Henry v. Artis
Filing
11
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability and Granting Permission to Proceed in Forma Pauperis. Signed by District Judge Terrence G. Berg. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN D. HENRY,
Petitioner,
v.
FREDEANE ARTIS,
Respondent.
2:21-CV-10853-TGB-KGA
HON. TERRENCE G. BERG
OPINION AND ORDER
DENYING HABEAS PETITION,
DENYING CERTIFICATE OF
APPEALABILITY, AND
GRANTING PERMISSION TO
PROCEED IN FORMA
PAUPERIS
Petitioner Kevin D. Henry (“Henry”), a Michigan state prisoner
proceeding pro se, has petitioned for a writ of habeas corpus under 28
U.S.C. § 2254. Henry pleaded no contest to involuntary manslaughter
and possession of a firearm during the commission of a felony. MCL §§
750.321, 750.227b. Henry claims he was not given a competency hearing
before entering his no-contest plea and was denied the effective
assistance of trial and appellate counsel. For the reasons below, Henry’s
petition and request for a certificate of appealability are DENIED. Henry
is GRANTED leave to proceed in forma pauperis on appeal.
I. BACKGROUND
On May 16, 2015, Henry was charged in Wayne County Circuit
Court with first-degree premeditated murder and felony firearm for the
shooting death of his wife. He was referred to the Center for Forensic
Psychiatry and an independent psychiatrist for competency-andcriminal-responsibility evaluations. Although the Center for Forensic
Psychiatry’s report is not part of the record, it appears the Center
concluded Henry was criminally responsible and competent to stand
trial.1 A defense expert, Dr. Gerald A. Shiener, similarly concluded that
Henry was competent to stand trial but not criminally responsible for his
actions; Henry suffered from Post-Traumatic Stress Disorder and had, at
the time of the offense, imbibed a significant amount of alcohol. See ECF
No. 1, PageID.39–41.
The prosecution moved to exclude Shiener's testimony because the
doctor’s report only supported a diminished capacity defense, which is
not recognized under Michigan law;2 Shiener’s testimony did not support
In Henry’s application for interlocutory appeal to the Michigan Court of
Appeals, he stated: “An examiner for the prosecution found that Mr.
Henry was both criminally responsible and competent to stand trial.”
ECF. No. 7-13, PageID.509.
2 In 1994, the Michigan legislature enacted MCL § 768.21a, which set
forth the legal standards for an insanity defense in Michigan. The
Michigan Supreme Court has held that this statute abolished the
diminished capacity defense in Michigan and that the insanity defense,
as established by the Michigan Legislature in § 768.21a, was the sole
standard for determining criminal responsibility related to mental
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2
an insanity defense. The trial court granted the prosecution’s motion. See
ECF No. 7-5, PageID.325–332. Henry then filed an interlocutory
application for leave to appeal to the Michigan Court of Appeals. The
Michigan Court of Appeals denied leave for immediate appellate review.
People v. Henry, No. 335596 (Mich. Ct. App. Nov. 10, 2016). Afterward,
Henry did not seek leave to appeal in the Michigan Supreme Court. See
Affidavit of Larry Royster, ECF No. 7-10, PageID.373.
On November 15, 2016, Henry entered a plea of no contest to the
reduced charges of involuntary manslaughter and felony firearm. Under
his sentencing agreement, Henry would be required to serve ten to fifteen
years, followed consecutively by another two years, for the offenses. See
ECF No. 7-6, PageID.337. On December 8, 2016, he was sentenced per
the plea agreement. ECF No. 7-7, PageID.344.
Appellate counsel was appointed for Henry on February 8, 2017. On
May 19, 2017, Henry executed an acknowledgment that he did not wish
to pursue an appeal, as its success might ultimately result in a longer
sentence. ECF No. 7-12, PageID.484. Accordingly, the prosecution and
appellate counsel filed a stipulated order to vacate the counsel
appointment, as Henry was “no longer interested in pursuing postconviction or appellate relief.” ECF No. 7-12, PageID.483. On June 14,
illness. See People v. Carpenter, 627 N.W. 2d 276, 283–85 (Mich. 2001);
see also Wallace v. Smith, 58 F. App’x 89, 94, n. 6. (6th Cir. 2003).
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2017, the trial court entered the vacating order. ECF No. 7-12,
PageID.485.
On August 16, 2018, Henry filed a motion for relief from judgment
in the trial court, arguing:
(1) He should be permitted to withdraw his plea; his defense
counsel and the state trial court failed to establish his
competency to plead, and were he suffering a mental
breakdown, his plea would be rendered involuntary, and
(2) He was constructively denied trial and appellate counsel, as no
appeal was ever filed.
