Henderson v. Bell

Filing 134

ORDER on Remand Regarding Martinez Issues, Denying Petition Pursuant to 2254, Granting Limited Certificate of Appealability, and Certifying Limited Appeal Would Be Taken in Good Faith. Signed by Judge S. Thomas Anderson on 5/8/2014. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

KENNATH ARTEZ HENDERSON,
Petitioner,
vs.
WAYNE CARPENTER, Warden,
Riverbend Maximum Security
Institution,
Respondent.

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No. 06-2050-STA-tmp

ORDER ON REMAND REGARDING MARTINEZ ISSUES
ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2254
ORDER GRANTING LIMITED CERTIFICATE OF APPEALABILITY
AND
ORDER CERTIFYING LIMITED APPEAL WOULD BE TAKEN IN GOOD FAITH

On July 11, 2012, this case was remanded for consideration of
Martinez v. Ryan, ___ U.S. ___, ___, 132 S. Ct. 1309, (2012).
(Electronic Case Filing (“ECF”) No. 97.) The case was stayed
awaiting the Supreme Court’s holding in Trevino v. Thaler, ___ U.S.
___, 133 S. Ct. 1911 (2013). (ECF No. 114.) On July 25, 2013,
Petitioner Kennath Henderson, through counsel, filed a brief about
the applicability of Martinez. (ECF No. 116.) On September 10,
2013, Respondent filed a brief concerning procedural default and
Trevino. (ECF No. 119.) On September 17, 2013, Petitioner filed his
reply. (ECF No. 121.) On October 31, 2013, the Court directed the
parties to further brief the Martinez issues. (ECF No. 123.) On

December

20,

2013,

Petitioner

filed

a

brief

identifying

his

substantial claims under Martinez with multiple exhibits. (ECF No.
129-131.) On January 23, 2014, Respondent filed a notice regarding
his brief concerning procedural default and Trevino. (ECF No.
132.)1 On March 25, 2014, Petitioner filed a notice of supplemental
authority. (ECF No. 133.)
In Petitioner’s Martinez brief filed on July 25, 2013, he
argues that Martinez was applicable to claims in Amended Petition
¶¶ 8(b, c, f, g, h, j, l); 9(c, d, e, f, k, l, m, n, o, p, q, r);
10(a,

b(4,

5,

11));

11(a(in

part),

b,

c,

e,

f);

13;

and

“unexhausted assertions of ‘ineffective assistance of counsel as
cause’

for

the

default

of

other

[unnamed]

substantive

constitutional claims.” (ECF No. 116 at 13-14.) In the Court’s
October 31, 2013 order, the Court stated, “Petitioner has not
specifically identified the claims he contends are subject to
Martinez or argued whether those claims are substantial under
Martinez.” (ECF No. 123 at 1.) Petitioner was directed to file a
brief “identifying the claims he contends are subject to Martinez
and presenting any argument about the substantial nature of those
claims.” (Id. at 2.) Petitioner identified the claims that he
contends are substantial in his brief filed on December 20, 2013.
(ECF No. 129.) Petitioner has waived his Martinez argument as to

1

Respondent relied on his prior briefing. (ECF No. 132 at 2.)

2

any claim not identified in the December 20, 2013 brief as a
“substantial” claim.
I.

BACKGROUND
Petitioner was incarcerated in the Fayette County Jail serving

sentences for felony escape and aggravated burglary. Henderson v.
State, No. W2003-01545-CCAR3-PD, 2005 WL 1541855, at *1 (June 28,
2005), perm. app. denied (Tenn. Dec. 5, 2005). On May 2, 1997,
after Petitioner’s girlfriend smuggled a .380 semi-automatic pistol
into the jail, Deputy Tommy Bishop took Petitioner and another
inmate Deloice Guy to dentist appointments at the office of Dr.
John Cima. Id. Petitioner pulled the gun on Dr. Cima, and when
Deputy Bishop responded to a call from Cima, Petitioner shot at
Bishop grazing him and causing him to fall to the floor presumably
unconscious. Id. at *2. Petitioner left the room and returned with
the receptionist in his custody. Id. He took Bishop’s pistol,
money, credit cards, and Cima’s truck keys; he then went back where
Bishop was laying and shot him through the back of the head at
point-blank range. Id. Petitioner attempted to take Cima and the
receptionist as hostages, but they managed to escape when outside
the building. Id. Petitioner was apprehended shortly afterward in
Cima’s truck. Id.
On July 6, 1998, after a continuance of the trial was granted,
Petitioner pleaded guilty to first degree premeditated murder, two
(2) counts of especially aggravated kidnapping, aggravated robbery,
attempted especially aggravated kidnapping, aggravated assault, and
3

felonious escape. (See ECF No. 20-1 at PageID 714, 718, 722-727.)2
See Henderson, 2005 WL 1541855, at *8. Petitioner waived his right
to jury sentencing. (Id. at PageID 717.) After a capital sentencing
hearing on July 13, 1998, the trial court imposed the death
sentence

for

the

murder

count

and

an

effective

sentence

of

twenty-three (23) years in prison for the noncapital offenses. See
Henderson v. State, No. W2003-01545-CCAR3-PD, 2005 WL 1541855, at
*1 (June 28, 2005), perm. app. denied (Tenn. Dec. 5, 2005). After
a state court appeal and post-conviction proceedings, Petitioner
filed a habeas petition in this Court.
On February 15, 2008, Respondent filed a motion for summary
judgment in which he sought the dismissal of multiple claims based
solely on procedural default. (ECF No. 55-1 at 6-38; see also ECF
No. 68 at 5-6.) Petitioner filed a response to the motion on July
31, 2008. (ECF No. 68.) On March 2, 2011, the Court entered an
order directing the parties to file “briefs on the merits of all
issues for which Respondent only argued procedural default” no
later than May 2, 2011. (ECF No. 70 at 1.) On March 30, 2011, the
Court entered an order granting in part and denying in part
Respondent’s motion for summary judgment and denying the petition
in part. (ECF No. 72.)
On April 18, 2011, Petitioner filed a motion to reconsider the
Court’s March 30, 2011 order in light of the “grant of certiorari

2

Citations to the state court record and exhibits are made using “PageID”
numbers for ease of reference.

4

in Maples v. Allen, 586 F.3d 879 (11th Cir. 2009), cert. granted
sub nom. Maples v. Thomas, 562 U.S. __ (2011)(U.S. No. 10-63); the
granting of a stay of execution and leave to file an out-of-time
rehearing petition in Foster v. Texas, U.S. No. 10-8317 (April 5,
2011); and the granting of a stay of execution in Cook v. Arizona,
U.S. No. 10A955 (April 4, 2011).” (ECF No. 73 at 1.) Petitioner
asserted that ineffective assistance of post-conviction counsel was
the cause for the default of certain ineffective assistance of
trial and appellate counsel claims and Petitioner’s claim that his
guilty plea and the waiver of a jury for sentencing was not made
knowingly, intelligently, or voluntarily. (Id. at 1-5.) On May 4,
2011, the Court denied Petitioner’s motion to reconsider. (ECF No.
78.)
On April 26, 2011, while the motion to reconsider was pending,
Respondent filed his brief on the merits in support of summary
judgment. (ECF No. 75.) On May 2, 2011, Petitioner filed a second
response to the motion for summary judgment. (ECF No. 77.) At
Petitioner’s request, the Court allowed the parties to brief
Petitioner’s entitlement to an evidentiary hearing. (See ECF No.
80.) On October 11, 2011, the Court entered an order denying the
motion for evidentiary hearing, denying the petition, and denying
Petitioner’s request for a stay of final judgment. (ECF No. 91.)
The Court granted a limited certificate of appealability on the
issues of ineffective assistance of counsel at sentencing (Amended

5

Petition ¶ 9) and Petitioner’s incompetence to enter a guilty plea
and waive jury sentencing (Amended Petition ¶ 13) and certified
that a limited appeal would be taken in good faith. (ECF No. 91 at
95-96.)
Petitioner subsequently filed a motion to alter or amend
judgment and to expand the certificate of appealability. (ECF No.
93.) The Court denied the motion on December 19, 2011. (ECF No.
95.)
II.

MARTINEZ
In 2012, the Supreme Court issued its decision in Martinez,

___ U.S. at ___, 132 S. Ct. at 1320, which recognized a narrow
exception to the rule stated in Coleman3, “[w]here, under state
law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding . . . .” In such
cases, “a procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance of
counsel if, in the initial-review collateral proceeding, there was
no

counsel

or

counsel

in

that

proceeding

was

ineffective.”

Martinez, ___ U.S. at ___, 132 S. Ct. at 1320. The Supreme Court
emphasized that “[t]he rule of Coleman governs in all but the
limited circumstances recognized here. . . . It does not extend to
attorney errors in other proceedings beyond the first occasion the
State allows a prisoner to raise a claim of ineffective assistance

3

Coleman v. Thompson, 501 U.S. 722 (1991).

6

at trial . . . .” Id. The requirements that must be satisfied to
excuse a procedural default under Martinez are as follows:
(1) the claim of “ineffective assistance of trial
counsel” was a “substantial” claim; (2) the “cause”
consisted of there being “no counsel” or only
“ineffective” counsel during the state collateral review
proceeding; (3) the state collateral review proceeding
was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and (4)
state law requires that an “ineffective assistance of
trial counsel [claim] ... be raised in an initial-review
collateral proceeding.”
Trevino, ___ U.S. at ___, 133 S. Ct. at 1918 (2013) (emphasis and
revisions in the original).
Martinez arose under an Arizona law that did not permit
ineffective assistance claims to be raised on direct appeal. In the
Supreme Court’s subsequent decision in Trevino, ___ U.S. at ___,
133 S. Ct. at 1921, the Supreme Court extended its holding in
Martinez to states in which a “state procedural framework, by
reason of its design and operation, makes it highly unlikely in a
typical case that a defendant will have a meaningful opportunity to
raise a claim of ineffective assistance of trial counsel on direct
appeal . . . .” Thus, the decision in Trevino modified the fourth
requirement stated for overcoming a procedural default.
Recently, the Sixth Circuit in Sutton v. Carpenter, 745 F.3d
787 (6th Cir. 2014), held that ineffective assistance of state
post-conviction counsel can establish cause to excuse a Tennessee
prisoner’s procedural default of a substantial federal habeas claim
that his trial counsel was constitutionally ineffective.
7

III. ANALYSIS
Petitioner
claims:

(1)

seeks

Martinez

ineffective

relief

assistance

for

of

four

trial

categories
counsel

of

claims

previously found to be defaulted (Amended Petition ¶¶ 9(f)(1)(v)
& 9(n)); (2) ineffective assistance of trial counsel claims for
which the proof was defaulted (Amended Petition ¶¶ 8(h), 9(b, d(4),
& h)); (3) ineffective assistance of appellate counsel claims
(Amended Petition ¶ 10(b)(11)); and (4) substantive claims for
which ineffective assistance of trial and appellate counsel are the
cause for default (Amended Petition ¶¶ 8(a), 11(b), 12(a), 13, &
20). (See ECF No. 129 at 5, 22, 23-27.) The Court will first
address those claims on which there is question about whether they
are in the scope of Martinez.
A.

