Petition for Writ of Certiorari — Henderson v. Johnson (No. 06-1579)

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No 0 6 1579 MAR 1 9 9007

OFFICE OF Tue ERK

In The

Supreme Court of the Qnited States

Thomas Roy Henderson,

Petitioner,

Gene Johnson, Director,

Virginia Department of Corrections,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

For the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Thomas Roy Henderson, Pro Se

#314611

Deertield Correctional Center

21360 Deertield Drive

Capron, Virginia 23829

QUESTIONS FOR THE COURT

DOES A MODIFICATION IN THE COURT-ACCEPTED

KNOCK AND TALK PROCEDURE BY POLICE

VIOLATE THE FOURTH AMENDMENT WHEN

AUTHORITIES PRESTAGE THE APPEARANCE OF A >

RAID UPON A HOME?

IS COUNSEL INEFFECTIVE FOR FAILING TO BRING

THE UNCONSTITUTIONALITY OF THIS

MODIFICATION BEFORE THE COURT WHEN CLIENT

ASKS IT BE DONE?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW............. i

PIERO UST aR a lee oon sks basen sere scontians ili-v1

I. PF ee ee MRM Wong os cc ca csncaceicussadans l

Il. PRP Taos decd aa an cn ease Se ce l

Hl. CONSTUTIONAL AMENDMENTS

INVOLVED IN THIS CASE................. 1-2

IV. STATEMENT OF THE CASE............... 2

V. PRG ees ios eccasih sk cio vtnancnes t

A. The Fourth Amendment

Should Have Protected Petitioner.....7

B. Counsel Was Ineffective............... 12

C. Procedural Bar Issues................... 21

DD, RE OI os ik 0k Ss ike cen 23

WE, RSW a RN ouch cua bsenks sna cacsseatedsluss 24

APPENDIX

A. FINAL ORDER OF THE FOURTH CIRCUIT

COURT OF APPEALS.

B. SUPREME COURT APPLICATION FOR

EXTENSION GRANTED.

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TABLE OF AUTHORITIES

CASES

Alabama:v. White,

Mas PO, RE LIT OD cso rcc cus tness sacccavscavenenweuns 10

Anderson v. Harless

PO is aces 5 ova cvadcsccduksdnandcsias aieseeees 22

Bram v. United States,

BUR Rees PR GAIT Pies oo cance ssecacrssndenecadeceinosixs 20

Boston Mun. Ct. v. Lydon, |

ND UH Ee, PUD EPO) civ cseadene ccdedne cevencvsedqses 21

Brooks v. Peyton, 210 Va. 318, 321-322 (1969)............ 4

Bumper v. North Carolina,

Be roe ES Pe CLOG io os occ cccscucentovanctucssebstucks 1]

Coleman v. Thompson,

TEE RFs Tk PEPE CLI occa ccinccinticesciesias 22-23, 27

Culombe v. Connecticut,

367 U.S. 568, 602 iS)? Serre ve cvas4 Chak euiew ies eee 21

Davis v. United States,

S77 © 90 90t. 903. 9" Cir, 1960): ose 8

Fahy v. Connecticut,

eB BEG SO SD RSS area oma erie Ve feiseahascew ce 21

Fields v. Bagley,

275 F.3d 478, 482 (6th Cir. 2001)(per curiam)........... 21

Florida v. Bostic, 501 U.S. 429, 439 (1991)............ 12, 14

Gideon v. Wainwright, 372 U.S. 335, 342 (1963)........ 13

Hill v. Lockhart, 474 U.S. 52, 56, 59 (1985).........-. 20, 22

Katz v. United States, 389 U.S. 347, 357 (1967).........-. 9

Kirby v. Illinois, 406 U.S. 682, 689 (1972).......ccs000e- 13

Kimmelman v. Morrison,

BF re LPO as cdo cesdis. inicveisarspaccusuceues 16

Mallory v. Smith,

27 F.30 991, 993 (4th Cir: 1994)... cscs cccieicaccaveces 21-22

Mathews v. Evatt

10S €:30 907, 919 (4th Cir, 1997)... 0.605. ccs 13, 21

McMann v. Richardson,

SOE AS TOME STR Pd Elda dn ckcekcccisconsessanaveces 13,15

Menna v. New York,

423 U.S. 61, 63 n.2 (1975)(per curiam).................... 18

Gittice wee TGP oe SORES Be Dee Bs ak TE

ie nL ats perch SUES i reas” ey

Michigan v. Chesternut,

486 U.S. 567, 573 (1988)

Miranda v. Arizona, 384 U.S. 436 (1966)............... 11, 14

Murray v. Carrier, 477 U.S. 478, 488, 492 (1986)........ 22

Oken v. Corcoran,

220 F.3d 259, 269 (4th Cir. 2000)..............0c.0eeceeeee 13

" Park v. Raley, 506 U.S. 20, 29 (1992).......secescececeeeee 18

Picard v. Conner, 404 U.S. 270, 276-77 (1971)........... 22

Pope v. Netherland,

113 F.3d 1364, 1368 (4th Cir. 1997)......................4. 23

Rose v. Lee, 252 F.3d 676, 692 (4th Cir. 2001)........... 13

Savino v. Murray, 82 F.3d 593, 599 (4th Cir.1996).......19

Schneckloth v. Bustamonte,

EE Fi, CELTS) sno iain caccdccvsnsscedscearccsscs 11

Stansbury v. California

OE AP et Ay Be EID. os 6s asc ce vag tcc ieadneucseinndinavenes 14

Slayton v. Parrigan, 215 Va. 27, 29-30 (1974)............... 4

Smith v. Digmon,

434 U.S. 332, 333-34 (1978)(per curiam).................... 22

Strickland v. Washington,

MOG 15. GOS GET CISA os occ ccs cicciens

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)

United States v. Analla,

975 F.2d 119, 125 (4th Cir. 1992),

cert, dented, 507 U.S, 1033 (1993). <....0.0 00.00 cscccccscous

United States v. Arango,

966 F.2d 64, 66 (2™ Cir. 1992)...........ccscceseeeeseseseees

United States ex rel. Cosey v. Wolff,

TEE E26 G56. 650 0.3.07, Cit, 1984)... 55.2.0 ceccecseccces

United v. Cain

155 F.3d 840, 842 (7th Cir. 1998)(same)............ nea 18

U.S. v. Hellbusch,

147 F.3d 782, 783-84 (8th Cir. 1998)................ eee. 19

United States v. Jennings,

17 F350 650, Goo tot Cit. 1994) oni. Bo ccieiacecs 18

United States v. Lattimore,

87 F.3d 647, 652 (4th Cir. 1996)(en banc)....................12

United States v. Mendenhall,

TA As Fg BIE GD Bi eneccvi sas ivnsuee vine cancdasen eeu cs 11

United States v. Watson,

MEF 6a EN a FRE iss icv oivn oh ju cada was od eatovaenddioes 11

A ag BAA g

oe pac ke ;

ik ee

United States v. Velazco-Durazo,

372 F.Supp.2d 520, 525 (D. Ariz. 2005)...................05. 8

Williams v. Taylor,

SEP U S367, 391-93 (2000)... sooo ecesseeeece. 14

Vil

I. OPINIONS BELOW

The Fourth Circuit’s unpublished opinion, Thomas Roy

Henderson v. Gene Johnson, No. 66-6678, is on pages 1-3 of

the Appendix A.

il. JURISDICTION

The Fourth Circuit entered its judgment in this case on

October 19, 2006, No. 66-6678. In compliance with

Supreme Court Rule 13 and 13.5, this petition has been filed

within ninety days, plus sixty days granted extension, of the

Fourth Circuit’s judgment. Under 28 U.S.C. § 1254, the

Supreme Court has jurisdiction tc review the Fourth

Circuit’s judgment. (Order granting 60-day extension at

Appendix B). .

lil. CONSTITUTIONAL AMENDMENTS

INVOLVED IN THIS CASE

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be scized. U.S.