The state trial court denied the motion, finding Henry’s claims
meritless and procedurally defaulted. ECF No. 7-11, PageID.405–08. In
turn, the Michigan Court of Appeals denied his application for leave to
appeal because Henry “failed to establish that the trial court erred in
denying the motion for relief from judgment.” People v. Henry, No. 349772
(Mich. Ct. App. Sept. 10, 2019); ECF No. 7-11, PageID.374. Henry then
applied for leave to appeal in the Michigan Supreme Court—which the
supreme court denied. People v. Henry, No. 160511 (Mich. Mar. 27, 2020).
Now, Henry files this habeas petition, asserting two non-harmless
errors by the state courts:
I. There was no hearing to determine his competency to
plead before he entered nolo contendere and
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II. Ineffective assistance of defense and appellate counsel.
See ECF No. 1, PageID.5, 7.
Respondent (“Artis”) counters that not only is Henry’s habeas
petition untimely but portions of his claims are procedurally defaulted
and meritless. ECF No. 6. Henry filed a motion for an extension of time
to file a reply, which the Court granted. ECF No. 8, 9. Despite this
extension, Henry has not submitted a brief.
II. LEGAL STANDARD
Section 2254 habeas petitions are governed by the heightened
standard of review detailed in the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”). 28 U.S.C. § 2254. To obtain relief, habeas
petitioners who challenge “a matter ‘adjudicated on the merits in State
court’ [must] show that the relevant state court ‘decision’ (1) ‘was
contrary to, or involved an unreasonable application of, clearly
established Federal law,’ or (2) ‘was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceedings.’” Wilson v. Sellers, 138 S. Ct. 1188, 1191 (2018)
(quoting 28 U.S.C. § 2254(d)). The focus of this standard “is not whether
a federal court believes the state court’s determination was incorrect but
whether that determination was unreasonable—a substantially higher
threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “AEDPA thus
imposes a highly deferential standard for evaluating state-court rulings
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and demands that state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations and quotation
marks omitted).
“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, 562 U.S.
86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). Additionally, a state court’s factual determinations are presumed
correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and federal
review is “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
III. DISCUSSION
A. Statute of Limitations
A one-year limitations period applies to all habeas corpus petitions.
See 28 U.S.C. § 2254(d)(1). Artis argues that the statute of limitations
bars Henry’s petition. A prisoner must file a federal habeas corpus
petition “from the latest [in time]” of four dates:
(A) The date on which the state-court judgment became final;
(B) The removal date of an unconstitutional state impediment to
filing for federal habeas relief;
(C) The date the U.S. Supreme Court recognizes a new
constitutional right made retroactive and applicable to
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collateral review; or
(D) The date the prisoner discovered new facts that could not have
been discovered previously.
See 28 U.S.C. § 2244(d)(1).
Henry is not relying on a newly-recognized constitutional right or
newly-discovered facts, and he has not alleged that a state-created
impediment prevented him from timely petitioning. Consequently, the
relevant subsection here is § 2244(d)(1)(A), which declares that a
conviction becomes final at “the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
Henry was sentenced on December 8, 2016. Because he did not
pursue a direct appeal of his convictions in the state courts, his
convictions became final when the time for filing a delayed application
for leave to appeal with the Michigan Court of Appeals expired six
months later, on June 8, 2017. See Mich. Ct. R. 7.205(G)(3); Keeling v.
Warden, Lebanon Corr. Institution, 673 F.3d 452, 460–61 (6th Cir. 2012)
(“Because [petitioner] failed to pursue direct review all the way to the
[state] [s]upreme [c]ourt, his judgment became final at the expiration of
the time for pursuing direct review in state court.”). Henry’s one-year
limitations began the next day, June 9, 2017, and expired one year later,
on June 9, 2018.
The time a prisoner seeks state-court collateral review of their
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conviction does not count towards the limitation period. 28 U.S.C. §
2244(d)(2); Ege v. Yukins, 485 F.3d 364, 371–72 (6th Cir. 2007). If a
petitioner’s limitations period has not expired, a properly filed
application for state post-conviction relief tolls it. Vroman v. Brigano, 346
F.3d 598, 602 (6th Cir. 2003). Henry’s motion for relief from judgment
was filed in the state trial court on August 16, 2018, over two months
after the limitations period expired. The statutory tolling provision,
therefore, does not apply because “it can only serve to pause a clock that
has not yet fully run”; it does not “restart the clock at zero.” Id.
