Henderson v. Caruso et al

Filing 23

OPINION and ORDER denying Petition for a Writ of Habeas Corpus. Signed by District Judge Stephen J. Murphy, III. (DWor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOBEY HENDERSON, # 237781,
Petitioner,
Case No. 08-cv-12139
v.
HONORABLE STEPHEN J. MURPHY, III
CATHERINE S. BAUMAN,
Respondent.
__________________________________/
OPINION AND ORDER DENYING
PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Jobey Henderson seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254.1 Henderson was convicted after a jury trial in the Gratiot Circuit Court of assault
on a prison employee, Mich. Comp. Laws § 750.197c. He was sentenced as a fourth
habitual offender to serve four to fifteen years in prison, consecutive to the sentences he
was already serving when he committed the instant offense. For the reasons stated below,
the Court will deny the petition.
FACTUAL BACKGROUND
The relevant facts were set forth by the Michigan Court of Appeals and are
presumed correct on habeas review. 28 U.S.C. §§ 2254(d)(2), (e)(1).
On March 25, 2005, defendant was an inmate in the St. Louis
Correctional Facility. Officer Charles Cowling testified that he first noticed
defendant in the programs building of the prison, getting resized for new
inmate clothing. Cowling later saw defendant at the inmate bathroom, putting
orange shorts and green sweat pants on under his inmate clothing. Cowling

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Henderson was incarcerated at the Oaks Correctional Facility at the time he filed
his habeas petition. He has since been transferred to the Alger Correctional Facility, where
Catherine S. Bauman is the warden. The proper respondent in a habeas case is the
warden of the facility where the petitioner is incarcerated. Rule 2(a), 28 U.S.C. foll. § 2254.
Accordingly, Bauman as the proper respondent here. The Court will order that the case
caption be changed accordingly.

told defendant that it was “against policy to be wearing orange shorts or
anything else underneath his [inmate clothing].” Defendant replied with
expletives directed toward Cowling, and then defendant threatened to kill
Cowling and another corrections officer. Cowling immediately radioed for
assistance because defendant needed to be put in the segregation unit due
to his threatening behavior. Defendant then said, “If I'm going to the hole, I'm
going for real,” he hit Cowling twice with his fist on the right side of Cowling’s
neck, and he ran down the hall.
People v. Henderson, No. 279861, 2009 WL 153280, at *1 (Mich. Ct. App. Jan. 22, 2009)
(per curiam).
Henderson waived his right to counsel and represented himself at trial. Following
his conviction and sentence, he appealed to the Michigan Court of Appeals. Appointed
appellate counsel filed a brief raising two claims: 1) trial court error in failing to instruct the
jury on the lesser offense of assault and battery; and 2) the sentence was based on facts
not admitted or proven beyond a reasonable doubt. Henderson also filed his a pro se brief
raising four additional claims: 1) unwarranted delay in filing the charges against Henderson
and bringing his case to trial; 2) denial of the a right to present a defense; 3) ineffective
assistance of counsel; and 4) incompetency.
The Michigan Court of Appeals affirmed in an unpublished opinion. Id. Henderson
sought leave to appeal in the Michigan Supreme Court, raising four claims: 1) ineffective
assistance of trial counsel; 2) incompetency; 3) newly discovered evidence in support of
a defense; and 4) prosecutorial misconduct. The Michigan Supreme Court denied leave
to appeal in a short order. People v. Henderson, 483 Mich. 1113 (2009).
Henderson then filed a federal habeas petition raising the claims he presented to the
Michigan Supreme Court. The warden contends that all four claims lack merit.
STANDARD OF REVIEW
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

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Henderson is entitled to a writ of habeas corpus only if he can show that the state court's
adjudication of his claims on the merits:
(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.
28 U.S.C. § 2254(d).
A decision of a state court is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question
of law or if the state court decides a case differently than the Supreme Court has on a set
of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably applies the
law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409.
The standard is a high one: “a state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could disagree on the
correctness of the state court's decision.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011)
(citation and internal quotation marks omitted).