Constitution, Amendment IV.

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 Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be 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 iaken for public use, without just compensation.

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shail have been

committed, 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 defence. U.S. Constitution, Amendment VI.

IV. STATEMENT OF THE CASE

A. Procedural Background

On January 9, 2002, Mr. Thomas Roy Henderson,

petitioner, was charged in the City of Portsmouth, Virginia

‘with the offenses of possession of cocaine (Va. Code § 18.2-

248) and marijuana (Va. Code § 18.2-248.1) both with the

intent to distribute, and one charge of possessing a firearm

while in possession of drugs. (Va. Code § 18.2-308.4)

Petitioner ultimately entered a plea of guilty to the

possession of cocaine and the firearm offense. The

possession of marijuana charge was dismissed in lieu of the

plea of guilty on the other two charges.

Petitioner had contested the search consent originally

in a pretrial suppression hearing. At. the April 15, 2002

hearing, two officers of the Portsmouth City Police

Department both testified that following what was termed a

“knock and talk” encounter with Petitioner at his residence,

his consent was freely given for police to conduct a

warrantless search. Petitioner objected. Henderson’s desired

position on the issue was that the police instead employed a

ruse to trick him into giving consent to search his home.

This ruse, as Henderson saw and experienced it, violated his

right under the Fourth Amendment to be free from

warrantless searches and seizures.

Petitioner’s attorney, however, refused to argue the

specific issue of the illegal use of the knock-and-talk;

instead, counsel simply addressed the broader issue of

whether the search consent was freely given. Counsel for the

defense did not call for Henderson’s testimony at this

hearing, despite his presence in the courtroom and his

willingness to testify.

a is . “f

After hearing the matter, the court ruled that the

consent was voluntary and admitted the fruits of the search

into evidence.

Upon advice of counsel, no direct appeal was made

in this case.

After Henderson’s arrival into the general prison

- population, he discovered through contact with other inmates

that he would have had the option of addressing in direct

appeal the court’s ruling on the search issue. This news

triggered his filing in error of a petition in federal court

under 28 U.S.C. § 2254. (2:04cv311, E.D.Va.). The filing

was premature; Henderson had yet to allow the Virginia

courts to address the claims in this petition. The federal

court ruled the petition dismissed without prejudice on June

7, 2004 with Henderson allowed the opportunity to file his

state post-conviction action first.

State petition for habeas corpus was filed with the

Portsmouth Circuit Court claiming, inter alia, the illegal

search matter in this petition and also ineffective assistance

of counsel, also in this petition.

Following a customary’ procedure in_ the

Commonwealth’s response to the pleadings, the State filed a

motion to dismiss Henderson’s claims and his petition. The

central argument in support of this position, which was later

adopted by the court, was that Henderson had procedurally

defaulted the illegal search claim by not raising the issue on

direct appeal (the court citing Slayton v. Parrigan, 215 Va.

27, 29-30 (1974), and Brooks v. Peyton, 210 Va. 318, 321-

322 (1969)).

Petitioner raised the same issues on appeal of the

habeas corpus dismissal with the Virginia Supreme Court;

the Court rejected the appeal on June 6, 2005. (Record No.

042955).

The matter was then resubmitted to the United States

District Court, Norfolk, Virginia where the claims were

dismissed. (2:05cv639)(Final Order at Appendix A). Appeal

of this decision was made to the U.S. Court of Appeals for

the Fourth Circuit. (Record’ No. 06-6678)(Unpublished

Opinion at Appendix B).

This Petition for Writ of Certiorari follows.

C. The Case

This case argues that the actions of the Portsmouth

Police Department were unconstitutional in violation of Mr.

Henderson’s protections from unwarranted searches and

seizures.

As a result of a “tip” from an unidentified source,

police officers initiated what was referred to as a “knock and

talk” at the home of Petitioner at 8:40 the evening of January

9, 2002. No probable cause existed and no warrant was

actually issued for a search.

To accomplish this, police officers walked up to the

front of Mr. Henderson’s home and knocked on the door.

When Henderson answered, the officer accused Mr.

Henderson of being a drug dealer. In preparation for this

seemingly non-intrusive approach, the officers staged their

presence first. Two patrol cars were strategically placed on

the street out in front of Henderson’s residence in the

evening, service lights on when no immediacy called for

lights. One car was placed directly in front of the house,

another a few houses down near the intersection. Both

vehicles were plainly visible to Henderson as he opened the

door. Another tactic employed by police was a rolled up

piece of paper, a fake warrant, held in the hand of the officer,

inferring that a search was approved and imminent.

Henderson answered the door to police. What he

experienced, what he was led to believe by police, was that a

warrant for a search was already issued. This presentation

by police officers overstepped the line between a casual

knock and talk, as one would perceive something named so

benignly, into an unconstitutional intrusion into the home of

Mr. Henderson. By staging the scene as one where police

are: armed with a warrant, the will of the subject is

overwhelmed and his ability to resist police requests is

disabled.

This Court has had a history of willingness to expand

the powers of the police to intrude upon the lives of the

citizenry, all in the name of curbing crime. Yet, this power

is still not enough for police, who now, with a free ticket to

rewrite the guidelines, feel at ease overstepping those few

remaining limitations on power place on them by this Court.

This case seeks action from this Court. It seeks a warning

from this Court to police that they are not free to overstep

these limits and abuse the nights Americans retain under the

Constitution. -

This case also seeks similar guidance from this Court

to counsel for the defense, who are obligated to place their

cases squarely within the crucible of adversarial testing. All

too often courts allow attorneys to provide substandard

service to their clients. In this case, as in a great many

others, attorneys have felt free to limit their zealous defense

of clients for fear of offending the courts, or prosecutors.

This laissez-faire attitude toward defendant’s complaints of

counsel ineffectiveness has resulted in a failed system where

the innocent are convicted far too often.

This petition seeks justice from this Court and leadership in

the defense of the Constitution and the rights of the citizens

of this Country.

Vv. Argument

A. The Fourth Amendment Should Have Protected This

Petitioner

The Fourth Amendment to the United States

Constitution declares that the “nght of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures and seizures, shall not be

violated.” U.S. Const. Amend. IV. In order to gain access

into the sanctity of someone’s’ home, a warrant must first

issue: this warrant may not be issue except upon probable

cause. Id.

The pretense in this case is that this “knock and talk”

procedure, as applied by the Portsmouth Police Department

is unintrusive, that it is what it is called, a simple and plain

knock on a door with a conversation subsequently started

with the resident. The mental image generated from this

term is that of a benign encounter with police where the

officer casually engages the resident in conversation. What

is not generated from this simple term is a raid by police.

The term knock and talk does not generate the image of a

police raid, complete with patrol car service lights blazing in

the night and police banging on the front door with a fake

warrant in hand.

Authorities employing this style of police encounter

no doubt consult many different sources when developing a

successful strategy to gain entry to a home absent probable

cause. It is not hard to imagine that they are also trained to

some degree on methods of using these tactics. Modifying

these otherwise innocuous exceptions to the Fourth

Amendment can make it easy for police to employ these

tactics with greater success, often this is easier than gaining

the requisite support for a warrant. This experience, coupled

with adequate training, has allowed police to tip the balance

unfairly in favor of success by imitating not a consensual and

casual police encounter as envisioned by the term “knock

and talk”, but instead a police raid.

In such circumstances, with sufficient police

intimidation, they no doubt find that they can employ the

power of the uniform and their equipment to overcome the

way

will of the intended target. All the while staying technically

within the boundaries of the law. '

It has remained the position of the Commonwealth

that Henderson was not "seized" at the time he "willingly"

consented to the search of his home. According to police

testimony, the encounter between police and Henderson was

calm and friendly, and no show of authority influenced the

meeting at all. It has remained the position of Petitioner that

the “consent" was obtained through a coercive ruse

constructed by police in their implementation of a "knock

and talk" encounter. A ruse, which displayed an

overwhelming, show of authority and implied. force. Under

the Fourth Amendment, every search and seizure by police

must be reasonable. Any seizure must be supported by

probable cause and executed pursuant to a warrant.

