Opposition Brief — Henley v. Bell (No. 07-1194)

Petitioner,

RICKY BELL, Warden,

Respondent.

4

On Petition For A Writ Of Certiorari

To The United States Court Of

For The Sixth Circuit

«

RESPONDENT'S BRIEF IN OPPOSITION

“

ROBERT E. Cooper, JR.

Attorney General & Reporter

State of Tennessee

MICHAEL E. MOORE

Solicitor General

JENNIFER L. SMITH

Associate Deputy Attorney General

Counsel of Record

425 Fifth Avenue North

P.O. Box 20207

Nashville, Ter nessee 87202-0207

(615) 741-3487

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO. (808) 225-6884

OR CALL COLLDICT (408) 843-3681

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether the Sixth Circuit erroneously denied

habeas relief by holding that a defendant’s right

under the Due Process Clause to challenge the dis-

criminatory composition of the grand jury that in-

dicted him was not sufficiently “dictated” by this

Court’s precedents in 1990, when Henley’s conviction

became final?

2. Whether the Sixth Circuit erroneously denied

habeas relief by holding that Henley was not plainly

prejudiced by his counsel’s deficient performance at

sentencing?

Fe mee er re TET I ge PN TS ee EG he ed nl Be eee Ree See On Sk OTT OT DO balay Ae a er ee

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TABLE OF CONTENTS

. Page

QUESTIONS PRESENTED ...................ssscsceeesees i

TAR OF AUTHORITIES |... 5.0.02. -ccsscececscecessees ili

RP I NEY vascecescssvseasceosonvessgesecroccnceccsnsvsss 1

a STATEMENT OF JURISDICTION ..............0.002. 1

? | STATUTORY PROVISIONS INVOLVED............ 1

2 STATEMENT OF THE CASE....................ccceceeees 2

. Be IE BRUNE, © oaicconcicccnesecndssecccnsosectses 2

II. Facts Relevant to the Petition................... 8

BER. BM WINIONS BELOW... 5.0. cccccisaee ss peocasees 12

MN oa ssc asc roucce ss sosnscwabedard sees 14

I. CERTIORARI IS NOT WARRANTED ON

HENLEYS GRAND JURY DISCRIMINA-

2 TION CLAIM, BECAUSE THE CLAIM IS

a EITHER BARRED UNDER TEAGUE V.

Ss LANE, 489 U.S. 288 (1989), AS THE

SIXTH CIRCUIT CONCLUDED, OR BY

HENLEYS STATE-COMRT PROCEDURAL ~

MOINIPR EN 5005.05 5525 sche s04s¥0) cacivdinerenedooontoges 14

II. CERTIORARI IS NOT WARRANTED

ON HENLEY’S INEFFECTIVE ASSIS-

TANCE CLAIM BECAUSE THE STATE

COURT REASONABLY CONCLUDED

THAT HE WAS NOT PREJUDICED BY

ANY ALLEGED DEFICIENCY IN

COUNSEL'S PERFORMANCE ................. 21

= 5. Si ai a Reena Si ee 26

ii

: TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alexander v. i.outsiana, 405 U.S. 625 (1972) ............ 17

Campbell v. Louisiana, 523 U.S. 392 (1998) .....passim

Castaneda v. Partida, 430 U.S. 482 (1977)................ 17

Coleman v. Thompson, 501 U.S. 722 (1991).....00000.. 21

Come 0. Taetk;, BBO AT as. GOO COG) a aicscssessosssccssnvecsessees 22

Engle v. Isaac, 456 US. 107 (19682)... ccccccccc.cccsceceosenees 20

Ford v. Seabold, 841 F.2d 677 (6th Cir. 1988)........... 18

Henley v. Bell, 487 F.3d 379 (6th Cir.

ME ET sok asin Saciiaas thay atic es aca aaa eres 8, 13, 15, 24

Hobby v. United States, 468 U.S. 339 (1984) ...13, 15, 16

Oubder v. Guarino, 293 F.3d 19 (1st Cir. 2002)........... 21

Peters 0. Bagy, 400 Ura. SBS CITED occ vcc evsesatewes ees sicacss 13

Peterson v. Cain, 302 F.3d 508 (5th Cir. 2002) .......... 19

Powers v. Ohio, 499 U.S. 400 (1997) ...0.....ccscceccceesenees 19

Rose v. Lundy, 455 U.S. 509 (1982) 0.0... 5... eeece econ 20

Strauder v. West Virginia, 100 U.S. 303 (1880)......... 15

Strickland v. Washington, 466 U.S. 668

EE his cis hae ea 12, 22,23

Teague v. Lane, 489 U.S. 288 (1989)...........0..0... passim

Wiggins v. Smith, 539 U.S. 510 (2003)................. 24, 25

Williams v. Taylor, 529 U.S. 362 (2000)............... 24, 25

iv

TABLE OF AUTHORITIES — Continued

Page

STATE CASES

Henley v. State, No. 01C01-9506-CC-00193,

1996 WL 234075 (Tenn. Crim. App., May 9,

FNS asics winced cercstwu asc ocs os nbep EG cchudbers adage eeconans 2

Henley v. State, 960 S.W.2d 572 (Tenn. 1997)....3, 11, 12

State v. Blackmon, 701 S.W.2d 228 (Tenn.

