Opinion
CASE NO. 2:12-CV-153 CRIM. NO. 2:06-CR-039
03-24-2014
THOMAS A. HENDERSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE ALGENON MARBLEY
MAGISTRATE JUDGE ELIZABETH P. DEAVERS
ORDER AND
Petitioner retained counsel, Javier Armengau. On October 28, 2013, and December 4, 2013, Petitioner filed motions to remove Attorney Armengau as counsel of record, see Doc. Nos. 180, 181. Petitioner later moved to withdraw those motions. Doc. No. 185. The Motion to Withdraw, Doc. No. 185, is GRANTED. The Clerk is DIRECTED to remove the motions (Doc. Nos. 180 and 181) from the Court's pending motions list.
REPORT AND RECOMMENDATION
Petitioner, a federal prisoner, brings the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the instant motion, Respondent's Return of Writ, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
FACTS and PROCEDURAL HISTORY
The United States Court of Appeals for the Sixth Circuit summarized the facts and procedural history of this case as follows:
Defendant-appellant Thomas A. Henderson was convicted of bank robbery in 1981. Within three years after his release from prison, two persons who had assisted law enforcement authorities in the bank robbery prosecution were shot to death, in 1996 and 1998, respectively. Henderson was charged in 2006 with killing two witnesses in retaliation for providing information and testifying against him in the federal bank robbery prosecution, and with two unlawful-use-of-firearm offenses in relation to the killings. The juryUnited States v. Henderson, 626 F.3d 326-339 (6th Cir. 2010). On February 1, 2008, the Court imposed concurrent terms of life imprisonment. Doc. 153. Petitioner timely appealed. As grounds for his appeal, Petitioner asserted that his convictions violated the Confrontation Clause; he was denied effective assistance of counsel due to his attorneys' failure properly to cross-examine Agent Tim Creedon andfailure to object to admission of Petitioner's tape recorded telephone conversations; denied a fair trial due to admission of testimony of Christie Collins and other bad acts evidence; improperly denied his request for a substitution of counsel and conflict-free counsel; convicted on insufficient evidence; improperly denied requested jury instructions; and denied the presence of counsel during a critical stage of the proceedings. See id. On November 19, 2010, the Court of Appeals for Sixth Circuit affirmed the judgment of the District Court. Id. On December 15, 2010, the mandate issued. Doc. 165.
returned a guilty verdict on all counts. Henderson was sentenced to two concurrent terms of life imprisonment on the murder counts and two consecutive two-year terms on the firearm counts. He asserts nine claims of error on appeal. Because none of the claims have merit, the district court's judgment is affirmed.
I. BACKGROUND
In June 1981, defendant Thomas Henderson was traveling with Ecolia ("Coy") Washington from Columbus, Ohio, to Florida to visit a mutual friend in the Dade County Jail, Robert Earl Bass. After their car broke down in Macon, Georgia, they decided to rob a bank, the Macon Bank & Trust Company. Henderson actually conducted the holdup, using a .38 caliber revolver and taking more than $160,000 from the bank. Washington drove the getaway vehicle. They drove to Atlanta, where Washington dropped Henderson off and returned to Columbus. Henderson got a ride back to Columbus with other friends. In July 1981, Bass, concerned about the way Henderson was treating his friend, Washington, called the FBI in Macon from jail and volunteered information regarding the bank robbery. This information led to Henderson's arrest. Washington had already been arrested. She agreed to testify against Henderson in exchange for immunity. In the ensuing federal trial, in the District of Georgia, Washington testified against Henderson. Henderson was convicted of bank robbery in October 1981 and sentenced to 25 years in prison.
Henderson was released from prison in April 1996 and returned to Columbus to live in the home of his ex-wife, Frances Henderson. In the early morning hours of November 4, 1996, Robert Bass was shot to death in his car outside his apartment in Pickerington, a suburb of Columbus. Authorities were unable to solve the crime. At about 5:30 a.m. on November 2, 1998, the body of Ecolia Washington was found in a burning van near her home in a Columbus neighborhood. Washington had suffered multiple gunshot wounds, which had caused her death.
Not until 2006 did an FBI investigation yield enough evidence to secure an indictment against Henderson. In February 2006, Henderson was charged with two counts of retaliatory murder (for killing Robert Bass and Ecolia Washington in retaliation for their participation in the bank robbery prosecution), in violation of 18 U.S.C. § 1513(a)(1)(B) and § 1513(a)(1)(A), respectively; and two counts of using a firearm in relation to the killings, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Henderson pleaded not guilty and a jury trial commenced in June 2007. Following several days of trial and
two days of deliberations, the jury returned its verdict: guilty on all four counts.
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During trial, the district court allowed the government to introduce evidence of statements previously made by the murder victims. First, through the testimony of retired FBI Agent Fred C. Stofer, who had participated in the 1981 Macon bank robbery investigation, the government was allowed to introduce exhibits bearing certain teletype communications. These teletype communications, between law enforcement offices in Macon, Miami and Columbus, relate to Robert Bass's willingness to provide information concerning the Macon bank robbery. Bass did not testify in the bank robbery trial, but Agent Stofer was allowed to read the contents of one of the teletype communications into the record:
[O]n this date Robert Earl Bass incarcerated at Dade County Jail under the name Robert Earl, black male, date of birth, telephonically contacted the Macon RA regarding the above matter. Bass stated that he was—or that he has information regarding this case indicating specifically that he can provide information on the weapon used not yet recovered, the current location of the getaway car, a '73 Datsun not yet recovered, registered to Bass, and that he can convince Ecolia Johnson to cooperate with Macon FBI office in this case.