Claims For Which The Proof Was
Petition ¶¶ 8(h), 9(b, d(4), & h))

Defaulted

(Amended

Petitioner argues that Martinez applies to the ineffective
assistance

of

trial

counsel

claims

for

which

the

proof

was

defaulted. (ECF No. 129 at 22.) Petitioner argues that the Court,
prior to Martinez, found itself constrained from consideration of
Petitioner’s proof by the dictates of Cullen v. Pinholster, ___
U.S. at ___,

131 S. Ct. 1388 (2011). (Id.) Petitioner argues that

Martinez applies where post-conviction counsel failed to develop
the evidentiary basis for a claim of ineffective assistance during
the initial review proceedings. (Id.) Petitioner contends that it
is “irrational” to distinguish failing to properly assert a federal
8

claim and failing to properly develop the claim in state court.
(Id.) Petitioner asserts that counsel failed to develop the proof
now presented and incorporates by reference the proof in support of
those claims as briefed in Petitioner’s Second Response to the
Respondent’s Motion for Summary Judgment (ECF No. 77) for the
ineffective assistance of trial counsel claims in Amended Petition
¶¶ 8(h), 9(b), 9(d)(4), and 9(h). (ECF No. 129 at 22-23.)
Petitioner attempts to develop facts that were not previously
presented in the state court proceedings. “Pinholster plainly bans
an attempt to obtain review of the merits of claims presented in
state court in light of facts that were not presented in state
court”, and “Martinez does not alter that conclusion.” Moore v.
Mitchell, 708 F.3d 760, 785 (6th Cir. 2013); see Dixon v. Houk, 737
F.3d 1003, 1012 n.2 (6th Cir. 2013) (Martinez does not allow the
petitioner to circumvent the proper standard of review under
Pinholster where the claims

adjudicated on the merits before the

state courts), reh’g & reh’g en banc denied (Jan. 29, 2014).
Petitioner’s claims in Amended Petition ¶¶ 8(h) and 9(b, d(4),
& h) were adjudicated on the merits in the state courts and in this
Court. (See ECF No. 91 at 19-73, 94.) Martinez does not allow
Petitioner to circumvent Pinholster and allow consideration of
evidence that was not developed and presented in the state courts.
Petitioner is denied relief pursuant to Martinez on the claims in
Amended Petition ¶¶ 8(h) and 9(b, d(4), & h).

9

B.

Ineffective Assistance of Appellate
(Amended Petition ¶¶ 10(b)(11))

Counsel

Claims

Petitioner argues that the equitable principles in Martinez
apply to appellate counsel’s failure to challenge all issues raised
in Petitioner’s habeas petition (Amended Petition ¶ 10(b)(11)).
(ECF No. 129 at 23-27; see ECF No. 16 at 32-33, 35.) Specifically,
Petitioner asserts:
appellate counsel was ineffective for failing to raise
the claims Mr. Henderson has raised regarding trial
counsel’s ineffectiveness in failing to investigate Mr.
Henderson’s paternal family history of serious mental
illness, failing to investigate the traumatic brain
injury Mr. Henderson suffered at age eleven, failing to
review the discovery provided to them by the State and
investigate the red flags signaling Mr. Henderson’s
serious mental illness contained therein, and then
failing to present information regarding mental illness
and brain injury to their experts.
Appellate counsel was ineffective for failing to
raise the issue that trial counsel’s ineffectiveness led
trial counsel to fail to properly advise Mr. Henderson
regarding entry of a guilty plea and waiver of jury
sentencing and, ultimately, to present the trial court
with a false and misleading picture of Mr. Henderson.
Appellate counsel was ineffective for failing to proffer
the proof in support of those claims that Mr. Henderson
has developed.
(ECF No. 129 at 24-25.) Petitioner asserts that his appellate
counsel were ineffective for failing to raise claims regarding
trial counsel’s lack of qualifications (Claim 12); Petitioner’s
request for new counsel (Claim 12(c)); that the trial court erred
in triple counting the aggravating facts surrounding the crime
(Claim 15(c); and that Petitioner was not competent to enter a plea
and waive jury sentencing (Claim 13). (Id. at 25-26.)
10

The

holding

in

Martinez

does

not

encompass

claims

that

appellate counsel were ineffective. See Martinez, ___ U.S. at ___,
132 S. Ct. at 1319 (“Coleman held that an attorney’s negligence in
a postconviction proceeding does not establish cause, and this
remains true except as to initial-review collateral proceedings for
claims of ineffective assistance at trial.”). The Sixth Circuit in
Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013), stated
“[u]nder Martinez’s unambiguous holding our previous understanding
of Coleman in this regard is still the law - ineffective assistance
of post-conviction counsel cannot supply cause for procedural
default of a claim of ineffective assistance of appellate counsel.”
Petitioner is denied relief under Martinez for his ineffective
assistance of appellate counsel claims.
C.

Other Substantive Claims
11(b), 12(a), 13, & 20)

(Amended

Petition

¶¶ 8(a),

Petitioner argues that the equitable principles of Martinez
apply to substantive claims related to the appointment of qualified
counsel, the grand jury, Petitioner’s competence, and the guilty
plea (see Amended Petition ¶¶ 8(a), 11(b), 12(a), 13, & 20), for
which ineffective assistance of trial and appellate counsel are the
cause for procedural default. (ECF No. 129 at 27-38.) Martinez is
limited to ineffective assistance of trial counsel claims, see
supra pp. 6-7. The Sixth Circuit in Hodges v. Colson, 727 F.3d 517,
531 (6th Cir. 2013), denied relief from the procedural default of
a juror misconduct claim based on Martinez, stating
11

The Court in Martinez purported to craft a narrow
exception to Coleman. We will assume that the Supreme
Court meant exactly what it wrote: “Coleman held that an
attorney’s negligence in a post-conviction proceeding
does not establish cause, and this remains true except as
to initial-review collateral proceedings for claims of
ineffective assistance of counsel at trial.”
Id. (quoting Martinez, 132 S. Ct. at 1316 (internal citations
omitted)). The Court in Hodges also denied Martinez relief for the
procedural default of a substantive competency claim. Id. at 540.
In Olmos v. Ryan, No. CV-11-00344-PHX-GMS, 2013 WL 3199831, at
*9

(D.

Ariz.

June

24,

2013),

the

petitioner

argued

that

he

“received ineffective assistance of counsel at the first postconviction relief proceeding when counsel there failed to argue
that trial/appellate counsel was ineffective for failing to argue
that the prosecution’s peremptory strikes were unconstitutional.”
The petitioner argued that the ineffective assistance of postconviction counsel “then serves as cause to excuse the default of
the claim that trial/appellate counsel was ineffective, which then
serves as cause to excuse Olmos’ default of the underlying claim.”
Id. The Court stated that “Olmos attempts to derive support for the
viability of this labyrinthine causal chain from Martinez v. Ryan,
but that reliance is misplaced.” Id. at *10. The court stated that
this is not a claim of ineffective assistance of counsel, but a
substantive claim of a constitutional violation that was defaulted
when the petitioner failed to raise it on direct review. Id. The
court rejected Olmos’ attempt “to extend Martinez to situations

12

where the ineffective assistance claim is merely the excuse for a
procedural default - not the base claim itself” and cited his
argument as a “dizzying chain of excuses” for his failure to
exhaust his substantive claims. Id.
Similarly, this Court finds no reason to extend the limited
holding in Martinez to claims other than ineffective assistance of
trial counsel claims.4 Petitioner is denied relief under Martinez
for

procedurally

defaulted

substantive

claims

other

than

ineffective assistance of trial counsel claims.
D.

Procedurally Defaulted Ineffective Assistance of Trial
Counsel Claims (Amended Petition ¶¶ 9(f)(1)(v) & 9(n))

As stated supra pp. 6-7, Martinez provides petitioners relief
from the procedural default of ineffective assistance of trial
counsel claims where there was either no post-conviction counsel or
post-conviction counsel were ineffective. There is no dispute that
the

claims

determined

in
to

Amended
be

Petition

procedurally

¶¶

9(f)(1)(v)

defaulted.5

The

and
Court

9(n)

were

will now

determine whether these claims are “substantial” under Martinez.
To be “substantial” under Martinez, a claim must have “some
merit” based on the controlling standard for ineffective assistance
of counsel stated in Strickland v. Washington, 466 U.S. 668 (1984).

4

Petitioner’s allegations in Amended Petition ¶ 8(a) were denied on the
merits, not on the basis of procedural default. (ECF No. 72 at 35-47, 63, 114.)
Therefore, Martinez is inapplicable and would not provide Petitioner with relief.

5

These claims were not raised in any of the state post-conviction
proceedings. (See ECF No. 55-1 at 10.) The Court held that the claims were not
exhausted and procedural defaulted. (See ECF No. 72 at 69-71.)

13

Martinez, ___ U.S. at ___, 132 S. Ct. at 1318-1319. To demonstrate
deficient performance by counsel, a petitioner must demonstrate
that “counsel’s representation fell below an objective standard of
reasonableness.”

Strickland,

466

U.S.

at

687-88.

“A

court

considering a claim of ineffective assistance must apply a ‘strong
presumption’ that counsel’s representation was within the ‘wide
range’ of reasonable professional assistance.”

Harrington v.

Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 787 (2011) (citing
Strickland, 466 U.S. at 689).
‘that

counsel

made

errors

“The challenger’s burden is to show
so

serious

that

counsel

was

not

functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment.’” Id. (quoting Strickland, 466 U.S. at 687).
To

demonstrate

reasonable

prejudice,

probability

that,

a

but

prisoner
for

must

counsel’s

establish

“a

unprofessional

errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.6 “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
“It is not enough ‘to show that the errors had some conceivable
effect on the outcome of the proceeding.’” Richter, ___ U.S. at
___, 131 S. Ct. at 787-88 (quoting Strickland, 466 U.S. at 693).
“Counsel’s errors must be ‘so serious as to deprive the defendant

6

“[A] court need not first determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant.” Strickland,
466 U.S. at 697. If a reviewing court finds a lack of prejudice, it need not
determine whether, in fact, counsel’s performance was deficient. Id.

14

of a fair trial, a trial whose result is reliable.’” Id. (quoting
Strickland, 466 U.S. at 687).
“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
An ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues
not presented at trial, and so the Strickland standard
must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very
adversary process the right to counsel is meant to serve.
Strickland, 466 U.S., at 689-690, 104 S. Ct. 2052. Even
under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later
reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and
with the judge. It is “all too tempting” to “second-guess
counsel’s assistance after conviction or adverse
sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell v.
Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d
914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113
S. Ct. 838, 122 L. Ed. 2d 180 (1993). The question is
whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common
custom. Strickland, 466 U.S., at 690, 104 S. Ct. 2052.
Richter,

U.S. at ___, 131 S. Ct. at 788.