Ct ABW BOGGS a oiii celina ntiloanciaiuahenainain 3

State v. Henley, 774 S.W.2d 908 (Tenn.

AE vase crcbocesvupint acs enue ca ioe 2, 8, 9, 10, 1k

State v. Laney, 654 S.W.2d 383 (Tenn. 1983)............... 3

STATUTES

BE se OB Bo cas siuic oy ccecearssavan dort stasmsveqeetenere 1

Pe I ond oo ooh eadiavacns cnevericoc nme 1

DIM Tae MN i vcisvneiviek ps oh bn Gaba dacs su ussocawaconismennen ed 20

p20 BD GH G77 °F, DR ee cic isiavece a ceaece 22

Tenn. Code Ann. § 40-30-102(a) ..................ccccsccsseceeee 20

Tenn. Code Ann. § 40-30-102(c).............cccccsseeseseeceeeees 20

Tenn. Code Ann. § 40-30-106(g) 000.0... ceeeeeeees 16, 20

‘Tenn, Coge ANA. 9 GO-GO U8 6 oo i. cosidv. evsicccicciommiae 8

Tenn. Code Ann. § 40-30-11 7(a)( 1)... eee ee eee eee 18, 20

Tenn: Code Ann. 8 SOG O-20 1 voices cncciiccscccsccccvtvecesatsecten 8

Tenn. Code Ann. § 40-30-217(a)(1)....... ccc ccccceeceseeeeeees 18

1

OPINION BELOW

The opinion of the court of appeals that is the

subject of this petition is published at 487 F.3d 379.

(App. la) The memorandum opinion of the district

court relevant to Henley’s claims (App. 94a) is unre-

ported.

@

vv

STATEMENT OF JURISDICTION

The judgment and opinion of the court of appeals

were entered on May 15, 2007. (App. la) The court

denied rehearing on October 17, 2007. (App. 271a)

By order entered January 2, 2008, Justice Stevens

extended the time for filing a petition for writ of

certiorari from January 15, 2008, until March 15,

2008. (07A541) Petitioner filed a certiorari petition on

March 17, 2008. Petitioner invokes the jurisdiction of

this Court under 28 U.S.C. § 1254(1).

¢

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2254, which governs the remedy of

federal habeas corpus for applicants in State custody,

provides in pertinent part:

(d) An application for a writ of habeas cor-

pus on behalf of a person in custody pursu-

ant 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

ys

2

proceedings unless the adjudication of the

claim —

(1) resulted in a decision that was con-

trary to, or involved an unreasonable appli-

cation of, clearly established Federal law, as

determined by the Supreme Court of the

United States....

STATEMENT OF THE CASE

I. Procedural History

In 1986, a Tennessee jury convicted Steve Henley

of two counts of first degree murder and one count of

aggravated arson. The jury sentenced Henley to

death for the murders, and he received a 20-year

sentence for the arson. The Tennessee Supreme Court

affirmed the judgment, and this Court denied certio-

rari. State v. Henley, 774 S.W.2d 908 (Tenn. 1989),

cert. denied, 497 U.S. 1031 (1990). In his direct ap-

peal, Henley raised no challenge to the composition of

the grand jury that indicted him.

Henley subsequently sought post-conviction

relief. Here again, Henley did not contest the make-

up of his grand jury; he did, however, assert that he

was denied the effective assistance of counsel at his

capital sentencing hearing. Following an evidentiary

hearing, the trial court denied relief. On appeal, the

Tennessee Court of Criminal Appeals reversed, find:

ing that counsel was ineffective during sentencing.

Henley v. State, No. 01C01-9506-CC-00193, 1996 WL

ROTO SD I ie Fat RO NE BITS RE NS BMnge ee

ire, Pan ee the See

3

234075 (Tenn. Crim. App., May 9, 1996). However, the

Tennessee Supreme Court reversed the Court of

Criminal Appeals and reinstated the judgment of the

trial court after finding that the Court of Criminai

Appeals erred in finding that Henley was prejudiced

by counsel’s performance at sentencing. Henley v.

State, 960 S.W.2d 572 (Tenn. 1997), cert. denied, 525

U.S. 830 (1998). As to trial counsel’s attempt to call

Henley’s mother as a witness at sentencing, the court

stated:

... Henley’s mother did not refuse to testify

in the presence of the jury. Instead, she

asked to first speak with trial counsel. Al-

though the record reflects that she thereafter

did not testify, at no time did she openly re-

fuse to testify on Henley’s behalf in the pres-

ence of the jury as the Court of Criminal

Appeals’ decision indicates. In addition, the

fact that the jury was not provided with an

explanation as to why Dorothy Henley did

not testify does not justify a finding of preju-

dice. The jury was instructed to base its sen-

tencing decision on the evidence presented at

trial, not upon speculation about why a par-

ticular witness did not testify. Jurors are

3 presumed to follow the instructions given

3 them in arriving at a verdict. State v. Laney,

5 654 S.W.2d 383, 389 (Tenn. 1983); State v.

' Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim.

4 App. 1985). Therefore, it is not appropriate

to “assume” the defense was prejudiced

because Henley’s mother was not called as

a witness in his behalf at the sentencing

4

hearing. The fact that Dorothy Henley asked

to speak with counsel when called as a wit-

ness and thereafter did not testify does not

constitute a reasonable probability sufficient

to undermine confidence in the outcome of

the proceeding.

(App. 74a)

The Tennessee Supreme Court also addressed

Henley’s complaint that counsel’s failure to call

additional mitigation witnesses prejudiced him at

sentencing.

EPCS EB REE QUIN L E LED an Ree ee ples

Finally, the record does not support the

Court of Criminal Appeals’ statement that

prejudice was established because there was

a “dearth of favorable testimony offered at

the sentencing hearing, when significant

amounts of favorable testimony were avail-

able.” As was previously stated, when assess-

ing the existence of prejudice in the face of

an alleged deficiency involving counsel’s fail-

: ure to present mitigating evidence in the

‘ penalty phase of a capital trial, we consider

% whether substantially similar mitigating

evidence was presented to the jury in either

the guilt or penalty phase of the proceedings;

the nature and extent of the mitigating evi-

dence that was available but not presented;

and whether there was such strong evidence

of aggravating factors that the mitigating

evidence would not have affected the jury’s

determination. Goad, 938 S.W.2d at 371 (cit-

ing cases).

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In this case, the record fully supports the

trial court’s statement that, through the tes-

timony of Bertha Henley and the petitioner,

% the original sentencing jury had before it ba-

a sically the same favorable mitigation evi-

b dence that was offered by the many

witnesses at the evidentiary hearing on the

. post conviction petition. As previously sum-

marized herein, the jury heard extensive tes-

timony about Henley’s relationship with his

grandparents, including his own testimony

that he loved them more than anyone else in

the world. It is difficult to imagine a more

favorable and detailed description of the pe-

titioner’s character than that given by Ber-

tha Henley. It is clear from the proof at trial

and the evidentiary hearing in this case that

ie the petitioner had a closer relationship with

a his grandmother, Bertha Henley, than with

any other living family member. Indeed, the

petitioner’s own mother acknowledged that

she could have offered no further information

about Henley and his life than that given by

Bertha Henley at the sentencing hearing.

Dorothy Henley admitted that in the years

preceding the murders she had resided in

Davidson County and had little contact with

her son. On cross-examination, Dorothy

Henley also admitted that she visited her

son only a few times in jail before his trial.

Overall, Dorothy Henley used very general

terms to describe her relationship with her

son. Similarly, Henley’s older sister gave only

general information about the petitioner, and

conceded that she had little contact with her

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6

brother during the five years preceding the

homicides.

While Henley’s younger sister and second

wife had closer associations with him near

the time of the murders, both also had per-

sonal knowledge about his use of drugs, spe-

cifically marijuana, which was brought out

during cross-examination at the evidentiary

hearing. Had these two witnesses testified at

the sentencing hearing, that same informa-

tion, no doubt, would have been brought to

light. In view of Henley’s testimony through-

out the trial that he had never abused drugs,

the testimony of two family members to the

contrary would have been extremely detri-

mental to the defense.

The only other testimony offered at the evi-

dentiary hearing was that of Henley’s chil-

| dren who claimed they would have testified

, had trial counsel contacted their mother with

whom they were residing. However the chil-

dren, eleven and thirteen years old at the

time of the trial, admittedly were not in-

formed about the trial until its conclusion.

Therefore, the witnesses which were avail-

able but not called as witnesses at the origi-

nal trial, would have offered general, vague

testimony about the petitioner’s character,

: and the evidence regarding the petitioner's

5 use of drugs and alcohol was unfavorable.

Moreover, none of these witnesses had a par-

ticularly close relationship with the peti-

tioner near the time of the killings. In

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contrast, the mitigating proof actually pre-

sented was detailed, poignant, and favorable

and was provided by the petitioner and his

grandmother, with whom he had a close rela-

tionship. It is significant that the State did

not cross examine either the petitioner or his

grandmother at the sentencing hearing.

* * *

In our view, the petitioner has not estab-

lished the existence of a “reasonable prob-

ability that, absent [counsel’s] errors, the

sentencer ... would have concluded that the

balance of aggravating and mitigating cir-

cumstances did not warrant death.” Strick-

land, 466 U.S. at 695, 104 S.Ct. at 2069.

(App. 75a-78a)

On July 23, 1998, Henley filed a petition for writ

of habeas corpus in the United States District Court

for the Western District of Tennessee. While his

habeas action was pending, Henley filed a motion in

the state trial court seeking to reopen his first peti-

tion for post-conviction relief, in which he asserted for

the first time that he had been indicted by a grand

jury from which women had been systematically

excluded as grand jury forepersons in violation of his

right to due process, equal protection, and to a jury

selected from a fair cross-section of the community.

The trial court denied the motion, and the Tennessee

Court of Criminal Appeals affirmed after concluding

that Henley’s claim failed to satisfy the narrow

criteria for reopening a petition under Tennessee's

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Post-Conviction Procedure Act set forth in Tenn. Code

Ann. § 40-30-217 (1997) (now codified at Tenn. Code

Ann. § 40-30-117 (2006)).’