Nor is Henry entitled to equitable tolling of the limitations period.
AEDPA’s one-year limitations period is not a jurisdictional bar. It may
be equitably tolled where a habeas petitioner “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) (internal quotation marks omitted).
“Equitable tolling is granted sparingly and is evaluated on a case-by-case
basis, with the petitioner retaining the ‘ultimate burden of persuading
the court that he or she is entitled to equitable tolling.’” Keeling, 673 F.3d
at 462 (quoting Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011)).
Henry does not argue for equitable tolling in his petition and has
not replied to Artis’ answer. He did not advocate equitable tolling or
acknowledge that the limitations period expired before filing this
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petition. The Court sees no evidence in the record suggesting that some
extraordinary circumstance prevented Henry from filing a timely habeas
petition. The Court, therefore, declines to toll the limitations period
equitably.
Finally, Henry fails to present a credible claim of actual innocence.
McQuiggin v. Perkins, 569 U.S. 383, 392–93 (2013); Schlup v. Delo, 513
U.S. 298, 324 (1995) (holding that a valid claim of actual innocence
requires a petitioner “to support his allegations of constitutional error
with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness account, or critical physical evidence—
that was not presented at trial”). Henry provides no new evidence to
“show that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.” Schlup, 513 U.S. at 327;
Eberle v. Warden, Mansfield Corr. Inst., 532 F. App’x 605, 613 (applying
Schlup in the context of a guilty plea). Thus, his petition is untimely.
B. Incompetency to Plead
Moreover, even if the petition were timely, Henry is not entitled to
relief. His claims are meritless.3 See Moss v. Miniard, 62 F.4th 1002, 1010
Artis argues that portions of Henry’s claims are procedurally defaulted.
Error! Main Document Only.The Court finds it unnecessary to
address the procedural question because it is not a jurisdictional bar to
review the merits, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir.
2005), and “federal courts are not required to address a proceduraldefault issue before deciding against the petitioner on the merits,”
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(6th Cir. 2023) (addressing merits of habeas petition without determining
whether a petition was timely filed because the one-year statute of
limitations is not a jurisdictional bar to review).
First, Henry argues that the state trial court failed to determine his
competency before accepting his plea, rendering the plea involuntary.
To be valid, a guilty plea must be made voluntarily and
intelligently. In other words, it must be made “with sufficient awareness
of the relevant circumstances and likely consequences.” Brady v. United
States, 397 U.S. 742, 748–49 (1970). A “plea of guilty entered by one fully
aware of [its] direct consequences” is Constitutionally ‘voluntary.’ That
the defendant “did not correctly assess every relevant factor entering into
his decision” does not invalidate its intelligence. Id. at 755, 757.
The Due Process Clause of the Fourteenth Amendment prohibits
the criminal prosecution of a defendant who is not competent to stand
trial. Medina v. California, 505 U.S. 437, 439 (1992); see also Pate v.
Robinson, 383 U.S. 375, 378 (1966). The standard governing 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,
Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v.
Singletary, 520 U.S. 518, 525 (1997)).
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362 U.S. 402, 402 (1960). If, at any point, “before or during trial ‘sufficient
doubt’ arises about a defendant’s competence – ‘the capacity to
understand the nature and object of the proceedings against him, to
consult with counsel, and to assist in preparing his defense’ – the trial
court should order a competency hearing.” Cowans v. Bagley, 639 F.3d
241, 247 (6th Cir. 2011) (quoting Drope v. Missouri, 420 U.S. 162, 180
(1975)). The competency standard for entering a guilty or no contest plea
is the same as standing trial. Godinez v. Moran, 509 U.S. 389, 396–401
(1993). A state court’s “determination of competence is a factual finding,
to which deference must be paid.” Filiaggi v. Bagley, 445 F.3d 851, 858
(6th Cir.2006) (citing Thompson v. Keohane, 516 U.S. 99, 110–11 (1995)).
In denying Henry’s motion for relief from judgment, the state trial
court held that—because Dr. Shiener found Henry competent to stand
trial—he, likewise, was competent to enter a plea. ECF No. 7-9,
PageID.371. The plea hearing transcript establishes Henry understood
the nature and terms of the plea and that he received a more lenient
sentence in exchange for the plea. Henry’s responses during the plea
hearing show no evidence that he failed to understand the nature or
consequences of his plea, and Henry provides no psychiatric evaluations
to support his incompetency claim. The Court finds nothing in the record
to question the state court’s finding. Habeas relief is denied on this claim.