In practice, then, a federal court must

“determine what arguments or theories supported . . . the state court’s decision; and then
it must ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id.
DISCUSSION
A. Ineffective Assistance of Counsel
Henderson claims first that his trial counsel was constitutionally ineffective. To
prevail, he must show that his attorney’s performance was objectively unreasonable and

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that his attorney’s failings so infected the proceedings as to make the trial unfair and verdict
unreliable. Strickland v. Washington, 466 U.S. 668, 688 (1984).
Henderson asserts first that his appointed trial counsel was ineffective for failing to
pursue a number of legal challenges prior to trial. Henderson chose to represent himself
at trial, after being properly warned of the consequences of doing so:
The Court: It’s your desire to represent yourself?
The Defendant: Yes, it is-The Court: You understand that you will be trying this case against the
prosecuting attorney, who is a trained attorney, who has prosecuted cases
in this county for over twenty years?
The Defendant: Yes.
The Court: You understand that you will be bound to the same rules of
evidence that the prosecutor is bound to?
The Defendant: Yes.
The Court You understand that I will not allow you to ask improper
questions?
The Defendant: Yes.
The Court: You understand that I will not allow you to present evidence in
any way that is improper?
The Defendant: Yes.
The Court: You understand that I will not allow you to rattle on to the jury, or
make any statements to them except as allowed by court rule?
The Defendant: Yes.
The Court: You understand that in my opinion, you would be [at] a great
disadvantage attempting to represent yourself?
The Defendant: I’m already--disadvantaged because I’m black.
The Court: Do you understand what I just said, sir?
The Defendant: Yes, sir.

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The Court: Okay. And it’s your desire to represent yourself in this matter?
The Defendant: Yes.
* * *
The Court: I’ll tell you once again, Mr. Henderson, if you chose to represent
yourself in this case, it’s against the advice of the Court; the Court thinks you
are placing yourself at a great disadvantage. You wish to do so anyhow?
The Defendant: I wish to do so anyhow, sir.
The Court: All right. Then the Court will allow you to act as your own
representative. I’m going to instruct [defense counsel] to remain to assist you
in the presentation of this trial.
Motion Hr’g Tr. 29-31, June 21, 2006.
Henderson does not challenge the validity of his waiver of the right to counsel. It
follows, therefore, that his claim of ineffective assistance of counsel fails. “[W]hatever else
may or may not be open to him on appeal, a defendant who elects to represent himself
cannot thereafter complain that the quality of his own defense amounted to a denial of
‘effective assistance of counsel.’” Faretta v. California, 422 U.S. 806, 834 n.46 (1975).
Henderson’s challenge to the conduct of stand-by counsel is also without merit. The
Sixth Circuit held that “even if stand-by counsel failed to act in some manner, such failure
is an incidental effect of [petitioner's] decision to assert his Faretta rights, and not the basis
of an ineffective assistance of counsel claim.” Holmes v. United States, 281 F. App’x 475,
480-81 (6th Cir. 2008); see also Wilson v. Parker, 515 F.3d 682, 697 (6th Cir. 2008) (“To
the extent [stand-by counsel] failed to act during trial, [the criminal defendant] merely
suffered the consequences of his decision to proceed pro se.”).
Henderson also challenges the conduct of counsel prior to Henderson’s decision to
represent himself. But this claim fails as well. Henderson’s motion to represent himself

