Warren Henness v. Margaret Bagley
OPINION and JUDGMENT filed : The district court's denial of Henness's Rule 60(b)(6) motion is AFFIRMED. Decision for publication. Danny J. Boggs, Eugene E. Siler, Jr. (AUTHORING), and Jeffrey S. Sutton, Circuit Judges.
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Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0229p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WARREN K. HENNESS,
MARGARET BAGLEY, Warden,
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:01-cv-00043—Michael R. Merz, Magistrate Judge.
Argued: June 17, 2014
Decided and Filed: September 8, 2014
Before: BOGGS, SILER, and SUTTON, Circuit Judges.
ARGUED: Jessica L. Felker, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio,
for Appellant. Seth Kestner, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee. ON BRIEF: Jessica L. Felker, David C. Stebbins, Justin C. Thompson,
FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Seth Kestner,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
SILER, Circuit Judge.
Warren Henness, an Ohio prisoner under a death sentence,
appeals from the district court’s denial of his Fed. R. Civ. P. 60(b)(6) motion for relief from a
judgment that dismissed his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254.
Henness v. Bagley
The district court granted a Certificate of Appealability (COA) on the issue of whether Henness
is entitled to Rule 60(b)(6) relief because intervening changes in the law establish cause for the
procedural default of his ineffective-assistance-of-counsel claims. We affirm the denial of relief
by the district court.
Henness was convicted of kidnapping, robbing, and murdering Richard Myers.
Additional information about the facts underlying his convictions can be found in the Ohio
Supreme Court’s opinion in his direct appeal. State v. Henness, 679 N.E.2d 686, 689-91 (Ohio
Henness was indicted for three counts of aggravated murder: (1) murder with prior
calculation and design; (2) aggravated robbery-murder; and (3) kidnap-murder. He also was
charged with aggravated robbery, kidnapping, four counts of forgery, and having a weapon while
under disability. Henness pled guilty to the forgery counts and elected to try the weapon charge
before the trial court (which found him guilty). A jury convicted him of the remaining counts,
and the jury recommended that Henness be sentenced to death. The trial court adopted this
recommendation and sentenced Henness accordingly. The Ohio Court of Appeals affirmed
Henness’s convictions and sentence of death on direct appeal, State v. Henness, No. 94APA02240, 1996 WL 52890 (Ohio Ct. App. Feb. 6, 1996) (unreported opinion), as did the Ohio
Supreme Court. Henness, 679 N.E.2d at 700.
In 1996, Henness filed a state post-conviction petition, which the trial court denied. The
Ohio Court of Appeals affirmed the trial court’s denial of Henness’s petition. State v. Henness,
No. 97APA04-465, 1999 WL 739588 (Ohio Ct. App. Sept. 23, 1999) (unpublished opinion).
The Ohio Supreme Court denied Henness permission to further appeal this decision.
In 2001, Henness’s counsel filed a motion to reopen his direct appeal under Ohio App. R.
26(B) with the Ohio Court of Appeals. Henness also filed a pro se Rule 26(B) motion. The
court denied both motions because Henness had not established good cause for his failure to
timely file the motions.
Henness v. Bagley
Although Henness attempted to appeal this decision to the Ohio
Supreme Court, the court rejected his appeal as untimely.
In 2001, Henness filed his § 2254 petition, alleging numerous violations of his
constitutional rights. Both parties consented to plenary magistrate judge jurisdiction under
28 U.S.C. § 636(c). The district court subsequently dismissed Henness’s petition as meritless.
Henness v. Bagley, No. 2:01-CV-043, 2007 WL 3284930 (S.D. Ohio Oct. 31, 2007). On appeal,
this court affirmed the district court’s decision. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011).
In March 2013, Henness filed his current Rule 60(b)(6) motion, seeking to revisit the
previous dismissal of several ineffective assistance of trial counsel claims. The district court
denied the motion as meritless. Henness v. Bagley, No. 2:01-CV-043, 2013 WL 4017643 (S.D.
Ohio Aug. 6, 2013). Henness has filed a timely appeal.
