Petition for Writ of Certiorari — Kevin Henderson, Petitioner v. Don Bottom, Warden

Supreme Court briefOct 2, 2019

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

FILED

6207

No.

THE

SUPREME

COURT

THE

OCT 0 2 2019

OFFICE OF THE CLERK

UNITED STATES

}

KEVIN HENDERSON,

Petitioner

don bottom,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE SIXTH CIRCUIT

COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

LaGrange, Kentucky 40031

Mr. Kevin Henderson pro se

QUESTIONS PRESENTED

Mr. Henderson has a conflict among the federal courts of appeals when deciding

issues m cases like his. It is a clear conflict between decisions between the Sixth Circuit and this United States Supreme Court these subsequent decisions and even the reliance upon

decisions that have been discredited or has lost-weight as authority due to these intervening

circumstances. Mr. Henderson has very serious and very important constitutional questions.

Hid the Sixth Circuit err when reaching conclusions arguably in conflict and

inconsistent with this Supreme Courts decisions? Mr. Henderson seeks a grant of vacate/remand

a favorable action due to the Court has ruled on related cases. In fact, requesting for sore

discussion of the merits of the issues presented in his petition. Clear conflicts on the merits

presented in his petition. Clear conflicts on the merits presented in favor of -issues this COURT

made correct and which these issues effect the outcome. This certiorari adds a additional

consideration of importance 18-5747, 19-5179, 19-5611, 19-5127 in the Sixth Circuit and in

federal district court 3:16-cv-00567 these decisions was based on a flagrant misreading of the

record.

The Court of Appeals for the Sixth Circuit made several rulings these are in

the Appendix and this Court has jurisdiction under 28 U.S.C. 1254(1).

TABLE OF CCNIENIS

Question presented

Table of Contents

Opinion Below

Jurisdiction

Statutory and Constitutional Provisions Involved

1. 2. 3.

Statement of the Case

4. 5.

Conclusion

25.

Appendix

Kentucky Supreme Court decision

Kentucky Court of Appeals decision

Kentucky Supreme Court decision

Kentucky Court of Appeals decision

1998-SC-0624-MR December 20, 2001

2004-CA-001988-MR March 31, 2006

2007-CA-002496-MR Order August 15, 2008

Order September 1, 2009

Opinion and Order May 7, 2010

2010-CA-002295-MR October 26, 2012

2014-CA-001059-MR March 27 , 2015

2015-SC-000201-MR May 5, 2016

2017-CA-001052 April 6, 2018

Kentucky Supreme Court Opinion and Order

2011-SC-000533-KB October 27 , 2011

U.S. District Court Magistrate Findings of Fact and Recaimendation

June 29, 2017

U.S. District Court's Order and Memorandum

February 11, 2019

U.S. District Court's Memorandum and Order

March 12, 2019

U.S. District Court's Order

April 4, 2019

U.S. District Court's Order

July 25, 2019

U.S. District Court's Order

July 6, 2018

Sixth Circuit Court of Appeals decision

Sixth Circuit Court of Appeals Order

August 16, 2019

August 9, 2019

August 26, 2019

June 28, 2019

May 13, 2019

• TABLE OF AUTHORIIIES

Cases

Harrington v. Richter 562 U.S. 86 (2001)

Miller v. Straub 199 F.3d 570 (6th Cir. 2002)

Wheat v. U.S. 108 S.Ct. 1692 (1988)

U.S. v. Ashworth 836 F.3d 260 (6th Cir. 1988)

U.S. v. Breing 70 F.3d 850 (1995)

Zafiro v. United States 506 U.S. 534 (1995)

Roberts v. Russell 392 U.S. 293 (1968)

Brution v. United States 391 U.S. 123 (1968)

Glinsey v. Parker 491 F.2d 337 (6th Cir. 1974)

United States v. Crane 499 F.2d 1385 (6th Cir. 1974)

Rose v. Lundy 455 U.S. 509 (1982)

Schad v. Arizona 501 U.S. 624 (1991)

Bugh v. Mitchell 329 F.3d 496 (6th Cir. 2003)

Huddleston v. U.S. 681 (1988)

Spencer v. Texas 385 U.S. 554 (1967)

United States v. Scheffer 523 U.S. 303 (1998)

Payne v. Tennessee 501 U.S. 808 (1991)

Chambers v. Mississippi 401 U.S. 284 (1973)

Johnson v. Mississippi 486 U.S. 578 (1988)

Murray v. Carrier 477 U.S. 478 (1986)

Wainwright v. Sykes 433 U.S. 72 (1977)

Kyles v. Whitley 514 U.S. 419 (1995)

In re Winship 397 U.S. 358 (1970)

Pilon v. Bordenkitcher 444 U.S. 1 (1979)

Hilton v. Braunskill 481 U.S. 770

(1987)

Aroson v. May 85 S.Ct. 3 (1964)

Gideon v. Wainwright 372 U.S. 335 (1963)

Kitchens v. Smith 401 U.S. 847 (1971)

Pickelsimsr v. Wainwright 375 U.S. 2 (1964)

Powel v. Alabama 287 U.S. 45 (1932)

Argersinger v. Hamlin 407 U.S. 25 (1972)

Strickland v. Washington 466 U.S. 668 (1984)

Kimelman v. Morrison 477 U.S. 365 (1986)

Cuyler v. Sullivan 446 U.S. 335 (1980)

Kulmann v. Wilson 477 U.S. 436 (1986)

MoCleskey v. Zant 499 U.S. 467 (1991)

Keeney v. Tamayo-Reyes 504 U.S. 1 (1992)

Townsend v. Sain 372 U.S. 293 (1963)

Smith v. Yeager 393 U.S. 122 (1968)

Hill v. Lockhart 474 U.S. 52 (1985)

Blackledge v. Allison 431 U.S. 63 (1977)

Schlup v. Delo 513 U.S. 851 (1995)

United States v. Olano 507 U.S. 725 (1993)

Johnson v. Zerbst 304 U.S. 458 (1938)

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

Amadeo v. Zant 486 U.S. 214 (1988)

James v. Kentucky 466 U.S. 341 (1984)

Michel v. Louisiana 350 U.S. 91 (1955)

Johnson v. White 2018 U.S. Dist. LEXIS 40576

Baldwin v. Reese 541 U.S. 27 (2004)

Woolbright v. Crews 791 F.3d 628 (6th Cir. 2015)

McMeans v. Brigano 226 F.3d 674 (6th Cir. 2000)

Herbert v. Billy 160 F.3d 1131 (6th Cir. 1998)

Apprendi v. New Jersey 530 U.S. 466 (2000)

' Thacker v. Caimonwealth 194 S.W.3d 287 ( 2006)

Jones v. Bell 801 F.3d 556 (6th Cir. 2015)

iii

)

6.H.

10.

7. 10.

10.

11.

Ambrose v. Booker 684 F.3d 638 (6th Cir. 2012)

Edmonds v. Smith 2017 Hist. LEXIS 126498 WL 3431970

Jamison v. Collins 291 F.3d 380 (6th Cir. 2002)

Douglas v. California 372 U.S. 353 (1963)

Evitts v. Lucey 469 U.S. 387 (1985)

Martinez v. Ryan 566 U.S. 1 (2012)

Trevino v. Ihaler 5^ U.S. 413 (2013)

Davila v. Davis 137 S.Ct. 2058 (2018)

Cornwell v. Bradshaw 559 F.3d 398 (6th Cir. 2009)

Slack v. McDaniel 529 U.S. 473 ( 2003)

Miller-El v. Cockrell 537 U.S. 322 (2003)

Cands v. Tenessee 530 F.2d 695 (6th Cir. 1976)

United States v. Mize 814 F.3d 401 (1999)

United States v. Prince 214 F.3d 740 (6th Cir. 2000)

Lucas v. 0’Dea 179 F.3d 412 (1999)

Jackson v. Virginia 443 U.S. 307 (1979)

Greer v. Mitchell 264 F.3d 663 (6th Cir. 2001)

Pi Ion v. Brodenkircher 444 U.S. 1 (1979)

Rutland v. Commonwealth 590 S.W.2d 682 (1979)

Carpenter v. Leibson 683 F.2d 169 (6th Cir. 1982)

Thompson v. Keohane 516 U.S. 99 (1995)

Rice v. Collins 546 U.S. 333 ( 2006)