On April 1, 2003, the district court entered a

memorandum opinion and order granting respon-

dent’s motion for summary judgment and dismissing

the petition. (App. 94a) Henley appealed. On May 15,

2007, the United States Court of Appeals for the

Sixth Circuit affirmed the district court’s judgment.

Henley v. Bell, 487 F.3d 379 (6th Cir. 2007) (reh.

denied). That decision is the subject of the instant

petition.

II. Facts Relevant to the Petition

The proof at Henley’s criminal trial and sentenc-

ing is accurately summarized in the Tennessee Su-

preme Court’s decision on direct appeal. Henley, 774

S.W.2d at 912-13. On July 24, 1985, Henley and Terry

Flatt were driving around Jackson County, Tennes-

see. According to Terry Flatt, the two had been drink-

ing and taking drugs. That evening, the two were

’ The pertinent statutory provision states that a petitioner

may file a motion to reopen a first post-conviction petition only if

the claim is based on a final appellate ruling “establishing a

constitutional right that was not recognized as existing at the

time of trial, if retrospective application of that right is required.

The motion must be filed within one (1) year of the ruling of the

highest state appellate court or the United States Supreme

Court establishing a constitutional right that was not recognized

as existing at the time of trial.” Tenn. Code Ann. § 40-30-117.

9

driving along the road leading to Henley’s grand-

mother’s home. As they passed the home of the vic-

tims, Fred and Edna Stafford, Henley said “there was

some people that lived on that road that owed his

grandmother or grandfather some money, and they

done him wrong, his grandparents wrong years

before, and he was going to stop and see about collect-

ing some money off them.” Henley then let Flatt out

of the truck before going on to his grandmother’s

home. Id.

When Henley returned a few minutes later, he

had a .22 caliber rifle. Henley loaded the rifle and

filled a plastic jug with gasoline from a can in the

back of his truck. He then told Flatt to bring the rifle,

and the two men approached the Staffords’ home. The

Staffords were outside as the men approached, and

Henley told them that Flatt would kill him if they did

not give him money. Henley then took the gun from

Flatt, sending him back to the truck for the gallon of

gasoline while Henley and the Staffords went into the

house. As Flatt returned, he saw Henley shoot Mr.

Stafford and then turn and shoot Mrs. Stafford.

Henley then took a pistol and shot Mrs. Stafford

again. Henley told Flatt to pour out some gasoline.

When Flatt failed to do so, Henley poured the gas and

lit it with a match. The two men then fled in peti-

tioner’s truck. As they drove, petitioner pulled some

money out of his pocket. According to Flatt, he had

not seen petitioner with the money prior to stopping

at the Staffords’ home. Some distance away petitioner

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threw the rifle and pistol off to the side of the road.

Id.

The autopsy revealed that Fred Stafford died

from a bullet wound through the heart. Edna Stafford

died as the result of burns and inhalation of noxious

gasses. Id. at 912-13. A search of the scene revealed a

spent .22 rifle shell nea: Fred Stafford’s body. The

shell was fired from a Marlin .22 rifle found in the

area where Flatt stated Henley had hidden the rifle

after the murders. Although the rifle was not posi-

tively identified as the murder ..2apon due to its

condition, Henley’s brother David testified that it was

similar te one that he had purchased and left at his

grandmother’s home. David Henley’s identification

was based on a loose part at one end of the rifle and

an area where the bluing had been scratched. He

further stated that his rifle was no longer at his

grandmother’s home. Another witness, Ronald Leo-

nard, also identified the rifle as looking “just like” a

rifle that he had traded to David Henley. Even

Henley conceded that the rifle retrieved as evidence

was similar to the one belonging to his brother. Jd. at

913.

Additional evidence established the existence of

bad feelings between Henley and the Staffords.

Further proof demonstrated that Henley had to refill

the five-gallon can of gasoline in his truck the week-

end after the fire. A neighbor of the Staffords testified

that she saw Henley drive past her home, apparently

on the way to his grandmother’s house. Some time

later she heard a loud noise, possibly an explosion,

ll

and then she saw Henley’s truck coming back down

the road. A short time after that, her husband saw

smoke coming from the direction of the Staffords’

home. When they went to investigate, the fire was

everywhere. Id. at 913-14.

Henley testified that, although he had spent the

day of the murders with Terry Flatt, he had not taken

any drugs, nor was he intoxicated. According to

Henley, he asked Flatt to get out of the truck before

going to his grandmother’s home because Flatt was

intoxicated. Henley claimed that Flatt took the .22

rifle with him to hunt while he waited for Henley to

return. Henley denied murdering the Staffords or

setting the fire. Henley v. State, 960 S.W.2d at 575.

At sentencing, the State relied on the proof

established during the guilt phase. Petitioner’s

grandmother testified regarding petitioner's upbring-

ing and the close relationship petitioner had always

had with his grandparents. In addition, petitioner

testified in his own behalf. Jd. at 575-76.