Petitioner argues that trial counsel’s failures resulted in
his plea and waiver of a jury for sentencing. (ECF No. 129 at 6.)
He asserts that his trial counsel did not: (1) know the prevailing
professional norms in the field of capital representation; (2) hire
qualified

experts

to

complete

a

thorough

“biopsychosocial”

evaluation; (3) complete a “biopsychosocial” evaluation or social
history; (4) give the experts needed information for a correct
diagnosis;

(5)

prepare

experts
15

to

testify

about

Petitioner’s

serious mental illness and brain dysfunction; and (6) as a result,
did not have a case to present at trial or sentencing. (Id.)
Petitioner asserts that, had counsel performed adequately and
developed proof of his “familially linked” serious mental illness
and brain damage, there is a reasonable probability that counsel
would

have

recognized

that

Petitioner

was

not

competent,

adjudicated his incompetency, and not have urged Petitioner to
plead guilty. (Id.)
Petitioner
“fundamentally

contends

that

trial

incomplete” information

counsel
at

presented

sentencing

such

that the

resulting picture of Petitioner weighed by the trial court was
false. (Id.) Petitioner asserts that the “false picture” was the
result of counsel’s failure to conduct a rudimentary investigation,
including failure to identify and interview Petitioner’s father
Elton Henderson, investigate and prepare appropriate witnesses,
review discovery

materials

including

evidence

of

Petitioner’s

mental decompensation and criminal history, and interview any
witnesses related to Petitioner’s criminal history. (Id. at 6-7.)
Petitioner argues that the “false picture” that emerged was
that Petitioner participated in the spelling bee and won the “Good
Helper Award” in elementary school, was a basketball player, and a
product of an intact family. (Id. at 7.) His trial counsel argued
that he was “a young man who had a lot going for him”, but some
unspecified occurrence happened in Petitioner’s life that brought

16

Petitioner to “where we are today.” (Id. at 8.) Petitioner’s trial
counsel argued that he was under extreme duress and could not
appreciate the wrongfulness of his conduct without proof or even
speculation about what caused Petitioner’s behavior. (Id.)
Petitioner

asserts that the State seized on his counsel’s

depiction of him as smart and well-adjusted to argue for the death
penalty:
He says, my client is a smart fellow; he had
above-average grades; he had the highest scores in his
class in spelling and geography and math; he comes from
a loving, two-parent family; he had all the best
opportunities. But they say that because Ms. Johnson did
not at some point intervene to some unspecified problems,
which never even came out in the proof that was brought
out in school, that somehow he was not afforded the
treatment, which at any early stage would have kept him
from the murder of Tommy Bishop. I don’t believe that is
a mitigating circumstance, if it please the court --- the
lack of intervention by a loving and attentive mother, to
what has not even been described as being any kind of
problem; certainly nothing that manifested itself in any
kind of prior mental history of Mr. Henderson.
(ECF No. 129 at 9; ECF No. 20-5 at PageID 352.)
Petitioner argues that the true picture of his life was very
different. (ECF No. 129 at 9.) The truth is that Petitioner had
never met his biological father who impregnated his mother at 14 and
whose family had a history of serious mental illness. (Id. at 7-9.)
Petitioner contends that his mental illness stemmed from genetically
inherited rapid-cycling Bipolar I Disorder and from a head injury
when he was hit by a car while riding a bike as a child. (Id. at 9.)
Petitioner asserts that his brain, already compromised by low brain

17

volume, atrophied in the frontal and parietal lobes as a result of
the injury. (Id.) Petitioner states that his mental illness did not
begin to progress until his late teen years when he “began to lose
control of his impulses and was increasingly overcome by mania and
altered perception of reality.” (Id. at 9-10.) Petitioner asserts
that the true picture of his life is one “of a less morally culpable
man with a genetically-transmitted, severe mental illness (rapidcycling Biploar I Disorder) that ‘combines the most disruptive
symptoms of the depressed and manic phase’ and results in the
‘simultaneous expression of cognitive deficits, impaired judgment,
and behavior disruption’; a traumatic brain injury that left his
brain atrophied, and also affecting his cognition, ability to
control his impulses, and impairing his judgment; and generation
after generation of relatives who suffer from the same severe mental
illness.” (Id. at 10 (citation omitted); see ECF No. 68-2 at PageID
4002; see also ECF No. 68-1.) Petitioner asserts that this “powerful
mitigation” shows his “pitiable state” and “explains the truly
senseless nature of his crime, thereby lessening the power of the
aggravating circumstances.” (ECF No. 129 at 10.)
1.

Failure to Educate Themselves (Amended Petition ¶
9(f)(1)(v))

In Amended Petition ¶ 9(f)(1)(v), Petitioner alleges:
Counsel failed to educate themselves concerning
developments in the field of capital case defense work
and were unaware of prevailing professional norms, and
thus failed to identify and procure the experts necessary
to develop, discover, explain, and present available
18

mitigation themes or evidence, [s]ee Guideline 8.1 and
commentary, ABA Guidelines for Death Penalty Cases:
1) Such evidence and experts include, but are not
limited to: . . .
v) expert assistance to develop family and
community
deficits
affecting
the
psychological
development of Mr. Henderson.
(ECF No. 16 at 21-22.) Petitioner did not

develop the facts

surrounding this claim in the Amended Petition or in addressing
summary judgment and did not define which experts were needed and
which family and community deficits should have been developed. (See
ECF No. 16 at 21-22; see ECF No. 68 at 120-129.) Petitioner argued
that his claim was exhausted under Vasquez v. Hillery, 474 U.S. 254,
258, 106 S. Ct. 617, 620, 88 L. Ed 2d 598 (1986), because the
emphasis of different facts in his federal claims did not result in
procedural default and that Respondent engaged in “hyper-technical
hairsplitting.” (ECF No. 68 at 119-120.)
Now, Petitioner argues that neither of his court-appointed
counsel

attended

availability

of

training
continuing

on

capital

legal

defense

education

despite

seminars,

the

journal

articles, books on capital sentencing preparation, and a practice
guide. (ECF No. 129 at 11-12.) Petitioner asserts that counsel
thought they could just hire an “expert” - Julie Fenyes, the
mitigation specialist/jury consultant, to do the job. (Id. at 1112.) He argues that counsel abdicated their duty to Fenyes, offered

19

her no guidance, and showed no familiarity with the range of
mitigation evidence to be explored. (Id. at 12-13.)
Petitioner argues that Fenyes was not an adequate expert. (Id.
at 13.) He contends that her work was “completely deficient”; that
she failed to identify and interview Petitioner’s father Elton
Henderson; and that, as a result, she completely missed a “wealth
of mitigating information” about Elton Henderson’s family mental
health history. (Id.) Petitioner contends that Fenyes’ failures
deprived him of a competent psychological evaluation because “[h]ad
counsel hired an appropriate mitigation expert and learned of
Henderson’s paternal family mental health history, counsel would
have realized the necessity of hiring a psychiatrist.” (Id. at 14.)
Petitioner asserts that a competent mitigation expert would
have been able to provide complete and correct information related
to Petitioner’s head trauma to Lynn Zager, a forensic psychologist
who testified at sentencing, who would have then recommended further
neurological
failure

to

testing.
identify

(Id.)
and

Petitioner

hire

a

asserts

competent

that

counsel’s

social

historian

eviscerated his chance to present accurate, mitigating evidence at
sentencing. (Id.) He argues that “[b]ut for the ineffectiveness of
counsel – that is to say, had counsel discovered the wealth of
mitigating evidence of Mr. Henderson’s serious mental illness and
brain disorder . . . there is a reasonable probability that Mr.

20

Henderson would not have pled guilty and would have insisted on
going to trial, including a sentencing trial by jury.” (Id.)
The

themes

of

counsel’s

failure

to

educate

themselves,

abdication of their duties related to the mitigation phase to
Fenyes, Fenyes’ inadequate mitigation investigation, the failure to
identify and investigate Elton Henderson, and the resulting failure
of not having adequate information to provide mental health experts
that Petitioner now asserts as part of his claim in ¶ 9(f)(1)(v)
were addressed in the state court and/or this Court’s prior rulings
on the merits.
a.

Failure to Educate

The Court addressed a similar guilt phase claim asserted in
Amended Petition ¶ 8(c) that trial counsel failed to educate
themselves about issues that might be presented as a defense. (See
ECF No. 91 at 15-17.) The Court stated:
a. Counsel’s Education and Qualifications
In ¶ 8(c) of the amended petition, Henderson alleged
that his trial counsel failed to educate themselves about
issues that might be presented as a defense and failed to
investigate and develop available information and locate
appropriate expert and lay witnesses to present a
defense. (ECF No. 16 at 6.) The Tennessee Court of
Criminal Appeals stated:
The petitioner next asserts that trial counsel
were deficient by their failure to stay abreast
of developments in capital representation. The
petitioner argues that trial counsel’s failures
impaired their ability to work with experts
properly and ensure that the experts were
performing the necessary tasks. In support of
his position, the petitioner asserts that both
21

Mr. Mosier and Mr. Johnston admitted their
deficiency regarding working with experts. The
petitioner
asserts
that
this
deficiency
resulted in the loss of vital mitigation
evidence. As stated earlier, issues addressing
the failure to present mitigation evidence will
be addressed as such. Our review as to this
claim is merely as to whether Mr. Mosier’s and
Mr. Johnston’s failure to inform themselves of
developments in capital litigation constituted
deficient performance. The record reflects that
Mr. Mosier had previous experience in capital
litigation.
Additionally,
his
testimony
established that he was familiar with the use
of experts and that the experts in this matter
were hand-selected by him. The petitioner has
failed to make specific allegations referencing
the developments in the area of capital
litigation of which trial counsel was unaware.
Rather, the petitioner relies upon alleged
deficiencies in the area of mitigation proof.
We refuse to adopt a per se finding of
deficiency
based
upon
an
allegation
of
counsel’s lack of knowledge regarding recent
developments in the law, especially in light of
the absence of any reference by the petitioner
of
what
legal
developments
counsel
was
allegedly unaware. The petitioner is not
entitled to relief as to this claim.
Henderson v. State, No. W2003-01545-CCA-R3-PD, 2005 WL
1541855, at *40 (Tenn. Crim. App. June 25, 2005). The
court also rejected Henderson’s assertions that Johnston
and Mosier were unqualified to represent Henderson based
on their lack of experience and the fact that their
qualifications did not comply with Tennessee Supreme
Court Rule 13. Id. at **32-33. This Court previously
rejected Henderson’s habeas claims that his counsel
failed
to
satisfy
the
standards
for
capital
representation. (ECF No. 72 at 39-47.)
(ECF No. 91 at 15-17.) Petitioner failed to argue the merits of his
claim. (Id. at 18.) The Court found that Henderson could not
demonstrate prejudice because of the overwhelming evidence of his
guilt and that Petitioner was not entitled to habeas relief related
22

to the Tennessee Court of Criminal Appeals’ determination
claim in Amended Petition ¶ 8(c). (Id. at

of the

18-19.)

