Derryck Henson v. Warden, Lebanon Correctional
OPINION filed : AFFIRMED, decision not for publication. Alice M. Batchelder, Circuit Judge; Julia Smith Gibbons, Circuit Judge and Helene N. White, AUTHORING Circuit Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0536n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Jul 29, 2015
DEBORAH S. HUNT, Clerk
WARDEN, LONDON CORRECTIONAL
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
BEFORE: BATCHELDER, GIBBONS, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Petitioner-Appellant Derryck Henson filed this
28 U.S.C. § 2254 habeas petition, asserting that his Ohio murder conviction should be reversed
because the State committed a Brady violation and because his Confrontation Clause rights were
violated. The district court did not reach the merits of Henson’s petition, instead finding it
untimely under the Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA”) oneyear statute of limitations, § 2244(d). In so finding, the district court denied Henson’s request
for equitable tolling. Henson was granted a certificate of appealability to challenge the district
court’s equitable tolling ruling. We AFFIRM.
An Ohio jury convicted Henson of murder, and Henson was sentenced to a minimum of
fifteen years’ imprisonment. Henson’s conviction became “final” for AEDPA purposes on
March 30, 2010, when the time for filing a petition for certiorari in the Supreme Court in his
Henson v. Warden
direct appeal expired. Henson v. Warden, Lebanon Corr. Inst., 13–4322, Order (6th Cir. Oct. 29,
On March 16, 2009, while his direct appeal was pending, Henson filed a motion for postconviction relief in the state trial court. Under the applicable statute in effect at the time, Henson
had 180 days “after the date on which the trial transcript is filed in the court of appeals in the
direct appeal of the judgment of conviction or adjudication” to file his post-conviction motion.
Ohio Rev. Code § 2953.21(A)(2) (2011).1 According to the state trial court docket, Henson’s
transcript was filed in the court of appeals (for his direct appeal) on September 15, 2008.
However, according to the state appellate court docket, Henson’s transcript was filed on
September 17, 2008. The appellate court’s error in recording the filing date proved costly for
Henson; he filed his motion for post-conviction relief on March 16, 2009, timely if the appellate
court’s docket was correct, but two days late if the trial court’s docket was correct.
The trial court addressed the merits of Henson’s motion and denied him relief. Henson
appealed the decision, and on October 26, 2011, the appellate court affirmed the trial court’s
order, but on different grounds—the appellate court sua sponte determined that Henson’s postconviction motion was untimely and that the time limit for filing such a motion was
jurisdictional (and thus non-excusable). The Ohio Supreme Court denied Henson leave to appeal
on March 7, 2012.2
The state appellate court’s decision had two effects: (1) the merits of Henson’s motion
for post-conviction relief were not addressed by a state appellate court, and (2) the motion was
not “properly filed” for purposes of AEDPA and thus the one-year statute of limitations was not
Effective March 20, 2015, the time for filing motions was extended to 365 days from the date the
transcript is filed in the appellate court.
Henson did not appeal the appellate court’s jurisdictional ruling, and instead focused on the substantive
claims that the appellate court did not address and that the trial court denied.
Henson v. Warden
tolled for any of the time it otherwise would have been tolled while Henson was pursuing postconviction relief in state court. Henson, 13–4322, Order (6th Cir. Oct. 29, 2014). Accordingly,
Henson’s § 2254 petition was due on March 30, 2011, one year after the time for seeking
certiorari expired, without any tolling.
