Henderson v. Bell

Filing 78

ORDER denying 73 Petitioner's Motion to Reconsider. Signed by Judge S. Thomas Anderson on 5/4/11. (Anderson, S.)

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

KENNATH ARTEZ HENDERSON,
Petitioner,
vs.
RICKY BELL, Warden, Riverbend
Maximum Security Institution,
Respondent.

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No. 06-2050-STA-tmp

ORDER DENYING PETITIONER’S MOTION TO RECONSIDER

On April 18, 2011, Petitioner Kennath Artez Henderson filed a
motion to reconsider the Court’s March 30, 2011 order granting in
part and denying in part Respondent Ricky Bell’s motion for summary
judgment.

(ECF

No.

73;

see

ECF

No.

72.)

Petitioner

filed

supplementary evidence in support of his motion on April 22, 2011.
(ECF No. 74.) On April 29, 2011, Respondent filed his response. (ECF
No. 76.)
The standard for relief from a court’s order is stated in Fed.
R. Civ. P. 60(b). Rule 60(b) provides:
On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order,
or proceeding for the following reasons:
(1)

mistake,
neglect;

inadvertence,

surprise,

or

excusable

(2)

newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to

move for a new trial under Rule 59(b);
(3)

fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or other misconduct
by an opposing party;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment hat
has been reversed or vacated; or applying it
prospectively is no longer equitable; or

(6)

any other reason that justifies relief.1

“A Rule 60(b) motion may be denied if it is merely an attempt
to relitigate previously decided issues.” McNeil v. United States,
113 F. App’x 95, 97-98 (6th Cir. 2004); see Jinks v. AlliedSignal,
Inc., 250 F.3d 381, 384 (6th Cir. 2001) (“Rule 60(b) does not allow
a defeated litigant a second chance to convince the court to rule
in his or her favor by presenting new explanations, legal theories,
or proof.”) “As a prerequisite to relief under Rule 60(b), a party
must establish that the facts of its case are within one of the
enumerated reasons contained in Rule 60(b) that warrant relief from
judgment.” Johnson v. Unknown Dellatifa, 357 F.3d 539, 543 (6th Cir.
2004) (quoting Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir.
1993)).
Petitioner asserts that in light of the United States Supreme

1

The Supreme Court has held that relief under Rule 60(b)(6) requires
a showing of exceptional or extraordinary circumstances. Ackermann v. United
States, 340 U.S. 193, 202 (1950). The Sixth Circuit has set forth the additional
requirement that “something more” than one of the grounds contained in
subsections (1) through (5) be shown for relief under this section. East Brooks
Books, Inc. v. City of Memphis, 633 F3d. 459, 465 (6th Cir. 2011.)

2

Court’s grant of certiorari in Maples v. Thomas, No. 10-63, 2011 WL
940889 (Mar. 21, 2011); grant of a stay of execution and leave to
file an out-of-time rehearing petition in Foster v. Texas, No. 108317 (10A971), 2011 WL 12383627 (Apr. 5, 2011); and grant of a stay
of execution in Cook v. Arizona, No. 10-9742 (10A955), 2011 WL
1234018 (Apr. 4, 2011), the Court should reconsider its order
dismissing the claims in ¶¶ 8(b, f, j); 9(f, l, m, n, o, p, q, r);
10; and 11(b, c, e, f) of the amended petition. (ECF No. 73 at 1.)
Petitioner argues that the court should await the decision in Maples
(and/or Cook and Foster) and order further proceedings once these
cases are decided. (Id. at 1-2.) Petitioner asserts that Maples,
Foster, and Cook determine the circumstances under which the actions
of

post-conviction

counsel

establish

“cause”

for

a

habeas

petitioner’s procedural default. (Id. at 2.)
The question before the Supreme Court in Maples is:
Whether the Eleventh Circuit properly held - in conflict
with the decisions of this Court and other courts - that
there was no “cause” to excuse any procedural default
where petitioner was blameless for the default, the
State’s own conduct contributed to the default, and
petitioner’s attorneys of record were no longer
functioning as his agents at the time of any default.
Maples v. Allen, No. 10-63, 2011 WL 2727329, at *i (July 9, 2010);
see Maples, 2011 WL 940889 (granting the petition for writ of
certiorari limited to Question 2). Maples filed a petition for
post-conviction

relief

pursuant

to

Alabama

Rule

of

Criminal

Procedure 32 alleging ineffective assistance of counsel and that

3

the trial court’s jury instructions violated due process. Maples v.
Allen,

586

F.3d

879,

884

(11th

Cir.

2009).

The

trial

court

dismissed the petition. Id. The trial court clerk sent copies of
the order to Maple’s two attorneys at the law firm of Sullivan &
Cromwell in New York and to local counsel in Alabama. (Id.) None of
the three attorneys filed a notice of appeal from the dismissal of
the post-conviction petition. Id. Due to a clerical error in
Sullivan & Cromwell’s mail room, the order was returned to the
trial court clerk. Id. at 884, n.3. After the state appellate court
denied Maple’s request for an out-of-time appeal on the dismissal
of his post-conviction petition, the federal district court denied
Maple’s § 2254 petition. Id. at 885. The Eleventh Circuit Court of
Appeals held that the factor that resulted in Maples’s default counsel’s failure to file a timely notice of appeal - cannot
establish cause for the default because there is no right to postconviction counsel. Id. at 891.
Respondent states that the grant of certiorari in Maples
addresses an error by counsel who was no longer representing the
petitioner and compounded by a state court clerk’s failure to
ensure proper mailing of an order. (ECF No. 76 at 2.) He argues
that the facts in Maples have no application to the instant case.
(ECF No. 76 at 2.) He asserts that Petitioner, unlike Maples, has
no argument that his rights were defaulted by a party not acting on
his behalf or that the default was caused by the State. (Id.)

4

Respondent argues that the Supreme Court’s grant of stays of
execution in Foster and Cook without reference to the underlying
merits of the petitions do not give “substantive cause” to stay the
case or revoke the Court’s March 30, 2011 order. (ECF No. 76 at 3.)
He contends that Petitioner’s arguments fail in light of existing
Supreme Court precedent that there is not right to the effective
assistance of post-conviction counsel. (Id.)
Petitioner has failed to demonstrate that he is entitled to
relief based on one of the enumerated reasons in Fed. R. Civ. P.
60(b). The controlling law related to ineffective assistance of
post-conviction counsel has not changed because the Supreme Court
granted certiorari on the limited issue presented in Maples or the
stays granted in Foster and Cook.2 Petitioner’s motion to reconsider
is DENIED.
IT IS SO ORDERED this 4th day of May, 2011.

s/ S. Thomas Anderson

S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

2

See Blue Diamond Coal Co. v. Trustees of UMWA Combined Ben. Fund, 249
F.3d 519, 524 (6th Cir. 2001) (“a change in decisional law is usually not, by
itself, an ‘extraordinary circumstance’ meriting Rule 60(b)(6) relief”).

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