Henderson v. Brown

Filing 20

ORDER adopting Report and Recommendations re 15 Report and Recommendations. The Petition for Writ of Habeas Corpus is DENIED. Ordered by Judge C. Ashley Royal on 7/29/11 (lap)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

PERRY LEE HENDERSON,
Petitioner,
v.
DENNIS BROWN,
Respondent.
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CASE NO.

5:08-CV-245 (CAR)

ORDER ON RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
Before the Court is the United States Magistrate Judge’s Recommendation [Doc. 15] that the
instant petition for federal habeas corpus relief be DENIED. Petitioner filed a timely Objection
[Doc. 16] to the Recommendation, and upon the Order of the United States Magistrate Judge, a
Response to the Objection [Doc. 18] was also filed. Petitioner then filed an additional Response in
Opposition [Doc. 19]. Pursuant to 28 U.S.C. § 636(b)(1), this Court has thoroughly considered the
Recommendation, Petitioner’s Objection, the Response, and Petitioner’s Response in Opposition
and has made a de novo determination of the portions of the Recommendation to which Plaintiff
objects. After careful consideration, the Court accepts and adopts the findings, conclusions, and
recommendations of the United States Magistrate Judge.

DISCUSSION
This action arises from Petitioner’s June 2004 conviction for the offenses of aggravated
battery and simple assault, State v. Henderson, Case No. 2004- CR-29, Monroe County Superior
Court. Petitioner was sentenced to twenty years confinement for aggravated battery and twelve

months confinement for simple assault to be served concurrently. Thereafter, Petitioner’s trial
counsel, Robert Goldberg, filed a motion for new trial and withdrew from the case. He was replaced
by Attorney Leo Kight. Attorney Kight amended the motion for new trial by enumerating two
claims of ineffective assistance of trial counsel. Following a hearing, Petitioner’s conviction and
sentence for simple assault was merged with the aggravated battery count leaving Petitioner with
a single conviction and twenty year sentence for aggravated battery.
On direct appeal, Petitioner, through Attorney Kight, raised two allegations of ineffective
trial counsel based on the facts that counsel informed the trial court during sentencing of Petitioner's
prejudicial prior convictions and failed to object to the state's improper use of Petitioner's prior
convictions as character rebuttal evidence during sentencing. Petitioner’s conviction and sentence
were subsequently affirmed. Henderson v. State, 277 Ga. App. 546, 627 S.E.2d 148 (2006).
Petitioner then filed a pro se habeas corpus petition in the state court alleging seven grounds
of ineffective assistance of appellate counsel: In ground one, Petitioner contended that his appellate
counsel was ineffective for failing to raise on appeal that the trial judge abused his discretion by
allowing a detective to remain in the courtroom even though the rule of sequestration had been
invoked. In ground two, Petitioner contended that his appellate counsel was ineffective for failing
to raise on appeal that the trial judge abused his discretion by allowing an EMT to testify as an
expert witness. In ground three, Petitioner contended that his appellate counsel was ineffective for
failing to raise on appeal that the trial judge abused his discretion by limiting trial counsel's closing
arguments. In ground four, Petitioner contended that his appellate counsel was ineffective for failing
to raise on appeal that the trial judge abused his discretion by not considering sentencing him as a
first offender. In ground five, Petitioner contended that his appellate counsel was ineffective for
failing to raise on appeal that trial counsel was ineffective for allowing witnesses to testify at trial