Federal Rule of Civil Procedure 60(b)(6) is a catchall provision, which provides for relief
from a final judgment for any reason justifying relief not captured in the other provisions of Rule
60(b) (which are inapplicable to Henness’s present motion). McGuire v. Warden, Chillicothe
Corr. Inst., 738 F.3d 741, 750 (6th Cir. 2013), cert. denied, 134 S. Ct. 998 (2014). Rule 60(b)(6)
only applies in exceptional or extraordinary circumstances where principles of equity mandate
relief. Id. “The decision to grant Rule 60(b)(6) relief is a case-by-case inquiry that requires the
trial court to intensively balance numerous factors, including the competing policies of the
finality of judgments and the incessant command of the court’s conscience that justice be done in
light of all the facts.” Id. (quoting Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009)). While
this court reviews the denial of a Rule 60(b) motion for an abuse of discretion, the district court’s
discretion in deciding a Rule 60(b)(6) motion is especially broad due to the underlying equitable
principles involved. Tyler v. Anderson, 749 F.3d 499, 509 (6th Cir. 2014).
Henness v. Bagley
In his amended § 2254 petition, Henness raised, in pertinent part, the following
ineffective assistance of trial counsel claims:
Issues Related to Ineffective Assistance of Trial Counsel
First Ground for Relief: Warren K. Henness was denied his right to the
effective assistance of counsel at the pretrial and trial phases of his capital
trial in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth
The Sixth Amendment to the United States Constitution guarantees any
defendant in a criminal case the right to effective assistance of counsel. Strickland
v. Washington, 466 U.S. 668 (1984). This right is violated when defense
counsel’s performance falls below an objective standard of reasonableness and the
client is prejudiced by counsel’s breach of duty. Strickland, 466 U.S. at 690, 696.
If a defendant can show that, but for counsel’s ineffective performance, there
would have been a difference in the outcome of the trial, then he has established
prejudice within the meaning of Strickland. Williams v. Taylor, 120 S. Ct. 1495
A. Trial counsel was ineffective for failing to hire an experienced
investigator to assist with pretrial preparation.
With regard to ineffective assistance of counsel during the pretrial phase,
it appears that defense counsel never hired an investigator who could assist with
such things as investigating the scene of the homicide, speaking with prosecution
witnesses or taking photographs that would corroborate what the theory of the
defense case seemed to be. In fact, it is current counsel’s understanding that the
scene of the crime was never visited by anyone from the defense team prior to
trial. The only time anyone from the defense team went to the scene was when the
defense attorneys accompanied the jurors on the jury view.
The prejudicial effect of the lack of an investigator became apparent
several times throughout the trial. The most damaging testimony in the case was
given by the Petitioner’s wife, Tabatha Henness, who testified that Petitioner had
admitted to her that he shot the victim.
Petitioner’s wife was questioned outside the presence of the jury regarding
whether she was making a voluntary election to testify against her husband. She
indicated she was not concerned about actions the prosecutor might attempt to
take against her if she decided not to testify. Through his questioning, and in
comments to the court, defense counsel implied that he had a phone conversation
with Petitioner’s wife prior to her testimony in which he was led to believe
otherwise. . . . If, in fact, this was true and an investigator from the defense had
been available to speak with Tabatha Henness, this investigator could have
testified that a voluntary election to testify was not being made because
Henness v. Bagley
Petitioner’s wife was concerned about actions being taken against her by the
prosecutor. The result would have been that she would not have been permitted to
testify. The prosecution’s case on the murder would have collapsed. As it was,
defense counsel was stuck with her answers.
The victim suffered five gunshot wounds to the head, one of which was
fatal. Four .25 cal. casings were found scattered in various places around the
homicide scene. One casing was never found by the police. Although there was
testimony that the casings recovered were all fired from the same gun, there was
also testimony that the weapon the police confiscated was not the murder weapon.
An experienced crime scene investigator may have been successful in finding that
The scene of the homicide was an abandoned building which held items
that could be removed and sold. During trial, defense counsel had questioned one
of the police officers about motors that could be taken and if bolts to those motors
were loosened or missing. The witness claimed to have no knowledge of that.
Because of not having an investigator, defense counsel could not follow-up on the
police officer’s answers with their own findings. In his unsworn statement, the
Petitioner told the jurors that he had been to the scene of the murder not to kill,
but to steal motors. He had taken some tools with him and left them there. . . . An
investigator would have visited the scene and could have verified this statement.
This is important, because even though Petitioner’s wife put him at the scene with
her testimony and said Petitioner stated that he killed the victim because the
victim “made him do it”, an investigator would have been able to demonstrate a
different motive for Petitioner being at the scene, thus calling into question the
premeditation element to the killing and the kidnapping, thereby calling into
question the appropriateness of the death penalty. . . .