The jury unanimously found that the State had

proven beyond a reasonable doubt the existence of

one aggravating factor — that the murder was espe-

cially heinous, atrocious, or cruel, in that it involved

torture or depravity of mind. The jury also found

beyond a reasonable doubt that the aggravating

circumstance outweighed the mitigating evidence and

imposed a death sentence for each murder.

At the time of the post-conviction hearing, peti-

tioner’s trial counsel, James H. Reneau, III, was

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deceased. A copy of Mr. Reneau’s file was introduced

into evidence. A number of Henley’s family members

testified to the effect that they loved him; that he was

a good and loving man; that he was not a violent

man; and that this behavior was out of character for

him. Id. at 576-77. Additional evidence was offered

regarding Henley’s mental health and problems with

drugs and alcohol. He dropped out of school in the

tenth grade, and he suffered some significant finan-

cial losses shortly before the murders resulting in his

filing for bankruptcy. Id. at 577.

Ill. The Opinions Below

The district court denied Henley’s petition for

writ of habeas corpus, finding in pertinent part that

Henley’s grand jury composition challenge under

the due process and equal protection clauses of.

the Fourteenth Amendment was barred by the anti-

retroactivity holding of Teague v. Lane, 489 U.S. 288

(1989). (App. 120a-129a) The court further concluded

that Henley’s grand jury challenge was not cognizable

under the Sixth Amendment, which extends only to

the composition of a petit jury. (App. 129a-132a) As to

Henley’s claim that he received ineffective assistance

of counsel at sentencing, the district court ruled that

the Tennessee Supreme Court’s rejection of that claim

was neither contrary to nor an unreasonable applica-

tion of Strickland v. Washington, 466 U.S. 668 (1984),

the controlling authority on the issue. (App. 191a-

198a)

13

The Sixth Circuit affirmed. The court of appeals

rejected Henley’s contention that the rule announced

in Campbell v. Louisiana, 523 U.S. 392 (1998), was

dictated by precedent existing at the time Henley’s —

conviction became final, concluding that neither

Hobby v. United States, 468 U.S. 339 (1984), nor

Peters v. Kiff, 407 U.S. 493 (1972), compelled Camp-

bell’s result for retroactivity purposes. (App. 6a-10a)

The court further-observed that this Court has never

allowed a defendant to challenge the composition of

the grand jury based on the Sixth Amendment. (App.

10a-11la) Finally, the court held that it was not unrea-

sonable for the Tennessee Supreme Court to conclude

that no prejudice resulted from counsel’s failure to

call additional lay witnesses given the evidence before

it. (App. lla)

{[WJe find nothing unreasonable in the Ten-

nessee Supreme Court’s conclusion that

Henley was not prejudiced by counsel’s al-

leged errors. ... Henley’s grandmother gave

a “favorable and detailed description of

Henley’ [at trial].... [O]ther lay witnesses

likely would not have painted a better pic-

ture in light of ‘their limited relationship

with Henley at the time of the murders’ and

‘their personal knowledge of his drug use at

the time of the murders.’” See Henley, 960

S.W.2d at 582. We cannot say that it was

unreasonable for the Tennessee Supreme

Court to conclude that counsel’s failure

to call additional lackluster lay witnesses

2a) sink ol < Sap Soe

14

did not prejudice Henley at the mitigation

phase.

q (App. La-12a)

q ARGUMENT

I. CERTIORARI IS NOT WARRANTED ON

HENLEY’S GRAND JURY DISCRIMINA-

TION CLAIM, BECAUSE THE CLAIM IS

EITHER BARRED UNDER TEAGUE V.

LANE, 489 U.S. 288 (1989), AS THE SIXTH

CIRCUIT CONCLUDED, OR BY HENLEY’S

STATE-COURT PROCEDURAL DEFAULT.

Petitioner seeks a writ of certiorari from the

decision of the Sixth Circuit declining to consider

interrelated cnallenges to the alleged systematic

exclusion of women from the position of grand jury

foreperson from 1974 to 1994, the period during

which he was indicted for first-degree murder. The

Sixth Circuit rejected Henley’s claim after finding

that this Court’s decision in Campbell v. Louisiana,

523 U.S. 392 (1998) — holding that a white criminal

defendant has standing to raise both an equal

protection and due precess challenge to alleged

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~ Henley’s claim was’ based on the Equal Protection and Due

Process clauses of the Fourteenth Amendment and the “fair

cross section” provision of the Sixth Amendment.