McIntosh v. Caimonwealth 582 S.W.2d 54 (1979)

Herrera v. Collins 506 U.S. 390 (1999)

King v. Caimonwealth 2014 ky. App. Unpub. LEXIS 556 ( 2014)

Tel and v. Oregon 343 U.S. 790 (1952)

Williams v. Florida 399 U.S. 78 (1970)

Remans v. Caimonwealth 547 S.W.2d 128 (1977)

United States v. Agurs 427 U.S. 97 (1976)

Jett v. Caimonwealth 436 S.W.2d 788 (1969)

Coleman v. Alabama 399 U.S. 1 (1970)

Davis v. Morgan 89 Fed. Appx. 932 (6th Cir. 2003)

Wiggins v. Smith 539 U.S. 510 (2003)

Santosky v. Kramer 455 U.S. 745 (1982)

Addington v. Texas 441 U.S. 418 (1979)

Cleveland v. Bradshaw 693 F.3d 626 (6th Cir. 2012)

Moore v. Illinois 408 U.S. 786 (1972)

Weatherford v. Bursey 429 U.S. 545 (1977)

Napue v. Illinois 360 U.S. 264 (1959)

Giles v. Maryland 386 U.S. 66 (1967)

Banks v. Dretke 540 U.S. 668 (2004)

Carter v. Mitchell 443 F.3d 517 (6th Cir. 2006)

Bister v. Bisher 698 S.W.2d 823 (1985)

Spaulding v. Caimonwealth 991 S.W.2d 651 (1999)

White v. N.H. Dept, of Bnp’t Sec. 455 U.S. 445 (1982)

Browder v. Director 434 U.S. 257 (1978)

Barefoot v. Estelle 463 U.S. 880 (1983)

Caldron v. Thompson 118 S.Ct. 1489 (1988)

Teague v. Lane 489 U.S. 288 (1989)

Sanders v. United States 373 U.S. 1 (1963)

Preiser v. Rodriguez 411 U.S. 464 (1973)

Kaufman v. United States 440 U.S. 147 (1979)

Smith v. Zeager 393 U.S. 122 (1968)

Montana v. United States 440 U.S. 147 (1979)

Taylor v. Sturgell 533 U.S. 880 ( 2008)

Richards v. Jefferson County 517 U.S. 793 (1996)

Liljberg v. Health Services Acquisition Corp. 486 U.S. 847 (1988)

Danforth v. Minnesota 552 U.S. 264 (2008)

Schiro v. Farley 510 U.S. 222 (1994)

Montgomery v. Louisiana 136 S.Ct. 718 (2016)

IV.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

Miller v. Alabama 567 U.S. 460 (2012)

Phillips v. White 851 F.3d 567 (2017)

United States v. Crane 466 U.S. 668 (1984)

Gray v. Netherland 518 U.S. 152 (19%)

Glover v. United States 531 U.S. 198 (19%)

Florida v. Nixon 543 U.S. 175 (2004)

Butler v. McKeller 494 U.S. 407 (1990)

Frank v. Mangum 237 U.S. 309 (1915)

Furman v. Georgia 428 U.S. 238 (1972)

Gregg v. Georgia 428 U.S. 153 (1976)

Boulder v. Ccranonwealth 610 S.W.2d 625 (1980)

McPhearson v. United States 675 F.3d 553 (6th Cir. 2012)

Coleman v. Mitchell 268 F.3d 417 (6th Cir. 2001)

Emerson v. Commonwealth 230 S.W.3d 563 (2007)

Mills v. MAryland 486 U.S. 367 (1988)

Phillips v. Bradshaw 607 F.3d 199 (6th Cir. 2010)

United States v. Cronic 466 U.S. 648 (1984)

Miller v. Martin 481 F.3d 468 (7th Cir. 2007)

PEITIICN FOR WRIT OF CERnORARI TO THE

UNTIED STATES SUPREME: COURT

The Petitioner Kevin Henderson, respectfully prays that a Writ of Certiorari

is issued to review the judgments and opinions of the Sixth Circuit Court of Appeals rendered

these proceedings.

OPINION BELOW

The Sixth Circuit Court of Appeals affirmed Petitioners conviction in its case

18-5747, 19-5179, 19-5611 and 19-5127. The opinion is unpublished and is in the appendix to

this request. Also the orders of the Sixth Circuit Court of Appeals denying rehearings are also

included.

The original opinion was rendered June 28, 2019 a timely motion was filed for

a rehearing was overruled on August 26, 2019.

The jurisdiction of this Court is involved under 28 U.S.C. 1254.

STATUTORY AND CCNSITIUnCNAL PROVISIONS INVOLVED

The following statutory and constitutional provisions are involved in this case.

UNITED STATES CONSITIUITCN, AMENEMENT VI

In nil criminal prosecutions, the accused shall enjoy the right to a speedy trial

public trial, by a impartial jury of the state and district wherein the crime shall have been

camitted, which district shall have been previously ascertained by law, and to be informed

of the nature and cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to have the assistance

of counsel for his defense.

UNTIED STATES CCNSETUnCN, AMENEMENT VUI

Excessive hail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

UNTIED STATES CCNSITIUnCN, AMENLMENT XIV

Section 1. All persons bom or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of the state wherein they

reside. No state shall make or enforce any law which shall abridge the privileges or imnunities

of citizens of the United States; nor shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the equal

protection of the lavs.

UNTIED SME3 CCNSITIUIICNAL AMENMNT V

No person shall be held to answer for a capital or otherwise infamous crime,

unless on a presentment or indictment of a grand jury, except in cases arising in the land or

naval forces, or in the milia, when in actual service in time of war or public danger; nor shall.

any person be subject for the sane offence to be twice put in jeopardy of life or limb; nor

shall compelled in any criminal case to be a witness against himself, nor be deprived of life

liberty, or property without due process of law; nor shall private property be taken for public

use, without just compensation.

28 U.S.C.A. 2254(d)(1)

resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States.

The Supreme Court, a Justice thereof, a circuit judge, or a district shall

entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant

to the judgment of a State court only on the ground that he is custody in violation of the

Constitution or laws or treaties of the United States.

(b)(1)(A) the applicant has exhausted the remedies available in the courts of the states; or

(B)(i) there is an absence of available State corrective process

(ii) circumstances exists that render such process ineffective to protect the

rights of the applicant.

in the courts of the state, within the meaning of this section, if he has

the right under the law of the state to raise, by any available procedure

the question presented.

(d)(2) These adjudications of claims resulted in decisions that are based on

unreasonable determination of the facts in light of the evidence presented in

the state court proceeding.

(e)(2)(B) the facts underlying the claims would be sufficient to establish by

clear and convincing evidence that but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying offense.

This request is for the Supreme Court to review the denial of the certificate of appealability.

Also the denial of Motion for Relief fran Judgment FED.R. CIV. P. 60(b) (4) (6) any other factor

rendering the judgmsnt void; and "any other reason justifying relief from the operation of the

judgment."

STATEMENT OF THE CASE

Mr. Henderson and co-defendants Cedric O'Neal were convicted in Jefferson Circuit

Court of first degree robbery and wanton murder of Mr. Quintin Hammond. Mr. Henderson received

a life sentence for wanton murder conviction and a concurrent 20 year sentence fro first degree

robbery. The prosecutions theory at trial was that Mr. Henderson gave a handgun to O'Neal who

shot Mr. Hanmond in order to take his shoes. Mr. Henderson was found not guilty of providing

a handgun to Mr. O'Neal. In the penalty phase of the trial the jury found Mr. Henderson beyond

a reasonable doubt did not shoot Mr. Hanmond. The Kentucky Supreme Court affirmed on direct

appeal. Henderson v. Gcnmonwealth 1998-SC-0624-MR (Dec. 2001) Mr. Henderson then filed a motion

for relief from judgment pursuant to Kentucky Rule of Civil procedure 60.02 which the trial

court denied. The Kentucky Court of Appeals affinned Henderson v. Gcnmonwealth 20C&-CA-001988

MR-, 2006 WL 1046316 (Efer. 31, 2006). The Kentucky supreme court denied discretionary review.

While pending Mr. Henderson filed a motion vacate pursuant to Kentucky Rule of Criminal procedure

11.42, which the trial court denied. The Kentucky Court of Appeals affirmed Henderson v.