Counsel’s performance is the measure upon which the Court
determines whether there was ineffective assistance, not counsel’s
lack of education. See United States v. Cronic, 466 U.S. 648, 665
(1984) (“The character of a particular lawyer’s experience may shed
light in an evaluation of his actual performance, but it does not
justify a presumption of ineffectiveness in the absence of such an
evaluation.”)

Counsel’s failure to educate themselves must be

accompanied by unreasonable performance and prejudice to make out
a claim of ineffective assistance of counsel.
b.
Petitioner

Fenyes’ Mitigation Investigation

presented

claims

of

ineffective

assistance

of

counsel at sentencing in the post-conviction proceedings, asserting
that his trial counsel failed to develop and introduce mitigation
evidence. Henderson, 2005 WL 1541855, at *39-43. Frank Einstein, a
self-employed

sentencing

consultant

and

mitigation

specialist,

testified about the purpose of mitigation and the deficiencies he
saw in Fenyes’ investigation. Id. at *9-11. The post-conviction
court did not find ineffective assistance of counsel, but clearly
acknowledged that counsel was not fully aware of much of the social
history information presented in the post-conviction proceedings:
Counsel allowed the investigative and mitigation expert
to conduct their investigation and report to counsel
their findings. It is true that trial counsel was not
aware of all the history of mental illness in the
Petitioner’s family. Also true was that counsel was not
23

completely aware of some of the violent events that the
Petitioner engaged in shortly before this incident. It is
true that counsel was aware from the expert clinical
psychologist that Petitioner was diagnosed with a
personality disorder, not otherwise specified, with
narcissistic traits. However, their expert did not see
any
bipolar
tendency,
and
counsel,
under
the
circumstances, acted in a competent manner in presenting
this psychological proof to the Court. It is true that
counsel’s mitigation expert did not make as an extensive
mitigation investigation as Post-conviction mitigation
expert opined was necessary.
Id. at *21.
The post-conviction court determined that counsel was “not
ineffective” because: (1) a mitigation investigation was conducted
and witnesses testified on Petitioner’s behalf7; (2) the postconviction

court

“placed

little

weight

on

the

testimony

of

Petitioner’s mitigation expert, especially when he opined that it
would

take

two

to

three

years

to

do

a

proper

mitigation

investigation”; and (3) mitigation was difficult in this case and
the

findings

presented

“a

double-edged

sword.”

Id.

The

post-

conviction court noted the change in Petitioner’s behavior about two
years

before

girlfriend,

the

murder,

Petitioner’s

the

vicious

felony

assault

conviction,

on

the

Petitioner’s
abduction

of

Petitioner’s girlfriend’s mother on several occasions, and the rape
of her mother. Id. The post-conviction court noted the differences
in diagnosis of mental illness, and the fact that psychiatrist
William Kenner stated that “the details of Petitioner’s various

7

In the penalty phase, the defense witnesses presented at trial were
Petitioner, Petitioner’s high school principal Miles Wilson, his mother Sally
Johnson, and psychologist Lynn Zager. (See ECF No. 20-4 at PageID 764.)

24

assaults, abductions and rapes” would have to be fully explained to
understand the nature of Petitioner’s bipolar diagnosis. Id.
post-conviction
circumstances

court

to

be

also

“simply

found

the

statutory

overwhelming”

and

The

aggravating

found

that

the

proffered new mitigating testimony about Kenner’s bipolar diagnosis
only

reinforced

the

Court’s

opinion

that

the

aggravating

circumstance outweighed the mitigation evidence. Id. The postconviction court stated,
the
evidence
presented
regarding
the
defendant’s
abduction of his girlfriend’s mother, the rapes, the
assaults, lead the Court to the conclusion that the
Petitioner’s acts were calculated, cold and deliberate.
These are the same calculated and deliberate actions that
led to the death of Tommy Bishop. Whether or not they
were the result of a bipolar condition would not have
changed the Court’s decision to impose a sentence of
death.
Id.
This Court addressed that claim as it relates to Petitioner’s
habeas allegations that counsel failed to properly investigate and
prepare for the sentencing hearing (¶ 9(b)); talk with Petitioner
about his social history or background (¶ 9(c)); investigate and
develop evidence about Petitioner’s

brain damage (¶ 9(d)(4));

educate themselves about Zager’s diagnosis of Petitioner as having
narcissistic personality disorder (¶ 9(e)); identify and procure a
psychiatrist

and

experts

for

neurological

testing

and

neuropsychological testing (¶ 9(f)(1)); object to the trial court’s
request to confer with Fenyes (¶ 9(h)); and develop a theory of

25

mitigation (¶ 9(k)). (See ECF No. 16 at 12-32; see ECF No. 91 at 3672.) The Court stated “[t]here were obvious deficiencies in the
social history gathered by the defense team, regardless of whether
that

information

was

gathered

by

counsel

or

by

Fenyes

and

[investigator Tammy] Askew.” (ECF No. 91 at 54-55, 58-59.) The Court
stated,
The majority of the mitigation investigation in this
case was conducted within the one week time period
between the guilty plea and the sentencing hearing.
Counsel clearly failed to develop a complete social
history on Henderson, present this information to the
experts, and use it to develop an appropriate mitigation
theme. Counsel’s performance was deficient at the
sentencing phase.
This Court must determine whether there is a
reasonable probability that there would have been a
different outcome at sentencing if a more complete
picture of Henderson’s behavior, bipolar disorder, and
mental deficits had been presented to the trial court. In
determining that Henderson was not prejudiced by
counsel’s performance, the Tennessee Court of Criminal
Appeals placed great emphasis on the fact that the trial
judge found that the evidence of Henderson’s family
history of mental illness and his own diagnosis of
bipolar disorder 2 would not have changed the results of
the sentencing hearing. Henderson, 2005 WL 1541[8]55, at
*43.
During the post-conviction proceedings, Judge
Blackwood was made aware of undiscovered mitigating
evidence. Blackwood acknowledged that counsel was not
aware of Henderson’s family’s history of mental illness
or the violent events that Henderson engaged in shortly
before this incident. (ECF No. 22-8 at 77.) Blackwood
stated that this case was one where finding mitigation
was difficult and presenting mitigation evidence was “a
double-edged sword.” (Id.) Judge Blackwood determined
that the additional mitigation evidence would not have
changed his sentencing determination: . . . .

26

(ECF No. 91 at 65-66 (footnote omitted)). The Court noted that “more
limited investigation into a defendant’s behavior” was justified
where the evidence presented would have a “double edge” and found
that

when

aggravating

“presented
factors

with
and

the

the

overwhelming

potential

evidence

detrimental

of

effect

the
of

introducing additional evidence about Henderson’s criminal behavior
in an attempt to mitigate his sentence. The double-edged nature of
the

new

mitigation

evidence

does

not

establish

a

reasonable

probability that the outcome at sentencing would change.” (Id. at
70.)
c.

Elton Henderson

Information related to Petitioner’s biological father Elton
Henderson was not developed until the latter stages of Petitioner’s
litigation.
(1)

Trial

At trial, Petitioner’s mother Sally Johnson testified that she
was 15 years old when Petitioner was born. (ECF No. 20-5 at PageID
293.) There was no testimony at trial identifying Elton Henderson
as Petitioner’s biological father or about his family.
(2)
Elton

Henderson’s

Post-Conviction Proceedings
half-sister

Margaret

Henderson

Simmons

testified about Petitioner’s father and his family in the postconviction proceedings. Henderson, 2005 WL 1541855, at *14. (ECF No.
23-4 at PageID 3225-27, 3314-21.) Simmons testified that she and

27

Elton Henderson have the same mother Vester Hill8 and that she and
her mother were separated when she was a child. (Id. at PageID 331415.) Hill began to live with Simmons after Hill was diagnosed in
1990 or 1991 as “manic depressed.” (Id. at PageID 3315.) Simmons
takes cares of her mother “because she doesn’t do anything but just
sit all day in one place, and go from the bathroom to the kitchen,
and that’s it.” (Id. at PageID 3316.) Simmons authorized access to
Hill’s mental health records, which were included as an exhibit to
the post-conviction record. (Id.)9
Simmons

testified

about

her

maternal

grandmother

Novella

Henderson who lived into her 90s but never went anywhere or did
anything, just “sit in her chair all day in one place.” (Id. at
PageID 3316, 3319-20.) Novella never left the house. (Id. at PageID
3318.) Novella was “a strange lady. She wouldn’t get in the bathtub,
she wouldn’t talk on the telephone, just different things. She
didn’t want to go near a gas stove and that type thing.” (Id.)
Simmons “was left” with Novella until she was about six or seven
years old, and then Novella moved to Memphis with them when she was
85 and had broken her hip. (Id.)

8

The name is spelled “Veaster” in the post-conviction transcript. (ECF No.
23-4 at PageID 3315.)
9

Initially, Simmons’ testimony was made as a proffer because of questions
about the familial relation, but the court moved the testimony into proof after
she testified that Elton Henderson told her that Petitioner was his son and that
they had been communicating while Petitioner was in prison in Nashville. (ECF No.
23-4 at PageID 3320-21.)

28

The post-conviction trial court denied counsel’s request for
a recess to allow Elton Henderson to testify. (See id. at PageID
3313.) There appears to be no evidence presented related to Elton
Henderson’s behaviors or mental illness in the post-conviction
proceedings.
(3)

Federal Habeas Proceedings

In the federal habeas proceedings, Petitioner argues that his
father appears to suffer from a mood disorder although he has not
officially been diagnosed. (ECF No. 68 at 13.) Petitioner notes that
neuropsychiatrist George Woods interviewed Petitioner’s father and
found “multiple signs of mood disorder, including ‘grandiosity with
a flight of ideas, pressured speech, mood lability, hypersexuality,
and impaired judgment.’” (Id.; see ECF No. 68-2 at PageID 39963997.)
Petitioner argued, as part of his allegations in Amended
Petition ¶¶ 9(d)(1-3) and 9(j) that counsel failed to investigate
and develop evidence about Petitioner’s mental illness, that counsel
did not investigate and develop evidence related to the history of
mental illness in Petitioner’s family, especially on the paternal
side where Petitioner’s great-grandmother, grandmother, and “likely
his father” suffered manic depression and his paternal uncles
suffered chronic depression. (ECF No. 68 at 29.) The Court denied
relief based on the merits of these claims. (ECF No. 72 at 85-98.)

29

Petitioner presented information about his father and other
family members on the paternal side to support the motion for
reconsideration of the Court’s March 30, 2011 order granting in part
and denying in part Respondent’s motion for summary judgment. (See
ECF No. 74.) Petitioner presented the declaration of Ann WalkerKing, an investigator in the Capital Habeas Unit at the Office of
the Federal Public Defender for the Middle District of Tennessee who
interviewed Elton Henderson in April 2008. (ECF No. 74-4.)10
Walker-King stated that Elton Henderson expressed worry for
Petitioner “because of his talent” and stated that he believes life
is harder for a person the more talented they are. (Id. at PageID
4226.) Elton claimed that there was a conspiracy against Petitioner
and commented “that when you are in the sports arena, like Kennath
is, people know how to dig ditches for you.” (Id. at PageID 42264227.) Elton had heard that Petitioner was as good as Kobe Bryant
and would have been the next Michael Jordan. (Id. at PageID 4226.)
Elton was about 22 when he met Petitioner’s mother Sally
Johnson, who was then 14. (Id. at PageID 4227.) He said that
Johnson’s stepmother did not want him around. (Id.) First, he stated
that he and Sally were “in love”, but then stated that she really
loved him. (Id.) Elton said that he did not care about Johnson’s
pregnancy and took no responsibility when Petitioner was born. (Id.)