Note 1 As understood by this petitioner, there exists no prohibition on

anyone, absent trespass conditions, from openly and peaceably walking

up to a man’s steps at daytime and knocking on the door to casually ask

questions See, e.g., Davis v. United States, 327 F.2d 301, 303 (9 Cir.

1964). Petitioner is also well aware that the traditional and talk”

procedure, absent more, has been determined by the courts to be just an

encounter and does not, in and of itself, constitute a seizure. See, United

States v. Velazco-Durazo, 372 F.Supp.2d 520, 525 (D. Ariz. 2005)(“[A]

knock and talk is a consensual encounter. Consensual encounters

between police officers and citizens are not seizures.), and see Terry v.

Ohio, 392 U.S. 1, 19 n.16 (1968)(“Obviously, not all personal intercourse

between policemen and citizens involves ‘seizures’ of persons. Only

when the officer, by means of physical force or a show of authority, has

in some way restrained the liberty of a citizen may we conclude that a

seizure has occurred.”).

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See, Katz v. United States, 389 U.S. 347, 357 (1967)(4"

Amendment presupposes warrant requirement for searches

and seizures).

In this case the police knocked on Henderson's door

without either probable cause or a warrant, but they made it

look as though the warrant was "in hand" by holding the

folded paper in hand during the encounter. The purpose of

the paper was to influence Henderson into believing his

being handcuffed and carted off was imminent and search of

his home, therefore, inevitable. In this manner the police

would gain the advantage of allowing the suspect to believe

he was under arrest or something very similar to it, while

simultaneously relieving the officers of the burden of having

to establish probable cause or gain a search or arrest warrant.

Brief warrantless seizures may take place under certain

conditions. See, Terry v. Ohio, 392 U.S. 1, 22-24, 26 (1968).

But the circumstances that would allow such brief stops are

"narrowly drawn". Id. at 26. In what is known as a Terry

stop, police may temporarily seize a person if the police

officer has a reasonable suspicion that the suspect is engaged

in criminal activity. The seizure must be brief, and its

purpose limited to a pat down to search for weapons that

may pose an immediate risk to the safety of the officer. Id.

There was no immediate risk to the officers in the case,

however. The information of crminal conduct by

Henderson, according to police testimony, originated from

an uncorroborated, anonymous source -- a "concerned

citizen". There is no other corroboration of the veracity of

this informant other than this brief description in the record;

moreover, police had no reason to believe their safety was at

risk to the degree to justify a "pat-down" of Henderson or

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any of the occupants of his residence. A Terry stop defense

by police to the illegal search would be a stretch, and they

knew it.

The Supreme Court has held that a law enforcement

officer is justified in relying upon information from an

anonymous tipster in order to briefly detain a suspect for

inquiry and investigation only if the anonymous information

is "sufficiently corroborated" to provide some indicia of

reliability. Alabama v. White, 496 U.S. 325, 331 (1990).

The police had no such corroboration, or requisite indicia to

detain Henderson for a Terry-like arrest, but if they could

mold the circumstances to fit as though probable cause was

established through a ruse on Mr. Henderson the Fourth

Amendment could be effectively circumvented. This is

what happened to this petitioner and it was the plan, and the

intention, of the police to bring this about when they set a

staged "knock and talk" at Henderson's residence.

Despite the claims of police and the Portsmouth

Circuit Court that Henderson acted out of free will when he

consented to the search of his home, Henderson was in fact

"seized" for all intents and purposes when the police

removed his free will to resist police requests, When police

knocked on Henderson's front door with a paper in hand,

leaving Henderson to think it was a warrant, they knew it

would impact the suspect to remove free will to resist their

requests. When the service lights were left on the marked

squad cars that were strategically parked outside on the

street, they knew this would add a show-of-force effect to

their scare tactic. The accusing statement from police that a

concerned citizen has reported that he has been selling drugs

out of his home -- this was not a question -- it was a raid on

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Henderson's home and an attack on him, and it was all

designed to create in the mind of Mr. Henderson the idea that

the police had a warrant and they were making a raid on him

and his residence,

A seizure of a person occurs when, "in view of all of the

circumstances surrounding the incident," a person reasonably

believes he is not "free to leave", or disengage from, an

encounter with police authorities, Michigan v. Chesternut,

486 U.S. 567, 573 (1988). One test for whether or not a

suspect feels free to disengage from a consensual encounter

with police is whether the techniques used by police

overcame a detainee's free will. See, United States v.

Mendenhall, 446 U.S. 544, 554 (1980). This Court has noted

several factors, which tend to indicate police overbearance:

(1) Threatening presence of officers (i.e., size difference

or sev2ral officers),

(2) Display of weapons,

(3) Physical touching, or

(4) Language or tone implying compliance will be

compelled. Id. at 554-55;

See also, United States v. Watson, 423 U.S. 411, 424 (1976)

(conditions under which search took place should also be

considered, such as characteristics of the accused and police

conduct, including the duration, location, and time of the

encounter); United States v. Analla, 975 F.2d 119, 125 (4th

Cir. 1992), cert, denied, 507 U.S. 1033 (1993). Also

relevant is "[w]ether the accused knew that he possessed the

right to refuse consent". See, Schneckloth v. Bustamonte,

412 U.S. 218, 248-49 (1973).

PE OR Dg I Pe Ee, eee ed Ree et toe

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At no time was Henderson told he could refuse a

nighttime search of his home and, further, he was not given

his Miranda warnings until the following day. Miranda v.

Arizona, 384 U.S. 436 (1966). A seizure takes place when

any of these factors outweighs the suspect's capacity to

resist. See, Bumper v. North Carolina, 391 U.S. 543, 550

(1968)(holding that consent was invalid when given after

police officers claimed authority to search home under

warrant); United States v. Lattimore, 87 F.3d 647, 652 (4th

Cir. 1996)(en banc){stating that police officer's assertion

that he could "call a drug dog" to search suspect's car if

suspect refused consent "would raise serious questions

concerning the voluntariness of his consent"); and see,

Florida v. Bostic, 501 U.S. 429, 439 (1991). ("Court... not

empowered to suspend constitutional guarantees so that the

Government may more effectively wage a 'war on drugs"”).

Here we have a threatening presence in the form of

two uniformed police officers, two squad cars parked in

strategically arranged positions outside — lights left on, with

one of the officers holding what appears to be a warrant.

This is a show of force. The language the officer used in

accusing Henderson of being a drug dealer, this too

influenced his exercise of free will to assert the implication

that compliance with the officer's requests would be

compelled. Further, police had Henderson cornered in his

own home in the evening hours. This adds even more

weight to the argument that Henderson was not free "to

ignore the police presence and go about his business".

Florida _v. Bostic, 501 U.S. 429, 437 (1991) (quoting

Michigan v. Chesternut, 486 U.S. 567, 569 (1988). Based

on the record in this case, including the flimsy "concerned

citizen” report which was uncorroborated and anonymous, it

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is difficult to conceive of a court determining that through all

of the orchestrated staging by the police to create the ruse of

imminent arrest of Henderson, that this "consent" could have

been anything but coerced.

B. Counsel was Ineffective

The Sixth Amendment to the United States

Constitution guarantees that a criminally accused "shall

enjoy the right ... to have the Assistance of Counsel for his

defense." U.S. Const. Amend. VI. This right applies to all

cases where a felony is charged. Gideon v. Wainwright, 372

U.S. 335, 342 (1963)(6" Amendment right to counsel

applies to state through the 14'" Amendment). This right

attaches at every critical stage in the proceedings, including

"preliminary hearing, indictment, information, or

arraignment". Kirby v. Illinois, 406 U.S. 682, 689 (1972).