Gcnmonwealth 2010-CA-002295-MR (Oct. 26, 2012) and the Kentucky supreme court denied

discretionary review. While that motion was pending Mr. Henderson filed a motion for relief

and a motion to vacate his conviction NUNC PRO TUNC. The state trial court construed the motion

as a Rule 60.02 motion and denied both motions. The Kentucky Court of Appeals affirmed

Henderson v. Gcnmonwealth 2014-CA-001Q39-MR (Mar. 27, 2015) and the Kentucky supreme court denied

the motion for discretionary review.

In 2016 Mr. Henderson filed a 2254 petition, where the magistrate judge construed

as raising only ten (10) claims for relief it was more. Then the magistrate recommended that

the petition be denied on the grounds of claims were procedurally defaulted, were adjudicated

on the merits by the state court or lacked merit.

The district court overruled Mr. Hendersons objections to the report and

reccnmendation, denied the petition, and declined to issue a OQA. Thereafter, the district court

denied a motion to alter or amend the judgment, filed pursuant to FED. CIV. P. 59(e) and declined

a CCA under 28 U.S.C. 2253 (c)(2). On July 6, 2018 when district court, issued an order

overruling Mr. Hendersons objections approving and adapting the R&R, denying and dismissing

the 2254 habeas petition with prejudice and denying a certificate of appealability. On July

18, 2018 a notice of appeal to the Sixth Circuit and July 20, 2018 filed a Rule (b)(6) motion.

July 23, 2018 the Sixth Circuit docketed Mr. Henderson’s case number 18-5747 and held his appeal

in abeyance pursuant to Federal Rule of Appellate procedure 4(a)(4) pending resolution of Rule

59(e) and Rule 60(b)(6) motions. On November I, 2018 Mr. Henderson filed a motion for

adjudication (d)(1) and 18 U.S.C. 242.

Reviewing the denial by the district court, the Sixth Circuit Court of Appeals

found Mr. Hendersons claims were procedurally defaulted, were reasonably adjudicated on the

merits by the state courts, or lacked merit. Which is not true Mr. Henderson is actually innocent

of wanton murder and robbery in the first degree stated his constitutional violations does not

deserve encouragement to proceed further. Also stated his evidence did not prove he is actually

innocent of providing a handgun, shooting Mr. Hanmond arrange or participated in the shooting.

With stating reasonable jurist could not debate the district court's conclusions which is not

correct. Mr. Henderson prays that this Court view this certiorari and petition, and shows the

compelling reasons the erroneous factual findings and misapplication of properly stated rules

of law. The conflicts among the federal courts of appeals on issues like these. Conflicts between

decisions of a federal court of appeals and the highest court of a state within the Sixth Circuit

and other jurisdictions. The reliance upon a decision that has been discredited or lost weight

as authority due to intervening circumstances. The important and recurring constitutional

questional questions, in addition Mr. Henderson prays this Court grants the certiorari,

sumnarily vacate the judgnsnt of the Sixth Circuit and remand for further proceedings consistent

with the Courts recent decisions. GVRU0 respectfully and please!

REASONS FOR GRANTING THE WRIT

The Sixth Circuits misapplication of denial of separate trials.

And the denial of Due Process and prejudice arose through the

inproper introduction of lies through Mr. O'Neal.

It is very clear that a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by this COURT. And decisions

that is based on an unreasonable determination of the facts in light of evidence presented in

the state court proceeding. 28 U.S.C. 2254(d)

Harrington v. Richter 562 U.S. 86, 100 (2011)

Hie state supreme court denied a clear Federal and U.S. Supreme Court holding

MiHer v. Straub 299 F.3d 570 (6th CLr. 2002) holding that 2254(d) prohibits reliance on lower

court decisions. The Sixth Circuit ignored Wheat v. U.S. 108 S.Ct. 1602, 1609 (1988) and U.S.

v. Ashworth 836 F.3d 260, 266 (6th Cir. 1988) U.S. v. Breing 70 F.3d 850 (1995). When stating

and reliance on this state supreme court opinion, which also declined to address the third

argunent with claims of failed to raise prior to trial which is clear abuse of 2254(d). It is

decisions declared the law and by this Supreme Court which precedents are authoritative in

themselves. Henderson when found beyond a reasonable doubt was not the shooter is innocent of

all elements of wanton murder and robbery in the first degree. The Sixth Circuit quotes Zafiro

v. United States 506 U.S. 534, 537 in regards to the joint trials for defendants, however ignores

Roberts v.

302 U.S. 293 (1968) and Brutian v. United States 301 U.S. 123 (1968). Mr.

O’Neal through the prosecution,in this case clearly is and was to "show Mr. Henderson s alleged

involvement" as evidenced by the Grand Jury testimony Oct. 2, 1997 and the motion to exclude

the death penalty by the trial judge (May 8, 1998). The prosecution was to deliver these

statements but did not, the Sixth Circuit ignored its own prejudical standards held in

Glinsey v. Parker 491 F.2d 337 (6th Cir. 1974) United States v. Crane 499 F.2d 1385 (6th Cir.

1974). If the third claim is present then why has the Sixth Circuit not allow Henderson to return

to the state forum to present this alleged unexhausted claims? Rose v. Iimdy 455 U.S. 509 (1982)

these allegations of the procedural 1y defaulted, were reasonably adjudicated on the merits by

the states courts, or lacked merit is not true. When requesting for a (DA that jurist of reason

would find debatable "whether the petition states a valid claim of the denial of s constitutional

right." Or that jurist "would find find it debatable whether the district court was correct

in its procedural ruling." There is Supreme Court precedent on this issue it was IGNORED.

Stating no due process violation stating Henderson can be convicted of felony murder, however

there is no felony murder in Kentucky. Schad v. Arizona 501 U.S. 624 (1991).

The Sixth Circuits misapplication of prior bad acts

and the denial of Due Process and lies through

Mr. O’Neal.

The Sixth Circuit stated there is no clearly established Supreme Court

precedent which holds that a state violates due process by permitting propensity evidence in

the form of other bad acts evidence cited. Bugh v. Mitchell 329 F.3d 496, 512 (6th Cir. 2003)

' •»

More important that these lies could not be contrary to federal law as determined by this Court

2254(d)(1).

Mr. O'Neal defense that he was under (duress) or influence of Mr. Henderson is

pure lies! Even Mr. O'Neal admits these are lies, however to make-up "prior acts" evidence and

the trial admit these lies to the jury as evidence is pernicious by itself.

First the jury must be able to reasonably conclude the act occurred and

Mr. Henderson was the actor. Huddleston v. U.S. 485 U.S 681, 690 (1988). Then while these lies

don't show intent, motive guilty knowledge, a plan or scheme, a pattern or inextricably

interwoven with the principle offense cause these are lies. Spencer v. Texas 385 U.S. 554 (1967)

United States v. Scheffer 523 U.S. 303, 315 (1998) Payne v. Tennessee 501 U.S. 808, 825 (1991)

and Chambers v. Mississippi 410 U.S. 284 (1973) there was no truth here just a egregious

allegation of false crimes and lies. With no precedent or jurist of reason to debate rejection

of this claim is in violation of constitutional magnitude.

Ihe Sixth Circuits misapplication of both miscarriage

of justice standard and actual innocence. The concepts

of cause and prejudice therefore correcting a

fundamentally unjust incarceration.

Stating claims were procedurally defaulted, were reasonably adjudicated on the

merits by the state courts, or lacked merit is a reason to obtain federal review. Due to these

constitutional claims the "cause" and "prejudice" the courts had a duty to make "an independant

determination" they did not. Johnson v. Mississippi 486 U.S. 578, 587 (1988) Mirray v. Carrier

477 U.S. 478, 485-86 (1986). Henderson showed factual questions relating to "cause" and

"prejudice" which includes the competence of counsel, and how the state impeded Henderson and

how the most issues were raised pro se. Wainwright v. Sykes 433 U.S. 72, 95-96 (1977).

Miscarriage of justice exceptions extend beyond situations of "actual innocence" Saywer v.

Whitley supra 505 U.S. at 361. Bottom line Henderson did not shoot or participate in a robbery

there is no collusion with Mr. O'Neal Schlup v. Delo supra 513 U.S. at 321-22 the rejection

of these facts and the miscarriage of justice all these standards the insufficient evidence,

probable innocence and actual innocence is and has a substantial, showing in this case. While

Henderson is not on death row the "manifest miscarriage" standard for claims challenging the

constitutionally of his sentence is sufficient. Under a proper application of any of these

standards Henderson's showing of innocence is not insufficient solely because state trial record

did not contain sufficient evidence to support the jury's very verdict. No jury would have

convicted Henderson with Mr. O'Neal explaining he did and laceration evidence presented.