10

Walker-King presented a declaration dated July 24, 2008, in response to the
motion for summary judgment, but it did not mention Elton Henderson or issues
related to mental illness in Petitioner’s family although this information was
available from the April 2008 interview. (See ECF No. 68-7.)

30

Elton claims that he had two other sons born at almost the same time
as Petitioner, and the girls were jealous of each other until one
day he saw them walking together. (Id.) He moved to Memphis after
his three sons (Kennath, Chris, and Charles) were born. (Id.; see
ECF No. 74-5 at PageID 4232.)
Elton and Charles’ mother Lillian Rhodes were cousins, and
Charles was born with deformities and had difficulty in school. (ECF
No. 74-4 at PageID 4227.) Elton said they continued the relationship
after learning that they were cousins. (Id. at PageID 4228.) Elton
and Rhodes had a second child Tameka11, who unlike Charles, was
sharp. (Id.)
Walker-King said that Elton Henderson continuously talked about
his sexual history and preferences and assumed that all the women
he had been with would want to continue a relationship with him.
(Id.) Elton admitted to having a preference for young girls, about
fifteen years old, but “not necessarily as young as the twelve year
old he was convicted of raping in 1988.” (Id.) Elton explained “that
he really hadn’t meant to have sex with the twelve year old girl,
because, at the time he ‘had his eye on’ his girlfriend’s fifteen
year old daughter. The twelve year old ‘just happened to be there.’”
(Id.) Elton said that it is common that men with a woman and her
daughter and that the daughter may give the mother’s boyfriend “a
signal.” (Id.) Walker-King described Elton’s conversations bout

11

The name is also spelled “Tomeka” in some documents, but the correct
spelling appears to be “Tameka.” (See ECF No. 74-8 & 129-9.)

31

sexual assault and molestation as “matter of fact” with “no emotion
or empathy.” (Id.)
Elton Henderson never saw his own father Herman Greer. (Id.)
He was told that Greer carried two or three pistols. (Id.) Elton
believes that Greer was “frightened” out of town because he was a
witness to something done by a notorious person. (Id.)
Elton’s mother Vester Hill had nine children. (Id. at PageID
4229.) Hill, Elton, and three older children lived in the country
about

eleven

miles

from

Somerville,

Tennessee

and

were

sharecroppers. (Id.) He moved to Memphis in about 1974. (Id.) When
asked about mental illness in his family, Elton said that his mother
“lost equilibrium” and was given medicine that made her more
depressed. (Id. at PageID 4230.)
Elton claimed that he was a talented singer and artist. (Id.
at PageID 4227.) He has not held any job for long because he is
talented. (Id. at PageID 4229.) He says that he is happiest when
singing and rehearsing and has almost reached “CD status”. (Id.) He
expects to be “an overnight success.” (Id.) He sings solo at church
sometimes and sang the 23rd Psalm, which was later aired on the
Montell Williams Show. (Id.) He

claims to have performed once at

the Memphis in May Music Festival

and to have won a talent

performance there. (Id.)
Elton Henderson described himself as a “leader” and says that
he “goes in at the bottom and moves to the top.” (Id.) He says that
he was “considered like staff” when he was incarcerated. (Id.)
32

Walker-King stated that, although they were in a public place,
Elton became more overtly sexual as the interview progressed, and
his manner was “disconcerting” and “increasingly uncomfortable.”
(Id. at PageID 4228.) She described him as “profoundly lacking in
boundaries

and

reprehensible

self-awareness”
nature

of

his

with

“no

expressed

appreciation
opinions

nor

for

the

for

the

inappropriateness of sharing them with a female investigator whom
he had just met.” (Id.) Walker-King stated that Elton called her on
her work cell phone at about midnight, and she told him that it was
inappropriate to call her that time of night. (Id. at PageID 4230.)
She thought that he was under the influence. (Id.)
Petitioner presented the declaration of Raymond Henderson,
Elton Henderson’s half-brother. (ECF No. 74-5.) Elton and Raymond
have the same mother, but Elton was the only child of Herman Greer.
(Id. at PageID 4231.) Raymond states, “[e]veryone agrees Mr. Greer
was crazy.” (Id.) Greer lived in Memphis and was known to drink a
lot and get into fights. (Id.)
Raymond,

Elton,

their

brother

William,

and

their

sister

Margaret Henderson [Simmons] grew up in Somerville, Tennessee at
their grandparents’ home on the Fowler Plantation. (Id.) Their
mother lived with them until Raymond was nine, and then she moved
to Memphis. (Id.) The boys stayed on the plantation to work with
their grandparents as sharecroppers, but later Margaret moved to

33

Memphis with their mother. (Id.) Elton is about seven years younger
than Raymond. (Id.)
Raymond believes that Elton’s mental illness began around age
fifteen. (Id. at 1.) Raymond moved to Memphis after he graduated
from high school and remembers his grandmother calling him upset
because Elton was drinking heavily, had no memory of his actions
when he was drunk, and “behaved really inappropriately by having sex
with young girls.” (Id.) Raymond stated that Elton “raped our
mother’s sister, Aunt Channie Trotter, who was about sixty years old
at the time” while Elton was still in high school and living with
their grandparents. (Id.) The rape was never reported to the
authorities. (Id. at PageID 4231-4232.)
Elton has lived with Raymond at various times in his adult
life. (Id. at PageID 4232.) Raymond describes Elton’s behavior as
“very weird.” (Id.) Elton hid all of the towels and silverware in
the house under his bed in a sack. (Id.) He kept a stool by his
bedroom window and spent long hours staring out the window. (Id.)
He used his food stamps, like a child, to buy

candy, cookies, and

ice cream that he ate for breakfast. (Id.)
Raymond became concerned when Elton started “seeing visions of
Jesus by the fireplace.” (Id.) Raymond stated that the visions were
real to Elton. (Id.) Raymond said “that Elton thought he was a
famous singer and asked people to go on tour with him.” (Id.) He
concluded, “Elton is just messed up in the mind.” (Id.)

34

Raymond talked about Elton’s “wild and loose” sexual behavior
and the children he fathered. (Id. at PageID 4232.) Raymond stated
that Elton was convicted of rape of a twelve year old girl in 1988,
which was very troubling to the rest of the family. (Id.) Raymond
said that “not too long ago, Elton called our sister Carolyn and
asked her ‘What do you think about having sex with your brother?’”
(Id.) Carolyn called Raymond to tell him what Elton said and talk
about “how crazy he is.” (Id.)
Elton drag-raced and engaged in a lot of risky behaviors. (Id.)
He drove off the road in a cotton field, and they took him to the
hospital “because he seemed so crazy.” (Id.)
Raymond took Elton for a mental evaluation because his behavior
was “so bad.” (Id.) Elton sneaked out of the house when they were
getting ready, and Raymond found him a few blocks away and put him
in the car. (Id.) Raymond waited for him while the counselor
interviewed him, but Elton left out of the meeting “and told the
counselor both she and I were crazy, not him.” (Id.)
Raymond says that Elton has four children, and he’s heard that
they are all crazy. (Id.) Raymond believes that Elton and his
daughter Tameka Rhodes had a sexual relationship and described
incidents at a motel and where Tameka and Elton were locked in a
bedroom together. (Id. at PageID 4232-33.) Raymond states, “[f]rom
what I’ve heard about Elton’s son Kennath, who is on death row, he
sounds a lot like Elton. I’m not a doctor, but it seems to me that

35

craziness runs in this family - from Herman to Elton and now to
Kennath and Elton’s other children.” (Id. at PageID 4233.)

Raymond

stated that he and his siblings “recognize how seriously mentally
ill [Elton] is.” (Id.)
Margaret Henderson Simmons, Elton Henderson’s half-brother,
provided a declaration in the habeas proceedings in addition to her
post-conviction testimony, see supra pp. 28-29. (ECF No. 74-6.)
Simmons agreed with Raymond’s belief that Elton’s father “Herman
Greer is crazy, just like Elton.” (Id. at PageID 4234-35.) She again
spoke of her mother Vester Hill’s manic depression stating,
[b]efore my mother was on medication, she talked out of
her head. She was mean to other people and she was
paranoid too. On one occasion, my mother was watching
television and the television went off. She blamed my
friend who was there with her and pulled a butcher knife
on him.
(Id. at PageID 4234.)
Simmons

again

discussed

her

maternal

grandmother

Novella

Henderson’s behavior and concluded that she was mentally ill:
She never went outside if she could avoid it because she
was so paranoid. She also would not use a telephone, a
gas stove, or any new technology. In fact, I never saw my
grandmother’s hair until she was about eighty years old
because she always kept it hidden in a turban and
wouldn’t wash her hair or bathe. She later got wigs, but
wore them over the turban. Our grandmother was never put
on medication for mental illness, but we believed based
on her paranoid behavior that she also suffered from
severe mental illness.
(Id. at PageID 4234-35.)

36

Simmons also expressed concern about Elton’s sexual behavior.
She confirmed Raymond’s accounts about the rape of an elderly aunt.
(Id. at PageID 4235.) She had heard that Elton had forced himself
sexually on different girls. (Id.) She said that Lillian Rhodes told
her “that Elton had taken their ten year old daughter, T[a]meka, to
a motel and had tried to penetrate her.” (Id.)
Simmons

described

Elton

as

having

“two

different

personalities.” (Id.) She states the incident with Tameka “along
with other things” made her believe he needed help, and she talked
to her siblings about getting mental health treatment. (Id.)
She stated that Elton couldn’t keep a job and could not stay
focused to even do tasks around the house. (Id.) Elton would do well
at jobs for awhile, “then he would break off and run away and hide
in the house for two to three weeks. Elton then would go back to the
job and act like nothing happened.” (Id.)
Carolyn

Acey,

Elton

Henderson’s

half-sister,

provided

a

declaration in the habeas proceedings. (ECF No. 74-7.) She said that
she lived in Memphis with her parents and full siblings when she was
young, but she visited Somerville where she saw Elton. (Id. at
PageID 4236.) Elton began trying to have sex with her when she was
nine years old. (Id.) Elton told her that it was alright for them
to have sex since they did not live in the same house and were not
really relatives. (Id.) Carolyn said that Elton made sexual advances
toward her friends, and while in college, two of her friends said

