# Petition for Writ of Certiorari — Henderson v. Johnson (No. 06-1579) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0533%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text 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 A. 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? B. 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. o* Ms rE Bs “~Sam RS 2 ee: ‘s§ a 4 a 3S 28 ty ee ‘en a 7 aa ie > es he SS ee iy - RR on eee Geet NPA i Brae ee je ere Coed ae Sot igs or 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 i] 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 iV 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). ‘ x ‘ p f eo\, ‘5 ae af Ee Te Pi aie pS rite ad Qazi Est i i a = Bat. Aes PT Ae yah 4 oN as ee perks Brigh adie Sani Bigg Fe eNRLie ate BC ei ee Ag ee Umit toy, ee Me Ne RT ey ORES Ee AE CP UTES Se MLE ae rite MERION FR Bes peree ie a Met MT nt 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 10 aS Hiker! EE ant Cen ghd PERE R ee a SG ak Ha Pe DS Si Ee Te ee ge RRA PO he hh EL Lk ee PS Pe Oa ee EH 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 11 rn - ie 3 3 s 5a X 8 2 ae ey Bis ng u a Pia ae pee ee ae Poe 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). 12 a PE OR Dg I Pe Ee, eee ed Ree et toe \ ah "s pir igAieds 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 13 ay . OS Se ery rs er aa ce ES ae BT SO ast bees P3 s wa ea a a te Ee ROTO Sa Tk OM le Me ey ne ae 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. 14 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). 15 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 16 oe 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. 17 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 18 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 19 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 20 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 21 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. 22 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). 23 By? a es ay ee eS, fe ore . oes oes se ae = een Be vw es ee aoe Be 23 iS oa | sau acre ve yy a eS oe: ee Br: ‘om pee be es ae ts 3% aaa ae Rass 1s oe Re i > 7 ah 3 Va : el 5 ES: oh : ‘ re BE rennet ALY 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. 10 hye TN RE Pop PT ORO Cranes Ne PMA eae, ee Male FASMAAN RT Nig IM Rae ee ee 7 BT eet Spe pn cE: Tha Ny im in ere Sa as ee ai ae Me oR ety at: Cie are phe ie aay PPT SEAS Say re, OOP Ty PRON ge ny LUM EL EM Cee. SES AE SS : Liiva aye cube Me Cs Gat ee Ne PMT PCT RB Cea et Sg ier at Ne we Ca ke 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. 11 Wo MO Tb eee ak En YO big ja ae SPO, sey sie itecnaiees abies 3 COAT ee ROAM 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 12 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 : ° x ‘ Iie. of ei ? i . Ege RR A nee erg Se Coe Ley ahs SBR Ci SRS A Rae QI lias as ds a ae PR eR Te ee te MRT. eae ae NM oe Rs Pak es Bet = See Saar p BAe ee My DRSBE ALT ; 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 15 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 16 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 17 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 18 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. 19 Unpublished opinions are not binding precedent in this circuit. See Local Rule 36©. 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 20 Supreme Court of the United States Office of the Clerk Washington, DC 20543-0001 January 10, 2007 Re: | Thomas Roy Henderson V. 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. 22 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 23 a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0533%3A1. Public record. Not legal advice.