Kyles v. Whitley 514 U.S. 419, 434 (1995)

Ihe Sixth Circuit misapplied the false testimony evidence does

not make sense by no standard.

Under Kentucky law, one is guilty of wanton murder when "he wantonly engages

in conduct which creates a gave risk of death to another person and thereby causes the death

of another person" Ky. Rev. Stat. 507.020(l)(b). And guilty of first-degree robbery when "in

the course of committing theft, he uses or threatens the immediate use of physical force upon

another person with the intent to accomplish the theft" and when he either "causes physical

injury to any person who is not a participant in the crime, If ffis aimed with a deadly weapon"

or "uses or threatens the immediate use of a dangerous instrument upon any person who is not

a participant in the crime" Ky. Rev. Stat. 515.020.

Henderson never caused the death or threatened or was presented a deadly weapon

never provided anything or instrument. Mr. O'Neal is the actual shooter and principle in this

case, to deny Henderson was lied on at trial before the jury. This Supreme Court held that,

as an essential of the due process guaranteed by the Fourteenth Amendment, no person shall be

made to suffer the onus of a criminal conviction except upon sufficient proof. Defined as

evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of

every element of the offense. To constitute the crimes of KRS 507.020(l)(b) 515.020 with which

he is charged. 3h re Winship 397 U.S. 358,(1970) Pilon v. Bordenkitcher 444 U.S. 1 (1979) this

was challenged in a federal habeas corpus proceeding. Found not guilty of providing a handgun

deemed the non-shooter and Mr. 0'neal explained he lied about Henderson's involvement. Lest,

there remain any doubt about the constitutional stature of the reasonable doubt standard the

Due process standard protects this.

The Sixth Circuit's misapplication of bail pending appeal

While there is no constitutional right to bail pending appeal in Kentucky those

with life sentences or death can not have bail Rcr. 12.78. Although practice is not explicity

authorized by statute or rule "there is abundant authority that federal judges district court

in habeas corpus can admit applicant to bail pending the decision of their cases" FED.R. AFP.

P. 23(c) in 28 U.S.C. 2243 district court can dispose of the matter as law and justice require.

Can provide immediate release because Henderson is innocent, Henderson applied for release in

the first instance Hilton v. Braunskill 481 U.S. 770, 773 (1987) Aronson v. May 85 S.Ct. 3,4

(1964) but since district court either did not know or just did not want to no fact-finding

on release related issues such as the "likelihood of flight" or "ride to tie eemnunity" did

not take place FED. R. APP. P. 48 this applies to habeas corpus it was never reviewed.

An adverse ruling on the merits of the appeal does not release moot as long as Henderson intends

to pursue rehearing proceedings and certiorari Hilton v. Braunskill, supra 481 U.S. at 776-79

understanding Henderson could have filed a mandamus under All Writs Act 28 U.S.C. 1651(a) issues

of bail is not just applicable to federal prisoners. No "presumption of correctness" of initial

decision regarding bail or release was conducted.

Sixth Circuit misapplication of the ineffective assistance and absence of counsel

both in trial and appeal.

The Sixth Amendment to the United States Constitution provides "In all criminal

prosecutions the accused shall enjoy the right...to have assistance of counsel for his defense."

Even in state section 11 of the Ky. Const, provides "in all criminal prosecutions the accused

has the right to be heard by himself and counsel. This is NOT Sixth Amendment, however was not

followed in this case. Gideon v. Whinwright 372 U.S. 335 (1963) Kitchens v. Smith 401 U.S. 847

(1971) Pjckelsimer v. Whinwright 375 U.S. 2, (1964). Specifically Henderson has many claims

of counsels ineffective performance. Powell v. Alabama 287 U.S. 45, 71-72 (1932) circumstances

as to preclude the giving of effective aid in the pretion and trial of the case is missing here

completely. With no hearing, Henderson could have revealed exculpatory information and specific

through a hearing which would have shown that the result of trial would have been different.

A hearing with Det. Eastham Argersinger v. Hamlin 407 U.S. 25, 23 (1972) there is no way possible

for a re-indictmant of these charges if effective counsel investigates Strickland v. Washington

466 U.S. 668, 685-86 (1984) Henderson was asleep during this incident with a laceration injury

to his right leg that prevented running (7) seven blocks to and from the scene. Ki mmol man v.

Morrison 477 U.S. 365, 378 (1986)

Circuits split on evidentiary hearing whether cognizable on habeas review.

Cuyler v. Sullivan 446 U.S. 335, 343 (1980) a serious risk of injustice infected

the trial itself. The ends of justice decision in Knhlmann v. Wilson 477 U.S. 436, 445 (1986)

and MdCleskey v. Zant 499 U.S. 467, 495 (1991). In Keeney v. Tamayo-Reyes 504 U.S 1, 24 (1992)

explains a position to right in habeas corpus proceedings. Henderson had no forum in state or

federal courts. Townsend v. Sain 372 U.S. 293 (1963) and Smith v. Yeager 393 U.S. 122, 125 (1968)

here the "cause" and "innocence" standards are fully present. Since as the Sixth Circuit stated

that Hendersons issues and claims were procedurally defaulted were reasonably adjudicated on

the merits by state courts or lacked merit is impossible. Requesting to follow Will v. Lockhart

474 U.S. 52, 60 (1985) Blackledge v. Allison 431 U.S. 63, 82-83 (1977) the three conditions

and precedent. Petitioner alleged facts that, if proved entitle relief, the fact-based claims

the petition showed factual allegations that are not "palpably incredible" or patently frivolous

or false, for reasons beyond the control of Henderson or attorney the factual claims were not

previously the subject of a full and fair hearing. Circuits are split as to what mandatory

hearings available on factual issues raised by the state as bases for avoiding relief. This

is even on presented exceptions to the states procedural defense and claims. No full and fair

hearing then claims of waivers and procedural defaults this does not make sense.

Schlup v. Dalo 513 U.S. 851, 308-12 (1995)

The alleged procedural default

The jury instructions are erroneous, however district court determined a alleged

procedural default. If Henderson failed to comply with a state procedural rule when presenting

federal constitutional claims he also requested the courts to follow United States v. Olano

507 U.S. 725, 733-34 (1993) Johnson v. Zerbst 304 U.S. 458, 464 (1938). As Coleman v. Thompson

501 U.S. 722, 750 (1991) is used a procedural default doctrine does not come into play unless

a default cognizable in federal court has occurred. Amadeo v. Zant 486 U.S. 214, 228 (1988)

this is jurisdictional 28 U.S.C. 2254(a) 1257 in both contexts no procedural default exists.

Regardless of what is misconstrued and incorrect, with no counsel or hearing even after the

state supreme court charged Henderson's attorney with bar sanctions that were severe. If claims

were, could have been, or should have been raised on direct appeal or other proceedings who

is at fault? Henderson has never waived no right, nor has defaulted any rule he has tried to

10.

comply and exhaust every issue as in James v. Kentucky 466 U.S. 341, 342-52 (1984) Michel v.

Louisiana 350 U.S. 91, 93 (1955). District court and the Sixth Circuit explained that

ineffectiveness of post-conviction counsel can not constitute "cause" to overcome an alleged

so-called procedural default.

In Johnson v. White, 2018 U.S. District TEXTS 40576 this sane district court

stated what the legal standards are. 28 U.S.C. 2254(a)(b)(l)& (c) Baldwin v. Reese 541 U.S.

27, 29 (2004) and Woolhright v. Crews 791 F.3d 628, 631 (6th Cir. 2015) McMeans v. Brigano 226

F.3d 674, 680 (6th Cir. 2000) that AEDPA requires a heighted respect for legal and factual

determinations made by state courts. Herbert v. Billy 160 F.3d 1131, 1134 (6th Cir. 1998).

