United States District Court, S.D. Alabama, Southern Division
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 ...