This Court has held that for counsel to function as counsel

under the Sixth Amendment, he/she must also be "effective".

McMann vy. Richardson, 397 U.S. 759, 771 n.14 (1970) (6"

Amendment right to counsel is right to effective assistance

of counsel).

This Court also established a two-prong test to

evaluate claims of ineffective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To

obtain reversal of a conviction, the defendant must prove:

(1) that counsel's performance fell below an objective

standard of reasonableness and (2) that counsel's deficient

performance prejudiced the defendant, resulting in an

unreliable or fundamentally unfair outcome of the

proceeding. Id. at 687-688.

Counsel retains the advantage of being presumed to

have made the right decisions in his defense of a client. Id. at

689. And any restrictions placed upon counsel by the

defendant's lack of -cooperation, or concealment of

information, may weigh against any claim of counsel

ineffectiveness. See, Rose v. Lee, 252 F.3d 676, 692 (4th

Cir. 2001)(counsel's failure to present evidence of

defendant's sexual disorder during penalty phase of trial was

not defective assistance because defendant had instructed

counsel not to raise the matter at hearing); Mathews v. Evatt,

105 F.3d 907, 919 (4th Cir. 1997)(counsel’s failure to

discover defendant's brain damage not ineffective because

defendant neglected to supply information to counsel); Oken

v. Corcoran, 220 F.3d 259, 269 (4th Cir. 2000). There are a

few instances, however, when counsel's ineffectiveness is

presumed, such as when a claim is based upon counsel's

unexcused failure to bring direct appeal of a criminal

conviction when the client directs his counsel to do so.

Strickland, supra, 466 U.S. at 692.

In this case counsel's failures deprived Henderson of

a fair proceeding on the suppression matter. Counsel also

failed to defend his client's interests when he failed to argue,

at the suppression hearing, the matter of a Fifth Amendment

violation of his client's due process rights. Miranda _v.

Arizona, 384 U.S. 478-479 (1966)(prior to the initiation of

formal proceedings, an individual has a Fifth Amendment

right to counsel during any custodial interrogation); and see,

Stansbury v. California, 511 U.S. 318, 322 (1994)(person

taken into custody by law enforcement, or “otherwise

deprived of his action in any significant way must first"

receive Miranda warnings).

A Ra

By this, Henderson alleges that counsel should have,

but did not, address the matter of a Fifth Amendment

violation at the suppression hearing, and any failure of

counsel to do so was not derived from any strategic choice

of the defense. Had counsel argued that (1) there was in fact

a "custody" created by the police when they created an overt

show of authority (argued ante), and (2) that in this case

Miranda warnings should have been administered prior to

the request for consent to search Henderson's home, the

"outcome of the proceeding" would have been different.

Williams v. Taylor, 529 U.S. 362, 391-93 (2000). This

argument would have indeed established that a seizure did

take place, and that any "consent" there from would have

been shown to be coerced. Had counsel also called his client

to the stand to testify, when the client would have provided

strong evidence of the coercive effect of these overt displays

of power by police, which created in the mind of Henderson

his compulsion to cooperate with their requests, counsel

would have been successful in gaining suppression of the

evidence in this case. Henderson believes that counsel's

performance was critically deficient in that counsel not only

failed to raise important key issues during the suppression

hearing that would have supported a motion to suppress the

evidence, he also misadvised Henderson on his options

following the court's denial of the suppression motion. This

bad advice led Henderson to enter a hasty guilty plea when

otherwise he would not have. Performance such as this

constitutes ineffective assistance of counsel. (See, Appendix

C, Affidavit of Thomas Roy Henderson).

Henderson was certainly willing and able to testify

effectively to these actions of police and to give his side of

the event — counsel should have called him to the stand.

Further, because the matter should be judged from the

"totality of circumstance", the lawyer's obligation here, in

zealous defense of his client's Constitutional rights, would

have been to call Henderson to the stand to submit

testimonial evidence of police orchestrated coercion.

Without this evidence it is extremely difficult to conclude

that anything but a negative outcome could result for the

defendant. After all, the court was only given one side of

the story. Counsel had the option, in fact the duty, to bring

forth and present both sides to the court, not to simply allow

his client to be faced with police accounts, or versions, of

the facts spun to the advantage of the prosecution.

Should counsel have called Henderson to the stand?

Should he have raised the Fifth Amendment issue and the

collateral issues also? Petitioner submits that in order for

counsel to have acted as "Counsel" under the Sixth

Amendment he must have both called the willing defendant

to testify and raised the constitutional issues in his defense.

In Strickland v. Washington, 466 U.S. 668, 687-689, this

Court determined that the performance prong of the two-part

test requires a showing that counsel's actions or omissions

were not the result of reasonable professional judgment, and

that counsel was not functioning within the range of

competence expected of attorneys in criminal cases. Id. 687,

690. Petitioner submits here that counsel's failure to argue

the Fifth Amendment Constitutional matter at this hearing

resulted in what the Supreme Court has determined to be a

failure to meet the performance prong of the Strickland two-

part test.

Taking into consideration all fair advantage to counsel

in that the choice not to call Henderson was part of some

trial strategy. What would this "strategy" be? It was not

played out elsewhere in this case. Within days of the court's

rejection of the suppression motion, counsel pressed

Henderson to take a deal and enter a plea of guilty. There is

no evidence that counsel's choice to engage the prosecution

in a suppression hearing empty-handed is part of any trial

strategy. In fact, considering that Henderson was there to

testify, and the defense's position on this matter was in part

the consent-to-search issue, it is highly implausible that

neglecting to call to the witness stand, the only witness

counsel had. would be part of any strategy at all.

This Court has held, for example, that duty of counsel

to investigate his/her client's case derives from counsel's

basic function, which is "to make the adversarial testing

process work in the particular case." Kimmelman_v.

Morrison, 477 U.S. 365, 384 (1986)(quoting Strickland, 466

U.S. at 690). This, the Court reasoned, is because the

"testing process will generally not function properly unless

defense counsel has done some investigation into the

prosecution's case and into various defense strategies". Id.

This Court stressed "counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary." Strickland, supra, 466

U.S. at 691. Similarly to a situation where a lawyer fails to

investigate potential witnesses and, as a result, fails to call

the potentially exculpable witness to the stand, a lawyer who

fails to call his only defense witness, and bases his defense

of his position on the experiences of that only witness,

cannot be said to have considered his options well enough to

have crossed the threshold of reasonably competent

performance, nor has he exhibited evidence of any sort of a

strategy. See, e.g., United States ex rel. Cosey v. Wolff, 727

F.2d 656, 658 n.3 (7" Cir. 1984) ("Having independent

witnesses corroborate a defendant's story may be essential").

Under circumstances as these, petitioner asks this court to

weigh heavily the lack of any evidence of a strategy to

counsel's failure to call his only witness to the stand at this

hearing.

Regarding the issue of counsel's advice to enter a plea

of guilty. Henderson was under the understanding after the

adverse outcome of the suppression hearing that there was no

option left in that case on the matter of the legality of the

search. According to counsel, should the ‘cocaine and

firearms be admitted into evidence a trial would not be

advised. This advice, however, omits the fact that

Henderson could appeal the matter of the search after trial

should he lose. True, Henderson could very well have gone

to trial, and lost. But the matter of the illegal search, which

would ultimately lead to a suppression of the evidence

should the appeals court agree with him on the matter of

suppression, would have changed the entire outcome for

Henderson. If he could appeal the search issue after a guilty

verdict at trial, and win, the conviction would be overtumed

and he would, ultimately, have won his onginal claim that

the search consent was coerced. Justice in this case would

be slower in coming, but it would have ultimately prevailed.