R. 160-8, trial tr. vol. VII, p. 123; Gov't Appx. p. 6, ex. 1K. [FN1]
FN1. Ecolia Washington's name was formerly "Ecolia Johnson."
Second, the government was allowed to read into the record a sworn statement Ecolia Washington gave to police on August 27, 1981, before she testified against Henderson in the bank robbery trial:
Ms. Wonsley, Question: How many times have you talked to him since you all have been here at the Law Enforcement Center?
Answer: Twice on the telephone.
Question: What has he said to you?
Answer: Well, the first time he called me, well, you know, when Mr. Child's (sic) had told me about that you all would drop them two counts on me if I could come up with those three items, I tried to get
Tommy to help me pay for my attorney some kind of way or to give me some more money, and that's why he called me, because he got my message that if he didn't give me no money, I was going to tell them.
"So he called me and he told me he had got my message and that he wouldn't advise me to do that. Knowing Tommy, you know, he told me he didn't believe that it was only my doing, it was me and Robert's doings and I just listened to him.
Question, Mr. Tosi: Did he threaten you in any direct way; say he was going to burn down Woody's house or ribs up there or anything like that?
Witness, answer: No. He just—he told me to think about it because he would do something to me if I was to do something to him. And that was it.
R. 160-12, trial tr. vol. XI, pp. 100-01.
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[T]o be sure, there was sufficient evidence . . . establishing retaliatory animus and supporting the jury's verdict. Specifically, the government points to a letter from Henderson to Washington while they were in jail awaiting trial in the bank robbery case. The letter was admitted into evidence without objection. It warned Washington not to cooperate with the police or "you'll also be shortening your own life considerably." Gov't App'x p. 4, ex. 1H. This letter represents even stronger evidence of Henderson's retaliatory animus. Its admission into evidence rendered Washington's inadmissible proffer statement cumulative.
In addition, multiple witnesses testified that Henderson admitted committing the murder. Ronald Beauford is a step-brother of one of Henderson's sons. He looked up to Henderson as a father figure. He testified in trial that on the day Washington was killed, Henderson told him to watch the eleven o'clock news. Seeing the report of Washington's death, he asked Henderson if that's what Henderson wanted him to see. Henderson responded, "Yeah, that's how I handle business." R. 160-10, trial tr. vol. IX, p. 34. The next day Henderson explained to Beauford that he had to stalk Washington to make sure he caught her at the right time; that she had "told on him" for robbing a bank; that snitches deserved to die. Id. at 37-39.
An inmate known as General Smith, with whom Henderson was jailed in 2001, testified that Henderson "[t]alked about how his codefendants actually told on him on his bank robbery and he had killed them." R. 160-10, trial tr. vol. IX, p. 111. A second inmate, Michael Williams, testified about a similar admission made by Henderson years later. Henderson explained to Williams that "real killers carry revolvers ... because the shells go with you." Id. at 177. Later, FBI Special Agent Tim Creedon testified that Henderson had purchased a .38 caliber revolver, a Smith & Wesson Model 10, in 1998 under an assumed name. Mark Hardy, a criminalist, had testified that the bullets recovered from Washington's body were .38 caliber and could have been fired by a Smith & Wesson Model 10.
[Ronald Beauford testified that] [t]he day after Washington was murdered—that is, the day after Beauford had seen the eleven o'clock news report of the discovery of Washington's body and had heard Henderson explain, "that's how I handle business"—Henderson called Beauford and three others together at the All-in-One Store run by Henderson. Henderson ensured that Beauford and at least one of the others were armed with guns. He told them that Washington's nephew or cousin, Jimmy Freeman, thought Henderson had killed Washington and was coming to the store for a meeting. Henderson told them, "if anything happens, don't let him [Freeman] get out alive." R. 160-10, trial tr. vol. IX, p. 35. After Freeman came and went, without incident, Henderson explained to Beauford that he had to stalk Washington and that she got "what she deserved ... because the bitch was a rat." Id. at 36-38. Henderson later told Beauford that Washington "had told on him and that's why he was in jail ... for robbing a bank or something." Id. at 38.
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Stanley Humphrey was one of the friends who brought Henderson back to Columbus from Atlanta after the 1981 Macon bank robbery. Humphrey testified for the prosecution at trial. He testified that when they returned to Columbus, Henderson offered him Coy Washington's "cut from the robbery ... but I needed to make her disappear." R. 160-9, trial tr. vol. VIII, p. 177. Humphrey explained, "[Henderson] wanted me to kill Coy and get rid of the body ... because he knew the FBI was going to be questioning her." Id. at 177-79. Humphrey was unsure about carrying out Henderson's plan, but his involvement became a moot question when Humphrey was arrested shortly thereafter and eventually imprisoned for a different murder.
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Ace McClendon was a heroin addict who helped lure Bobby Bass out of his house in November 1996 (by pretending to want to buy drugs from him) so that Henderson could kill him. McClendon testified that a couple days after the murder plot had been successfully completed, Henderson brought him some drugs that he did not have to pay for.
On February 19, 2012, Petitioner filed the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. He asserts as follows:
1. Ineffective assistance of counsel:It is the position of the Respondent that none of Petitioner's claims provide a basis for federal habeas corpus relief.
