Henderson v. Cooks

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE

         Corey Henderson, a state inmate in the custody of Respondent Mary Cooks, ^[1] has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Henderson challenges the validity of his 2012 conviction for two counts of murder and one count of attempted murder in the Circuit Court of Mobile County, Alabama. (Doc. 1 at 2). This action was referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), S.D. Ala. GenLR 72(a)(2)(R), and Rule 8 of the Rules Governing Section 2254 Cases. Following a thorough review of the petition and record, the undersigned finds that an evidentiary hearing is not warranted.^[2]

         Having carefully considered Henderson's petition, Respondent's answer, and Henderson's reply, the undersigned finds that Henderson's petition is due to be denied. Accordingly, it is recommended that Henderson's habeas petition be DENIED in its entirety, that judgment be entered in favor of Respondent and against Petitioner, Corey Henderson, and that, should Henderson seek the issuance of a certificate of appealability, his request be denied, along with any request to appeal in forma pauperis.

         I. BACKGROUND AND FACTS.

         On September 23, 2011, a grand jury in Mobile County, Alabama, returned an indictment charging Henderson with the murders of Willis and Willie Hampton, in violation of Ala. Code § 13A-6-2(a)(1); and the attempted murder of James Dean, in violation of Ala. Code § 13A-6-2. (Doc. 8-1 at 33, 35, 37). Henderson was convicted of the charges following a jury trial. (Doc. 1 at 2; Doc. 8 at 3; Doc. 8-1 at 18, 24, 30, 34, 36, 38). He was sentenced to three consecutive life sentences. (Doc. 8-1 at 19-20, 25-26, 31-32).

         The Alabama Court of Criminal Appeals found the facts of this case to be as follows:^[3]

On the night of January 23, 2011, Willis Hampton, Willie Hampton, James Dean, Jasmine Ayler, and Keiuntea Banks, were in a vehicle “riding around” when they encountered a van. (R. 65). Banks testified that, as they approached the van, he observed “someone hanging out [of] the window with a tech nine” and then shot into the car in which Banks and the four others were riding. (R. 66). The shooting killed Willis and Willie Hampton, and injured James Dean. Banks testified that he recognized the person hanging out of the van from earlier in the day; in addition to identifying Henderson in a photo line-up, Banks made an in-court identification of Henderson. (R. 70, 72). Banks, however, was the only witness who identified Henderson, and Banks's credibility was challenged by Henderson at trial; specifically, the defense challenged varying statements that Banks gave to police regarding the identity of the shooter.

Henderson v. State of Alabama, CR-12-0167 (Ala.Crim.App.June 28, 2013) (Doc. 8-7 at 1-2).

         On appeal, Henderson was represented by appellate counsel Glenn L. Davidson, who raised two arguments: (1) that “the trial court erred in allowing the state to elicit testimony that witnesses to crimes occurring in Prichard[, Alabama, ] are afraid of retaliation, implying that Henderson had threatened the State's witness[;]” and (2) that “the evidence was insufficient to sustain Henderson's convictions.” (Doc. 8-5 at 1, 6). On June 28, 2013, the Alabama Court of Criminal Appeals issued an unpublished memorandum decision affirming Henderson's conviction. (Doc. 8-7). As to Henderson's first argument, the court found that Henderson's trial counsel had actually elicited the testimony regarding fear and retaliation. (Id. at 6). With respect to Henderson's second argument, the court reasoned that the issue was not preserved for appeal because, while Henderson made an oral motion for a new trial after the verdict was read, “he did not, as required, claim that the verdict was either contrary to law or to the weight of the evidence. Furthermore, . . . a written motion is not available in the record, and it is Henderson's responsibility to ensure that such motion is present in the record.” (Id. at 9). Henderson's application for rehearing was overruled on July 19, 2013. (Doc. 8-9). His petition for writ of certiorari in the Alabama Supreme Court was denied, and a certificate of judgment was issued on September 13, 2013. (Doc. 8-11).

         On August 22, 2014, Henderson filed a post-conviction Rule 32 petition for relief in the Circuit Court of Mobile County, Alabama. (Docs. 8-12, 8-13, 8-14, 8-15). In it, he argued that he was entitled to relief based upon the ineffective assistance of his trial counsel, Robert “Bucky” Thomas (“Thomas”). (Doc. 8-12 at 92-101). Specifically, Henderson argued that Thomas was ineffective for four reasons: (1) failure to file pretrial motions to suppress Keiuntea Banks' (“Banks”) pretrial identification of him (id. at 92); (2) failure to adequately prepare for trial by failing to independently investigate whether Banks was an actual eyewitness to the crime (id. at 96); (3) failure to argue that his attempted murder charge should have been dismissed when the victim, James Dean (“Dean”), failed to appear at trial (id. at 99); and (4) failure to argue that the evidence was insufficient to sustain an attempted murder charge (id.). Henderson also alleged that his appellate counsel rendered ineffective assistance based on his failure to raise, on appeal, the claims regarding his attempted murder charge. Henderson later amended his Rule 32 petition to include a sixth claim, namely that his trial counsel was ineffective for failing to obtain a ballistics expert to contradict the State's theory as to the number of shooters, where the shots were fired from, and the trajectories of the bullets. (Id. at 105-09). On November 24, 2015, after an evidentiary hearing, the Circuit Court of Mobile County, Alabama, dismissed Henderson's Rule 32 petition. (Doc. 8-14 at 8, 11-25). On May 27, 2016, the Alabama Court of Criminal Appeals affirmed the trial court's dismissal of Henderson's Rule 32 petition in an unpublished memorandum opinion. (Doc. 8-17). Henderson subsequently filed an application for rehearing with the Court of Criminal Appeals and a petition for writ of certiorari with the Alabama Supreme Court, both of which were denied. (Docs. 8-18, 8-19, 8-20, 8-21).