C. Ineffective Assistance of Counsel
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Henry also argues that defense counsel “bamboozled” him into
pleading no contest “under the pretense that he would receive a three (3)
year prison sentence after he paid counsel $15,000.” ECF No. 1, PageID.7.
Ineffective assistance of counsel may render a plea of guilty
involuntary. Hill v. Lockhart, 474 U.S. 52, 58 (1985). To show that
counsel performed ineffectively, Henry must establish that (1) counsel
performed deficiently and (2) there is a reasonable probability that,
absent counsel’s error, he would not have pleaded guilty and, instead,
would have proceeded to trial. Strickland v. Washington, 466 U.S. 668,
687 (1984); Hill, 474 U.S. at 58.
Besides his self-serving statement, Henry does not support the
argument that counsel promised him a three-year sentence in exchange
for $15,000. A trial court’s proper plea colloquy generally cures any
misunderstandings a defendant may have about the consequences of his
plea. See Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999). The Sixth
Circuit explains:
If we were to rely on [a petitioner’s] alleged subjective
impression rather than the record, we would be rendering the
plea colloquy process meaningless, for any convict who alleges
that he believed the plea bargain was different from that
outlined in the record could withdraw his plea, despite his
own statements during the plea colloquy (which he now
argues were untruthful) indicating the opposite. This we will
not do, for the plea colloquy process exists in part to prevent
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petitioners … from making the precise claim that is today
before us. “[W]here the court has scrupulously followed the
required procedure, the defendant is bound by his statements
in response to that court's inquiry.”
Id. at 566 (quoting Baker v. United States, 7 F.3d 629, 633 (7th Cir.
1993)).
Henry’s statements at the plea hearing bind him, and his
allegations cannot be given precedence over his on-the-record sworn
statements to the contrary. Id. at 566. Henry’s plea colloquy was proper,
clear, and thorough.
Henry also claims that his appellate attorney rendered ineffective
assistance by persuading him “to withdraw his appeal under the pretense
he would receive more time, despite [Henry’s] allegations that defense
counsel told him he was going to receive 3 to 15 years.”4 ECF No. 1,
PageID.7.
In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court
extended the Strickland standard to claims that appellate counsel was
ineffective for failing to file an appeal. If counsel disregards a specific
Henry’s reference to withdrawing his appeal appears to be inaccurate.
The Court finds no indication in the record or in the Michigan Court of
Appeals’ publicly available case database that Henry filed an appeal
that needed to be withdrawn. Regardless, the resolution of this
discrepancy by the Court is unnecessary. It would not alter the
adjudication of Henry’s claims.
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instruction to file an appeal, counsel “acts in a manner that is
professionally unreasonable.” Id. at 477. At the same time, “a defendant
who explicitly tells his attorney not to file an appeal plainly cannot later
complain that, by following his instructions, his counsel performed
deficiently.” Id. (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)).
Henry has not shown that he was denied an appeal by counsel. On
May 29, 2017, he signed an acknowledgment of the risk of receiving a
greater sentence. ECF No. 7-11, PageID.430. Henry acknowledged that
appellate counsel advised him of the dangers and consequences of
seeking leave to appeal. (Id.) He recognized that he faced a longer
sentence if his appeal was successful and the matter was remanded to
the trial court. Henry concluded that having considered the “inherent
risk and consequences,” he did not wish to pursue an appeal. Id.
Henry alleges that he signed the statement “under the pretense he
would receive more time” if he did not withdraw his appeal. ECF No. 1,
PageID.7.
Petitioner
cannot
show
that
counsel’s
advice
was
constitutionally deficient. Appellate counsel could reasonably have
concluded that an appeal would not be in Petitioner’s best interest
because it could expose him to a life sentence without the possibility of
parole if he were convicted of first-degree murder. It was not
unreasonable for counsel to advise Henry of this significant risk if he
withdrew his plea. Thus, this claim too is meritless.
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IV. CONCLUSION
For all the reasons set out, Henry’s petition for a writ of habeas
corpus is DENIED WITHOUT PREJUDICE. The Court further finds
that reasonable jurists would not debate this Court’s resolution of
Henry’s claims. Therefore, Henry’s request for a certificate of
appealability is also DENIED. See Slack v. McDaniel, 529 U.S. 473, 483–
84 (2000). If Henry chooses to appeal, he is GRANTED leave to proceed
in forma pauperis. See 28 U.S.C. § 1915(a)(3).
SO ORDERED.
Dated: February 5, 2024
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
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