A. During voir dire, counsel for Petitioner in addressing both phases of trial, suggested to the jury that there would ultimately be a second phase, being the penalty phase, rather than phrasing her questions in a general and hypothetical manner. Petitioner Henderson raised the issue and concern with counsel causing conflict between Attorney Menasche and Petitioner Henderson. Trial counsel's performance at trial, from the inception, had Petitioner Henderson convicted.
B. During the voir dire proceedings, counsel for Mr. Henderson told Mr. Henderson that he was to "sit down and shut up" and that she would not communicate with him over what she perceived to be a threat from her client, Petitioner Henderson. This occurred in the very early portion of the trial and no inquiry appears to have been made on the record establishing or supporting Attorney Menasche's ability to set any issues or conflict aside in this regard and continue in the zealous representation of Petitioner Henderson. During the voir dire process, counsel Menashe, while visibly aggravated with the Petitioner, ripped a pen and writing tablet out from under the Petitioner's hands and did so in clear view of the jury. Petitioner was restrained by a "stun-belt" and was limited in his ability to properly address various concerns with both his counsel and the Court.
C. At trial, the government introduced evidence of a purported statement by Ecolia Washington, whereby Ms. Washington, allegedly indicated her personal concerns about Petitioner Henderson. Counsel failed to request a limiting instruction advising the jury that Petitioner Henderson was unable to cross examine the declarant and therefore that inability to confront a declarant can be considered in determining the veracity of the statement.
D. At trial, the government introduced evidence of a purported statement by Robert Bass to authorities, whereby Mr. Bass, allegedly offered to assist the government in the Georgia bank robbery case. Counsel failed to request a limiting instruction advising the jury that Petitioner Henderson was unable to cross examine the declarant and therefore that inability to confront a declarant can be considered in
determining the veracity of the statement.
E. Counsel, after having been well advised that government witness Christie Collins was questionable from a credibility standpoint, being notified that the government did not intend to call her due to her credibility issues and having been aware that she was the only so-called "eyewitness" to one of the homicides, cross examined Agent Creedon in such a manner that caused the government to call her as a witness to rebut an inference established by counsel's cross examination, but further, testified that she witnessed Petitioner Henderson kill Bobby Bass. But for counsel's cross examination, Christie Collins would never have been called as a witness by the government. When the government decided to call Christie Collins as a witness, despite already having established her lack of credibility before defense counsel and the court, counsel failed to move in limine and requesting that her testimony be limited to responding to the issue raised by counsel in cross examination. Counsel herself opened the door to critical and damaging evidence against her own client.
F. Counsel, prior to the testimony of Stanley Humphrey, failed to object to anticipated testimony of which she was aware through her discussions with Petitioner Henderson. Humphrey testified that at one point, he and Petitioner Henderson were en route to Florida to commit a murder rather than a bank robbery. Counsel failed to object to the testimony or to move in limine against the testimony of the alleged purpose of the Florida trip. That testimony was a "bad act" and not subject to admission as it unfairly prejudiced Petitioner Henderson. Petitioner Henderson advised counsel that Humphrey's would testify in such a manner in advance of Humphrey's taking the stand.
G. Counsel for Petitioner elected to waive Petitioner Henderson's presence at such time as the Court elected to address the jury regarding their deliberation. Petitioner Henderson, in light of the death penalty ramifications and seriousness of the allegations, had the right to be present for any in court proceeding or appearance. Further, his absence from the courtroom lends only to juror speculation of which none can be ascertained without inquiry.
H. Counsel for Petitioner Henderson failed to call necessary and
critical witnesses for the defense. Christie Collins had previously identified Mario Wiley as the shooter. Collins claimed she saw Petitioner Henderson at a "crack house" after the shootings and that when she observed Petitioner Henderson she told several people including Suzie Hill and Renee Jefferson that Petitioner Henderson was the actual shooter and not Marion Wiley. Both Suzie Hill and Renee Jefferson would have testified that Christie Collins never made any such statement. Counsel failed to call T.J. Henderson in order to rebut the testimony of Ronald Beauford. Beauford testified against Petitioner Henderson as to both alleged conduct and alleged statements supposedly made by Petitioner Henderson. T.J. Henderson had advised the government that he had information relative to the homicides that formed the basis of the indictment in this matter. T.J. Henderson was incarcerated at the time of his contacting the government and his purpose in claiming to have information on the homicides was so that he could be released from incarceration. T.J. Henderson shared his actions and intentions with Ronald Beauford who thereafter asked T.J. Henderson to have the agents contact him as well as he could offer to provide similar information although it was untrue. Beauford eventually was in contact with the government and claimed to have specific information regarding the homicides. Counsel failed to call Petitioner Henderson's attorney from the 1981 Georgia Bank Robbery to prove that at no time relevant to the critical time frames was any information provided to the defense that would demonstrate that Bobby Bass had provided information against Petitioner Henderson, negating any possibility that Petitioner Henderson would have known of any offer to cooperate against Petitioner. Counsel failed to call any witness from Vance's Gun Shop to address the government's allegation that the same revolver was used to kill both witnesses. Bobby Bass was shot and killed in 1996. The firearm in question was purchased at Vance's in 1997.
I. Counsel failed to object to an important part of the government's opening statement in which the government commented to the jury. . . "and we failed - the government failed in this case. Two of our snitches were murdered and it will not happen in this case." The government implied that Mr. Henderson had a plan or means to murder witnesses in the instant case which was before this particular jury.
J. Counsel failed to object to the manner in which the Defendant was being restrained in Court by use of a stun-belt. The unnecessary pressure and concern for the potential unexpected shock from the belt in the event of mishandling or error had Petitioner in constant fear and as a result, Petitioner was unable to clearly focus and remain attentive throughout the trial. Alternative and less restrictive means were available to restrain the Petitioner if restraint was a concern.