Counsel presented the case differently to Henderson in

that in his opinion, an appeal of the search would not be

available, at all, following an adverse outcome of the

suppression hearing. At tral, a conviction would be

inevitable, according to counsel. Further, counsel also

advised that with the guilty plea no appeal at all would be

allowed on any issue or any claim. Counsel was wrong.

Guilty pleas, for example, do not waive every non-

jurisdictional error. See, Menna v. New York, 423 U.S. 61,

63 n.2 (1975)(per curiam)("Neither Tollet nor our earlier

cases on which it relied, e.g., Brady and McMann, stand for

the proposition that counseled guilty pleas inevitably ‘waive'

all antecedent constitutional violations.") (Citations

omitted).

According to this Court in Menna v. New York, supra,

it is not the case where a defendant automatically waives all

claims after entry of a guilty plea. Yes, an appeal of the

guilty verdict itself would not be allowed because it is

presumed to have been entered intelligently and voluntarily.

See, Park v. Raley, 506 U.S. 20, 29 (1992). But this would

be limited to the issue of guilt alone assuming that the plea

was entered voluntarily, knowingly, and intelligently. If the

plea was bought with misinformation, however, the matter

changes. Under this circumstance the plea is questioned as

not entered knowingly, or intelligently. With counsel

feeding his client the wrong information, a defendant's

options cannot be said to have been drawn from enough

accurate information to be based upon a voluntary and

intelligent waiver of the defendant's constitutional nghts to

jury, to the right to confront the accusers, or the enjoyment

of the privilege against self-incrimination. Moreover, the

defendant would have, upon the entry of a guilty plea, the

right to contest the illegal search. See, e.g., United States v.

Arango, 966 F.2d 64, 66 (2nd Cir. 1992)(guilty plea

precludes defendant from challenging legality of search and

seizure on appeal); United v. Cain, 155 F.3d 840, 842 (7th

Cir. 1998)(same); United States v. Jennings, 12 F.3d gina,

839 (8th Cir. 1994)(same).

Here, counsel implied that a de facto "waiver" of the

suppression issue was created when the court ruled against

his motion to suppress the evidence. This in fact is legally

incorrect; the “waiver" is actually made upon entry of the

entry of an intelligent, knowing, and voluntary plea of guilty.

Since Henderson believed that the matter of the suppression

was settled law, and believing he had no other recourse on

that matter, his judgment was of course flawed orfthe issue

of whether or not to enter a plea of guilty or gosto tnal.

Defendant Henderson was left to make a decision to plead

guilty thinking that the suppression claim was already

"waived" when in fact it was not. Under this set of

circumstances it cannot be said that the plea was entered

"knowingly", or "intelligently" because the defendant did not

have all of the facts that should have been available to him

through his attorney. See, U.S. v. Hellbusch, 147 F.3d 782,

783-84 (8th Cir. 1998)(guilty plea did not waive right to

collateral review of whether plea was unintelligent).

In this case Henderson alleges that the plea was not

entered intelligently, or voluntarily and the circumstances of

this case bear that out. Had he had all the accurate facts

ahead of time, he would have opted to go to trial and appeal

the outcome of both the verdict and the court's entry on the

suppression motion. He was prevented from making a

reasonable, well-informed decision on the choice to enter a

plea because of counsel error.

Counsel's performance in this case fell below the

objective standard of reasonable conduct expected of

act

competent attorneys. Savino v. Murray, 82 F.3d 593, 599

(4th Cir.1996)(dictum)(competency measured according to

what objectively reasonable attorney would have done under

circumstances existing at time of representation). An

attorney has a responsibility to his client to be

knowledgeable in the law and to know what options a client

may have in the criminal defense arsenal. Further,

Henderson would not have entered a plea of guilty in this

case, but for the bad advice of his attorney advising him of

the finality of the circuit court's decision on the suppression

motion. Hill v. Lockhart, 474 U.S. 52, 56, 59 (1985)(guilty

plea voluntary and intelligent when defendant received

competent advice from counsel).

On the matter of appeal, Henderson would have taken

to the Court of Appeals and beyond any adverse outcome in

these criminal proceedings. But for the bad advice of

counsel, Henderson would have elected to go to trial. But

for the misdirection by counsel, Henderson would have

pursued the suppression matter to a higher court. Should

Henderson have lost at trial, he would have pursued the

matter of the conviction and the search to the higher courts

and would have, in his estimation, been successful in gaining

suppression of the evidence in this case. Henderson believes

that counsel's performance was critically deficient in that

counsel not only failed to raise important key issues during

the suppression hearing that would have supported a motion

to suppress the evidence, he also misadvised Henderson on

his options following the court's denial of the suppression

motion. This bad advice led Henderson to enter a hasty

guilty plea when otherwise he would not have. Performance

such as this constitutes ineffective assistance of counsel.

This Court is also asked to consider the abuse of the

knock and talk in this case in the context of the Fifth

Amendment’s protections against self-incrimination. “In

criminal trials, in the courts of the United States, wherever a

question arises whether a confession is incompetent because

not voluntary, the issue is controlled by that portion of the

Fifth Amendment to the Constitution of the United States,

commanding that no person ‘shall be compelled in any

criminal case to be a witness against himself.’” Bram_v.

United States, 168 U.S. 532, 542 (1897).

As applied in this case, the police coerced Mr.

Henderson’s involuntary permission to search his home

implicating Henderson’s right against self-incrimination.

“The ultimate test remains that which has been the only

clearly established test in Anglo-American courts for two

hundred years: the test of voluntariness. Is the confession

the product of an essentially free and unconstrained choice

by its maker? If it is, if he has willed to confess, it may be

used against him. If it is not, if his will has been overborne

and his capacity for self-determination critically impaired,

the use of his confession offends due process.” Culombe v.

Connecticut, 367 U.S. 568, 602 (1961). Moreover, this

Court has acknowledged further that confessions can be

illegally induced by the employ of other illegal tactics, such

as unlawful search and seizure. Fahy v. Connecticut, 375 U.S

85 (1963).

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C. Procedural Bar Issues

It is understood that a federal court may not grant

habeas corpus relief to a state. prisoner who has not

exhausted available state court remedies. See, 28 U.S.C. §

2254(b)(1)(A). A state prisoner is deemed to have satisfied

this exhaustion requirement when he has properly pursued

his claims throughout the entire appellate process of the

state. See, Boston Mun. Ct. v. Lydon, 466 U.S. 294, 302-03

(1984)(exhaustion requirement satisfied when claim is

presented to state supreme court); Fields v. Bagley, 275

F.3d 478, 482 (6th Cir. 2001)(per curiam)(exhaustion

requirement satisfied when claim brought to highest state

court); Mathews v. Evatt, 105 F.3d 907, 912 (4th Cir.

1997)(exhaustion requirement not satisfied until prisoner

presents claim to highest state court)(citing Mallory v.

Smith, 27 F.3d 991, 995 (4th Cir. 1994)). The purpose of

requiring a state prisoner to present the substance of his

claim to the state courts is to allow a fair "opportunity to

apply controlling legal principles to the facts bearing upon

[his] constitutional claim." Picard v. Conner, 404 U.S. 270,

276-77 (1971)("state prisoner [must] present the state courts

with the same claim he urges upon the federal courts.");

Anderson v. Harless, 459 U.S. 4, 6 (1982)("[T]he habeas

petitioner must have ‘fairly presented’ to the state courts the

‘substance’ of his federal habeas corpus claim"); and see,

Hill _v. Lockhart, 28 F.3d 832, 834-35 (8th Cir. 1984)

(exhaustion requirement satisfied even though claim not

precisely articulated to state court, but instead mentioned in

paragraph focusing on different, related claim). The state

court need not specifically address the claim in a written

opinion to satisfy this requirement. See, Smith v. Digmon,

434 U.S. 332, 333-34 (1978)(per curiam). So long as the

procedural default rests upon “adequate and independent

state grounds", the petitioner is generally barred from

obtaining federal review of the defaulted claim. Coleman v.