         Henderson timely filed the instant petition for federal habeas relief on August 25, 2016.^[4] (Doc. 1 at 12). In his federal habeas petition, Henderson raises four of the ineffective assistance of counsel claims that he raised in his Rule 32 petition, namely that trial counsel was ineffective for: (1) failure to file a pretrial motion to suppress the out-of-court identification of him; (2) failure to conduct an independent investigation of the case; (3) failure to adequately argue that his attempted murder charge should be dismissed when Dean failed to appear at trial; and (4) failure to obtain a ballistics expert. (Id. at 6-8, 13-27). The habeas petition has been fully briefed and is ripe for consideration. The Court will consider each of Henderson's claims in turn.

         II. STANDARD OF REVIEW.

         The Court's review of Henderson's petition is governed by the AEDPA. Under the AEDPA, “the role of the federal courts is strictly limited.” Jones v. Walker, 496 F.3d 1216, 1226 (11th Cir. 2007). Specifically, 28 U.S.C. § 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.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, 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.

28 U.S.C. § 2254.

         Thus, a federal court may grant habeas relief only if the state court arrives at a conclusion contrary to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the way the United States Supreme Court did on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-05 (2000); Price v. Vincent, 538 U.S. 634, 638 (2003) (noting that a federal court will disturb a state court's habeas decision on the merits only if the petitioner shows that the decision was contrary to, or involved an unreasonable application of, clearly established constitutional law as determined by the Supreme Court, or if the decision rested upon an unreasonable factual determination).

         “[A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). In other words, “if some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied . . . [T]he deference due is heavy and purposely presents a daunting hurdle for a habeas petitioner to clear.” Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011); see also Greene v. Fisher, 565 U.S. 34, 38 (2011) (noting that the AEDPA standard is purposely onerous because “federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction”) (citations and internal quotation marks omitted); Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (noting that the AEDPA standard “is a difficult to meet . . . and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt”) (citations and internal quotation marks omitted).

         Accordingly, in evaluating Henderson's § 2254 petition, the Court takes great care to abide by the stricture that “[a] federal court may not grant habeas relief on a claim a state court has rejected on the merits simply because the state court held a view different from its own.” Hill v. Humphrey, 662 F.3d 1335, 1355 (11th Cir. 2011); see also Reese v. Sec'y, Fla. Dep't of Corr., 675 F.3d 1277, 1286 (11th Cir. 2012) (“This inquiry is different from determining whether we would decide de novo that the petitioner's claim had merit.”). Having established the proper standard of review, the Court turns to Henderson's ineffective assistance of counsel claims.

         III. DISCUSSION.

         As noted supra, Henderson presents four ineffective assistance of counsel claims. The Sixth Amendment guarantees criminal defendants a right to reasonably effective legal assistance. Roe v. Flores-Ortega, 528 U.S. 470, 476 (2000). In Strickland v. Washington, the Supreme Court adopted a two-prong standard for evaluating claims of ineffective assistance of counsel. 466 U.S. 668, 687 (1984). To satisfy the requirements of this two-prong standard, a petitioner must establish (1) “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment[, ]” meaning that counsel's representation fell below an objective standard of reasonableness, id. at 687-88; and (2) that counsel's deficient performance prejudiced the petitioner by demonstrating a “reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” Id. at 694. Because the failure to demonstrate either deficient performance or prejudice is dispositive of the claim, courts applying the Strickland test “are free to dispose of ineffectiveness claims on either of [Strickland's] two grounds.” Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998).

         In order to satisfy the “performance” prong of the Strickland test, a petitioner is required to show that his attorney's representation “fell below an objective standard of reasonableness[, ]” which is measured by “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. That is, a petitioner must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. In considering such a claim, courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Id. at 689. Thus, a petitioner has a difficult burden because, to be considered unreasonable, “the performance must be such that ‘no competent counsel would have taken the action that [the petitioner's] counsel did take.'” Ball v. United States, 271 Fed.Appx. 880, 883 (11th Cir. 2008) (quoting Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001)).

         To satisfy the “prejudice” prong of the Strickland test, a petitioner must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The petitioner “must affirmatively prove prejudice because ‘[a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial.'” Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) (citations omitted). Further, it is not enough to merely show that the alleged errors affected the case in some imaginable way. Id. at 1293-94. Thus, “under the exacting rules and presumptions set forth in Strickland, ‘the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.'” Windom v. Sec'y, Dep't of Corr., 578 F.3d 1227, 1248 (11th Cir. 2009) (citations omitted).

         a. Failure to File a Pretrial Motion to Suppress Out-of-Court Identification.

         Henderson's first claim, that Thomas, his trial counsel, was ineffective for failing to file a pretrial motion to suppress the out-of-court identification of ...