Henson filed his § 2254 petition in the United States District Court for the Southern
District of Ohio on August 9, 2012—over 16 months after the AEDPA statute of limitations
expired, over nine months after the state appellate court ruling was filed, and over five months
after the Supreme Court of Ohio denied him leave to appeal the state appellate court’s timeliness
ruling. In his traverse, Henson, who was represented by counsel, argued for equitable tolling, but
did not cite relevant federal cases, did not cite the AEDPA statute of limitations, and did not state
explicitly that he was seeking to toll the federal statute of limitations, as opposed to the state
statute of limitations applicable to post-conviction motions. The magistrate judge construed
Henson’s argument as a request that the federal court equitably toll Ohio’s 180-day statute of
limitations: “[T]he delay Henson is asking this Court to excuse is not his delay in filing in this
Court, but his two-day delay in filing his petition for post-conviction relief in the [state trial
court].” Accordingly, the magistrate judge stated: “This Court is bound by the [state appellate
court’s] conclusion that the [state trial court] did not have jurisdiction of Henson’s late-filed
petition for post-conviction relief,” and recommended that Henson’s petition be dismissed with
Henson did not file an objection to the Report, notwithstanding that the end of the Report
referenced Federal Rule of Civil Procedure 72(b) and the process for objecting to a Report,
stating, among other things, that “[f]ailure to make objections in accordance with [FRCP 72’s]
procedure may forfeit rights on appeal.” The district court adopted the Report, dismissed
Henson v. Warden
Henson’s petition with prejudice, and reiterated that: “Proper notice has been given to the parties
. . . including notice that the parties would waive further appeal if they failed to file objections to
the [Report] in a timely manner.” The district court granted Henson a certificate of appealability
regarding equitable tolling, but expressly stated that “the question of waiver is more
appropriately addressed by the Sixth Circuit on appeal.”
We review de novo a district court’s legal conclusions in a habeas proceeding. See Miller
v. Collins, 305 F.3d 491, 493 (6th Cir. 2002). The decision whether to apply equitable tolling to
a case where determinative facts are undisputed is also reviewed de novo. See Solomon v. United
States, 467 F.3d 928, 932 (6th Cir. 2006).
Equitable tolling is a doctrine that “allows courts to toll a statute of limitations when a
litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances
beyond that litigant’s control.”
Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)
(internal quotation marks omitted). A petitioner, who bears the burden in this context, is entitled
to equitable tolling only if he shows “‘(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way’ and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
If extraordinary circumstances are present, the “statute of limitations should be
equitably tolled until the earliest date on which the petitioner, acting with reasonable diligence,
should have filed his petition.” Kendrick v. Rapelje, 504 F. App’x 485, 487 (6th Cir. 2012)
(citing Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). “[T]he doctrine of equitable
tolling is used sparingly by federal courts.” Robertson, 624 F.3d at 784 (citation omitted).
Henson v. Warden
The Warden argues that Henson waived his opportunity to appeal by not objecting to the
Report. “Generally, the failure to file specific objections to a magistrate’s report constitutes a
waiver of those objections.” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004). This rule,
first promulgated in United States v. Walters, 638 F.2d 947 (6th Cir. 1981), is intended to
promote “judicial efficiency.” Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509
(6th Cir. 1991). Under the Walters rule, only specific objections to the Report will be preserved
for appellate review. Smith v. Detroit Fed’n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th
Cir. 1987). This is because our “function is to review the case presented to the district court,
rather than a better case fashioned after a district court’s unfavorable order.” Hall v. Warden,
Lebanon Correctional Inst., 662 F.3d 745, 753 (6th Cir. 2011) (internal quotation marks and
However, the Walters rule is “nonjurisdictional,” and we can excuse Henson’s waiver “in
the interests of justice.” Thomas v. Arn, 474 U.S. 140, 155 (1985); Poss v. Morris (In re Morris),
260 F.3d 654, 664 (6th Cir. 2001).
We have identified three general situations where
overlooking waiver is appropriate: (1) if the case is “exceptional” and declining to review the
issue would “produce a plain miscarriage of justice”; (2) if hearing the issue “would serve an
overarching purpose other than simply reaching the correct result in this case”; and (3) if the
issue is presented with sufficient clarity such that no factual development would be required and
resolving the issue would promote the finality of litigation in the case. In re Morris, 260 F.3d at
664. We have “reiterated that the exceptions to the general rule are narrow and intended to
promote finality in litigation.” Id. (citing Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993)).
