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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1269%3A3. Public record. Not legal advice.