K. Counsel failed to request or pursue certain Brady material that would have been exculpatory. The government provided partial witness statements such as the interview from/of Mario Wiley, who initially was charged with one of the murders for which Petitioner was convicted. Christie Collins initially identified Mario Wiley as the shooter she observed killing Bobby Bass. After Wiley was released from prison, Collins changed her version to identify Petitioner Henderson.
2. Petitioner Henderson was ill-advised not to testify on his own behalf and was denied the fair opportunity to testify which was his personal desire. From the onset, Petitioner advised counsel that it was necessary and his desire to testify in order to combat the false allegations that were raised in the government's case in chief. During a recess, and while counsel was meeting with Petitioner Henderson, counsel assured Petitioner that they [defense] had "the case won" and he need not testify. During the referenced conference between counsel and Petitioner Henderson, U.S. Marshal Mark Stroh continuously interjected in the private communication between Petitioner Henderson and his counsel and advised Mr. Henderson that he should not testify. Petitioner Henderson was unduly influenced and conflicted due to the pressure and extraneous influence placed on him by U.S. Marshal Stroh. Most, if not all the damaging evidence that would have been used in cross examination by the government and against Petitioner Henderson had already been brought out in trial. The risk of Petitioner being placed in a negative light before the jury was minimal in that the admitted testimony in the government's case in chief was more damning to Petitioner Henderson than any cross examination would have divulged. Under the circumstances of the case and the evidence, the only witness that was able to address and rebut the witnesses themselves and their
respective testimony was Petitioner Henderson.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner asserts he was denied effective assistance of counsel because during voir dire proceedings, his attorney improperly suggested to the jury that there would be a penalty phase of the trial. Petitioner asserts that this issue led to a conflict between himself and defense counsel, Attorney Menasche, who told Petitioner to "sit down and shut up," during trial and refused to communicate with him further over what she perceived as a threat from Petitioner. Petitioner contends that Attorney Menashe became "visibly aggravated with the Petitioner" during voir dire, and ripped a pen and writing tablet out from under his hands in clear view of the jury. He complains that the District Court failed to conduct any inquiry regarding an alleged conflict between Petitioner and Attorney Menashe. He additionally asserts that, because he was restrained by a stun-belt, he was unable to raise his concerns with his attorney(s) or the Court.
Notwithstanding that he couches the claim as ineffective assistance of counsel, Petitioner's assertion, at bottom, is that his trial attorney had a conflict of interest. He raised this issue on direct appeal. The United States Court of Appeals for the Sixth Circuit rejected Petitioner's claim that he was denied a fair trial due to an alleged conflict with defense counsel in violation of the Sixth Amendment:
Henderson contends the trial court erred by failing to order substitution of new defense counsel after learning of reason to believe there had been a breakdown in the attorney-client relationship between Diane Menashe and himself. He contends he was denied hisUnited States v. Henderson, 626 F.3d at 339-40. Petitioner is not entitled to yet another review of this issue and may not use § 2255 to re-litigate that which was settled on appeal. This Court will not again address this claim in these proceedings. See DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) ("A § 2255 petition may not be used to relitigate an issue that was raised on appeal absent highly extraordinary circumstances.")
Sixth Amendment right to conflict-free counsel.
The claim grows out of an incident that occurred during jury selection voir dire. Henderson took exception to the way in which Menashe was asking certain voir dire questions. He asked her to rephrase her questions. Then, as he "was wearing a restraining device that would, in the event of a problem, shock him, [he] joked with counsel that if she did not desist, he would hug her so that when the officer activated the restraining device, it would shock her as well." Appellant's brief p. 28. Henderson contends Menashe did not see the humor in this, "took it as a threat, and refused to communicate with the Appellant." Id. When the court learned there was a problem, it made inquiry in a separate proceeding (outside the presence of the government), but Henderson now contends the inquiry was inadequate. He argues the court failed to ensure that counsel could continue to effectively represent him.
The transcript of the separate proceeding conclusively defeats Henderson's challenge to the adequacy of the district court's inquiry. When the court asked Menashe about the extent to which the misunderstanding would interfere with her ability to zealously represent Henderson, she responded unequivocally, "None whatsoever, Your Honor." Separate record tr. p. 5. For his part, Henderson expressed his satisfaction with Menashe's representation, saying she "has been doing an outstanding job to this point." Id. at 16. Reassured that both attorney and client understood their roles in the relationship, the court told them the issue would be revisited if communication became a problem during the trial. Id. at 14. Neither Henderson nor Menashe requested substitution of counsel and it appears no further question regarding the integrity of the attorney-client relationship arose during the remainder of the trial.
In United States v. Vasquez, 560 F.3d 461 (6th Cir.2009), the court observed that a defendant who wants substitution of appointed counsel must "bring any serious dissatisfaction with counsel to the attention of the district court." Id. at 466 (quoting Benitez v. United States, 521 F.3d 625, 632 (6th Cir.2008)). "Once a defendant expresses his dissatisfaction with counsel, the district court is obliged to conduct an inquiry into the defendant's complaint to determine whether there is good cause for substitution of counsel." Id. The court considers the following factors:
When reviewing a district court's denial of a motion to withdraw or substitute counsel, we generally must consider: (1) the timeliness of the motion, (2) the adequacy of the court's inquiry into the matter, (3) the extent of the conflict between the attorney and client and whether it was so great that it resulted in a total lack of communication preventing an adequate defense, and (4) the balancing of these factors with the public's interest in the prompt and efficient administration of justice.