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discrimination against black persons in the selection

of grand jurors — was not retroactively applicable to

cases on collateral review under Teague v. Lane, 489

U.S. 288 (1998), because Campbell announced a new

rule of criminal procedure that was not dictated by

existing precedent. Since Henley’s conviction was

final before Campbell, the court of appeals ruled that,

under Teague, he may not rely on its retroactive

application to support his Fourteenth Amendment

claim. Henley, 487 F.3d at 384-87. (App. 6a-lla) The

court of appeals further observed that this Court has

never allowed defendants to challenge the composi-

tion of their grand juries under the Sixth Amend-

ment, which applies exclusively to petit juries. Jd. at

_ 387. (App. 10a)

Henley challenges the Sixth Circuit’s conciusion,

arguing that a defendant’s standing to challenge his

indictment by a discriminatorily composed grand jury

was well established before Campbell; indeed, accord-

ing to Henley, that right was established “[llong

before Henley’s conviction became final.” (Pet. 15)

Under either scenario, however, Henley’s claim is

barred. If, as the Sixth Circuit concluded, the rule in

Campbell was not dictated by existing precedent,

Henley’s claim is barred by the anti-retroactivity

holding of Teague. On the other hand, if, as Henley

asserts, the rule in Campbell derives from a long line

of cases stretching back to Strauder v. West Virginia,

100 U.S. 303 (1880), at the earliest, or Hobby uv.

United States, 468 U.S. 339 (1984), at the latest, then

habeas relief is barred because Henley failed to fairly

Reach AAS Bess aon

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16

present his claim to the Tennessee state courts and is

now barred from doing so under the waiver provisions

of Tennessee’s Post-Conviction Procedure Act.’ Thus,

because disposition of the retroactivity question in

Henley’s favor would not result in habeas relief, this

case does not present a proper vehicle to resolve the

question presented, and the petition should be de-

nied.

Teague v. Lane, 489 U.S. 288 (1989), prohibits the

retroactive application of a new rule to claims raised

on collateral attack. A case announces a new rule if

the result was not dictated by precedent existing at

the time the defendant’s conviction became final. Jd.

at 301. Unless it falls within an exception to the

general rule, a new rule will not be applied to cases

that have become final before the new rule is an-

nounced. /d. at 310. There are two exceptions to the

general rule: (1) if the new rule places certain kinds

' Henley presented his constitutional claim to the Tennes-

see courts for the first time in a motion to re-open an earlier

state post-conviction petition. He did not raise any challenge to

the composition of his grand jury on direct appeal from his

conviction or in his first post-conviction proceeding, both of

which post-dated Hobby. Under Tenn. Code Ann. § 40-30-106/g),

a claim for post-conviction relief is waived “if the petitioner

personally or through an attorney failed to present it for deter-

mination in any proceeding before a court of competent jurisdic-

tion in which the ground could have been presented unless ..

the claim for relief is based upon a constitutional right not

recognized as existing at the time of trial if either the federal

or state constitution requires retroactive application of that

right...”

17

of primary, private individual conduct “beyond the

power of the criminal law-making authority to pro-

scribe,” or (2) if it requires the observance of “those

procedures that ... are implicit in the concept of

ordered liberty.” Jd. at 307. 7

Henley’s gender-discrimination claim is grounded

primarily in this Court’s 1998 decision in Campbell v.

Louisiana, 523 U.S. 392 (1998), which granted stand-

ing to a white defendant to raise both an equal pro-

tection and due process challenge against alleged

discrimination of black persons in the selection of the

grand jury. Indeed, petitioner presented his claim to

the ‘Tennessee state courts for the first time in April

1999 in a motion to re-open his petition for post-

conviction relief.‘ Before Henley’s conviction became

final, however, this Court’s precedent suggested the

opposite — that a male lacks standing to challenge the

alleged discrimination against women in the selection

of grand jurors. See, e.g., Alexander v. Louisiana, 405

U.S. 625, 633 (1972) (“This claim [challenging the

improper exclusion of women from grand jury service}

is novel in this Court and, when urged by a male,

finds no support in our past cases.”); Castaneda uv.

Partida, 430 U.S. 482, 494 (1977) (“In order to show

that an equal protection violation has occurred in the

context of grand jury selection, the defendant must

* Nothing in Campbell addresses a male’s standing to

challenge the exclusion of women in the grand jury context.

Nevertheless, Henley argues that it should be extended to that

situation.

18

show that the precedure employed resulted in sub-

stantial under-representation of, his race or of the

identifiable group to which he belongs.”) (emphasis

supplied). Sixth Circuit precedent likewise was

inconsistent with Henley’s contention. See Ford uv.

Seabold, 841 F.2d 677 (6th Cir. 1988) (holding that a

male defendant has no standing to challenge the

exclusion of women from grand jury service under

either the equal protection clause or the due process

clause).

When Henley raised the issue in his motion to

reopen state post-conviction proceedings, the Tennes-

see Court of Criminal Appeals concluded that Camp-

bell announced a new rule regarding standing to

contest discrimination in the selection of a grand jury

and grand jury foreperson. However, the state court

declined to consider the issue because Tennessee law

permits consideration of such claims only if “(t]he

claim is based upon a final ruling of the highest state

appellate court or the United States Supreme Court

establishing a constitutional mght that was not

recognized as existing at the time of trial [and] retro-

spective application of that right is required.” Tenn.

Code Ann. § 40-30-217(a)(1) (now codified at Tenn.