37

that Elton sexually attached them when they were younger. (Id.)
Carolyn stated,
According to what I was told, Elton often gave girls
rides home, and then would act like his car had broken
down as an excuse to stop in a deserted place. He would
then try to rape the girl. Elton didn’t see anything
wrong with trying to have sex or forcing himself sexually
on my friends. Elton seemed to think his behavior was
normal.
(Id.)
Carolyn Acey recounted the story that Elton had raped their
aunt. (Id.) Acey said she asked him directly if he had raped their
aunt. (Id.) He told her he believed he had but “blamed that behavior
on being drunk at the time.” (Id.)
Acey states that after he moved to Memphis she “tried for us
to have a normal family relationship, but he is incapable of that,
due to his mental illness.” (Id. at PageID 4237.) She states that
Elton “has always had – and still does have – sexual feelings for
me.” (Id.) She states,
Elton texts me at work at night. He asks me what I am
doing and sends me sexual messages, telling me his
desires. When I tell him that it is wrong for him to send
me such messages, he says that sending these messages is
part of his healing process.
(Id.)
Acey states that Elton used to excuse his behavior by saying
it was caused by drinking. (Id.) She states that, although he drank
heavily in his twenties, he no longer does, but he is “still very

38

mentally ill.” (Id.) Elton “sees nothing wrong with his sexual
fixation on minor children.” (Id.)
Acey

compares

Elton’s

depressions

to

her

mother’s

and

grandmother’s depressions. (Id.) She says that he “sits in a very
dark room alone for hours with the blinds closed.” (Id.) If you ask
him why he is sitting there, he says there is nothing else to do.
(Id.)
Around

April

2011,

Acey

said

that

she

took

him

to

get

psychiatric help. (Id.) He told the mental health professional that
he doesn’t need help, and there is nothing wrong with him. (Id.)
Acey states that she is “very concerned” about Elton and believes
that he has never been on medication. (Id.)
Tameka Rhodes, Elton Henderson’s daughter and Petitioner’s
half-sister, at age 34, provided a declaration for the habeas
proceedings. (ECF No. 74-8.) Rhodes’ declaration described an
incident where Elton Henderson sexually assaulted her when she was
ten years old. (Id. at PageID 4238-39.) She told her mother, but her
mother did not file a police report. (Id. at PageID 4239.) Her
mother called the lady that Elton was dating and told her about the
rape. (Id.) Her mother then found out that the police were looking
for Elton because he had raped a girl who was visiting. (Id.)
Rhodes states that Elton sent her a letter while he was in
prison and asked for “pictures of various parts of my body.” (Id.)

39

He told her “before another man can try you, your dad is supposed
to try you first.” (Id.)
After Elton’s release from prison, Rhodes tried to help him
obtain insurance, but instead of discussing insurance, he sent her
“a crude and disgusting text message” asking for sex. (Id.) She
stated that she does not want him to know where she is or to be
around her children and states that she is “still very afraid” of
her father. (Id. at PageID 4239-4240.) She states, “Elton is evil.
He may be able to sing and quote the Bible, but he is absolutely not
to be trusted.” (Id. at PageID 4240.)
Lillian Rhodes, the mother of two of Elton’s children Charles
and Tameka, provided a declaration in the habeas proceedings. (ECF
No. 74-9.) She states that about the same time she gave birth to
Charles, Sally Henderson (Johnson) gave birth to Petitioner Kennath
Henderson, and Teresa Holloway gave to birth to Chris. (Id. at
PageID 4241.) Lillian Rhodes described how she learned of the sexual
assaults on her daughter Tameka. (Id. at 4241-4242.) Rhodes said
that Elton told her that a father is supposed to “try” his daughter,
meaning have sex with her, but she did not believe he would do
something like that until he attacked Tameka. (Id. at PageID 4242.)
Augustus Neal, Elton Henderson’s half-brother on his father’s
side, provided a declaration for the habeas proceedings. (ECF No.

40

74-10.)12 He met Elton in prison, and they figured out they had the
same father Herman Greer. (Id. at PageID 4242.) Greer came around
about twice a year to check on Neal, gave him a $50 bill, and took
him out to eat. (Id.) Greer had a new model Gran Torino each year,
and Neal remembers thinking that if Greer could get a new car each
year, he could give him more money. (Id.) Neal states that Greer was
married and had five children with his wife. (Id.) The wife and
children were “snooty and acted like they were better than his other
children.”

(Id.)

Greer never wanted to be old. (Id.) He was a truck driver and
a mechanic. (Id. at PageID 4243.) He would tell Neal, “You know I’m
a pimp.” (Id.) Greer thought he was important to a lot of women and
considered it an accomplishment. (Id.) Greer dated a lot of women
and had a lot of kids. (Id.)
Greer was happy around a lot of people, but he got depressed
when he was alone. (Id.) He drank too much and would do risky
things. (Id.) Greer stated that he believes “depression ran on my
dad’s side of the family.” (Id.)
In

conjunction

with

Amended

Petition

¶

9(b),

the

Court

addressed the investigation into Petitioner’s biological father
Elton Henderson and the discovery of a family history of mental
illness. (ECF No. 91 at 55-56.) The Court stated that,

12

Neal has been incarcerated since August 1993, according to his declaration.
(ECF No. 74-10 at PageID 4242.)

41

[Margaret Henderson Simmons’] testimony demonstrates that
there was mitigation evidence available about a history
of mental illness on Henderson’s paternal side of the
family relevant to the determination of ineffective
assistance of counsel. Although counsel experienced
difficulties with Henderson’s mother, there is no
evidence that Henderson’s trial counsel attempted to
develop mitigation evidence from his father’s side of the
family. Counsel, contrary to the goal of mitigation,
ignored the fact that Henderson was born when his mother
was fifteen (15) years old and made every attempt to
present Henderson’s family with his stepfather as a
normal nuclear family. Further, Einstein noted the fact
that trial counsel failed to discover that family members
on both sides of Henderson’s family suffered mental
illness, and the Tennessee Court of Criminal Appeals
found that counsel was unaware of the history of mental
illness in Henderson’s family. Henderson, 2005 WL
1541855, at **10, 21.
(ECF No. 91 at 56 (footnotes omitted)).
Petitioner has recharacterized claims that have been considered
on the merits in an attempt to allow additional evidence not
presented in the state courts to be considered as part of a new
claim under Martinez, see supra pp. 8-10. Petitioner is asking this
Court to determine whether his trial counsel were ineffective for
failure to investigate and present evidence related to his father
Elton Henderson and the history of mental illness on the paternal
side of his family including expert testimony about Petitioner’s
most recent diagnosis of rapid-cycling Bipolar I disorder and the
familial

relationship

or

“high

genetic

transmission”

of

and

“incidence of inheriting” this particular mood disorder.13 (See ECF

13

Petitioner has not defined what “community deficits” at are at issue in
Amended Petition ¶ 9(f)(1)(v), and the Court will not address this aspect of
Petitioner’s claim.

42

No.

68-2

at

PageID

3996.)

William

Kenner,

even

without

the

additional information related to Elton Henderson and the paternal
side of Petitioner’s family, determined that Petitioner suffered
from

a

major

mental

illness

based

in

part

on

evidence

of

Petitioner’s family history of mental illness. Henderson, 2005 WL
1541855, at *20. The additional information provided about Elton
Henderson and Petitioner’s paternal family history of mental illness
involves substantial unchecked, reprehensible, criminal behavior the same type of criminal behavior that creates the double-edged
sword the post-conviction court saw with the diagnosis of Bipolar
II disorder and also presented with the rapid-cycling bipolar I
disorder which, as defined by Woods, is “the most destructive of the
Bipolar subsets” combining “the most disruptive symptoms of the
depressed and manic phase, creating atypical symptomatology that
often destroys lives” and may result in “uncharacteristic violence.”
(See ECF No. 91 at 70; see ECF No. 68-2 at PageID 4002.)14
There was a guilty plea and overwhelming evidence of the four
statutory aggravating factors that: (1) the defendant created a

14

Although there was limited evidence through the testimony of Margaret
Henderson Simmons in the post-conviction record about Petitioner’s paternal
family history of mental illness, there was evidence of a family history of
mental history on the maternal side including evidence of psychotic and
schizophrenic disorders and mental health records of Glenn Johnson, Cora Lee
Johnson, Hubert Henderson, and Herbert Henderson. (See ECF No. 23-3 at PageID
2216; see also ECF No. 23-6 at PageID 3494, 3498, 3523, 3532.) This information
raises the question of whether post-conviction counsel’s performance constituted
ineffective assistance where there was some substantial investigation of
Petitioner’s family history of mental illness. Even without Elton Henderson's
testimony and the additional declarations provided in the habeas proceedings,
Kenner determined that Petitioner suffered from a major mental illness based in
part on evidence of Petitioner's family history of mental illness. Henderson,
2005 WL 1541855, at *20.

43

great risk of death to two or more persons during the act of murder;
(2) the murder was committed for the purpose of avoiding an arrest;
(3) the murder was committed during the defendant’s escape from
lawful custody; and (4) the murder was committed against a law
enforcement officer who was engaged in the performance of official
duties. See State v. Henderson, 24 S.W.3d 307, 312-314 (Tenn. 2000).
There was evidence available in the state court that Petitioner had
an

“unspecified

personality

disorder

which

exhibited

some

narcissistic and anti-social traits” or Bipolar II, depending on
whether you believe Zager and clinical psychologist Pamela Auble or
Kenner, and that Petitioner suffered neuropsychological deficits.
See

Henderson,

2005

WL

1541855,

at

16-20.15

*3,

The

criminal

behaviors and family history associated with and leading to a
diagnosis of Petitioner’s mental disorder create a double edged
sword for Petitioner, even with the diagnosis of rapid-cycling
Bipolar I disorder from Woods and neuropsychiatrist Ruben Gur’s
conclusion that Petitioner suffered abnormalities in brain function
in regions relevant to behavior. (See ECF No. 68-1 at 4.) In fact,
the

diagnosis

of

rapid-cycling

15

Bipolar

I

disorder

along

with

The Court notes that Kenner distinguished Bipolar I and Bipolar II in his
testimony, stating that “[i]ndividuals who have the Type 1,in which they are
floridly manic, can have quite a number of symptoms that indicate that they have
– their perception of reality is different from that of other people’s. They will
hear things that aren’t there, see things that aren’t there, believe that folks
are after them. They will believe themselves to be, you know, the long-lost son
of George Bush, Sr., or somebody equally important, . . . . And they’ll build a
whole sort of delusion around that idea.” (ECF No. 23-4 at PageID 3284-3285.) He
described Bipolar II as possibly having “devastating effects” but being “more
subtle.” (Id. at PageID 3285-86.) He further stated “there are lots of folks who
don’t rape, murder, kill who have Bipolar 2.” (Id. at PageID 3286.)

44

Petitioner’s

history

of

escape

from

incarceration,

assaults,

abductions, rapes, and the shooting of Bishop at point-blank range
while he was unconscious makes Petitioner seem even more dangerous
than

the

previous

diagnoses.

Petitioner

can

not

demonstrate

prejudice and has not demonstrated that his claim related to trial
counsel’s failure to educate themselves about family and community
deficits is substantial under Martinez.
2.