Id. (quoting UnitedStates v. Mack, 258 F.3d 548, 556 (6th Cir.2001)).
Review of the separate hearing record clearly demonstrates that the district court did not abuse its discretion in its handling of the misunderstanding between Henderson and his counsel. Considering that Henderson never requested substitution of counsel, did not assert that there was a breakdown in the attorney-client relationship, and expressed satisfaction, not dissatisfaction, with counsel's performance, the district court's handling of the matter was entirely appropriate.
Petitioner asserts he was denied effective assistance of counsel because his attorneys cross-examined Agent Tim Creedon thereby causing the government to call Christie Collins as a rebuttal witness without requesting Collins' testimony be limited to issues raised on cross-examination of Creedon. As a result, Petitioner contends, defense counsel opened the door to critical and damaging evidence against Petitioner, as Collins identified Petitioner as the shooter of Bobby Bass. Petitioner raised this same issue on appeal; however, the Sixth Circuit declined to address the claim:
Henderson contends. . . the cross-examination of Agent Tim Creedon was mishandled [by trial counsel] in such a way as to open the door to damaging testimony by Christie Collins, a witness whose credibility the government conceded was suspect and who would not otherwise have testified. . . .United States v. Henderson, 626 F.3d at 335-36.
Ineffective assistance claims are ordinarily deferred until post-conviction proceedings under 28 U.S.C. § 2255, when an evidentiary hearing can be held to ascertain whether counsel's conduct was motivated by sound strategy. United States v. Watkins, 509 F.3d 277, 283 (6th Cir. 2007). However, if the record is adequately developed, an ineffective assistance claim may be considered on direct review. Id.
Collins' Testimony
Christie Collins was living with Robert Bass on the night he was killed. Hearing gunshots, she had ventured out of their apartment to find Bass dead in his car. Prior to trial, the government had advised the court and defense counsel that it did not intend to call Collins because of uncertainty about her credibility. However, Assistant U.S. Attorney David Devillers changed his mind after defense counsel's cross-examination of Agent Creedon created the impression that money had been taken from Bass after he was killed, suggesting the motive for the murder may have been robbery rather than retaliation. Devillers was obliged to call Collins to explain that she had taken the money out of the apartment in a suitcase. She also testified, however, that she had seen the killer at Bass's car that night, and she eventually came to identify Henderson as the perpetrator.
Henderson argues that Collins is the only eye-witness of either homicide and that, but for counsel's deficient cross-examination of Agent Creedon, Collins would never have been called. Review of Collins' testimony reveals that she was indeed a colorful witness; a confessed drug trafficker who spent some fourteen of the previous twenty-one years in prison. Her testimony was erratic and of questionable reliability. She initially identified a different suspect as the killer, and changed her mind only after seeing Henderson at a drug house some time later. She was cross-examined at some length by defense counsel—to marginal effect.
Yet, without a more fully developed record, we are in no position to fairly evaluate Henderson's threefold assertion that defense counsel's cross-examination of Agent Creedon was so inept as to be objectively
unreasonable, that Collins would not otherwise have been called, and that there is a reasonable probability that her testimony affected the jury's verdict. At this stage, based on the present record, we could only conclude that Henderson has failed to carry his burden of showing ineffective assistance of counsel. Instead of denying the claim on the merits, however, we deny it as premature, without prejudice to his right to seek collateral relief under § 2255 based on a more fully developed record.
In response to Petitioner's allegations of ineffective assistance of counsel, Respondent has provided an affidavit from Attorney Diane M. Menashe, Petitioner's former defense counsel, which indicates in relevant part as follows:
On October 18, 2006, I was appointed by Judge Algenon Marbley to represent Petitioner. . . . David Stebbins, having been appointed prior to me, served as my co-counsel. I served as Petitioner's appointed trial counsel from October 18, 2006, up to and through his sentencing hearing.Affidavit of Diane M. Menashe, PageID #3876-3878.
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Petitioner's assertion that but for my cross-examination of Agent Creedon, the Government would not have called Christie Collins as [a] witness is false. As I recall, the Government - in advance of her testimony - arranged for the transport of Collins to Columbus, Ohio from the state prison where she was serving time. This fact alone refutes Petitioner's statement that the Government never intended to call Collins as a witness.
Furthermore, although I was not privy to the Government's trial strategy, it seemed clear to me from my conversations with them that the Government intended to elicit the testimony of Collins during their case-in-chief. The only issue as I recall, was whether the Court would agree to call Collins as a witness. . . or whether the Government would have to call her as their witness. . . . When the Court denied the Government's request to call Collins under Rule 614, the Government then made the instantaneous decision to put her on the stand. (Id.).
Further, I did not strategically ask for a motion in limine as to the
testimony of Collins b/c there is no such motion in limine as suggested by Petitioner. The Government called Collins as a witness during their case-in-chief. There was no legal basis to limit her testimony in scope to only that of my cross of Agent Creedon. Her testimony, so long as relevant, and otherwise with in the rules of evidence was admissible.