Code Ann. § 40-30-117(a)(1)). Applying the Teague

analysis, the state court concluded that retroactive

application of Campbell was not required. (App. 89a-

90a) Likewise, the district court concluded:

The constitutional right to assert standing

for an equal protection or due process claim

as a non-member of the class for whom the

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19

right is asserted (i.e., to assert third-party

standing for women) was not available to

a [Henley] when he was tried in 1986 or when

4 he filed either his direct appeal (1987), his

original post-conviction petition (1990), or

his amended petition (1994).°

(App. 117a) The Sixth Circuit affirmed.

a Henley argues at length that his standing to

assert a gender-discrimination claim was “established

long before Campbell.” He further argues that the

Sixth Circuit’s non-retroactivity determination di-

rectly conflicts with the Fifth Circuit’s holding in

Peterson v. Cain, 302 F.3d 508 (5th Cir. 2002), cert.

denied, 537 U.S. 1118 (2003), which held that Camp-

bell’s pronouncements regarding standing to raise

a racial discrimination challenge to a grand jury’s

composition under either due process or equal protec-

tion grounds was dictated by this Court’s earlier

precedents.

However, resolution of these issues is of no

consequence in this case. Even if he is correct,

Henley’s claim is barred by procedural default (a

defense respondent has maintained since the initial

* Although the district court noted that Campbell relied on

the prior precedent of Powers v. Ohio, 499 U.S. 400 (1991) -

allowing a white defendant to challenge racial discrimination in

the use of peremptory challenges — the court correctly observed

that Powers was also decided after petitioner’s case became final

on direct appeal and that, in the absence of a determination that

its holding was retroactive, the claim was barred under Teague.

(App. 126a)

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20

federal court pleadings), since he failed to raise any

challenge to his grand jury composition in the Ten-

nessee courts on direct appeal or in his initial post-

conviction proceeding.” A habeas petitioner is re-

quired to exhaust state remedies by presenting the

substance of his constitutional claim to the state

courts prior to seeking federal habeas relief. 28

U.S.C. §2254(b). Recognizing that principles of

federal-state comity must restrain unnecessary

“(f Jederal intrusions into state criminal trials,” Engle

v. Isaac, 456 U.S. 107, 128 (1982), this Court has held

that the exhaustion requirement must be “rigorously

enforced.” Rose v. Lundy, 455 U.S. 509, 518 (1982).

Petitioner’s belated attempt to assert a grand

jury challenge in a motion to reopen does not salvage

it because it fails to satisfy the statutory criteria for

reopening. Moreover, Henley expressly rejects the

single criterion applicable to his situation — that the

claim is based upon a decision establishing “a consti-

tutional right that was not recognized as existing at

the time of trial.” Tenn. Code Ann. § 40-30-117(a)(1).

If Campbell established no new rule, Henley’s claim

is barred by the state post-conviction statute of

limitations under Tenn. Code Ann. § 40-30-102(a), the

“one petition” limitation of § 40-30-102(c), and the

waiver provision of § 40-30-106(g). Because Henley

has never fairly presented his claim to the state

° Warden Bell asserted this same position on appeal to the

Sixth Circuit.

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21

courts, and a state procedural rule prohibits the state

court from extending further consideration to it, the

claim is deemed exhausted (since there is no “avail-

able” state remedy) but procedurally barred from

federal habeas review. Coleman v. Thompson, 501

U.S. 722, 752-53 (1991).

Because Henley’s claim is procedurally barred

regardless of whether Campbell is applied retroac-

tively, further consideration of the issue would have

no impact on the ultimate disposition of the case.

Therefore, this case does not present an appropriate

vehicie for resolution of the question presented for

review.

Il. CERTIORARI IS NOT WARRANTED ON

HENLEY’S INEFFECTIVE ASSISTANCE

CLAIM BECAUSE THE STATE COURT

REASONABLY CONCLUDED THAT HE WAS

NOT PREJUDICED BY ANY ALLEGED DE-

FICIENCY IN COUNSEL’S PERFORMANCE.

Henley contends that certiorari is warranted

with respect to his ineffective assistance claim. He

asserts that trial counsel’s broken “promise” to the

jury that they would hear from his mother at sentenc-

ing was prejudicial. (Pet. 28-29) However, Henley’s

characterization of counsel’s actions overstates its

significance. Unlike Ouber v. Guarino, 293 F.3d 19

(1st Cir. 2002), Henley’s counsel did not “repeated|ly]

vow” that the jurors would hear from Henley’s

mother. Indeed, counsel made no representation to

the jury at the beginning of the sentencing phase

22

concerning any evidence that was to follow. This case

simply presents no conflict on this point with any of

the cases cited in the petition. Moreover, the pre-

sumption of prejudice, which Henley appears to

advocate, flowing from this isolated incident at sen-

tencing conflicts with this Court’s decision in Cone uv.

Bell, 535 U.S. 685 (2002), instructing that prejudice

will not be presumed based solely on counsel’s deci-

sion to call no witnesses and to waive closing argu-

ment at petitioner’s capital sentencing hearing.

Henley further asserts that he was “obviously

prejudiced” by counsel’s failure to investigate and call

other witnesses at sentencing. (Pet. 32-33) The Ten-

nessee Supreme Court adjudicated these claims in

Henley’s post-conviction appeal, and the federal

courts properly limited review under the standard set

forth in 28 U.S.C. § 2254(d). Because the state court’s

disposition was reasonable in light of the evidence

presented and was rendered in accordance with the

governing legal standard, certiorari is not warranted.