E. Trial counsel was ineffective in that they failed to investigate the
mental and emotional state of Tabatha Henness, the main witness against
Petitioner contends that trial counsel were ineffective because they did not
adequately investigate the background of Tabatha Henness and did not effectively
use information they may have possessed.
Had trial counsel investigated the background of Tabatha Henness, they
would have discovered that she had mental health and emotional issues that could
have been brought out on cross-examination, both when she told the trial judge
that she was making a voluntary election to testify against Petitioner and when
she testified in the state’s case-in-chief. Specifically, Tabatha Henness had been
treated for mental health problems. In the 21 months between Petitioner’s arrest
and her testimony at the trial, Ms. Henness had threatened or attempted suicide
and was on medication – medication that she chose not to take at the time of
Petitioner’s trial. This information that trial counsel did not find out or did not use
could have been used to show Tabatha Henness was not making a knowing and
Henness v. Bagley
voluntary election to testify in the first place and then to discredit her testimony at
F. Trial counsel was ineffective in that they failed to investigate and/or
inquire into blood stain evidence that was recovered from the crime scene.
Blood stain evidence existed under some over-turned lockers at the crime
scene. This blood sample was collected by the police as evidence and marked for
property identification purposes as #47444. Although noted both on the crime
scene diagram, and, as being confiscated as evidence, defense counsel never
inquired into it or asked that it be subjected to scientific and DNA analysis.
This blood evidence was destroyed before being analyzed for DNA but
after the trial was complete. If defense counsel had followed up on this evidence
at the appropriate time, DNA analysis could have shown that it came from
Petitioner, thus aiding a defense that, although he may have been present,
Petitioner did not murder Richard Myers and was, himself, wounded during the
events that transpired.
In reviewing these claims, the district court noted that Henness had never raised them in state
court, although he could have presented them during his state post-conviction proceedings.
Consequently, the court concluded that Henness had procedurally defaulted the claims. Henness,
2007 WL 3284930, at *10, *15-16.
As the basis of his Rule 60(b)(6) motion, Henness now argues that recent changes in the
law would establish cause to excuse his procedural default. The Supreme Court traditionally has
held that a prisoner has no constitutional right to an attorney in state post-conviction proceedings
and, consequently, the prisoner cannot claim constitutionally ineffective assistance of counsel in
those proceedings. Coleman v. Thompson, 501 U.S. 722, 752 (1991). Further, any inadequate
assistance by counsel in state post-conviction proceedings cannot constitute cause to excuse a
habeas petitioner’s procedural default of his claims in state court. Id. at 757.
In Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012), the Supreme Court carved out a
“narrow exception” to Coleman, holding that, under some circumstances, ineffective assistance
of counsel during initial-review state collateral proceedings can establish cause for a petitioner’s
procedural default of an ineffective assistance of trial counsel claim. The petitioner’s procedural
default will not bar a federal habeas court from hearing a substantial claim of ineffective
assistance of trial counsel if state law required that the claim of ineffective assistance of trial
counsel be raised first in an initial-review post-conviction proceeding and no counsel assisted the
Henness v. Bagley
petitioner during that proceeding or counsel’s assistance in that proceeding was ineffective. Id.
at 1320. In Trevino v. Thaler, the Court interpreted Martinez to hold that a federal habeas court
can find cause to excuse a petitioner’s procedural default where: (1) the ineffective assistance of
trial counsel claim was “substantial”; (2) the “cause” consists of a lack of counsel or ineffective
counsel during the state collateral-review proceeding; (3) the state collateral-review proceeding
was the initial review of the petitioner’s ineffective-assistance-of-trial-counsel claim; and
(4) state law requires that the ineffective-assistance-of-trial-counsel claim be raised in the initial
review post-conviction proceeding. 133 S. Ct. 1911, 1918 (2013). In Trevino, the Court
modified the fourth element to situations where state law does not provide most defendants with
a meaningful opportunity to present claims of ineffective assistance of trial counsel on direct
appeal. Id. at 1921.