Respondent also offers an affidavit from David C. Stebbins who also was appointed to represent Petitioner in this case. He indicates in relevant part as follows:
I recall that during the course of the trial, we objected strenuously to the Government's announcement that they intended to call Christie Collins as a witness. The Government had previously announced that they would not call Christie Collins as a witness because she was not credible. I recall that I did not think that Ms. Menashe had opened any doors in her cross-examination of Agent Creedon to justify permitting the Government to call Collins - after they had announced that she was not credible and that they were not going to call her. Even if Ms. Menashe "opened the door," there was no harm. Christie Collins had no credibility. In my opinion, the Government lost ground by the presentation of this so-called "eyewitness" testimony because her testimony was wholly unbelievable on every topic she discussed.Affidavit of David C. Stebbins, PageID #3884.
Nearly forty years ago, the United States Supreme Court reiterated that the right to counsel guaranteed by the Sixth Amendment to the U.S. Constitution is the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a complaint of ineffective assistance of counsel, a defendant must meet the now-familiar two-prong Strickland test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that deficient performance prejudiced the defense. This requiresId. at 687. The Supreme Court emphasized that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. Put plainly, "[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." Id.
showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Moreover, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 692. Rather, a defendant must demonstrate prejudice to prevail on a claim of ineffective assistance of counsel. Id. at 693. To do so, a defendant must establish that a reasonable probability exists that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Because a defendant must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, should the court determine that she has failed to satisfy one prong, it need not consider the other. Id. at 697.
The record reflects that the government initially advised the Court they did not intend to call Collins as a prosecution witness, although she had been subpoenaed. The prosecutor stated he did not feel comfortable vouching for Collins' credibility. Trial Transcript, PageID #2029. After Agent Creedon testified, the government asked the Court to call Collins as a witness:
Mr. DeVillers: Your Honor, Ms. Menashe asked a number of questions about this money, this missing money. They know what happened to the missing money. They were provided with Christy Collins's statement where she admitted taking the money afterwards. We did not want to put on Christie Collins, we told you earlier, we did not want to vouch for her credibility. We would ask the Court to call her as a witness so we can clear this up.Trial Transcript, Vol. X, PageID #2855-56. The Court declined the government's request, Trial Transcript, Vol. XI, PageID #2871, and the United States called Collins as a prosecution witness. PageID #2872. Collins testified that she was serving five years and eight months at the Ohio Reformatory for Women for identity theft. PageID #2873. She had numerous prior convictions and had served 14 years in prison between the ages of 28 and 49. At the time Robert Bass was killed, she and Bass were living together and selling large amounts of cocaine and heroin. On the day he was killed, he was leaving to deliver some drugs and she heard a gunshot. PageID #2892-93. She ran outside and saw a man standing outside of Bass' car, who fled. In November 1996, shortly after Bass was killed on she described the man as black, wearing dark clothes about 5'10" to 6 feet tall, 185 to 200 pounds, wearing glasses and with low cut hair. The glasses were big and looked similar to those worn by Mario. PageID #2914. She called 911 and flushed all of drugs down the toilet. PageID #2897-98. She put the drug money into a suitcase and gave it to the police to carry out of the apartment. PageID #2900-2901. In November 1996, she identified Mario Wiley as the killer. Id.; 2917. At the time of trial, however, she testified that Mario was not the killer. PageID #2914-15. Later, when she was selling drugs out of a different house, she saw Petitioner and recognized him as the man she had seen when Bass was killed. PageID #2920-21. She called Officer Dell and told him that she had been mistaken - that Tommy Henderson was the man she had seen after Bass was killed. PageID #2922. She identified Petitioner as that man. PageID #2926-27.
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Court: Because Ms. Menashe, in your view, misled the jury by saying they didn't investigate the money or they didn't follow the money?
Mr. DeVillers: There are a number of reasons; that is one of them.
Petitioner has failed to demonstrate that his trial attorney performed deficiently. The record fails to indicate that the government called Collins solely as a result of defense counsel's cross examination of Agent Creedon. In fact, the prosecutor's statement prior to calling Collins as a witness indicates to the contrary. Further, Collins was not an overly reliable witness. She was an admitted crack addict, thief and drug dealer. She acknowledged that she initially identified Mario Wiley as the shooter of Bass, and she was certain of her identification of Wiley as the killer at that time. Additionally, in view of her prior identification of Wiley and other substantial evidence against Petitioner establishing his guilt, Petitioner has failed to establish prejudice as that term is defined in Strickland.
Petitioner likewise has failed to establish his attorney performed inadequately by failing to file a motion in limine to limit Collins' testimony. Petitioner fails to indicate, and the record fails to reflect any basis on which defense counsel could have prevented or limited Collins' testimony.
Petitioner asserts he was denied effective assistance of counsel because his attorney failed to object or file a pre-trial motion to prevent Stanley Humphrey from testifying that Petitioner traveled to Florida to commit a murder, as opposed to robbing a bank. According to Petitioner, he told his attorneys how Humphrey would testify before Humphrey took the stand.
In response to this allegation, Attorney Diane Menashe indicates:
Petitioner is correct that I did not pre-emptively object to the testimony of Stanley Humphrey that the purpose of Petitioner's trip to Florida was to "eliminate a witness in Bobby's case". (Vol. VII, Pg. 183). I didn't anticipate the objection because the testimony of Humphrey was a total surprise to me. I'd never heard of the allegation that Petitioner had traveled to Florida for that reason. However, immediately after Humphrey made the statement, I stopped the questioning and asked to approach the bench. At side bar I requested that, at a minimum, the Court issue a curative instruction. I also motioned for a mistrial arguing that the testimony warranted itAffidavit of Diane Menashe, PageID #3878-79. Attorney David Stebbins indicates as follows:
"given the charges that are pending against Mr. Henderson in that they deal with precisely retaliation against a witness and now we have just had someone say he was going down to eliminate a witness. (Vol. VIII, Pg. 185). The Court denied my request for a mistrial but granted and issued the requested curative instruction.