A conclusion that counsel was constitutionally

ineffective requires a two-part determination. First,

counsel’s performance must be found to be deficient.

Second, as a result of that deficient performance,

petitioner must have suffered some prejudice. “Unless

a defendant makes both showings, it cannot be said

that the conviction or death sentence resulted from a

breakdown in the adversary process that renders the

result unreliable.” Strickland v. Washington, 466 U.S.

668, 687 (1984). In this case, the state court decision

rests upon petitioner’s failure to satisfy the prejudice

23

prong. This is due, in large part, to the death of trial

counsel prior to the post-conviction proceedings,

which prevented any inquiry, beyond a review of his

case file, into the considerations that went into coun-

sel’s sentencing strategy.

In rejecting Henley’s ineffective assistance claim,

the Tennessee Supreme Court correctly identified

Strickland as the controlling precedent. The state

court reviewed the evidence offered during the post-

conviction hearing and compared it to the testimony

presented to the jury. As to mental health evidence,

the proof at Henley’s state post-conviction hearing

was limited and showed little more than that he

suffered from depression, for which he may have been

self-medicating with alcohol and drugs, and that his

test scores might indicate a learning disability which

could have contributed to, or caused, his business

failures leading to the loss of the family farm. The

state court noted that this testimony would have

directly contradicted petitioner’s statements that he

did not use or abuse drugs and alcohol and that his

business losses were the result of bad weather. In

denying relief on this portion of the claim, the Ten-

nessee Supreme Court made the following findings:

While it is true that often a greater duty of

inquiry into a client’s mental health is im-

posed for the penalty phase of a capital trial,

[citation omitted], it is also well-established

that the reasonableness of counsel’s actions

may be determined or substantially influ-

enced by the defendant’s own statements or

24

actions. ... And when a defendant has given

counsel reason to believe that pursuing cer-

tain investigations would be fruitless or even

harmful, counse]’s failure to pursue those in-

vestigations may not later be challenged as

unreasonable. [citation omitted]

At the trial of this case, the defendant main-

tained his innocence, flatly denied that he

had been intoxicated on the day of the mur-

ders, and also denied ever abusing drugs.

Moreover, Henley said his farming operation

had failed because of unpredictable weather,

a drought followed the next year by floods.

Clearly then, the evidence for which trial

counsel is now faulted for not discovering

and introducing would have been inconsis-

tent with the defendant’s own testimony and

harmful to the defense theory throughout the

trial.

Henley, 960 S.W.2d at 583.

Henley’s proffered testimony is similar to the

mental health evidence this Court found insufficient

in Strickland to support a claim of ineffective assis-

tance. Moreover, the evidence is a far cry from the

al evidence of mental retardation available in Wiggins v.

‘i Smith, 539 U.S. 510, 531 (2003), and borderline

mental retardation in Williams v. Taylor, 529 U.S.

He 362, 370 (2000).

As to the failure to call additional family mem-

bers, the Tennessee Supreme Court again compared

the testimony proffered at the post-conviction hearing

25

with that actually presented to the jury. The court

found that, while the additional family members

would have told the jury that they felt Henley was a

good person who cared for his family, was close to his

grandparents, and was upset over the loss of the

family farm, their testimony would have been weak-

ened by their lack of contact with Henley in the years

immediately preceding the murders and by their

knowledge of his drug and alcohol abuse. The court

further observed that essentially the same informa-

tion was presented tu the jury by Henley’s grand-

mother, one of the people he loved most in the world,

and by Henley himself, who firmly denied drug and

alcohol abuse. Indeed, the state court specifically

noted that Henley’s mother, who acknowledged that

she had declined to testify during the trial, stated

that she could offer nothing beyond the testimony

given by Henley’s grandmother.

As with the mental health evidence, this case is

markedly different from the scenarios presented in

Williams and Wiggins. In both of those cases, evi-

dence existed demonstrating a “nightmarish child-

hood” and “severe privation and abuse.” Williams, 529

U.S. at 370; Wiggins, 539 U.S. at 516-17. By contrast,

in this case, as in Strickland, the omitted testimony

merely repeated that offered by Henley and Bertha

Henley — that Henley grew up in a loving and suppor-

tive environment, and was generally a good brother,

son and grandson. Unlike the petitioners in Williams

and Wiggins, who suffered physical, sexual, and

emotional abuse, Henley’s life was generally good.

a

26

The two »otable losses in his life were the death of his

grandfather and crop failure resulting in bankruptcy,

events that, while tragic to an individual at the time,

are shared by many people who do not go on to com-

mit murders. The Tennessee court’s decision was

certainly reasonable by comparison.

The Sixth Circuit’s decision presents no grounds

for certiorari review, and the petition should be

denied.

¢

CONCLUSION

The petition for writ of certiorari should be

denied.

Respectfully submitted,

ROBERT E. COOPER, JR.

Attorney General & Reporter

State of Tennessee

MICHAEL E.. MOORE

Solicitor General

JENNIFER L, SMITH

Associate Deputy Attorney

General

Counsel of Record

P.O. Box 20207

Nashville, Tennessee 37202

Phone: (615) 741-3487

Fax: (615) 532-7791

Counsel for Respondent