Henson v. Warden
Henson concedes that he waived the opportunity to appeal, but argues that we should
excuse his waiver for two reasons: (1) because this case involves “a wholly legal issue [that has
been] presented with sufficient clarity;” and (2) because “this case involves unsettled issues of
law, and the lack of clarity warrants addressing this appeal on the merits.”3 We disagree.
Henson’s first argument is facially plausible only because he chose to only address one
aspect of the Holland equitable-tolling test; Henson has expressly not made, or attempted to
make, the diligence showing. Rather, he insists that we should remand his case to the district
court for an evidentiary hearing. Had Henson addressed (or attempted to address) the second,
fact-based aspect of equitable tolling, he could not plausibly argue that the “wholly legal issue”
exception to waiver applies. A party cannot manufacture “a wholly legal issue,” and thus make
an argument that a clear waiver should be excused, by opting not to address a factually intensive
aspect of the case. Further, excusing Henson’s waiver would require remanding the case, a result
disfavored by this Court. See, e.g., Barilow, 6 F.3d at 407 (stating that “[t]he exceptions to
[waiver] are narrow” and that the “rationale” for granting an exception to waiver because a pure
legal question is presented “is to promote finality in the litigation process.”). This argument
Henson’s second argument fails for a similar reason—we are unable to address the
supposed “unsettled issues of law,” where only one aspect of the equitable-tolling test has been
briefed by both sides. Moreover, because each equitable-tolling case is necessarily fact specific,
it is unlikely that addressing the merits of Henson’s claim would “settle” this aspect of the law or
resolve future cases.
See, e.g., Holland, 560 U.S. at 650 (stating that courts adjudicating
equitable-tolling cases “exercise judgment in light of prior precedent, but with awareness of the
Henson also argues that the district court abused its discretion by denying Henson an evidentiary hearing.
As this issue was not included in the certificate of appealability, it is beyond the scope of this appeal. § 2253(c).
Henson v. Warden
fact that specific circumstances, often hard to predict in advance, could warrant special treatment
in an appropriate case.”); Robertson, 624 F.3d at 785 (“Whether equitable tolling is warranted is
a fact-intensive inquiry best left to the district courts.”). As stated above, we excuse waiver
when doing so would “promote finality in litigation,” In re Morris, 260 F.3d at 664, and
Henson’s case presents the exact opposite situation: if we were to excuse Henson’s waiver, it
would necessarily require remanding his case for additional proceedings.
Henson’s arguments that we should excuse his waiver thus fail. However, taking just a
glimpse at the merits of his appeal, it is clear that Henson is not entitled to relief. To satisfy the
first factor of the Holland test, a petitioner has the burden of showing that he pursued his claim
with “reasonable diligence.” Holland, 560 U.S. at 653. Here, Henson had reason to know (and
appears to concede as much) that on October 26, 2011, the date the state appellate court sitting in
post-conviction review issued its ruling, the AEDPA statute of limitations had not been tolled by
the filing of his state post-conviction motion. This was over nine months before he filed his
§ 2254 petition.
In the proceedings below, Henson sought an evidentiary hearing for his
“predecessor counsel” to explain the two-day delay in filing the state motion for post-conviction
relief. We can assume for these purposes that the two-day delay constitutes “extraordinary
circumstances.” Nevertheless, Henson has made no factual assertions (below or on appeal) to
suggest what could have excused the nine-month delay in filing his § 2254 petition. He now
seeks an evidentiary hearing to determine whether he was diligent, but supports his request with
no suggestion of what he hopes to prove. The evidentiary hearing he seeks, therefore, is a
proverbial “fishing expedition,” not reasonably calculated to prove any particular fact that may
warrant equitable tolling. We grant equitable tolling “sparingly,” Robertson, 624 F.3d at 784,
and there is nothing to suggest, much less show, that this case warrants such treatment.
Henson v. Warden
For the foregoing reasons, we AFFIRM the order of the district court.
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