
to sentence
single juror
trial counsel
hearing, his
*16
there
Because
to death.
opposed
prison
such
them about
any of
to
speak
failed to
attorney in-
Henley’s
no evidence
is
820889, at
1997 WL
Henley,
possibility.
spoke
or
background
Henley’s
vestigated
293, at
LEXIS
Tenn.Crim.App.
*11, 1996
at
testifying
about
family members
to his
at 576-
Henley, 960 S.W.2d
*32; see also
their
despite
hearing,
Henley’s
Ap-
of Criminal
77. The
so,
performance
to do
willingness
or
psychological
“[n]o
noted
peals
the standard
attorney fell below
Henley’s
on Hen-
was done
evaluation
psychiatric
competent assistance”
“professionally
for
[Hen-
evidence
is no
ley. ... There
at
by Strickland.
required
that he
or otherwise
attorney’s] file
ley’s
back-
Henley’s educational
investigated
he
history, or
employment
ground,
call
failure to
Further,
counsel’s
trial
community
members
with
spoke
testify cou-
to
members
Henley’s family
Henley,
WL
Henley.”
familiar with
to
refusal
Henley’s mother’s
pled with
LEX-
Tenn.Crim.App.
*12,
at
Henley’s sen-
At
prejudicial.
were
testify
Further,
the evidence
*35.
IS
at-
trial counsel
Henley’s
tencing hearing,
at the sen-
provide
attorney did
Henley’s
a wit-
Henley’s mother as
to call
tempted
only
minimal:
hearing
tencing
called, Mrs.
being
After
ness.
already tes-
who had
grandmother,
attorney.
Henley’s
to
speak
to
first asked
trial,
in mitigation.
testified
tified
recess,
did
Mrs.
a brief
After
attorney instead
testify
ex-
Strickland
stand.
Henley’s grandmother
called
duty
make
has
“counsel
plained that
Henley ar-
hearing,
post-conviction
At his
make a
rea-
investigations
reasonable
gued that
prejudiced
he was
because
(explaining
that a defendant’s attorney
jurors saw his mother’s refusal
testify.
must conduct a proper
investigation to
According to
Henley,
Mrs.
she refused to “find witnesses to help humanize the de
testify at the sentencing hearing because
fendant, given that
has found him
Henley’s attorney had not contacted her
guilty of a capital offense”); Mayes v.
testifying
about
and she did not under- Gibson, 210
F.3d
Cir.
stand the
purpose
her testimony or 2000) (noting that “mitigation evidence af
what she
expected
say.
Mrs. Hen-
fords an opportunity to humanize and ex
ley
explain
did
that had she been properly
plain”).
context,
where the defen
prepared she would have testified and her
dant
charged
is
with
crime,
a heinous
testimony would have been positive.
positive cumulative testimony
Henley,
S.W.2d,
benefits the
at 576. Specifically,
Mrs. Henley
defendant
would
because
testimony
have
testified “about
of sever
life,
her son’s
him,
her love for
al family
and her
members all pleading for the de
belief that he would not have committed
fendant’s life
a greater
has
impact on the
”
the crimes ‘if he was at his right mind.’
jury than the testimony of a single indi
vidual, regardless of how favorable that
The Tennessee Court of Criminal Ap- person’s testimony
Thus,
is.
had Hen
peals concluded that Henley’s evidence
ley’s trial counsel not
deficient,
been
established prejudice resulting from his
“there is a reasonable probability that,
counsel’s
performance:
deficient
“We do but
unprofessional
counsel’s
errors,
not think it is assuming too much to con-
the result of the proceeding would have
clude that a jury
going
preju-
be
been
Strickland,
different.”
466 U.S. at
against
diced
upon
defendant
per-
694,
child, not having one’s own mother testify behalf, their when one’s life is at
stake, would surely juror’s affect a deci-
sion. As to the testimony of Henley’s *17 Blaise MAPOUYA, Petitioner, other family members, the Tennessee Su- preme Court concluded that the testimo- ny was weaker than grandmother’s Alberto R. GONZALES, Respondent. testimony, because of their limited rela- No. 06-3042. tionship with Henley, and cumulative of the grandmother’s testimony, because United States Court of Appeals, family other members would Sixth Circuit. have provided no new insight into Hen- ley’s However, life. having multiple family Submitted: March 2007. plead members for a defendant’s life hu- Decided and Filed: May manizes the defendant and it makes more Rehearing Denied Aug. 2007.* likely that juror least one will spare his life. See generally Hardwick v. Cros-
by, 320 F.3d Cir.2003)
* Judge Clay grant petition would for rea- sons stated in his dissent.