Thompson, 501 U.S. 722, 729-31 (1991). Federal habeas

review of a an otherwise barred-by-default claim may be

found if the petitioner can demonstrate both cause for the

procedural default and actual prejudice as a result of a

violation of federal law. See, Coleman v. Thompson, supra,

501 U.S. at 750; and see, Murray v. Carrier, 477 U.S. 478,

488, 492 (1986)(rule applied, and including ineffective

assistance of counsel as a possible "cause"). Habeas court

at the federal level will presume that no adequate and

independent state grounds exist when the state court's

decision "fairly appears to rest primarily on federal law or to

be interwoven with federal law" and "when the adequacy

and independence of any possible state law ground is’ not

clear from the face of the opinion." Coleman v. Thompson,

supra, 501 U.S. 722, 732-35 and 733-35 respectively.

In this case the petitioner submits that all claims raised

in this federal habeas corpus were "fairly presented" to the

state circuit and supreme courts. Because it has been

necessary to expand upon the claims originally brought in

the state petition for habeas corpus, for the purpose of clarity

and also to assert a supporting legal basis for these claims

generally, Henderson has included arguments of substantive

violations that underpin the overall claims made in his

petition. See, Pope v. Netherland, 113 F.3d 1364, 1368 (4th

Cir. 1997)(exhaustion requirement satisfied because

petitioner's state court challenge to sufficiency of evidence

held necessarily due process challenge to conviction).

To excuse any preclusion of federal review in this case

that may rest on the basis of a procedural default at the state

level, petitioner relies upon both ineffective assistance of

counsel as cause for any default and the fact that were it not

for these errors of counsel, a prejudice of conviction and

sentence would not have resulted (i.e. the effective

suppression of evidence in this case necessary to support a

guilty verdict would have been accomplished). Further,

petitioner asserts that due to the substantive nature of the

constitutional violations alleged by him, any failure to gain

review of these claims would result in a grave miscarriage of

justice. Coleman v. Thompson, supra, 501 U.S at 750.

D. FINAL STATEMENT

In a final statement Mr. Henderson requests this

Court’s review of the matters raised herein. It is his sincere

belief that the issues are of national importance. Particularly

in these current times when the continued integrity of our

liberties is of great concern to the citizens of this Land. The

time is now to correct these ill-conceived measures of the

past and to reset a new horizon that Americans can trust to

guide them through these darkest of times.

Pee Ry Me EN

craton ae

VI. CONCLUSION

For the foregoing reasons, Henderson respectfully

requests that the Court grant this petition for writ of

certiorari.

Respectfully submitted, a

Thomas Roy Henderson, Pro Se Petitioner : =

#314611 Deerfield Correctional Center q

21360 Deerfield Drive a

Capron, Virginia 23829

Ob-1 574

No.

Jn The

Supreme Court of the Gnited States

Thomas Roy Henderson,

Petitioner,

Gene Johnson, Director,

Virginia Department of Corrections,

Respondent. a

On Petition for Writ of Certiorari to the ;

United States Court of Appeals a

For the Fourth Circuit

APPENDIX

Thomas Roy Henderson, Pro Se

#314611

Deerfield Correctional Center

21360 Deerfield Drive

Capron, Virginia 23829

VIRGINIA:

In the Supreme Court of Virginia

held at the Supreme Court Building

in the City of Richmond on

Wednesday the 22™° day of June, 2005

Thomas Henderson,

against Record No. 042955

Circuit Court No. L04-1251

Gene M. Johnson, Director,

From the Circuit Court of the City of Portsmouth

Upon review of the record in this case and consideration of

the argument submitted in support of the granting of an

appeal, the Court is of opinion there is no reversible error in

the judgment complained of. Accordingly, Court- refuses

the petition for appeal.

A Copy,

TESTE:

Patricia L. Harrington, Clerk

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

FILED MARCH 1, 2006

THOMAS ROY HENDERSON,

Petitioner,

2:05CV639

Virginia Department of Corrections,

Respondent.

MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION

This matter was initiated by petition for writ of habeas corpus

under 28 U.S.C. § 2254. The matter was referred to the

undersigned United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72

of the Rules of the United States District Court for the

Eastern District of Virginia.

I. Statement of the Case

A. Background

On October 24, 2002, in the Circuit Court for the City of

Portsmouth, Virginia, petitioner was convicted of possession

with the intent to distribute cocaine and possession of a

firearm while in possession of a controlled substance.

Petitioner was sentenced to serve ten years imprisonment.

Petitioner did not appeal the convictions to the Virginia Court

of Appeals or to the Supreme Court of Virginia.

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On June 25, 2004, petitioner filed a petition for writ of

habeas corpus in the Portsmouth Circuit Court, but the

petition was dismissed on September 29, 2004. Petitioner

appealed to the Supreme Court of Virginia, which dismissed

the appeal on June 22, 2005.

On October 27, 2005, petitioner filed a petition for

writ of habeas corpus in federal court, and on November 25,

2005, respondent filed a motion to dismiss and Rule 5

answer. This matter is now ripe for consideration

B. Grounds Alleged

Petitioner alleges the following grounds:

l. Petitioner's Fourth, Fifth, Sixth, and Fourteenth

Amendment nights were violated during the search of his

home through to the suppression hearing;

2. Ineffective assistance of counsel because counsel:

a. failed to argue at the suppression hearing the violation of

petitioner's Fifth Amendment right to establish that a seizure

occurred and that any consent was coerced;

b. failed to call petitioner to testify;

c. failed to advise petitioner concerning "what exactly was

appealable and when it could be done"; and

d. advised petitioner to plead guilty and petitioner did so

because he was "under the understanding after the adverse

outcome of the suppression hearing that there was no option

left in that case on the matter of the legality of the search."

Il. FINDINGS OF FACT AND

CONCLUSIONS OF LAW

A. Motion to Dismiss Standard

In ruling on a motion to dismiss for failure to state a

claim upon which relief can be granted, the complaint is

construed in the light most favorable to the plaintiffs and

their allegations are taken as true. See Brower v. County of

Inyo. 489-U.S. 593, 598 (1989)(citing Scheuer _v. Rhodes,

416 US. 232, 236 (1974)); Jenkins v. McKeithen, 395 U.S.

411, 421 (1969). The complaint should not be dismissed

unless it appears to a certainty that the plaintiff can prove no

facts in support of his claim which would entitle him to

relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); GE

Inv. Private Placement Partners II _v. Parker, 247 F.3d 543,

548 (4" Cir.2001); Martin Marietta Corp. v. Int'l Telecomms.

Satellite Org., 991 F.2d 94, 97 (4th Cir. 1993). The courts

must construe the complaint liberally in favor of the

plaintiffs, even if recovery appears remote and unlikely. In

ruling on a 12(b)(6) motion, the court primarily considers the

allegations in the complaint but may consider attached

exhibits and documents incorporated by reference. See ~

Simons v. Montgomery County Police Officers, 762 F.2d 30,

31 (4th Cir. 1985); Wolford v. Budd Co., 149 F.R.D. 127,

129-32 (W.D. Va. 1993).

B. Standard of Review for State Court Findings The

federal statute regarding review of state court habeas corpus

actions provides that:

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim—

(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; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(2000).

This standard, adopted by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Pub.L.No.

104-132, is consistent with the Fourth Circuit's interpretation

of 28 U.S.C. § 2254(d) prior to the passage of the new law.