who were not listed on the witness list. In ground six, Petitioner contended that his appellate
counsel was ineffective for failing to raise on appeal that trial counsel was ineffective at the charge
conference by allowing the State’s Request to Charge No.1 (regarding the kidnaping element of
asportation) and not allowing Petitioner to testify so that the trial judge could have been allowed to
charge the jury on the Petitioner’s affirmative defense of justification. In ground seven, Petitioner
contended that his appellate counsel was ineffective for failing to raise on appeal that the evidence
was insufficient to support the conviction.
Following an evidentiary hearing, the state habeas court denied relief. The Supreme Court
of Georgia likewise denied Petitioner’s application for a certificate of probable cause to appeal.
Petitioner then filed the present Petition alleging two grounds for relief: In ground one, Petitioner
essentially restates the same allegations of ineffective assistance of counsel raised in his state
petition. In ground two, he contends that he was not afforded a full and fair hearing in state court.
After full consideration of the issues raised in the present petition, the United States
Magistrate Judge found that the state habeas court correctly applied the Strickland standard and
reasonably concluded that Petitioner failed to establish deficient performance by his appellate
counsel. The Magistrate Judge likewise found that the state habeas court provided Petitioner with
a full and fair hearing. Because Petitioner failed to demonstrate that any claim adjudicated on the
merits in the state court resulted in a decision that was: 1) unreasonable in light of the evidence; or
2) contrary to or the result an unreasonable application of clearly established federal law as
determined by the United States Supreme Court, it was recommended that this Petition be denied.
Petitioner has now raised various objections to the Recommendation of the United States
Magistrate Judge. Petitioner first objects to the Court’s adoption of the facts as found by the
Georgia Court of Appeals. Section 2254(e)(1) of Title 28 of the United States Code provides that

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.
Petitioner failed to sufficiently rebut this presumption of correctness by clear and convincing
evidence. This Court thus finds no error in the Magistrate Judge’s adoption of the facts as found by
the Georgia Court of Appeals.
Petitioner next contends that the Magistrate Judge erred by not holding an evidentiary
hearing on his Petition. Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. §2244, if an applicant has failed to develop the factual basis of a claim in state court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows
that: (A) the claim relies on: (i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate
that could not have been previously discovered through the exercise of due diligence; and (B) the
facts underlying the claim would be sufficient to establish by clear and convincing evidence that but
for constitutional error, no reasonable fact finder would have found the applicant guilty of the
underlying offense. 28 U.S.C. § 2254(e)(2). After a review of the record, and in light of the facts
a found by the Georgia Court of Appeals, this Court agrees with the United States Magistrate Judge
that no hearing was warranted in this case and finds Petitioner’s objection to have no merit.
Finally, Petitioner objects to the Magistrate Judge’s ultimate conclusion that the state habeas
court correctly applied the Strickland standard and reasonably concluded that Petitioner failed to
establish deficient performance by his appellate counsel. Having considered the Magistrate Judge’s
conclusions as to each claim de novo, this Court agrees with the Magistrate Judge’s findings and
application of law, and thus finds no error. The Court likewise agrees with the Magistrate Judge’s

conclusion that Petitioner was provided with a full and fair hearing by the state habeas court, which
(as the Magistrate Judge pointed out) is demonstrated by those portions of the record showing that
the state habeas court convened an evidentiary hearing at which Petitioner was given the opportunity
to testify, present evidence, and call and cross examine witnesses – including his former counsel.
In his Objection, however, Petitioner does correctly observe that the Recommendation fails
to address a claim raised in his brief. Therein, Petitioner asserts that his state habeas petition
included a claim based on trial counsel’s failure to object to a jury charge giving the entire statutory
definition of aggravated battery, including alternative definitions of the crime not charged in the
indictment. While Respondent did err in failing to address to Petitioner’s argument when it was
raised before the Magistrate Judge,1 the claim, nonetheless, fails. As Respondent shows, this claim
is procedurally defaulted because it was not raised in Petitioner’s state habeas corpus petition. See
Chambers v. Thompson, 150 F.3d 1324, 1327 (11th Cir. 1998).
According to Petitioner, “ground 6” of his state habeas petition claimed that his appellate
counsel was ineffective at the charge conference and “included in [that] was the fact that trial
counsel . . . submitted a request to charge on the entire statutory definition of aggravated battery, and
the trial court charged the jury on the entire statutory definition without a limiting instruction,
limiting the jury’s consideration to the manner charged or alleged in the [I]ndictment.” (Objection
at p.3). This is true, in part. Petitioner’s state habeas corpus petition claimed that his appellate
counsel was ineffective during the charge conference. However, according to the state petition, this
claim was based on appellate counsel’s failure to raise the issue that trial counsel provided