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was granted on June 21, 2006, and trial did not begin until eleven months later, on May 23,
2007. Any motions or investigation Henderson claims his counsel should have performed
while representing him became Henderson’s responsibility when he assumed his own
defense. In fact, the trial court entertained oral argument on no less than thirty-nine
different pretrial motions filed by Henderson. See Hr’g Tr. Aug. 29, 2006; Hr’g Tr. Nov. 16,
2006. It appears the issues Henderson claims counsel was ineffective for not raising were
in fact raised and decided by the trial court.
Because Henderson does not challenge the validity of his decision to represent
himself, his ineffective assistance of counsel claims fail, and the decision of the state court
rejecting his claims was not unreasonable. Habeas relief is denied with respect to these
claims.
B. Competence
Henderson claims next that he was not competent to stand trial. The Michigan Court
of Appeals considered this claim waived because it was inadequately presented in
Henderson's pro se brief. The warden expressly asserts, however, that this claim is not
procedurally defaulted. The last state court decision to consider the claim was the trial
court, which found that Henderson was competent to stand trial:
Well, the unrebutted testimony the Court has heard, then, taken in
conjunction with the psychological evaluations that have been filed by both
Dr. Hill and Dr. Drozd is that Mr. Henderson had a history of some
psychological problems or issues, but they are in the mild to moderate range,
not severe, and do not rise to the level of being incompetent to stand trial as
defined by statute. Therefore, the Court finds that Defendant competent to
stand trial, and I think we need to establish a date at this point and time, don’t
we?
Hr’g Tr. 22, June 21, 2006.
A criminal defendant who is incompetent may not be tried for any crime. Godinez

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v. Moran, 509 U.S. 389, 396 (1993); Drope v. Missouri, 420 U.S. 162, 171 (1975). The test
for a competency to stand trial is “whether [the defendant] has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding — and whether
he has a rational as well as factual understanding of the proceedings against him.” Dusky
v. United States, 362 U.S. 402, 402 (1960). A court should consider evidence of a
defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion
concerning his competence. Mackey v. Dutton, 217 F.3d 399, 411 (6th Cir. 2000). A state
may presume that a defendant is competent to stand trial and require him to prove
incompetency by a preponderance of the evidence. Medina v. California, 505 U.S. 437,
449 (1992).
The state trial court’s decision that Henderson was competent to stand trial did not
involve an unreasonable determination of the facts. 28 U.S.C. §§ 2254(d)(2), (e)(1);
Thompson v. Keohane, 516 U.S. 99, 111 (1995) (noting that competency to stand trial is
a factual issue); Cowans v. Bagley, --- F.3d ----, 2011 WL 1496778, at *4 (6th Cir. Apr. 21,
2011) (same). At the competency hearing, Dr. Michele Hill testified that she evaluated
Henderson for competency to stand trial and for criminal responsibility at the Forensic
Center. She described the various tests performed, and she testified that she conducted
a clinical interview. Dr. Hill opined, based on the test results and interview, that Henderson
understood the nature and object of the proceedings against him. Hr’g. Tr. 15, May 25,
2006. Dr. George J. Drozd likewise testified that he conducted testing, interviewed
Henderson, and reviewed Henderson’s institutional record. He testified that “there were
no indicators that would suggest that [Henderson] had any substantial problems
understanding the workings of the legal system, or applying a rational approach to the
charges against him, nor his ability to appreciate the charges that were pending against

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him.” Hr’g Tr. 8-9, June 21, 2006. He concluded that “there was no indication to me -- in
my observations, my interactions and the test results, to conclude anything other than
[Henderson] was competent to stand trial. Id. at 9. Henderson offered no evidence tending
to indicate that he was incompetent to stand trial. Moreover, Henderson’s competency is
apparent from the trial record. He coherently argued pretrial motions and he conducted a
pro se defense, demonstrating that he had a rational and factual understanding of the
proceedings against him. Accordingly, the state trial court’s adjudication of this claim was
reasonable, and Henderson has not demonstrated entitlement to habeas relief on this
claim.
C. New Evidence
Henderson claims next that newly discovered evidence supports his innocence. He
states:
America reveals newly discovered evidence from citizen Kareem Wallace,
inmate 298042. . . . The testimony will support citizen right 4 against selfincrimination and negative the 5 failure of prosecution to disclose evidence
favorable. American will thus be able to prove 6 violation of double jeopardy,
7 denied effective counsel, and 8 right to appeal was intentionally hindered
by Michigan as alleged in actions and inactions of citizen conspirators.
Petition, 7.
A petition for a writ of habeas corpus must set forth facts that give rise to a cause
of action under federal law. See Perez v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D.
Mich. 2001). “[A] claim for relief in habeas corpus must include reference to a specific
federal constitutional guarantee, as well as a statement of the facts which entitle the
petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996). Conclusory
allegations in a habeas petition, without evidentiary support, do not provide a basis for
relief. See Payne v. Smith, 207 F. Supp. 2d 627, 650 (E.D. Mich. 2002).