As to jury instructions Apprendi v. New Jersey 530 U.S. 466 (2000) as applied in Kentucky

Henderson cited Thacker v. Cannonwealth 194 S.W.3d 287 (2006) Henderson showed in accordance

how his instructions and this state court decision was contrary to, and a unreasonable

application of, clearly established federal law. Regardless if it is misconstrued as a state

CR 60.02 or 11.42(3) the "cause" and "prejudice" was and is shown the state supreme court in

Kentucky deemed counsel ineffective in bar charges and conviction. Jones v. Bell 801 F.3d 556

563 (6th Cir. 2015) Ambrose v. Booker 684 F.3d 638, 649 (6th Cir. 2012) absent counsel's errors

the outcome of the trial would have been different, without these errors it would not resulted

in a conviction or misconstrued procedural default. Just as in Henderson's sentencing as pointed

out in case as Edmonds v. Smith 2017 Dist. TEXTS 126498 WL 3431970 Jamison v. Collins 291 F.3d

380, 386 (6th Cir. 2002) district court did not follow these standards. The Sixth Circuit ignored

Douglas v. California 372 U.S. 353, 356 (1963) Evitts v. Lucey 469 U.S. 387 (1985) the

constitutional right to counsel, and concomitantly, to effective assistance of counsel, is not

limited to just direct appeal. Counsel was ineffective in trial, direct and in collateral attacks

as a result Henderson cited ffartinez v. Ryan 566 U.S. 1, (2012) Trevino v. Thaler 569 U.S. 413

(2013) which is a matter of Due Process. Henderson's counsel was convicted of state supreme

sanctions SCR 3.130-1.1 SCR 3.130-1.3 and other Rules of professional conduct in incompetent

representation of Henderson. This is not like Davila v. Ehvis 137 S.Ct. 2058 (2018) this not

an attempt to expand cases like Martinez and Trevino it is to show and explain how it applies

to Kentucky and other defendants in this country. To exhaust 2254(b)(1)(A) Rose v. Lundy 455

U.S. 509 (1982) the state procedural framework by reason of its design and operation and so

11.

much of a no meaningful opportunity to raise certain issues on direct appeal. Here counsel

abandoned Henderson and was charged and convicted therefore Henderson acting pro se followed

the exhaustion requirements. The Constitution applies to Henderson, how much more of this

(cause and prejudice) is need when counsel is convicted in a bar conviction for being ineffective

in a case? And issues at trial and on appeal is clear, the right to the effective assistance

is a bedrock principle in our justice system. The Bar conviction does not expand Martinez and

Trevino it proves the fact that counsel's performance was deficient, objectively unreasonable

under prevailing professional norms. Cornwell v. Bradshaw 559 F.3d 398, 405 (6th Cir. 2009)

Strickland v. Washington 466 U.S. 668, 687-88 (1984) failure to investigate, failure to object

to erroneous jury instructions, raise issues on appeal, and in direct and collateral attacks.

The cause-and-prejudice standard is present, the valid claim ccmpondent of Slack v. McDaniel

529 U.S. 473, 483 (2003) for a OQA the ineffective assistance of counsel decision is debatable.

Miller—F!1 v. Cockrell 537 U.S. 322 (2003) here are the substantial showings of denial of

constitutional rights 28 U.S.C. 2253 (c)(2).

Jury instructions

In Kentucky, it is the duty of the trial judge to instruct the jury on the whole

law of the case. It is the duty of the court to give instructions applicable to every state

of the re.ce deducible from, or supported by testimony state rule Rcr 9.54. This means that the

court must give and instruction for every degree of the offense or offenses charged if there

is any evidence presented at trial which, if believed, would be sufficient to sustain a

conviction for a certain offense. The court can only give instructions on the offense charged

and offenses which are lesser included offenses if the evidence warrants such a instruction.

Rcr 9.86, the fatal variance between the indictment and the jury is factually present.

Due Process guarantees a defendant notice of the charges brought against him and the opportunity

to defend himself. Gcmbs v. Tennessee 530 F.2d 695, 698 (6th Cir. 1976). For that reason, the

government cannot charge one crime and later tell the jury to convict the defendant of a

different uncharged crime. United States v. Mize 814 F.3d 401, 409 (1999) Henderson had to simply

guess or predict what conviction he might face at trial. And forcing to guess the winning

conviction especially when his liberty is at stake death penalty this does not comport with

the Constitutions premise of due process. United States v. Prince 214 F.3d 740, 757 (6th Cir.

12.

2000). In this case, the prosecutions theory at trial was that Henderson gave a handgun to Mr.

O'Neal who then shot Mr. Harnnond in order to take his shoes. Lucas v. O'Dea 179 F.3d 412, 417

(1999) constructive amendment the government charged Lucas with murder for shooting another

another person. When the court instructed the jury, the court went a step further by stating

if the jury could find Liras guilty of wanton murder whether or not he actually shot another

person.

That is, as long as the jury believed that he participated in a robbery that

resulted in a death, the jury should find him guilty of wanton murder. In this case, giving

a handgun to Mr. O'Neal to shoot scmeone Henderson can not participate in a robbery without

providing a handgun the instructions constructively amended the indictment and broaden the charge

in the indictment. Found not guilty of providing this handgun, Henderson can never be convicted

or found guilty legally of murder of any form KRS 507.020. Either intentional or wanton this

instruction that broadens with the words (voluntarily assisted or participated in a robbery)

broadened the indictment which was (acting alone or in complicity) the is not the same conduct

to cause a death to someone. Regardless as the Sixth Circuit contends that it is the same penalty

the jury was instructed erroneously. There is no complicity instructions in this case, therefore

if the theory is Henderson provided a handgun intentionally there is no way beyond a reasonable

doubt he can be guilty of any form of murder or participate in any fashion of a robbery.

This is a unreasonable determination of the facts in no way this can be justified as intentional

or wanton murder. The penalty phase is after the guilt phase is established outside of not

providing proper instructions and constructively amending the indictment through these

instructions which resulted in a fatal variance and the whole law of the case was not instructed

on. Ihe Sixth Circuit ignored these facts, clearly this has the standard of "sane merit"

ffartinez 566 U.S. at 15.

Sufficiency of the Evidence

These erroneous jury instructions relieved the Caimonwealth/prosecution of

proving all the elements of the crimes charged. The Sixth Circuit contends the evidence is not

overwhelming, when viewing it in light and other evidence most favoring to prosecution.

■Tarkam v. Virginia 443 U.S. 307, 319 (1979) Stating that record shows that the evidence was

sufficient to convict Henderson of these crimes, I don't think so. Also stated the Sixth Circuit

there is no valid or meritorious claim that counsel should have challenged the sufficiency of

13.

the evidence. Greer v. Mitchell 264 F.3d 663, 676 (6th GLr. 2001)

First, the constitutional basis for determining sufficiency of evidence has

been clearly established by this Supreme Court. In Jackson as an essential of the due process

guaranteed by the Fourteenth Amendment, no person shall be made to suffer the onus of a criminal

conviction except upon sufficient proof defined as evidence necessary to convince a trier of

fact beyond a reasonable doubt of the existence of every element of the offense.

To challenge the sufficiency of evidence is in Pilon v. Bordenkircher 444 U.S. 1 (1979), in

Kentucky, it is the standard of evidence as a whole Rutland v. Camcnwealth 590 S.W.2d 682 (1979)

the Sixth Circuit ignored In re Winship 397 U.S. 358 (1970) and Carpenter v. Teihwnn 683 F.2d

169 (6th Cir. 1982). Relately, a conviction for murder the elements can never be satisfied this

is a clear unreasonable determination of the facts. Thompson v. Keohane 516 U.S. 99, 111 (1995)

both the state court and federal court conclusions were incorrect. Rire v. (YVP-ing 546 U.S.

333, 342 (2006) There was no factual determination the Sixth Circuit relies on the lies that

are in the state court record about Henderson being involved is just not true. The state-court

alleged factual findings can not even be presumed to be correct with clear and convincing

evidence due to it is not overwhelming meaning that the elements are not there. Rice 546 U.S.

at 338-39 it is clear to show this COURT that the elements are not present.

The fact the Sixth Circuit noted Mr. O'Neal also testified and implicated

Henderson surely hold not a piece of sufficient proof the are lies. And even, with his Hew

no evidence of other facts and circumstances connecting Henderson to a crime of murder or robbery

even exists. McIntosh v. Ccnmanwealth 582 S.W.2d 54 (1979) this is debatable and incorrect that

it is not meritorious or valid. Slack v. McDaniel 529 U.S. 473, 484 (2000) the assessment of

constitutional or procedural claims are way off. These determinations were based entirely on

incorrect state court law and lies which these results as an unreasonable determination about

what happened" Thcmpscn v. Keohane 516 U.S. 99, 111 (1995). The Fourteenth Amendments provide

in relevant part; nor shall any State.. .deny to any person within the jurisdiction equal

protection of the laws.