Failure to Interview and Prepare Defense Witnesses
(Amended Petition ¶ 9(n))

Petitioner alleged:
Counsel did not interview and adequately prepare
defense witnesses, resulting in the failure to present to
the Court a complete picture of Kennath Henderson. See
Guideline 10.11 and commentary, ABA Guidelines for Death
Penalty Cases.
(ECF No. 16 at 26.) The Court found the claim to be unexhausted and
procedurally defaulted:
The claim in ¶ 9(n) that counsel did not interview
and adequately prepare defense witnesses which resulted
in the failure to present to the Court a complete picture
of him (ECF No. 16 at 26) was not exhausted in state
court. Henderson, his mother Sally Johnson, Miles Wilson,
and Zager testified on his behalf at the sentencing
hearing. (See D.E. 20-5 at 6.) Henderson asserts that he
exhausted
this
claim
when
he
alleged
in
the
post-conviction appellate brief that his counsel failed
to develop a relationship with his mother Sally Johnson
which “denied them critical information concerning the
family dynamics” and his mental illness. (D.E. 68 at
118-19; see D.E. 23-15 at 74.) Although Henderson
addressed his counsel’s relationship with his mother, he
failed to allege that counsel failed to prepare his
mother or any other witness to testify. The claim in ¶
9(n) was not exhausted and is procedurally defaulted.
(ECF No. 72 at 70-71 (footnote omitted).)
45

In relation to Amended Petition ¶ 9(n), Petitioner argues that
counsel

failed

to:

(a)

interview

or

adequately

prepare

Elton

Henderson or any witness to Elton Henderson’s mental illness; (b)
interview or prepare witnesses of Petitioner’s aberrant behavior;
and (c) adequately prepare Zager. (ECF No. 129 at 15-22.) Petitioner
asserts that counsel’s failure to identify, prepare, and present
these

witnesses

undermines

the

reliability

of

the

sentencing

determination. (Id. at 21.) He contends that with the appropriate
proof, at least one juror would have declined to impose the death
sentence. (Id. at 22.)
a.

Elton Henderson

Petitioner argues that counsel would have uncovered critical
information necessary for the diagnosis of Petitioner’s severe
mental illness had they identified and interviewed Petitioner’s
family including his father Elton Henderson. (ECF No. 129 at 15.)
Petitioner points out that Woods’ report states that Petitioner’s
rapid-cycling Bipolar I Disorder was genetically inherited from his
paternal family. (Id.) Petitioner asserts that although he is the
only one in his family with this particular diagnosis, it is clear
that the illness was genetically inherited because: (1) Elton
Henderson’s symptomatology is consistent with rapid-cycling Bipolar
I Disorder16 although he refuses mental health treatment; and (2)

16

Elton Henderson’s symptoms were described as “manic hypersexuality,
reckless behavior, paranoid ideations, and altered perception of reality.” (ECF
(continued...)

46

Elton’s mother Vester Hill was diagnosed with “manic depression”,
also with symptoms consistent with rapid-cycling Bipolar I Disorder.
(Id. at 15-16.) Petitioner asserts that, instead of interviewing
Petitioner’s biological father or paternal relatives, counsel failed
to find out who Petitioner’s biological father was and told the
court that Petitioner “did not come from a broken home.” (Id. at
16.) Petitioner argues that the facts were that his mother was
fourteen years old when he was born and that his parents never
married

or

lived

together.

(Id.)

Petitioner

had

not

met

his

biological father. (Id.)
In Amended Petition ¶ 9(b)(1), Petitioner alleged that counsel
failed to interview any witnesses apart from Petitioner’s immediate
family members and a few teachers. (ECF No. 16 at 12.) Petitioner
alleged that important witnesses who counsel failed to interview
included “[r]elatives of Mr. Henderson, who were aware of the
history of mental illness in his extended family, which includes
bipolar disorder, manic depression, and paranoid schizophrenia . .
. .” (Id. at 13.) The Court addressed these allegations as it
relates to the investigation of Elton Henderson, and noted that “the
Tennessee Court of Criminal Appeals found that counsel was unaware
of the history of mental illness in Henderson’s family”, see supra
p. 43. (ECF No. 91 at 55-56; see id. at 47.) See Henderson, 2005 WL

16

(...continued)
No. 129 at 16; ECF No. 129-4 at PageID 4695-97.)

47

1541855, at *7, 10-11, 14, 20-21. This Court has determined that the
allegations related

to counsel’s failures associated with the

investigation of Elton Henderson and Petitioner’s paternal family
are not substantial, see supra pp. 28-46, are not substantial and
not entitled to merits review under Martinez.
b.

Witnesses of Aberrant Behavior

Petitioner argues that counsel failed to conduct a cursory
investigation and neglected to read the discovery that the State
provided. (ECF No. 129 at 17.) Petitioner asserts that, had counsel
reviewed the interview with Petitioner’s former girlfriend Natonya
Cobb from the Bureau of Alcohol, Tobacco and Firearms, counsel would
have discovered that she was questioned extensively about her
knowledge of Petitioner’s repeated abduction and rape of her mother
Shirley

Cobb.

performed

this

(Id.)
most

Petitioner
basic

task,

contends

that

“[h]ad

simply

reading

the

counsel

discovery

provided to him by the State, counsel would have known, as everyone
in the Fayetteville courthouse – except counsel – knew, that Mr.
Henderson was accused of crimes which raised very obvious red flags
about Kennath Henderson’s mental health.” (Id.) Petitioner further
asserts that counsel would have had eyewitness proof of Petitioner’s
symptomatic behaviors upon which Zager could have relied in making
an

Axis

I

serious

mental

illness

48

diagnosis

if

counsel

had

interviewed and prepared Shirley Cobb, Ethel Shaw17, Shirley Shelby,
Tonya

Whitmore,

Tina

Whitmore18,

and

Michelle

Sullivan19

as

witnesses. (Id.)
This Court addressed whether Petitioner’s trial counsel read
the discovery related to Petitioner’s repeated abductions and rapes
of Shirley Cobb or reviewed the offense report, documents, and
videotape of Natonya Cobb in its analysis of Amended Petition ¶
9(b). (ECF No. 91 at 57-58.) The Court stated that the defense team
was “unaware of Henderson’s criminal history, the bizarre nature of
some of the incidents, and the fact that many of his victims were
people he knew.” (Id. at 58.) The Court stated “it is clear that

17

Miles Wilson, the principal at Petitioner’s high school, stated that Ethel
(also spelled “Ethyl”) Shaw, the school secretary, was attacked by a man wearing
a mask who she believed to be Petitioner. (ECF No. 23-13 at PageID 3418.)
However, Wilson did not testify at trial about this incident.
Petitioner’s high school basketball coach Larry Ransom stated that
Petitioner had a “crush” on Shaw (also referred to as “Ethyl Pearl” or “Pearl”),
but Ransom “and everyone else doubted” Shaw’s accusation. (Id.) Ransom testified
in the post-conviction proceedings that Petitioner placed something in the
driveway of the school secretary. Henderson, 2005 WL 1541855, at *12.
Shaw reported to the post-conviction investigators that Petitioner attacked
her in December 1991 after a basketball game, that Sally Johnson was saying
“stuff” about her after the attack, and that T.L. Johnson (Petitioner’s
stepfather) told her he was sorry it happened. (Id. at PageID 3419.)
Dr. Woods’ report states that Henderson attacked Ethel Shaw, the school
secretary. (ECF No. 68-2 at PageID 3999.)
18

In Petitioner’s December 2013 brief, he spells the name “Whitamore”.

19

Sullivan was described as Petitioner’s girlfriend by post-conviction
investigators. (ECF No. 23-13 at PageID 3420.) She met Petitioner while working
at Target in Memphis, and he lived with her at her mother’s house in Memphis for
about a month in April 1994. (Id.) Petitioner borrowed her car, took her check
book from her house, cashed $900 worth of checks from her account, and left the
state in her car. (Id.) Dr. Woods’ report states that Petitioner had a sexual
relationship with Michelle Sullivan. (ECF No. 129-4 at 6.)

49

crucial aspects of Henderson’s criminal background were not conveyed
to Zager prior to trial.” (Id.) The Court noted that “[t]here were
obvious deficiencies in the social history gathered by the defense
team, regardless of whether that information was gathered by counsel
or by Fenyes and Askew.” (Id. at 59.)
This Court, after review and consideration of the testimony
presented

in

the

post-conviction

proceedings,

determined

that

counsel’s performance was deficient at the sentencing stage and
noted

that

the

post-conviction

trial

court

determined

that

additional mitigation evidence would not have changed the sentencing
determination. (ECF No. 91 at 65-66.) This Court ultimately found
no merit to Petitioner’s claim after being “presented with the
overwhelming evidence of the aggravating factors and the potential
detrimental

effect

Henderson’s

criminal

of

introducing

behavior

in

an

additional
attempt

evidence
to

about

mitigate

his

sentence.” (ECF No. 91 at 70.) The Court stated,
The double-edged nature of the new mitigation evidence
does not establish a reasonable probability that the
outcome at sentencing would change.”
(Id.)
The “complete picture” that Petitioner seeks to present is not
favorable or otherwise likely to have changed the outcome of his
sentencing. Petitioner can not demonstrate that he was prejudiced
by counsel’s failure to interview and prepare Petitioner’s victims

50

as witnesses to testify in the sentencing hearing. Petitioner’s
claim is not substantial under Martinez.
Further, the Court notes that it would be difficult to find
ineffective assistance of post-conviction counsel as cause for the
procedural default. Petitioner’s post-conviction counsel presented
Shirley Shelby and Tonya and Tempie Whitmore as witnesses and used
their testimony, along with information related to Shirley Cobb, and
observations of their experiences with Petitioner to obtain a
psychiatric diagnosis from Kenner. (See ECF No. 23-2 at PageID
2519.) See Henderson, 2005 WL 1541855, at *13-14, 18-19. The state
post-conviction court was well aware of Petitioner’s criminal acts
involving

these

victims,

how

those

facts

tied

into

Kenner’s

diagnosis, and the necessity of presenting details of Petitioner’s
crimes

“to

fully

explain

the

nature

of

Petitioner’s

“various

assaults, abductions and rapes” to fully explain the diagnosis, see
supra pp. 25-26. See Henderson, 2005 WL 1541855, at *21. Given postconviction counsel’s actions in presenting this mitigating testimony
and the use of that testimony in relation to obtaining an expert
opinion, the Court can not determine that post-conviction counsel’s
performance was either deficient or prejudicial to Petitioner, and
therefore, Petitioner can not establish cause for procedural default
by asserting ineffective assistance of post-conviction counsel.

51

c.

Lynn Zager

Petitioner argues that trial counsel failed to interview and
prepare psychologist Lynn Zager for the penalty phase of trial. (ECF
No. 129 at 17-18.) Petitioner asserts that counsel had not conducted
any mitigation investigation when Zager did her assessment, did not
meet with or otherwise prepare Zager between November 1997 and July
1998, and in July 1998, informed Zager to be ready to testify at the
sentencing hearing just one week later. (Id.) Petitioner argues that
counsel’s failure to provide Zager with relevant social history led
her

to

mis-diagnose

Petitioner

and

testify

inaccurately

at

sentencing. (Id. at 18.) Petitioner notes that neither his counsel
nor Zager were aware of Petitioner’s prior crimes and family history
of mental illness; with that information, Zager would have likely
reached the correct diagnosis of rapid-cycling Bipolar I disorder.
(Id. at 18-20.)
Petitioner further asserts that counsel failed to provide
information necessary to contextualize Petitioner’s traumatic brain
injury which he suffered when he was hit by a car at age 11. (Id.
at 20.) He contends that proof of his brain damage would have
significantly mitigated his moral culpability for the crime. (Id.
at

20.)