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Henderson has failed to specify who Kareem Wallace is, what the substance of his
testimony would be, or how it would support any of his claims. His vague claim that
Wallace would support his claims “is a conclusory allegation ‘unsupported by specifics’ and
subject to summary dismissal.” Owens v. Benson, 439 F. Supp. 943, 945 (E.D. Mich.
1977). Habeas relief is not warranted on this claim.
D. Prosecutorial Misconduct
Henderson claims last that the prosecutor engaged in misconduct during the trial.
The Michigan Court of Appeals denied relief on this claim:
Likewise, defendant’s argument that the prosecutor committed
prosecutorial misconduct is also without merit. Defendant asserts that the
prosecutor did not provide requested documents, but he does not provide
any support for this assertion. We find no record evidence that defendant
was denied any request. Defendant also alleges that the prosecutor called
him a rapist and a molester. Again, defendant does not cite to the record and
we find no such reference. Defendant has provided no evidence to support
this allegation, and “[i]t is not enough for an appellant in his brief simply to
announce a position or assert an error and then leave it up to this Court to
discover and rationalize the basis for his claims, or unravel and elaborate for
him his arguments, and then search for authority either to sustain or reject his
position. The appellant himself must first adequately prime the pump; only
then does the appellate well begin to flow.” Mitcham v. Detroit, 355 Mich.
182, 203; 94 N.W.2d 388 (1959).
Henderson, supra, at *5-6.
“Prosecutorial misconduct may warrant habeas relief only if the relevant
misstatements were so egregious as to render the entire trial fundamentally unfair to a
degree tantamount to a due process deprivation.” Caldwell v. Russell, 181 F.3d 731, 736
(6th Cir. 1999). Whether the trial was fundamentally unfair is determined by evaluating the
totality of the circumstances. Angel v. Overberg, 682 F.2d 605 (6th Cir. 1982). A court
examines “the fairness of the trial, not the culpability of the prosecutor.” Serra v. Michigan
Dep’t of Corrs., 4 F.3d 1348, 1355 (6th Cir. 1993).

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As did the Michigan Court of Appeals, this Court too finds no factual basis in the trial
record for Henderson’s arguments. The prosecutor’s closing argument was unremarkable.
The arguments focused on the evidence presented at trial — specifically, the testimony of
the corrections officer Henderson assaulted. Likewise, there is no indication in the trial
court record that any of Henderson’s discovery requests went unaddressed by the trial
court or unanswered by the prosecutor. Henderson makes one vague reference to a
videotape of the assault being suppressed or destroyed, but the evidence presented at trial
suggests that there was no security camera in the area where the assault occurred. Trial
Tr. vol. 1, 176, May 23, 2007.
Henderson has failed to demonstrate that the prosecutor engaged in misconduct.
Relief on this claim is not warranted.
E. Certificate of Appealability
A petitioner must obtain a certificate of appealability from the district court or the
circuit court before appealing the denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); Fed.
R. App. 22(b). The district court must issued or deny a certificate when it denies relief.
Rule 11, Rules Governing Section 2254 Cases, 28 U.S.C. foll § 2254. A certificate of
appealability may issue “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner must demonstrate “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
After review, and for the reasons stated above, the Court finds that Henderson has
failed to make a substantial showing of the denial of a constitutional right with respect to

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his claim. Reasonable jurists could not debate the Court’s ruling on Henderson’s claims.
The Court therefore declines to issue a certificate of appealability.
ORDER
WHEREFORE, it is hereby ORDERED that the petition for a writ of habeas corpus
is DENIED.
IT IS FURTHER ORDERED that the Court DECLINES to issue a certificate of
appealability on any issue.
IT IS FURTHER ORDERED that Catherine S. Bauman be SUBSTITUTED as the
Respondent and that the caption be AMENDED accordingly.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: May 11, 2011
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on May 11, 2011, by electronic and/or ordinary mail.
Carol Cohron
Case Manager

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