14.

}

qOESIICN PRESENTED

This case raises several pressing issues of national importance is Innocence

Irrelevant? Is cause and prejudice exception to the alleged procedural default doctrine? Does

the ends of justice standard and principle warrant relitigation? Does the miscarriage of justice

standard apply when the Sixth Circuit or other circuits impose a improper and burdensome

Certificate of Appealability (OOA) standard that contravences this COURTS precedent?

Did the Sixth Circuit impose an improper denial whai his claims of ineffective assistance was

violated with false testimony and Brady violations and actual/factual innocence was presented.

Ineffective Assistance- Actual Innocence

The Eighth Amendment provides: Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.

In particular, the conviction of an innocent person would violate the Eighth

Amendment, Fifth Amendment and the Fourteenth Amendment of the United States Constitution and

and sections 1,17 of state Ky. Const. Herrera v. Collins 506 U.S. 390, 417 (1999) "a truly

persuasive demonstration of actual innocence made after trial would render a conviction

unconstitutional. In King v. Ccnmonwealth 2014 ky. App. Unpub. TEXTS 556 (2014) the state court

reversed and remanded after defendant plead guilty to a hanicide related offense. And stated

that a defendant that proceeds to trial has a right to appeal that decision, has a right to

contest the sufficiency of the evidence, a right to complain of palpable errors, and the right

to request a new trial. Not for Henderson, where it is constitutionally incumbent upon the state

to provide a post-conviction procedure to vacate the judgnent and grant a new trial. Mr. O'Neal's

lies with reasonable certainty changed the verdict adn probably change the result if he had

not told these lies.

Ineffective Assistance

The Sixth Circuit ignores the MAy 8, 1998 motion to exclude the death penalty present by the

state trial judge. Specific the fact this judge stated that the prosecution advised himself

and the court that Mr. O'Neal at trial for his defense was to introduce according to the

prosecution evidence of Henderson's (involvement) as the shooter. No objection was made to reveal

the basis of how the prosecution knew of this and why had not the prosecution revealed this.

Leland v. Oregon 343 U.S. 790 (1952) Williams v. Florida 399 U.S. 78 (1970) evidence for and

15.

against Henderson United States v. Agurs 427 U.S. 97 (1976) counsel has a duty to exhaust all

reasonably available means to have this alleged "involvement" evidence presented. Renans v.

Ccmronwealth 547 S.W.2d 128 (1977) the failure to disclose under state rule Rcr 7.24 is clear

by-the judge in this motion to exclude the death penalty. No form of hearing preliminary state

rule Rcr 3.07 Jett v. Ccnmonwealth 436 S.W.2d 788 (1969) Coleman v. Alabama 399 U.S. 1 (1970)

counsel did none of these things about this so called evidence. Not even in the off the record

ex parte hearing offered to him to prove that Mr. O’Neal was prejudicial to Henderson, the

fact it was no evidence just lies.

Ineffective Assistance

As a general note there is nothing miscellaneous about actual innocence. This

is the facts which can not be dismissed, miscast, minimized by stating they are miscellaneous

like these i.qgnes were not properly exhausted and they were. These factual determinations

underlying these conclusions are "objectively unreasonable" and unreasonably applied in

Strickland denying these ineffective-assistance-of-counsel claims all together. This Micheal

Brown, clearly lied about his alleged knowledge which he provided nothing other than what the

media already explained to the public. The prosecutor after failing to prove beyond a reasonable

doubt Henderson's involvement assisted Mr. O’Neals lies by presenting a man with drug and

psychiatric issues. How can this be the evidence of involvement sufficient to prove murder and

robbery. The laceration evidence was never before the jury this explains why Henderson was in

bed and not in a struggle with Mr. Hammond running seven (7) blocks both to and from this was

never presented. Trial counsel was ineffective for failing to request proper jury instructions

Davis v. Morgan 89 Fed. Appx. 932, 937 (6th Or. 2003) failing to investigate Wiggins v. Smith

539 U.S. 510, 537 (2003) to state these violations of discovery is not grounds for relief, the

prosecution offered this so-called "witness" after his case-in-chief and after explaining to

the judge Mr. 0"neal had evidence on Henderson to keep the death penalty on the table. Which

is all false counsel never asked, requested a recess to interview the other jailhouse inmates

or sought a mistrial or request the hospital records about his client. To state miscellaneous

is incorrect the "reasonable probability" that these actions would have made a difference all

of which does establish prejudice under Strickland. Even when the court considers the "totality

of the evidence" the jury did not know these were lies until 2003 or this man was a mental and

16.

drug addict stealing from the Veterans hospital and more inportant Henderson was severely injured

during the time this shooting took place. Counsel can not "thoroughly cross examine" anyone

without even investigating facts surrounding his client. Santoeky v. Kramer 455 U.S. 745 (1962)

Addington v. Texas 441 U.S. 418 (1979) the prevailing norms of practice, reflected by the AM

standards and the likes. To conduct a prompt investigation and expose ALL avenues leading to

fart-c; relevant to the merits of a case and the penalty in the event of conviction.

In reaching this conclusion, the court did not do exactly what Strickland

tasked to do: consider "the entire evidentiary picture" which would have made a difference.

Strickland 466 U.S. at £9b. And a fairminded jurist could agree with this given the holes in

this case and it not being overwhelming in addition to trial counsel’s non-valiant efforts to

assist and bring to light the facts surrounding this case.

Brady violations

The Sixth Circuit in Cleveland v. Bradshaw 603 F.3d 626 (6th Cir. 2012) the court

held that this was a "credible claim of actual innocence" the recantation of the only eye witness

to the murder, and it was more than likely than no reasonable juror would have found the prisoner

guilty beyond a reasonable doubt. It is crazy that Cleveland stated he was actually innocent

of murder, due process rights were violated when the state presented testimony that it knew,

or should have known, was false, that due process rights were violated when the state failed

to disclose favorable evidence. His substantive and procedural due process rights to a fair

trial were violated by the prosecutors misconduct and ineffectiveness of trial and appellate

counsel.

The Sixth Circuit states Henderson does not identify what the suppressed evidence

is, much less the exculpatory nature of the evidence. The affidavits recanting and the two

(2) hearings in court the testimonies the sane evidence that was supposed to be used for

Henderson's alleged "involvement" which Schlup stated Henderson could rely on to proceed through

the actual innocence gateway 513 U.S. at 324. Cleveland had affidavits and was able to present

his habeas issues on the merits. The prosecutor held information that Henderson was not involved

and this was suppressed there is no procedural default here. The fact that Henderson is actually

innocent is materially favorable Moore v. Illinois 408 U.S. 786, 794-95 (1972) Weatherford v.

Buraey 429 U.S. 545 (1977) he withheld the fact Henderson was not present he knew due to he

17.

was not going to get a death penalty conviction and tried to justify holding these facts by

explaining to the trial judge that Mr. O'Neal had that burden of proof standard. Whereas, he

knew or should have that Henderson was innocent. U.S. v. Agurs 427 U.S. 97 (1976) It is nothing

to them but, exculpatory evidence exonerates Henderson, it relates directly and r-imimstant-iany

to the substantive issues in the case. U.S. v. Bagley 473 U.S. 667 (1985) Mr. O'Neal is the

only eyewitness he lied and the prosecutor knew of these lies he promoted and presented a

"surprise witness" to the lies. Kyles v. Whitley 514 U.S. 419 (1995) Napue v. Tllinois 360 U.S.

264, 269 (1959) At the time Mr. O'Neal had a serious motive to lie and provided false and

perjured testimony. The prosecution suppressed this in favor of hopefully getting Henderson

on death row. Giles v. ffaryland 386 U.S. 66 (1967) his duty extends well beyond his actual

knowledge. Even to the information "he should have known" 427 U.S. at 103 Agurs supra. Giglin

v. U.S. 405 U.S. 150 (1972) the prosecutor knew Mr. O'Neal was going to lie to the jury this

violates Brady due to the fact he explained to the trial court Mr. O'Neal's intentions to seal

and potentially get a death penalty conviction. The prosecutors failure to correct false

testimony is clear, and also no corrective action by the prosecutor or defense counsel.

