Henderson v. Bell

Filing 95

ORDER denying 93 Motion to Alter or Amend Judgment and denying 93 Motion to Expand Certificate of Appealability. Signed by Judge S. Thomas Anderson on 12/19/11. (Anderson, S.)

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

)
(
(
)
)
(
Petitioner,
(
)
)
(
vs.
(
)
)
(
Roland Colson, Warden, Riverbend(
)
Maximum Security Institution,
(
)
)
(
Respondent.
(
)
)
(
KENNATH ARTEZ HENDERSON,

No. 06-2050-STA-tmp

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT
AND
TO EXPAND CERTIFICATE OF APPEALABILITY

On October 11, 2011, the Court entered an order denying the
petition filed pursuant to 28 U.S.C. § 2254 and granting a limited
certificate of appealability. (ECF No. 91.) Judgment was entered on
October 24, 2011. (ECF No. 92.) On November 7, 2011, Petitioner
Kennath Henderson filed a motion to alter or amend judgment and to
expand the certificate of appealability. (ECF No. 93.) On November
22, 2011, Respondent Roland Colson filed a response. (ECF No. 94.)1
I.

Motion to Alter or Amend Judgment
Rule 59(e) of the Federal Rules of Civil Procedure allows

district courts to alter, amend, or vacate a prior judgment. Huff
v. Metro. Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982). The

1

Respondent relies on his previous briefs and the Court’s orders. (ECF
No. 94 at 1.)

purpose of Rule 59(e) is “to allow the district court to correct
its own errors, sparing the parties and appellate courts the burden
of unnecessary appellate proceedings.” Howard v. United States, 533
F.3d 472, 475 (6th Cir. 2008) (quoting York v. Tate, 858 F.2d 343,
348 (6th Cir. 1988)) (internal quotation marks omitted). It permits
courts to amend judgments when there is: (1) a clear error of law;
(2)

newly

discovered

evidence;

(3)

an

intervening

change

in

controlling law; or (4) a need to prevent manifest injustice.’”
Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009)
(quoting Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496
(6th Cir. 2006)). The Sixth Circuit has repeatedly held that
Rule 59(e) motions cannot be used to present new
arguments that could have been raised prior to judgment.
Rule 59(e) allows for reconsideration; it does not permit
parties to effectively “re-argue a case.”
Howard

v.

United

States,

533

F.3d

472,

475

(6th

Cir.

2008)

(citations omitted). A district court has considerable discretion
in deciding whether to grant a Rule 59 motion. Leisure Caviar, LLC
v. U.S. Fish & Wildlife Service, 616 F.3d 612, 615 (6th Cir. 2010).
The focus of Petitioner’s motion is Claim 8 - ineffective
assistance of counsel in trial preparation and related to the
guilty pleas. (ECF No. 93 at 5; see ECF No. 16 at 4-12.)

The Court

addressed Petitioner’s claims that counsel failed to: (1) educate
themselves about issues that might be presented as a defense (¶
8(c)); (2) investigate or develop guilt phase defenses (¶ 8(g));
(3) fully represent Henderson when they advised him to enter guilty
2

pleas (¶ 8(h)); and (4) consider and develop a theory of defense to
intentional murder or the associated felonies (¶ 8(l)). (See ECF
No. 91 at 15-36; see also ECF No. 16 at 8-9, 11.)2 Petitioner
contends that the judgment should be altered because there has
been: (1) a clear error of law; (2) an intervening change in
controlling law; and (3) a need to prevent manifest injustice. (ECF
No. 93 at 2.) He argues that the Court should amend its judgment
barring relief on Claim 8, find that the Tennessee Court of
Criminal Appeals’ decision is contrary to and an unreasonable
application of Strickland v. Washington, 466 U.S. 668 (1984), and
Hill v. Lockhart, 474 U.S. 52 (1985), and conduct a de novo review
of Claim 8 allowing consideration of new evidence. (Id. at 2-9.)
Petitioner argues that, in the alternative, the Court should order
an evidentiary hearing. (Id. at 9.) He contends that deference to
28

U.S.C.

§

2254(d)(1)

is

not

required

and

that

Cullen

v.