Henness now maintains that the district court’s dismissal of the ineffective-assistance-oftrial-counsel claims from his habeas petition as procedurally defaulted resulted from the
ineffective assistance of his state post-conviction counsel. Based on Martinez and Trevino, he
argues that he now can establish cause to excuse those defaults and receive a merits review of
those claims. However, it “is well established that a change in decisional law is usually not, by
itself, an ‘extraordinary circumstance’ meriting Rule 60(b)(6) relief.” McGuire, 738 F.3d at 750
(citing Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007)). Moreover, neither Martinez nor
Trevino sufficiently changes the balance of the factors for consideration under Rule 60(b)(6) to
warrant relief. McGuire, 738 F.3d at 749-51. Further, this court has concluded that Martinez
does not apply in Ohio because Ohio permits ineffective-assistance-of-counsel claims on direct
appeal. Moore v. Mitchell, 708 F.3d 760, 785 (6th Cir.), cert. denied, 134 S. Ct. 693 (2013).
Without deciding the issue, this court also has questioned whether Trevino applies in Ohio.
McGuire, 738 F.3d at 751-52.
Even if Trevino does apply in Ohio, that decision, combined with other potential factors,
provides an insufficient basis for Rule 60(b)(6) relief. Henness argues that his case contains the
required extraordinary circumstances under Rule 60(b)(6) because of the merits of his underlying
ineffective assistance of counsel claims. In order to establish ineffective assistance of counsel,
Henness must establish that his counsel’s performance was deficient and that he suffered
Henness v. Bagley
prejudice from this deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).
For a successful claim under Trevino, Henness must demonstrate a “substantial” claim as to both
portions of the Strickland test. McGuire, 738 F.3d at 752. He is unable to meet that standard.
Henness essentially argues that his counsels’ performance was deficient because they
failed to properly investigate his case. Counsel is expected to conduct a thorough investigation
of the law and facts underlying the case, and any limitation on counsels’ investigation must be
supported by reasonable professional judgment.
Strickland, 466 U.S. at 690-91; Couch v.
Booker, 632 F.3d 241, 246 (6th Cir. 2011). “[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting
Strickland, 466 U.S. at 690-91). Counsels’ “purportedly strategic decision is not objectively
reasonable when [they] fail to investigate [their] options and make a reasonable choice between
them.” Foster v. Wolfenbarger, 687 F.3d 702, 708 (6th Cir. 2012) (quoting Towns v. Smith,
395 F.3d 251, 258 (6th Cir. 2005)).
Henness has presented evidence showing that his counsel conducted a truncated and
incomplete investigation into his case. On June 30, 1992, David Bodiker and Joseph Edwards
were appointed to represent Henness. Although Henness’s trial did not begin until November 5,
1993, counsel did little investigation or preparation for his case. Additionally, their relationship
with Henness, as well as between themselves, was filled with difficulties. It is undisputed that
Bodiker was lead counsel, and Edwards avers that Bodiker prevented him from performing any
significant work on the case until shortly before trial. Bodiker believed that Henness would
plead guilty and, therefore, it was unnecessary to prepare for trial.
Edwards’s suggestion, Bodiker refused to hire an investigator for the case. Henness maintains
that Bodiker only devoted approximately eleven hours to investigating his case until trial was
imminent, and this effort largely consisted of reviewing evidence provided by the prosecution.
Pursuant to Bodiker’s direction, Edwards also did not conduct any investigation into Henness’s
case. Edwards avers that Bodiker and Henness had a very poor relationship characterized by a
lack of respect and trust, which was partly responsible for Henness’s decision to decline the
prosecution’s plea offer and proceed to trial.
Henness v. Bagley
Even if Henness has shown that his counsels’ performance was deficient, he still must
demonstrate that he was prejudiced by counsels’ actions (or lack thereof). In order to establish
prejudice, Henness must show that a reasonable probability exists that the result would have
been different but for his counsels’ errors. Strickland, 466 U.S. at 687. Henness satisfies the
prejudice prong if a reasonable probability exists that at least one juror would have struck a
different balance, Wiggins, 539 U.S. at 537; Peoples v. Lafler, 734 F.3d 503, 514 (6th Cir. 2013),
and he does not need to show that counsels’ deficient conduct more likely than not altered the
outcome in his case. Strickland, 466 U.S. at 693; Peoples, 734 F.3d at 514.