In Fields v. Murray, 49 F.3d 1024 (4th Cir. 1995) , the court

held that a review of a state court finding, which 1s entitled

to a presumption of correctness, compels the habeas court to

accord a high measure of deference to the state court. See id.

at 1032-33 (citing Rushen v. Spain, 464 U.S. 114, 120

(1983); Sumner v. Mata, 455 U.S. 591, 598 (1982)). As

stated in Marshall v. Lonberger, 459 U.S. 422 (1983), "[t]his

deference requires that a federal habeas court more than

simply disagree with the state court before rejecting its

factual determinations. Instead, it must conclude that the

state court's findings lacked even ‘fair [] support in the

record." Id. at 432.

C. Petitioner's Claims are Exhausted and are Subject

to Federal Review.

The exhaustion requirement dictates that a petitioner

must first present his claims for relief to state courts before a

petition for habeas corpus may be granted by the federal

courts.

(b) (1) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of a

State court shall not be granted unless it appears that--

(A) the applicant has exhausted the remedies

available in the courts of the State; or

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

corrective process; or

(ii) circumstances exist that render such

process ineffective to protect the mghts of the

applicant.

exhausted the remedies available 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.

28 U.S.C. §§ 2254 (b) (c) (2000).

A claim raised in a federal petition for writ of habeas

corpus must be the same claim as that presented in state

proceedings. See Picard v. Connor, 404 U.S. 270, 275-76

(1971); Pitchess v. Davis, 421 U.S. 482, 487 (1975); Joseph

v. Angelone, 184 F.3d 320, 325 (4th Cir. 1999); Beck v.

Angelone, 113 F. Supp.2d 941, 960-61 (E.D. Va. 2000); see

also Anderson v. Harless, 459 U.S. 4, 6 (1982); Duncan v.

Henry, 513 U.S. 364, 365 (1995); Satcher v. Pruett, 126 F.3d

561, 573 (4th Cir. 1997). Respondent concedes, and the

Court agrees, that for purposes of federal review, petitioner's

claims are exhausted.

C. The Petition is Barred by the Statute of

Limitations.

On April 24, 1996, Congress passed the Antiterrorism

and Effective Death Penalty Act (AEDPA). With the

passage, of the AEDPA, several modifications were made to

habeas corpus law. Before the passage of the AEDPA, a

prisoner could file a habeas corpus petition at any time. See

Brown v. Angelone, 150 F.3d 370, 371 (4th Cir. 1998).

However, the AEDPA created a statute of limitation for

habeas corpus petitions. See 28 U.S.C. § 2244 (d)(1)(2000);

Brown, 150 F. 3d at 375. The AEDPA provides that any

person in custody pursuant to a state court judgment has a

one-year period of limitation for the filing of a writ of habeas

corpus. The period of limitation runs from the latest of:

(A) the date on which the judgment became

final by the conclusion of direct review or the

expiration of the time for seeking such review;

(B) the date on which the impediment to

filing an application created by State action in

violation of the Constitution or laws of the United

States is removed, if the applicant was prevented

from filing by such State action;

asserted was initially recognized by the Supreme

Court, if the right has been newly recognized by

the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate

of the claim or claims presented could have

been discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1). The time during which state

post-conviction or other collateral review is pending is not

counted toward this period of limitation. See id. §

2244(d)(2).

In this case, final judgment was entered against

petitioner in the Circuit Court for the City of Portsmouth on

October 24, 2002. Petitioner did not pursue a direct appeal of

this conviction, therefore, his state conviction became final

November 24, 2002. Accordingly, petitioner had one year

from November 24, 2002, to file his federal habeas petition.

28 U.S.C. § 2244(d)(1){A).

Petitioner is entitled to exclude the time during which

"a properly filed application for state post-conviction or

other collateral review ... is pending . . ." 28 U.S.C. §

2244(d)(2). However, petitioner did not file his state habeas

petition until June 25, 2004, more than one vear and six

months after his state court judgment became final.

Therefore, the petition is time barred and should be

DISMISSED.

D. Equitable Tolling Language

Having found that petitioner's federal habeas petition

is time barred, the Court must next determine whether to

invoke the doctrine of equitable tolling to excuse petitioner

for not filing within the limitation period.

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In applying the AEDPA, the Fourth Circuit and

elsewhere have concluded that the time limitation codified in

§ 2244(d) is analogous to a statute of limitations rather than a

jurisdictional bar. See Harris v. Hutchinson, 209 F.3d 325,

328-29 (4th Cir. 2000); Brown v. Angelone, 150 F.3d 370,

317-72 (4th Cir. 1998). Thus, under the appropriate

circumstances, the judicial doctrine of equitable tolling may

be invoked by petitioners whose claims are time barred by §

2244(d). See Harris, 209 F.3d at 329-30. Equitable tolling

was developed to overcome injustices that may occur under a

strict application of a statute of limitations. It is a

"discretionary doctrine that turns on the facts and

circumstances of a particular case [and] equitable tolling does

not lend itself to bright-line rules." Id. at 330. In general, the

doctrine of equitable tolling is available only under two

circumstances: (1) where a plaintiff is prevented from

asserting his claims by egregiously wrongful conduct on the

part of the defendant, and (2) where extraordinary

circumstances beyond plaintiffs control made filing

impossible. Id. However, in applying equitable tolling

specifically to § 2244(d), the Fourth Circuit has cautioned

that the doctrine "must be reserved for those rare instances

where - due to circumstances external to the party's own

conduct - it would be unconscionable to enforce the

limitation period against a party and gross injustice would

result." Id. In this case, petitioner was not prevented from

asserting his claims by egregiously wrongful conduct on

respondent's part. Respondent did not prevent petitioner

from filing his habeas petition at an earlier date. In addition,

circumstances beyond petitioner's control did not make filing

impossible. Petitioner could have filed a state habeas

petition at any time during the year after his conviction

became final. Petitioner's claims do not fall into either of the

two circumstances under which the doctrine of equitable

tolling is available.

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Il. RECOMMENDATION

For the foregoing reasons, the Court recommends

that petitioner's petition for writ of habeas corpus be

DISMISSED and respondent's motion to dismiss be

GRANTED. Petitioner has failed to demonstrate "a

substantial showing of the denial of a constitutional nght."

Therefore, it is recommended that the Court decline to issue

any certificate of appealability pursuant to Rule 22(b) of the

Federal Rules of Appellate Procedure. See Méiller-El v.

Cockrell, 123 S.Ct. 1029, 1039 (2003).

IV. REVIEW PROCEDURE

By copy of this Report and Recommendation, the

parties are notified that pursuant to 28 USC. §

636(b)(1)(C):

1. Any party may serve upon the other party and file

with the Clerk wmnitten objections to the foregoing findings

and recommendations within ten days from the date of

mailing of this report to the objecting party, computed

pursuant to Rule 6 (a) of the Federal Rules of Civil

Procedure, plus three days permitted by Rule 6(e) of said

rules. See 28 U.S.C. § 636(b) (1) (C) (2000); FED.R.Civ.P.

72(b). A party may respond to another party's objections

within ten days after being served with a copy thereof.

2. A_ district judge shall make a de novo

determination of those portions of this report or specified

findings or recommendations to which objection is made.

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The parties are further notified that failure to file

timely objections to the findings and recommendations set

forth above will result in waiver of right to appeal from a

judgment of this court based on such findings and

recommendations. See Thomas v. Arn, 474 U.S. 140(1985);

Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984); United States v.

Schronce, 727 F.2d 91 (4th Cir. 1984).

FET ES hee ee a RS Oe Ve

UNITED STATES MAGISTRATE JUDGE

Norfolk, Virginia

FEBRUARY

PER el NUE Le Male pte moe OAS et SNR

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

THOMAS ROY HENDERSON,

Petitioner,

Vv.

Case No. 2:05cv639

GENE JOHNSON, etc.,

Respondent.

JUDGMENT IN A CIVIL CASE

[X] Decision by the Court. This action came before the Court.

The issues have been considered and a decision has been

rendered.