Pinholster, 131 S. Ct. 1388 (2011), does not bar the consideration
of evidence not contained in the state court record. (Id. at 4-8.)
Petitioner argues that the Tennessee Court of Criminal Appeals
required him to prove that but for counsel’s advice, he would have
been acquitted, rather than using the “reasonable probability”
language of Strickland. (ECF No. 93 at 5.)
Under the Antiterrorism and Effective Death Penalty Act of

2

Petitioner notes the denial of his ineffective assistance of counsel
claim related to the waiver of jury sentencing (see ECF No. 93 at 3 n.3, 5, & 78), but he does not seek Rule 59 relief for this claim. (See id. at 2, 11.)

3

1996,

Pub.

L.

No.

104-132,

110

Stat.

1214

(Apr.

24,

1996)

(codified, inter alia, at 28 U.S.C. § 2244 et seq.) (“AEDPA”), a
district court may not grant a writ of habeas corpus on a claim
adjudicated on the merits unless the adjudication resulted in a
decision

that

was

contrary

to,

or

involved

an

unreasonable

application of, clearly established federal law, or was based on an
unreasonable determination of the facts in the light of the
evidence presented. See 28 U.S.C. § 2254(d). Because Claim 8 was
adjudicated on the merits in state court, de novo review would only
be appropriate if the state court decision did not meet the
requirements of § 2254(d). See Holder v. Palmer, 588 F.3d 328, 343
(6th Cir. 2009) (“When a state court applies a decisional rule that
is contrary to Supreme Court precedent, the deferential standard of
review of § 2254(d)(1) does not apply and de novo review is
appropriate.”).
A state court’s decision violates the “contrary to” clause if
the state court’s decision “applies a rule that contradicts the
governing law” set forth in Supreme Court cases. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000); Pinholster, 131 S. Ct. at
1399. Qualification for AEDPA deference does not require citation
or awareness of Supreme Court cases “so long as neither the
reasoning nor the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002). A habeas court’s
focus is properly on the substance rather than the form of the

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state court’s decision. See, e.g., Mitchell v. Esparza, 540 U.S.
12, 16 (2003).
In the instant case, the Tennessee Court of Criminal Appeals
cited the appropriate Supreme Court precedent in Strickland and
Hill and repeatedly used the “reasonable probability” language in
its analysis of the ineffective assistance claims. Henderson v.
State, No. W2003-01545-CCA-R3-PD, 2005 WL 1541855, at **30-31, 33
& 36 (Tenn. Crim. App. June 28, 2005). The court was clearly aware
of the appropriate standard although it was imprecise in its
language. In addressing counsel’s advice about the guilty plea, the
court stated,
A defendant asserting that his counsel was ineffective
must show more than that counsel’s advice was merely
wrong. He must also show that it was completely
unreasonable so that it bears no relationship to a
possible defense strategy. Further, the petitioner must
show that but for trial counsel’s advice, he would not
have pled guilty and would have insisted on going to
trial. There is no dispute that the evidence establishing
the petitioner’s guilt as to the first degree murder of
Deputy Bishop was overwhelming. Also, the petitioner has
failed to establish that trial counsel’s advice regarding
entry of a guilty plea was unreasonable.
Henderson, 2005 WL 1541855, at *38 (citation omitted) (emphasis
added).
Imprecise

language

in

stating

the

Strickland

prejudice

standard has not consistently been held to establish that a
decision is contrary to Supreme Court precedent. See Holland v.
Jackson, 542 U.S. 649, 654-55 (2004) (per curiam) (reversing the
Sixth Circuit’s determination that the state court acted contrary
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to federal law by requiring proof of prejudice by a preponderance
of the evidence rather than by a reasonable probability, noting it
is required that “state-court decisions be given the benefit of the
doubt” and that “[r]eadiness to attribute error is inconsistent
with the presumption that state courts know and follow the law”);
see also Woodford v. Visciotti, 537 U.S. 19, 23-24 (2002) (per
curiam)