1

Respondent acknowledges that the claim was raised in Petitioner’s brief in support of the
Petition but explains that it did not address the argument because the allegations were not contained
in the Petition. In the future, such arguments should not simply be ignored; rather, Respondent shall
properly respond to all of a petitioner’s arguments, and if a claim in the brief is not adequately
alleged in the petition, Respondent shall argue this point.

ineffective assistance by (1) allowing the State’s Request to Charge No. 1 (regarding the kidnaping
element of asportation) and (2) not allowing Petitioner to testify so that the trial judge could have
been allowed to charge the jury on the Petitioner’s affirmative defense of justification. Petitioner did
not raise any issue regarding the aggravated battery charge in his state habeas petition. (See
Application for Writ of Habeas Corpus [Doc. 9, Ex.1, p. 7]).
Petitioner does not now contend that he raised this issue in his state petition. Rather, he
claims to have raised the issue “in the [h]abeas court,” assumably in his brief and when he
questioned his former appellate counsel about this decision during the state evidentiary hearing (See
Hearing Transcript p. 49 [Doc. 9, Ex.2]). This, however, was not necessarily sufficient to alert the
state court that Petitioner was alleging an ineffective assistance of appellate counsel claim based on
the aggravated battery charge when Petitioner had not included any reference to this claim in his
petition. Petitioner never sought leave to amend his state petition to include this factual allegation,
and there is likewise no indication that the state habeas court either construed Petitioner’s statements
during the hearing or in his brief as a motion to amend the petition or otherwise granted leave to
amend. Compare e.g., Wood v. Allen, 465 F. Supp.2d 1211 (M.D. Ala. 2006) (claim was not raised
in state court, notwithstanding single mention of amending the petition to include additional
grounds, where state court did not construe the statement as a motion or grant leave to amend).
Under Georgia law, a state habeas petition must “clearly set forth the respects in which the
petitioner’s rights were violated” and “all grounds for relief claimed by a petitioner shall be raised
in his original or amended petition.” Murrell v. Young, 285 Ga. 182, 183, 674 S.E.2d 890 (2009);
O.C.G.A. § 9-14-51; see also O.C.G.A. § 9-14-44 (“A petition brought under this article shall . . .
clearly set forth the respects in which the petitioner's rights were violated[] and state with specificity
which claims were raised at trial or on direct appeal.”). “Any grounds not so raised are waived . .

. ” except in limited circumstances. O.C.G.A. § 9-14-51. Based on this, the Court finds that the state
habeas court would have considered a claim based on the aggravated battery charge to be
procedurally defaulted under O.C.G.A. § 9-14-51 had Petitioner attempted to raise it in a second
state habeas corpus petition.
Likewise, claims not included in the state habeas petition should not be considered when
raised in a federal habeas petition unless there is some indication that a state court judge would find
that the claims in question “could not reasonably have been raised in the original or amended [state
habeas] petition.” Chambers, 150 F.3d at 1327; O.C.G.A. § 9-14-51. Petitioner has offered no
reason why the claim in question could not reasonably have been raised in his original or an
amended state habeas petition. See id. The claim thus cannot be considered here. See id.
Accordingly, after careful consideration, the Court accepts and adopts the findings,
conclusions, and recommendations of the Magistrate Judge and finds Petitioner’s Objections to be
without merit and the new grounds raised therein to be procedurally defaulted. The
Recommendation of the United States Magistrate Judge is, therefore, ADOPTED and MADE THE
ORDER OF THE COURT. The Petition for Writ of Habeas Corpus is DENIED.

SO ORDERED, this 29th day of July, 2011.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT

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