I do not recall a dispute about the testimony of Stanley Humphrey. I recall that he testified and I believe that we had interviewed him or tried to interview him prior to his testimony.Affidavit of David C. Stebbins, PageID #3884.
The testimony about which Petitioner complains is as follows:
Q. Were you aware of Bobby Bass having anything to do with Tommy in that bank robbery in Georgia?Trial Transcript, Vol. III, PageID #2422-23. Outside of the presence of the jury, Attorney Menashe objected and requested a mistrial. The prosecutor and defense counsel indicated that they did not expect Humphrey to say they went to Florida to kill a witness. PageID #2424-26. Attorney Menashe indicated the statement was not included in any of the pre-trial discovery she had received. PageID #2425. The District Court issued a curative instruction:
A. That's the reason Tommy was in Georgia. He didn't go to Georgia to rob a bank.
Q. What was he going to do?
A. Well, he went down there to eliminate a witness in Bobby's case. Bobby had a robbery case and Bobby had called me on the telephone.
Ladies and gentlemen, the Court instructs you to disregard Mr. Humphrey's testimony to the effect that Ms. Washington and Mr. Henderson were going to Georgia to eliminate a witness;Trial Transcript, Vol. VIII, PageID #2427-28.
Secondly, it was unresponsive to the question that Mr. Kelley asked, and:
Third, it's not relevant to the issues that you have to decide in this case, that is whether he killed Mr. Bass and/or Ms. Washington. You are to disregard that.
"[C]ourts must presume that jurors followed the instructions they are given[.]" Bowling v. Haeberlin, No. 03-28-ART, 2013 WL 1182515, at *15 (E.D. Ky. March 21, 2013)(citing United States v. Ham, 628 F.3d 801, 811 (6th Cir. 2011) ("The general rule is that a jury is presumed to follow the district court's instructions (citing United States v. Moreno, 933 F.2d 362, 368 (6th Cir. 1991)); Scott v. Mitchell, 209 F.3d 854, 879 (6th Cir. 2000) (holding that courts must presume curative instructions were effective unless "there is an 'overwhelming probability' that they were ignored" (quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987)). Given all of this, Petitioner has failed to establish counsel's performance was inadequate by failing to object or file a pretrial motion regarding Humphrey's testimony.
Moreover, "[s]urmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of material outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." ... The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom.Harrington v. Richter, ––– U.S. ––––, ––––, 131 S.Ct. 770, 788 (2011) (citations omitted). The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.
Petitioner asserts he was denied effective assistance of counsel because his attorneys waived his presence when the Court addressed the jury during deliberations. The United States Court of Appeals for the Sixth Circuit rejected Petitioner's claim that he was denied his right to be present during a critical stage of the proceedings based on Petitioner's absence during deliberations as follows:
A half-hour after the jury had been excused from the courtroom to begin their deliberations at 2:04 p.m. on Friday June 22, 2007, the jury indicated that they wished to adjourn for the day and begin deliberations the following Monday. The district judge addressed this request with counsel on the record in the courtroom in the absence of defendant Henderson, who was held in the custody of the Marshals. Both defense counsel and the Assistant U.S. Attorney preferred to have the jury begin deliberations right away. The judge elected to bring the jury back into the courtroom to deliver this answer and inquired as to whether defense counsel would waive defendant's right to be present. Counsel so waived. Then, in the absence of the defendant, the court, without incident, instructed the jury to commence deliberating. The jury continued deliberating until 5:35 p.m., when they decided to adjourn for the day. The court dismissed them with instructions to return and continue deliberating on Monday at 9:00 a.m.United States v. Henderson, 626 F.3d at 342-43. As indicated by the Court of Appeals, Petitioner had no constitutional right to be present during the District Court's instruction to the jury to begin its deliberations, and he cannot establish that he was prejudiced thereby. Petitioner cannot establish the ineffective assistance of counsel on this basis.
Although Henderson stated no objection at the time, he now contends that he had a right to be present for the court's communication with the jury and that his attorney's waiver of this right was ineffective because not made knowingly and intelligently. He contends this denial of his right to be present during a critical stage of the trial violated his Sixth Amendment rights. Henderson acknowledges that his claim is subject to plain error review. Thus, he must show not only that the trial court committed plain error by not insisting, over his attorney's waiver, that Henderson be brought into the courtroom so that the court could again instruct the jury to begin deliberating, but also that such error adversely affected his substantial rights and the fairness, integrity and public reputation of the trial. Mayberry, 540 F.3d at 512. Henderson has not even tried to meet the latter two requirements. He has not even argued that any prejudice resulted from his absence. Instead, he contends the error is reversible per se, citing United States v. Barnwell, 477 F.3d 844, 852 (6th Cir. 2007).
Barnwell is clearly distinguishable. In Barnwell, the court was faced with repeated ex parte communications between the court and the prosecuting attorney and the jury foreperson—i.e., without the presence of the defendant or his counsel or even their knowledge that the meetings were taking place. The court held these errors "prejudiced the effectiveness of Barnwell's legal representation and violated his right to due process of law." Id. Here, in contrast, defense counsel was present for all communications with the jury and expressly waived Henderson's right to be present during what was a purely technical procedure that had no bearing on Henderson's substantive rights.