(ruling

reference”

to

that
the

the

state

Strickland

court’s
prejudice

“occasional
standard

shorthand

was

not

a

“repudiation of the standard"); see also Gosnell v. Hodge, No.
2:07-CV-130, 2010 WL 3521748, *5 (E.D. Tenn. Sept. 7, 2010) (“In
light of Supreme Court precedent on the subject, this Court does
not find that the state court repudiated the governing rule in
Strickland by its omission of the words “reasonable probability”
from its recitation of the prejudice test”); see also Ventura v.
Att’y Gen., 419 F.3d 1269, 1285-86 (11th Cir. 2005) (A misstatement
of the law may be insufficient to find a state court decision
contrary to clearly established law; rather, the state court’s
decision must have resulted from its application of an incorrect
standard).
Petitioner argues that in Smith v. Bell, 381 F. App’x 547, 550
(6th Cir. 2010), the Sixth Circuit held that the application of the
same outcome determinative test used in the instant case eliminated
deference to the state court’s decision. (ECF No. 93 at 5.) Unlike
in the instant case, the state court in Smith repeatedly stated

6

that Smith had not demonstrated how the outcome of the trial would
have been different, changed, or altered. Smith v. State, No. 0C019702-CR-00048, 1998 WL 345353, **18, 20-25 (Tenn. Crim. App. June
30,

1998).

The

state

court

did

not

cite

the

“reasonable

probability” language from Strickland, but instead stated that
Smith must prove that the result of the trial “would have likely
been different.” Id. at *17.
Petitioner cites Morris v. Colson, No. 07-1084, (W.D. Tenn.
Sept. 29, 2011) (ECF No. 58 at 50, 54), for the Court’s choice to
use de novo review “out of an abundance of caution” in analyzing
the petitioner’s claims. (No. 06-2050, ECF No. 93 at 6-7.) The
Court’s choice to exercise de novo does not establish a clear error
of law. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2265 (2010)
(“Courts can . . . deny writs of habeas corpus under § 2254 by
engaging in de novo review when it is unclear whether AEDPA
deference applies, because a habeas petitioner will not be entitled
to a writ of habeas corpus if his or her claim is rejected on de
novo review”).
During the post-conviction proceedings, Petitioner did not
present any facts that would prove he did not commit the crimes or
that they did not occur in the manner described at trial. There
were several eyewitnesses, and Petitioner was apprehended soon
after the incident driving a victim’s truck. Henderson, 2005 WL
1541855, at **1-2, 14. The evidence of Petitioner’s guilt was

7

overwhelming.3 Petitioner did not testify at the post-conviction
evidentiary hearing, and there is no evidence in the state court
record that but for counsel’s alleged deficiencies, there is a
reasonable probability that Petitioner would not have pled guilty.
Henderson, 2005 WL 1541855, at *37. The record demonstrated that
Petitioner was interested in pleading guilty as a show of remorse.
Id. at *8.4
The Tennessee Court of Criminal Appeals was clearly aware of
the appropriate standard. The “reasonable probability” prejudice
standard addresses whether counsel’s errors undermine confidence in
the outcome. Woodford, 537 U.S. at 24 ; Strickland, 466 U.S. at
694. The court’s focus on the overwhelming evidence of Petitioner’s
guilt demonstrates the court’s confidence in the outcome. The
court’s decision does not contradict Strickland.
De novo review and the consideration of new evidence under
Pinholster is not appropriate because the claim did not survive the
§ 2254(d) bar. Petitioner has failed to demonstrate a clear error
of law, an intervening change in the law, or a need to prevent

3
Petitioner’s trial counsel was not aware of a substantial amount of
information relevant to the penalty phase about the Petitioner. (See ECF No. 91
at 54-55, 58.)
4
To the extent Petitioner may contend that further investigation might
have led to an insanity defense or demonstrated that he was incompetent to stand
trial, these claims were not supported by the state court record. Henderson, 2005
WL 1541855, at **15, 42-43. As the Tennessee Court of Criminal Appeals noted,
presenting Petitioner’s diagnosis of bipolar disorder as evidence would have
required the introduction of evidence of his escalating history of violent crime
which posed considerable risk. Id. at **42-43.

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manifest injustice that would justify altering or amending the
judgment. The motion to alter or amend the judgment is DENIED.
II.

Motion to Expand Certificate of Appealability (“COA”)
Petitioner contends that that Court should grant a COA for

Claims 8, 10, 11, 12, and 14-33 because the denial of relief is
debatable under Miller-El v. Cockrell, 537 U.S. 322 (2003). (ECF
No. 93 at 2, 10.) The Court finds no basis for an expansion of the
limited COA granted in its October 11, 2011 order. The motion to
the expand the COA is DENIED.
IT IS SO ORDERED this 19th day of December, 2011.

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

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