It is simple, since no disclosure or corrective action taken shows the violation

of due process cause it was suppressed 373 U.S. 83, 87 (1963) Striclker v. Greene 527 U.S. 263,

280-81 (1999) stating Henderson is innocent not involved was not present is "reasonable

probability" that "put the whole case in such a different light as to undermine confidence in

the verdict" Kyles v. Whitley 514 U.S. 419, 436 "collectively not item by item." There is no

default here and prejudice exists Banks v. Dretke 540 U.S. 668, 691 (2004) Henderson's innocence

stated by Mr. O'Neal holds more weight than his implication at trial. It "totally refutes the

theory of the case" that Henderson gave a handgun to O'Neal who shot Mr. Hamnond. Now its socalled unreliable and impeach with cumulative in nature when it doe not benefit the conviction.

Carter v. Mitchell 443 F.3d 517 (6th Cir. 2006) In Cleveland v. Bradshaw he had flight records,

Henderson has hospital records, he had the only eye witness to the murder, who is O'Neal? Avery

Jr. is no different than Mr. O'Neal the Sixth Circuit knows this is critical and new. But

Henderson's hospital records are not "scientific" O'Neal testified to these affidavits what

reasonable juror would have found guilt? What more does or have to be shown, test the shoes

and get a forensic scientist to state what the court already knows. Henderson is innocent the

prosecutor suppressed knowledge of this fact, stating Mr. O'Neal has knowledge or evidence of

18.

Henderson's involvement? How did or would the prosecution know without knowledge and did not

disclose. Mr. O'Neal testified to these affidavits explained the lies and reasons and the reason

the fact it is not labeled perjured testimony is due to the Coimonwealth/prosecutor will not

charge Mr. O'Neal even after years of criminal' complaints. So the standard of clear showing

of extraordinary and compel 1 ing equities is hindered. Bisher v. Bishir 698 S.W.2d 823, 826 (1985)

The Kentucky state court has a established two prong test: One that a criminal

conviction based on perjured testimony has to be extraordinary nature justifying relief. And

second, that a reasonable certainty exists as to the falsity of the testimony and that the

conviction probably would not have resulted had the truth been known before he can be entitled

to such relief. Spaulding v. Carnionwealth 991 S.W.2d 651 (1999) CR 60.02(f). The issue is the

perjured testimony the prosecution has to charge Mr. O'Neal which they have not. To mention

the alleged opportunity by the inclusion in the Rule 60.02 proves the argument. The fact that,

prosecutors presented and mentioned these lies for benefit and withheld the true facts (Henderson

is innocent). There are no numerous witnesses to the shooting of Mr. Hamnond just Mr. O'Neal

who the prosecution depended on to secure conviction and indictment, a possible death

execution. A Brady violation is clear the prejudicial effect is inextrically interwoven and

these lies only serve to elicit strong emotional responses frcm the jury. Once again, there

is no procedural default on this issue, and established actual innocence.

OQA and Rule 59(e) 52 motions

A certificate may only issue if there is made a "substantial showing of the denial

of a constitutional right by demonstrating that "reasonable jurist would find the district courts

assessment" of the constitutional or procedural claims "debatable or wrong" Slack v. McDaniel

529 U.S. 473, 484 (2000) the ineffective assistance, insufficiency claims and procedurally

defaulted alleged claims related to instructions and actual innocence when they was raised before

the state courts.

The Rule 59(e)52 motion points to the clear error of law newly discovered

evidence (laceration) an intervening change in controlling law and to prevent manifest injustice/

miscarriage of justice. The Sixth Circuit claimed this motion the claims were raised previously

or could have been raised previously and insufficient.

19.

Henderson filed the motion to allow the district court to correct its own errors in the period

imiEdiately following the judgment White v. N.H. Dept, of Bnp't Sec. 455 U.S. 445, 450 (1982)

this was not to rehash the same arguments and facts previously presented. Henderson has shown

several manifest errors of law and fact, newly discovered evidence was presented. Henderson

followed the rules of these motions and reasonable jurist could debate. As the Sixth Circuit

did not agree, however Henderson followed Browder v. Director 434 U.S. 257, 270-71 (1978) when

this Supreme Court precedent is not followed these are grounds for these motions. Kuhlmarm v.

Wilson 477 U.S. 436, 455 (1986) even if to respect state procedural rules CR 60.02(e)(f) Rcr

11.42 (10) and CR 15.03(1) relation back is a state rule the amendment relates to a factual

situation which is the basis of the original controversy. These relate to Henderson outside

his actual innocence Miller—El v. Cockrell 537 U.S. 322 336 (2003) (describing standard for

CQA to issue) this panel went through the factors one by one determined that each was

insufficient. How not jurists of reason would not find it debatable whether the petition states

valid claims of the denial of constitutional rights. It is debatable whether the district court

was correct in its procedural ruling Barefoot v. Estelle 463 U.S. 880, 893 (1983) which is very

foreclosed by clear, binding precedent that was not followed. 28 U.S.C. 2253(c)(2)

Otter reasons for granting the Writ

Henderson filed a motion for relief frcm judgment pursuant to FED. R. CIV. 60(b)

(6) and a "motion for adjudication" 28 U.S.C. 2254(d)(1) and 18 U.S.C. 242. The district court

misconstrued the motions as second or successive 2254 petition and transfered them to the Sixth

Circuit. The state court prevented Henderson from testing potentially exculpatory evidence this

judgment is void. This 60(b) motion and 2254(d) adjudication is not functionally equivalent

to a successive petition. Rule 60(b) motions are not constrained by successive petition rules

Calderon v. Thompson 118 S.Ct. 1489, 1496 (1988) Henderson specifically explained to the Sixth

Circuit and district court Rule 60(b)(6)(4) the postjudgment changes in law having retroactive

applications constitute factors rendering the judgment void. Henderson has demonstrated

ineffective assistance under Strickland 466 U.S. at 694. it is a reasonable probability that

if counsel objected to the state failing to prove the essential elements of wanton murder and

first-degree-robbery. Object to jury instructions were erroneous because they allowed conviction

of wanton murder under alternative theories. Denied adequate notice of the wanton murder under

20.

charge which deprived Henderson of reasonable time to prepare a defense. For due process dpnjrd

when the state court sentenced on the wanton murder conviction under a theory of intent in a

single course of conduct. Counsel was ineffective with no defense, and during sentencing.

Nor the district court or Sixth Circuit argued or state respondent mentioned

Teague v. Lane 489 U.S. 288 (1989) in regards to Coleman v. IhcnSpsai 501 U.S. 722 (1991) but

Martinez and Trevino does so denial of this Rule 60(b)(6) is inappropriate. This certiorari

is to request this OCURT to permit Henderson to litigate his claims on the merits. These factors

constituted the "extraordinary circumstances" required to justify opening under the Rule. The

Sixth Circuit decided the Rule 60(b)(6) like a successive petition and applied the wrong standard

honestly. It only should ask if the district courts decision was debatable, instead under 28

2244(b)(2), (6)(3)(c).

But even with that standard is not correct in this case because this res judicata

doctrine which logically sets an outer limit on relitigation restrictions applied in habeas

corpus. Sanders v. United States 373 U.S. 1, 8 (1963). In other words, a state prisoner is not

precluded from raising a federal claim on habeas that has already been rejected by the state

courts. Keeney v. Tamayo-keyes 504 U.S. 1, 15 (1992) Rule (9)(b) of the Rules governing 2254

Mcdeskey v. Zant 499 U.S. 467, 480-84 (1991) Preiser v. Rodriguez 411 U.S. 464, 475 (1973)

Kaufinan v. United States 394 U.S. 217, 228 (1969) Smith v. Zeager 393 U.S. 122, 124-25 (1968)

Henderson is actually innocent not abused the writ, not to vex, harass or delay his sentence.

Under this standard used which is not successive, Henderson contends just in ffcntana v. United

States 440 U.S. 147, 153-54 (1979). Due Process limits res judicata, for instance, to preclude

parties from contesting only matters that they had a full and fair opportunity to litigate.