IT Is ORDERED AND ADJUDGED that the petition for a

writ of habeas corpus is DENIED and DISMISSED pursuant

to the statute of limitations, and judgment is entered in favor

of the respondent.

DATED: March 30, 2006

ELIZABETH H. PARET, Clerk

BY :

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

APRIL 3, 2006

THOMAS ROY HENDERSON,

Petitioner,

v. 2:05CV639

GENE JOHNSON, etc.,

Respondent.

FINAL ORDER

This matter was initiated by petition for a writ of

habeas corpus under 28 U.S.C. § 2254. The petition alleges

violation of federal rights pertaining to petitioner's

convictions on October 24, 2002, in the Circuit Court for the

City of Portsmouth, Virginia, for possession with the intent to

distribute cocaine and possession of a firearm while in

possession of a controlled substance, as a result of which he

was sentenced to serve ten years in the Virginia penal system.

The matter was referred to a United States Magistrate

Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)

and (C) and Rule 29 of the Rules of the United States

District Court for the Eastern District of Virginia for report

and recommendation. The Magistrate Judge filed his report

recommending dismissal of the petition on March |, 2006.

By copy of the report, cach party was advised of his right to

file written objections to the findings and recommendations

made by the Magistrate Judge. The Court received from

petitioner on March 14, 2006, objections to the report.

The Court, having reviewed the record and examined

the objections filed by the petitioner and having made de

novo findings with respect to the portions objected to, does

hereby adopt and approve the findings and

recommendations set forth in the Report of the United States

Magistrate Judge filed March 1, 2006. It is, therefore,

ORDERED that the petition be DENIED and DISMISSED

pursuant to the statute of limitations and that judgment be

entered in respondent's favor.

To the extent that petitioner objects to the Magistrate

Judge's conclusion that his petition is barred by the statute of

limitations, his objections are without merit. Petitioner

makes much in his objections of the fact that he filed a

federal habeas petition in May, 2004, which was

subsequently dismissed in June, 2004, for failure to exhaust

state court remedies. Petitioner even goes so far as to assert

that his first filing in federal court "was by sheer chance

within the time-filing period under the AEDPA.” (Obj. at

12). Petitioner could not be more in error.

Petitioner's judgment became final on November 24,

2002. Petitioner had one year from that date to file his federal

habeas petition. 28 U.S.C. § 2244 (d) (1) (A). However,

petitioner filed no appeal in the Virginia Court of Appeals or

in the Supreme Court of Virginia, and he did not file his state

habeas petition until after he filed his first federal habeas

petition. When his state habeas petition was filed in June,

2004, that action did not toll the statute of limitations because

on that date, petitioner was eighteen months out of time

within which to file a federal habeas corpus action. On the

date the instant petition was filed, October 27, 2005,

petitioner was more than three years beyond his conviction in

state court and clearly out of time.

Petitioner further seeks to establish a basis upon which

to pursue habeas relief by arguing that he is entitled to

equitable tolling. Petitioner states:

that due to his being taken to a receiving unit and

held there for virtually the entire time he would

have had to file under the AEDPA one-year

limitation, combined with the lack of notice on the

subject of AEDPA, that these factors amounted to

an "egregiously wrongful conduct" on the part of

those charged with custody and control over him.

That this circumstance that was created removed

his ability to file within the correct time under the

AEDPA.

(Obj. at 13.)

The Court is unaware of any requirement that

authorities specifically inform a petitioner in state custody of

his right to file a federal habeas petition and the specific time

within which it must be filed. Further, while the Court is

aware of the fact that research materials, including law

books, must be made available to prisoners, the Court is not

of the opinion that the requirement of availability makes each

correctional institution responsible for having the most up-to-

date books or the most current pocket parts for those books.

There are ways in which petitioner could have learned about

the statute of limitations for a federal habeas appeal, but the

more important question is why he did not pursue a state

appeal. In any event, petitioner's time has clearly run, and

there is no conduct on the part of the state that would cause

the Court to believe that the Commonwealth of Virginia

engaged in conduct which "prevented [petitioner] from

asserting his claims by egregiously wrongful conduct."

(Report and Recommendation at 7.) Petitioner simply failed

to timely pursue relief and may not do so now. Petitioner

may appeal from the judgment entered pursuant to this Final

Order by filing a written notice of appeal with the Clerk of

this Court, United States Courthouse, 600 Granby Street,

Norfolk, Virginia 23510, within thirty days from the date of

entry of such judgment. Petitioner has failed to demonstrate

"a substantial showing of the denial of a constitutional right."

Therefore, the Court, pursuant to Rule 22 (b) of the Federal

Rules of Appellate Procedure, declines to issue a certificate

of appealability. See Miller-El v. Cockrell, 123 S.Ct. 1029,

1039 (2003).

The Clerk shall mail a copy of this Final

Order to petitioner and to counsel of record for the

respondent.

Norfolk, Virginia

MARCH 30, 2006

UNITED STATES DISTRICT JUDGE

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

06-6678

THOMAS ROY HENDERSON,

Petitioner — Appellant,

Versus

GENE JOHNSON, Director, Virginia Department of

Corrections,

Respondent — Appellee.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Raymond A. Jackson,

District Judge. (2:05-cv-00639-RAJ)

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas Roy Henderson, Appellant Pro Se. Deana A. Malek,

OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia, for Appellec.

Unpublished opinions are not binding precedent in this

PER CURIAM:

Thomas Roy Henderson seeks to appeal the district

court’s order accepting the recommendation of the magistrate

judge and dismissing as untimely his 28 U.S.C. § 2253(c)(1)

(2000) petition. The order is not appealable unless a circuit

justice or judge issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2000). A certificate of appealability

will not issue absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2)(2000). A

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that any assessment of the

constitutional claims by the district courts is debatable or

wrong and that any dispositive procedural ruling by the

district court is likewise debatable. Miller-El v. Cockrell, 537

U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473,

484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4™ Cir.

2001). We have independently reviewed the record and

conclude that Henderson has not made the requisite showing.

Accordingly, we deny a certificate of appealability because

the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

DISMISSED

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

January 10, 2007

Re: | Thomas Roy Henderson

Gene Johnson. Director, Virginia

Department of Corrections

Application No. 06A673

Dear Mr. Henderson:

The application for an extension of time within which

to file a petition for a writ of certiorari in the above-titled

case has been presented to The Chief Justice, who on January

10, 2007 extended the time to and including March 18, 2007.

This letter has been sent to those designated on the -

attached notification list.

Sincerely,

William K. Suter, Clerk

Clayton Higgins

Case Analyst

SUPREME COURT OF THE UNITED STATES -

OFFICE OF THE CLERK .

WASHINGTON, DC 20543-0001 4

March 21, 2007

Thomas Roy Henderson

#314611

Deerfield Correctional Center e

21360 Deerfield Drive

Capron, Virginia

RE: Henderson v. Johnson, Dir. VA DOC

(USAP4 No. 06-668)(06A673)

Dear Mr. Henderson:

Returned are 39 copies of the petition for writ of certiorari in

the above-entitled case received on March 19, 2007, which

fails to comply with Rules of this Court.

The order(s) of the U.S. District Court (report and

recommendation, order adopting magistrate’s report and a

final order) must be included in the appendix. Rule 14.1(1). 4

Each order must be reproduced so that it complies with Rule

33.1.

Kindly correct the petition so that it complies in all respects

with the Rules of the Court and return it to this office

promptly so that it may be docketed. Unless the petition is

received by this Office in corrected form with sixty days of

the date of this letter, the petition will not be filed. Rule 14.5.

Three copies of the corrected petition must be served on

opposing counsel. Rule 29.3.

When making the required corrections to a petition, no

change in the substance of the petition may be made.

You must also submit with your petition a check for $300.00

for the filing fee.

Sincerely, :

William K. Suter, Clerk

BY: Clayton R. Higgins, Jr.

(202) 479-3019

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.