Petitioner

refers

to

Gur’s

report

indicating

that

Petitioner’s brain damage “impairs his ability to modulate his
behavior in accordance with context and may specifically lead to
dissociative states, such as the state he was in when he committed
52

the offenses.” (ECF No. 129 at 20-21; ECF No. 129-5 at PageID 4711.)
Petitioner further notes that Zager would have had Petitioner tested
for brain injury if she had known of his history of increasingly
erratic behavior. (ECF No. 129 at 21; ECF No. 129-14 at PageID
4737.)
Zager

was

employed

to

perform

a

forensic

evaluation

on

Petitioner prior to trial. (ECF No. 20-5 at PageID 310.) She
determined that Petitioner was competent to stand trial. (Id. at
PageID 311.) Petitioner reported that he had a significant head
injury where he had to be hospitalized, and Zager knew that medical
and school records would be important to a comprehensive evaluation.
(Id.) She next saw Petitioner on July 9, 1998, when she performed
a current mental status evaluation to determine if there was
significant change in his mental status and a brief clinical
interview. (Id. at PageID 312.) Zager diagnosed Petitioner with a
dissociative
specified,

state
with

and

a

personality

narcissistic

traits

disorder,
and

not

antisocial

otherwise
traits.

Henderson, 2005 WL 1548155, at *18. (ECF No. 20-5 at PageID 317.)
Zager testified that Petitioner acted “under duress, and that his
judgment was not adequate.” (Id. at PageID 321.) Still, Zager’s
opinion as to Petitioner’s mental

state was that he was not

“substantially impaired” to the point of insanity, but his judgment
was impaired:

53

My opinion in this case would be that he was not
substantially impaired. I would not offer an opinion to
the Court that he be considered insane at the time.
However, I think his judgment was -- It would not reach
where I could support insanity, but I think he was
impaired at the time.
(Id. at PageID 322.)
This Court has acknowledged that Zager and Petitioner’s trial
counsel had not investigated and were not aware of many relevant
facts about Petitioner’s criminal background and family history, see
supra pp. 50-51. (See ECF No. 91 at 58.) The Court also addressed
Zager’s representations in a declaration after she had reviewed
additional information related to Petitioner and noted that she did
not offer a different diagnosis. (ECF No. 91 at 60.) As late as May
2011, after Zager had been provided additional information about
Petitioner,

Zager

states

that,

“based

on

the

social

history

information and family history of mental illness provided to me by
habeas counsel, the diagnosis of Dr. George Woods appears to be more
accurate than the diagnosis I was able to provide in 1998.” (ECF No.
77-3 at PageID 4323; ECF No. 129-14 at PageID 4737.) However, she
did not change her diagnosis, but states “[h]ad I an opportunity to
reevaluate Mr. Henderson, I would be able to determine whether it
is appropriate to rule in the diagnosis of Bipolar Disorder.” (ECF
No. 77-3 at PageID 4323; ECF No. 129-14 at PageID 4737.)20

20

In the instant claim, Petitioner asserts that counsel failed to interview
and prepare psychologist Lynn Zager for the penalty phase of trial. However, in
a similar claim in Amended Petition ¶ 9(d)(4), Petitioner argues that counsel
(continued...)

54

Clearly, Zager was aware of the

head injury and was able to

determine, much like Woods, that Petitioner was in an altered
“dissociative” state with impaired judgment at the time of the
incident.

Still,

because

Zager

has

not

offered

a

different

diagnosis, the Court finds no prejudice in Petitioner’s claim that
trial counsel failed to interview and prepare Zager for the penalty
phase of trial.
The

Court

further

notes

that,

in

the

post-conviction

proceedings, Auble agreed with Zager’s diagnosis as to Petitioner’s
narcissistic traits and antisocial personality. Id. Auble was unable
to diagnosis Petitioner with an Axis I diagnosis of a major mental
disorder. Id. Auble also performed a battery of tests on Petitioner
and determined that Petitioner had neuropsychological deficits:
To be exact, he has some difficulties learning
information that he’s told. That’s a problem for him. He
also had some problem in a test of manual dexterity, and
he had some variable problems on tests which measure his
ability to go back and forth between different ideas, to
form hypotheses and test them, and to abstract reasoning.
From the personality testing, [the petitioner] has a
desire to present himself as a very normal, even maybe
supernormal individual. He is likely to minimize or even
be unaware of his own problems. He likes people and wants
interaction with people.
Id. at *17. Auble determined that the neuropsychological deficits
were significant because they affect his functioning, specifically

20

(...continued)
failed to investigate his traumatic brain injury. (ECF No. 77 at 10-11.) In
response to the claim, the Court notes that Zager did not provide a different
diagnosis. (ECF No. 91 at 60-61.)

55

“his portrayal of himself and his family is inconsistent with
reality” and he was not “aware of his own emotional dynamics.” Id.
Auble did not diagnose Petitioner with a bipolar disorder.
In the post-conviction proceedings, Kenner diagnosed Petitioner
with Bipolar II. Id. at *42. Zager stated that Bipolar II is not
inconsistent with the MMPI21 administered to Petitioner. Id. at *16.
Woods, a neuropsychiatrist hired in relation to the habeas
proceedings, diagnosed Petitioner with Bipolar I Disorder, which was
in a rapid-cycling, mixed phase at the time of the offense and at
the

entry of his guilty plea and waiver of jury sentencing;

Cognitive Disorder Not Otherwise Specified; a traumatic brain
injury; and “uncharacteristically low brain volume.” (ECF No. 68-2
at PageID 4007-4008; ECF No. 129-4 at PageID 4706-4707.) Woods
described Petitioner as being in an altered mental state with
impaired judgment during the incident. (ECF No. 68-2 at PageID 40064007.) Woods determined that these mental disorders “impaired
ability to effectively weigh and deliberate due to [Petitioner’s]
brain deficits, and impaired judgment, precluded Mr. Henderson from
conforming his behavior to the law and also from making a rational
and voluntary, intelligent, and knowing waiver of his rights to a
jury trial and waiver of his right to be sentenced by a jury.” (ECF
No. 129-4 at PageID 4707; ECF No. 68-2 at PageID 4008.) This Court
previously found evidence from Woods’ evaluations and reports to be
21

The “MMPI” is the Minnesota Multiphasic Personality Inventory.

56

barred by Pinholster. (ECF No. 91 at 36 n.14; id. at 56 n. 19; id.
at 64-65 n. 24; id. at 76 n. 30.)
Gur concluded that:
Neuropsychological testing suggested dysfunction in
behavioral domains related to frontal-parietal systems,
worse on the left for frontal and worse on the right for
parietal. MRI data indicated reduced volume in the
frontal and parietal regions, with similar laterality to
that suggested by the neuropsychological testing.
These results indicate abnormalities in brain
function in regions relevant to behavior, especially
related to executive functions (frontal), attention and
comprehension of complex information (parietal), and the
integration of self (right parietal). These abnormalities
are of unclear etiology, but most likely related to
anoxia or traumatic brain injury. By history, the blunt
trauma and concussion sustained when Mr. Henderson was
eleven could help explain his developmental deficits.
Specifically, his complaint of a sore spot on the top
left portion of his head is consistent with the
behavioral image. The relevance of these abnormalities to
his behavior during and subsequent to the crime was
confirmed in a clinical interview. The combined
information indicates that Mr. Henderson suffers from
brain dysfunction that impairs his ability to modulate
his behavior in accordance with context and may
specifically lead to dissociative states, such as the
state he was in when he committed the offenses.
(ECF No. 129-5 at PageID 4711.) The Court previously determined that
consideration of Gur’s report was barred by Pinholster. (ECF No. 91
at 59, 64-65 n.24.)
Although the diagnoses differ at trial, in the post-conviction
proceedings, and as presented in the habeas proceedings, it is clear
that there was agreement from the time of trial that Petitioner
suffered a dissociative state with impaired judgment at the time of

57

the incident. The information uncovered about Petitioner’s family
and social history and incorporated and analyzed by experts to form
what may be considered a more complete diagnosis of Petitioner’s
mental health still did not create a reasonable probability that the
sentencing outcome would have been different. Petitioner suffered
no prejudice, and his claim in Amended Petition ¶ 9(n) is not
substantial under Martinez.
IV.

CONCLUSION
Petitioner is not entitled to relief under Martinez either

because his claims do not fall within the scope of Martinez or are
not substantial under Martinez. As such, no further proceedings are
required. The petition is DENIED.
V.

APPEAL RIGHTS
There is no absolute entitlement to appeal a district court’s

denial of a § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322,
335 (2003). The Court must issue or deny a certificate of
appealability (“COA”) when it enters a final order adverse to a §
2254 petitioner. Habeas Rule 11(a). A petitioner may not take an
appeal unless a circuit or district judge issues a COA. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. P. 22(b)(1).
A COA may issue only if the petitioner has made a substantial
showing of the denial of a constitutional right, and the COA must
indicate the specific issue or issues that satisfy the required

58

showing. 28 U.S.C. §§ 2253(c)(2)-(3). A “substantial showing” is
made when the petitioner demonstrates 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

to

were

adequate

deserve

encouragement

to

proceed

further.” Miller-El, 537 U.S. at 336 (internal quotation marks
omitted). A COA does not require a showing that the appeal will
succeed. Id. at 337. Courts should not issue a COA as a matter of
course. Id.
The Court previously granted Petitioner a limited certificate
of appealability and certified that a limited appeal would be taken
in good faith with regard to the following issues:
Ineffective Assistance of Counsel at Sentencing (Amended
Petition ¶ 9)
Incompetence to Enter a Guilty Plea
Sentencing (Amended Petition ¶ 13)

and

Waive

Jury

(ECF No. 91 at 94-96.) The previous grant still stands.
Reasonable jurists could not disagree about the remaining
issues. The Court DENIES a certificate of appealability on the
remaining issues in the petition.
Federal Rule of Appellate Procedure 24(a)(3) provides that a
party who was permitted to proceed in forma pauperis in the district
court may proceed on appeal in forma pauperis unless the district
court certifies that an appeal would not be taken in good faith or
otherwise denies leave to appeal in forma pauperis. The Court
59

CERTIFIES, pursuant to Fed. R. App. P. 24(a), that an appeal in this
matter would be taken in good faith to the extent the appeal
addresses the above-referenced issues for which the Court grants a
certificate of appealability. An appeal that does not address these
issues is not certified as taken in good faith, and Petitioner
should follow the procedures of Fed. R. App. P. 24(a)(5) to obtain
in forma pauperis status.
IT IS SO ORDERED this 8th day of May, 2014.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

60