Henderson v. Collins

Filing 258

DEFICIENCY ORDER; REPORT AND RECOMMENDATIONS ON CERTIFICATE OF APPEALABILITY - Because the District Judge has adopted (ECF No. 255) the Magistrate Judge's Report (ECF No. 246) that recommended certifying to the Sixth Circuit that any appeal woul d be frivolous and not taken in good faith, Petitioner is not entitled to proceed on appeal in forma pauperis and is hereby ORDERED to pay the appellate filing fee of $505 not later than April 18, 2018. It is respectfully recommended that Petit ioner's Motion for a Certificate of Appealability as to the Court's Order of February 27, 2018, (ECF No. 255) be DENIED. Objections to R&R due by 4/4/2018. Signed by Magistrate Judge Michael R. Merz on 3/20/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JEROME HENDERSON,
Petitioner,

:

- vs -

Case No. 1:94-cv-106
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

TERRY COLLINS, Warden,
Southern Ohio Correctional Facility,
:
Respondent.

DEFICIENCY ORDER; REPORT AND RECOMMENDATIONS ON
CERTIFICATE OF APPEALABILITY

This capital habeas corpus case is before the Court on Petitioner’s pro se Notice of Appeal
(ECF No. 256) and Motion for Certificate of Appealability (ECF No. 257).
Because the District Judge has adopted (ECF No. 255) the Magistrate Judge’s Report (ECF
No. 246) that recommended certifying to the Sixth Circuit that any appeal would be frivolous and
not taken in good faith, Petitioner is not entitled to proceed on appeal in forma pauperis and is
hereby ORDERED to pay the appellate filing fee of $505 not later than April 18, 2018.
Petitioner’s Motion for Certificate of Appealability (ECF No. 257) was filed pro se.
Petitioner is represented by counsel in this case and has been repeatedly advised by the Court that
he is not entitled to hybrid representation. The Court could, therefore, strike the Motion. However,
Rule 11 of the Rules Governing § 2254 Cases provides “[t]he district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant” and Sixth Circuit

1

precedent has read this requirement as applicable to final orders denying relief from judgment as
well as initial judgments in habeas corpus cases. United States v. Hardin, 481 F.3d 924, 926 (6th
Cir. 2007). Therefore the Court is under a rule-based obligation to consider a certificate of
appealability regardless of whether it is applied for.
A petitioner seeking to appeal an adverse ruling in the district court on a petition for writ of
habeas corpus or on a ' 2255 motion to vacate must obtain a certificate of appealability before
proceeding. 28 U.S.C. '2253 as amended by the Antiterrorism and Effective Death Penalty Act
of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), provides in pertinent part:
(c)
(1) Unless a circuit justice or judge issues a certificate of appealability,
an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court;
or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if
the applicant has made a substantial showing of the denial of a
constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by
paragraph (2).

District courts have the power to issue certificates of appealability under the AEDPA in '
2254 and § 2255 cases. Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063 (6th Cir. 1997);
Hunter v. United States, 101 F.3d 1565 (11th Cir. 1996)(en banc). Indeed, they are to be the initial
decisionmakers on certificates of appealability. Kincade v. Sparkman, 117 F.3d 949 (6th Cir.
1997)(adopting analysis in Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997).

2

To obtain a certificate of appealability, a petitioner must show at least that Ajurists of reason
would find it debatable whether the petition states a valid claim of denial of a constitutional right.@
Slack v. McDaniel, 529 U.S. 473, 484 (2000). That is, it must find that reasonable jurists would
find the district court=s assessment of the petitioner=s constitutional claims debatable or wrong or
that they warrant encouragement to proceed further. Banks v. Dretke, 540 U.S. 668, 705 (2004);
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Dufresne v. Palmer, 876 F.3d 248 (6th Cir. 2017).
Henderson’s Motion for Relief from Judgment, the denial of which he now seeks to appeal,
sought relief April 17, 2017 from an Order entered March 27, 2015. The Court denied the Motion
because it was premised on his belief that (1) he could compel appointed counsel to file whatever
motions he wanted and (2) that he was entitled to be served personally with Court filings even
though he is represented, neither of which beliefs has a grounding in law. Procedurally, the Court
concluded that his claims were precluded by the law of the case (the Sixth Circuit’s having denied
appealability before) and that the Motion was un timely filed (Report, ECF No. 246, PageID 114041).
Henderson argues that it would be debatable among jurists of reason whether attorney S.
Adele Shank should be replaced as counsel for Henderson because she refused to file a motion
“to pursue the retroactive application of the New Rule of Constitutional Law enunciated in
Martinez v. Ryan, 566 U.S. 1 (2012).” (Motion, ECF No. 257, PageID 1249). Henderson has not
shown his position on this point would be debatable among reasonable jurists for a number of
reasons. First of all, Martinez expressly declined to announce a new rule of constitutional law.
Second, the Sixth Circuit has never held that Martinez is applicable in Ohio. McGuire v. Warden,
738 F.3d 741, 751-52 (6th Cir., 2013); Henness v. Bagley, 766 F.3d 550 (6th Cir. 2014). Henderson
cites no case law contrary to the ruling made here or even raising the question whether it was

3

correct. He asserts that reasonable jurists agree with him on his interpretation of 18 U.S.C. § 3599,
but the conclusion is completely conclusory – no such jurists are cited.
In part in arguing for a certificate of appealability, Henderson relies on errors allegedly
made by the Magistrate Judge in rejecting his prior Motion for Relief from Judgment (ECF No. .
See, e.g., ECF No. 257, PageID 1257, 1258, 1259. That Motion for Relief was already denied and
an appeal taken from the denial (Denial ECF No. 231; Notice of Appeal ECF No. 239). The Sixth
Circuit has already denied a certificate of appealability on that appeal. Henderson v. Robinson,
Case No. 15-3490 (6th Cir. Han. 8, 2016)(unreported; copy at ECF No. 242). That decision
establishes the law of the case for the proposition that none of the issues attempted to be raised in
the prior Motion are debatable among jurists of reason. On that basis, the Magistrate Judge
declines to consider those issues further. See Dillimgham v. Jenkins, Case No. 17-3813 (6th Cir.
Nov. 8,2017)(unreported; copy at ECF No. 65 in 3:13-cv-468), citing Moore v. Mitchell, 848 F.3d
774, 776 (6th Cir. 2017).
For the foregoing reasons, Petitioner’s Motion for a Certificate of Appealability as to the
Court’s Order of February 27, 2018, (ECF No. 255) should be DENIED.

March 20, 2018.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
4

shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party=s objections within fourteen days
after being served with a copy thereof. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th
Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

5