As this Court explained in Taylor v. Sturgell 533 U.S. 880, 892-93 (2008)

A person who was not a party to a suit generally has not had a "full and fair"

opportunity to litigate the claims and issues settled in that suit. The application of Haim

and claim and issue preclusions to nonparties thus runs up against the "deep rooted" historic

tradition that everyone should have his own day in court. Richards v. Jefferson County 517 U.S.

793, 798 (1996). This statutory criteria used is not correct when making a ruling on a motion

for relief and judgment Rule 60(b) no ccmpetent defense attorney would allow such things used

against his client the shoes was still on Mr. Hamnonds feet. What happened to the "risk of

21.

injustice to the parties" and "risk of undermining the public's confidence in the judicial

process" Li 1jberg v. Health Services Acquisition Corp. 486 U.S. 847, 863-864 (1988) the

procedural holdings were wrong. Under both standard Rule 60(b)(6) 2244(b)(2)(6)(3)(c) Henderson

claims have more than "sane merit" and a reasonable probability the respondents did not raise

any Teague v. lane issues. Therefore if so the district and Sixth Circuit can't raise it for

them Danforth v. Minnesota 552 U.S. 264, 289 (2008) and Schiro v. Farley 510 U.S. 222, 228-229

(1994). Please grant this certiorari because this is incorrect and wrong. Ineffective assistance

of counsel under Strickland and these wrong procedural holdings sre erred in denying the 2254,

Rule 60(b) 59(e) tie 2244(b)(2) and the motion for adjudication and 18 U.S.C. 242.

Other reasons for granting the writ

Both courts district and Sixth Circuit erred in denying relief for Henderson

OQA stating no substantia] showing under 28 U.S.C.2253(c) Slack v. McDaniel 529 U.S. at 473,

484 (2000) Miller-El 537 U.S. at 327 (2000) not looking at the debatability of the underlying

constitutional claim or procedural issue, not the resolution of that debate. These contrary

was unreasonable failing to "give full consideration to the substantial evidence presented by

this habeas petitioner." Miller-El 537 U.S. at 341 all of the issues could be debated by

reasonable jurists. All objections were correct due to where an interviewing change to

controlling law.

The Rule (b)(6) has catch-all that was misconstrued as a second or successive

2254 petition and transferred incorrectly.

Ihe sentencing phase and stage of a capital trial nay give rise to a wide range

of federal constitutional issues including those relating to the constitutionally of the state

death penalty statute on its face as applied, the procedures for preparing and providing the

(PSI) presentence report. And the resources needed to prepare adequately for sentence resources

employed reaching the verdict and sufficiently of the verdict.

The Sixth Circuit stated erroneous Henderson only cites Montgomery

v. Louisiana 136 S.Ct. 718, 732 (2016) in which this Court made the holding in Miller v. Alabama

567 U.S. 460 (2012), retroactive to case on collateral review. Miller held that mandatory

sentences of life without parole for juvenile offenders violate the Eighth Amendment. And it

is due to Henderson is not a juvenile or has life without parole.

22.

However as for the issues concerning Montgomery v. Louisiana and Miller v. Alabama

this sentence is illegal and can be corrected at anytime under this precedent. In Montgomery

the court determined that the retroactivity of the ruling and Miller announced a substantive

rule that is retroactive on collateral review. Whether Henderson is a juvenile was never the

issue but deficient performance is Phillips v. White 851 F.3d 567 (2017) the unusual and

exceptional circumstance under 28 U.S.C. 2254(b)(l)(B)(ii) Strickland v. Wh^iington 466 U.S

668 (1984) under United States v. Crane 466 U.S. 668 (1984) in Henderson guilt phase counsel

was ineffective and these claims had to be exhausted. Gray v. Netherland 518 U.S. 152, 161 (1996)

as in Florida v. Nixon 543 U.S. 175 (2004) Glover v. United States 531 U.S. 198 (2001) Henderson

cited Montgomery and Miller due to the retroactive rules of constitutional law standards. To

transfer this issue was not correct Butler v. McKeUer 494 U.S. 407, 411-16 (1990) the res

judicata and collateral estoppel does not bar a habeas corpus. Frank v. Mangim 237 U.S. 309,

334 (1915). Issue with Henderson’s (PSI) was incorrect and counsel was ineffective under the

Sixth Amendment. The nonperformance at sentencing prejudiced Henderson with the jury being death

qualifying offenders for the death penalty on the basis of "situs" with Henderson, the

non-shooter this classification is arbitrary and in violation of this Court's interpretation

of the Eighth Amendment protection against cruel and unusual punishment. Furman v. Georgia 428

U.S. 238 (1972) Gregg v. Georgia 428 U.S. 153 (1976) issues of the death eligible class was

not presented at sentencing. The state case Boulder v. Canmnwealth 610 S.W.2d 625 (1980) failing

to object to findings in the PSI report, failure to provide assistance in and throughout

sentencing. This was raised, the Sixth Amendment provides these facing the threat of

incarceration with a right "at all critical stages of criminal process,"

The Sixth Circuit has cases on this McPhearscti v. United States 675 F.3d 553,

559 (6th Cir. 2012) Coleman v. Mitchell 268 F.3d 417, 452 (6th Cir. 2001) the mitigation factors

is the argument and key the court is required to ask the jury to consider. Enerson v.

Gcnmonwealth 230 S.W.3d 563, 571 (2007). There was no sentencing phase in this capital case

therefore this requires a reversal KRS 532.055 532.025(2) Mills v. Maryland 486 U.S. 367 (1988)

23.

No mitigating factors were presented or taking in account in deciding anything nothing correct

as information. Henderson exhausted that actual/prejudice exist when mitigation evidence "might

have influenced the sentences assessment of Henderson's "moral culpability" given the totality

of the case. Wiggins v. Smith 539 U.S. 510, 535-56, 538 (2003) Circuits are split or the Sixth

Circuit just didliotiaht to comply. Hiller v. ffertixT48rF.3d468, 473 (7th Cir. 2007) Phi Hips

v. Bradshaw 607 F.3d 199, 216 (6th Cir. 2010) these circuit courts proceeded to find Strickland

prejudice even after presuming it under United States v. Creme 466 U.S. 648, 658 (1984)

The Hiller citing is applicable due to the retroactive and mitigation evidence

not presented in this capital sentencing. Henderson's record and (PSI) reflects that this

guarantee of the Constitution for sentencer to not receive or characteristic of mitigation

evidence Glover v. United States 531 U.S. 198 (2001) actual prejudice also exists when there

is a reasonable probability that Henderson would have avoided even a "minimal amount of

additional time in prison" were not for counsel's performance at sentencing. Under

Strickland prejudice exists and exhausted with a transfer to the Sixth Circuit erroneously.

These decisions in state court, district court and the Sixth Circuit resulted

in decisions that was contrary to, or involved an unreasonable application of this United States

Supreme Court.

Praying that this certiorari does not be denied Henderson hopes this COURT sees

the conflict among the federal court of appeals on these issues. Conflicts between decisions

of the Sixth Circuit and the supreme court of Kentucky which this state is in this circuit.

Henderson prays this COURT can see the conflicts between a decision of this Supreme Court and

the subsequent decisions of the Sixth Circuit. It is a clear conflict among different panels

of the Sixth Circuit as shown in this petition. The conflicts with or even reliance upon a

decision or decisions that has been distracted or has lost weight as authority due to intervening

circumstances. Henderson prays he has raised important and recurring constitutional questions.

Praying for relief in the form of GVRUjO and the focus on the violation of the

Constitution in this case. Acting as (pro se) in these proceedings with no help trying to protect

rights and bring facts I know is the truth. Henderson contends that there is a reasonable

probability that four (4) members of this COURT would consider the underlying issues sufficiently

meritorious for the granting of this certiorari. A significant possibility of reversal of the

24.

lower courts decision if heard. The likelihood Henderson could die in prison is at stake here

this petition is presented in good faith and not for the delay.

In closing, what is requested is to vacate the state court decision and remand

in light of this OCURIS pronouncements. Henderson is a indigent habeas corpus litigant frcm

the Cannonwealth of Kentucky and requests counsel due to not "knowing it all" but trying to

seek protection of rights that have been violated.

CONCLUSION

For these reasons a Writ of Certiorari should issue to review the judgment and

opinion of the Sixth Circuit Court of Appeals and the state surpeme court of Kentucky.

Respectfully Sumbitted,

Mr. Kevin Hendergcff pro se

ROC P.0. Box 69

IaGrange, Ky. 40031

25.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.