Henness cannot meet this standard. He first argues that he was prejudiced by counsels’
failure to adequately investigate the crime scene evidence. A key issue in his trial was whether
Henness acted with “prior calculation and design” in murdering Myers and, in order to
demonstrate that he did, the prosecution presented evidence that Myers was bound and gagged at
the time he was shot. As part of his Rule 60(b) motion, Henness now presents an affidavit from
Gary Rini, an independent forensic-science consultant. Following a review of trial exhibits,
crime scene photographs, police reports, and other evidence, Rini opines that Myers was likely
bound and gagged after he died. Henness maintains that, if counsel had obtained an expert
opinion similar to Rini’s for use at his trial, it would have raised doubt about the reliability of the
coroner’s trial testimony that Myers was bound and gagged prior to death. However, Rini’s
opinion strains believability. No evidence exists that Myers’s body was moved after he was
shot, and Henness offers no explanation for why the killer would bind and gag Myers after his
death. It is unlikely, much less reasonably probable, that testimony to this effect would have
resulted in at least one juror concluding that Henness was not guilty.
Henness next argues that he suffered prejudice through counsels’ failure to fully
investigate Tabatha’s background.
Tabatha testified that, on the morning of Myers’s
disappearance, she saw her husband leave their residence with Myers in his car. Several hours
later, Henness returned alone in Myers’s car and in possession of checks, credit cards, and
jewelry belonging to Myers. Henness eventually admitted to Tabatha and a third party, Roland
Fair, that he had killed Myers.
Henness v. Bagley
Despite the pertinent nature of her testimony, Tabatha was a problematic witness for the
prosecution. She testified to having a long history of abusing drugs, especially crack cocaine and
heroin, and she admitted to joining her husband in using Myers’s personal items in various ways
to obtain money for drugs. After her direct examination in Henness’s trial, Tabatha fled to Texas
without the prosecution’s knowledge and against the trial court’s directive, and she did not return
for her cross-examination until a week later. In addition to being cross-examined about her
decision to not timely return to court in order to complete her testimony, Tabatha admitted to
having an extensive criminal history, including forgery, receiving stolen property, theft, and
escape. She also acknowledged that she engaged in prostitution to pay for her drug habit.
Even with the extensive negative information that the jury received about Tabatha,
Henness now argues that his counsel failed to uncover additional evidence that would have
further damaged her credibility. In support of this argument, Henness largely relies on the
deposition testimony of Sherry Williamson, a former friend and lover of Tabatha. She related
that both of them took drugs regularly and stole to support their habit. Tabatha also sold cocaine.
Tabatha supposedly admitted to Williamson that she was involved in a murder with Henness,
although her version of events did not match up with the location where Myers’s body was
discovered. Tabatha also told Williamson that Henness was “taking the fall” for the murder.
Tabatha was prone to violence with a terrible temper, and she once attacked Williamson with a
Henness also asserts that counsel failed to investigate Tabatha’s history of suicide
attempts and mental health issues, even though he had advised counsel of her history.
While this additional evidence could have cast additional doubt on Tabatha’s reliability
as a witness, it is unlikely to have caused any juror to reach a different decision. The evidence
presented at trial regarding Tabatha’s drug abuse and criminal history, plus her decision to flee
prior to cross-examination, cast considerable doubt on Tabatha’s credibility. The new evidence
cited by Henness would have added little to further undermine her testimony. Williamson’s
most damaging allegation was that Tabatha admitted to being involved in a murder, but since her
description of the murder did not match the events of the present case, it would have been of
questionable value in impeaching Tabatha.
Henness v. Bagley
Lastly, Henness argues that he suffered prejudice through the breakdown in his
relationship with trial counsel, which resulted in his unwise rejection of the plea offer. Henness
maintains that, if his counsel had conducted a thorough investigation, they would have provided
more accurate advice about the strengths and weaknesses of the case against him. However,
Henness has not demonstrated that further information would have caused him to plead guilty.
While it appears that his trial counsel understood the strengths of the prosecution’s case, Henness
suggests that further investigation would have uncovered potential holes in their theory of his
case. However, if Henness was unwilling to plead guilty with a full understanding of the
prosecution’s case against him, he seems unlikely to have changed his mind if he had learned of
possible weaknesses in that case.
Although Henness also argues that his dysfunctional
relationship with counsel led to his decision to reject the plea offer, this argument is unrelated to
his allegations concerning counsels’ failure to conduct an adequate investigation.
For the foregoing reasons, the district court’s denial of Henness’s Rule 60(b)(6) motion is
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