We have recognized that a defendant's right to be present at every stage of the trial is not absolute, but exists only when "his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." United States v. Brika, 416 F.3d 514, 526 (6th Cir. 2005) (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)). In other words, the defendant's presence is not guaranteed when it would be "useless," but only "to the extent that a fair and just hearing would be thwarted by his absence." Id. In Brika, the court held that where "the judge did nothing more than give the jurors a technical and perfunctory rereading or explanation of previously-given instructions, we fail to see how [defendant's] absence ... thwarted a fair trial." Id. at 527. The same reasoning applies here. Henderson has failed to show any error, much less remediable plain error.
Petitioner asserts he was denied effective assistance of counsel because his attorney failed to call "critical" defense witnesses. See Petition, PageID #3793. Specifically, Petitioner complains that his attorney failed to call as defense witnesses Suzie Hill and Renee Jefferson, who would have impeached Christie Collins' testimony that Collins never told them Petitioner was the shooter, and not Wiley. Counsel failed to call T.J. Henderson to impeach testimony of Ronald Beauford; failed to call Petitioner's attorney from the 1981 Georgia bank robbery to establish that, during that time, Petitioner received no information indicating that Bobby Bass had provided information to government officials regarding Petitioner's involvement in the Georgia bank robbery to establish that Petitioner had no knowledge regarding Bass' cooperation with the government. He complains that his attorney failed to call as a defense witness any employee of Vance's Gun Shop, who could have established that the revolver used to kill Bass and Washington was purchased in 1997, and could not have been used to kill both witnesses.
Attorney Diane Menashe responds in relevant part as follows regarding these allegations:
It was a strategic decision not to call Mario Wiley during the defense case in chief. The jury learned of Mario Wiley being named a suspect in the Government's initial investigation of the Washington and Bass murders, through my opening statement, my cross-examination of several of the Government's witnesses and my closing argument. My co-counsel and I decided that subpoenaing Mario Wiley to testify would [be] detrimental to our case.Affidavit of Attorney Diane Menashe, PageID #3379-3380.
Instead we decided that the best strategy with respect to Mario Wiley (and in keeping with the theme of our case) would be to argue that the Government failed to meet its burden of proof in this case by not calling Mario Wiley as a witness in their case-in-chief. I referenced Mario Wiley - and/or his absence in the trial - several times in my closing argument to support the theory that the Government had failed to meet their burden of proof. (Vol. XIII, Pgs. 62, 67, 73, 74, 78).
It was a strategic decision not to call Suzi Hill or Rene Jefferson based on the information they gave our defense investigator when he interviewed them. As I recall, neither witness would have refuted the testimony of Christie Collins.
It was a strategic decision not to call T.J. Henderson during the trial phase of this case. As I recall, T.J. Henderson had no information to
rebut the testimony of Ron Beauford.
It was a strategic decision not to call the attorney that represented the Petitioner as a witness in the 1981 Georgia Bank Robbery prosecution. As I recall, there was no dispute that Robert Bass' name was on the discovery materials provided by the Government to the defense team in Petitioner's 1981 federal case. The government had evidence (through taped prison calls) that the Petitioner had seen the discovery documents with Bass' name listed on the witness list. The presence of Mr. Bass' name alone on the witness list and the Petitioner's statement that he saw the witness list, could not have been refuted by any testimony from Petitioner's defense attorney in the 1981 Georgia bank robbery case.
Counsel is unsure who at Vance's Gun Shop would have/could have testified that the gun Petitioner purchased in 1997 was not the gun used in the murders. At Vance's, the employees are neither firearm nor ballistic experts. Counsel zealously cross examined the testimony introduced at trial by the Government related to the issue of the gun and its connection/use it either/both murders. Counsel fails to see how a lay person from Vance's could have shed any light as to what gun was, or was not, the murder weapon.
Attorney David Stebbins indicates that he cannot recall the reasoning for the defendant's failure to call Mario Wiley, Suzi Hill or Renee Jefferson as defense witnesses. He indicates, however, that the defense interviewed or attempted to interview all government and potential defense witnesses. Wiley refused to speak to the investigator for the defense, so defense counsel had no idea what he would say aside from speculating he would deny any involvement in Bass' murder. Affidavit of David Stebbins, PageID #3884.
I recall that Ms. Menashe interviewed T.J. Henderson in prison on the same day that I interviewed his brother Thomas Henderson in another prison. We later had lengthy discussions about these interviews. I recall that we concluded that T.J. Henderson did not have testimony to rebut the anticipated testimony of Ron Beaufort and that he had nothing to help Mr. Henderson's case.
Id.
"Constitutional competence is not a high bar for an attorney to reach." Vasquez v. Bradshaw, 345 F. App'x 104, unpublished, 2009 WL 2762747, at *10 (6th Cir. Sept. 2, 2009). The question is whether counsel's representation was objectively unreasonable. Strickland, 466 U.S. at 688. In determining whether an attorney's performance was reasonable within the meaning of Strickland, a reviewing court gives "a healthy amount of deference to counsel's tactical and litigation decisions." Vasquez v. Bradshaw, 2009 WL 2762747, at 10. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690.
Here, Petitioner's former attorneys indicate they investigated the testimony of all potential witnesses, and after conducting such investigation, made the tactical decision not to call the witnesses to whom Petitioner refers. Both attorneys indicate that T.J. Henderson, Petitioner's son, had no helpful information for the defense. Respondent further indicates that T.J. Henderson was incarcerated in federal prison at the time of Petitioner's trial and had attempted to cooperate with the government against Petitioner. Return of Writ, PageID #3864-65. Defense counsel also indicates that neither Suzi Hill or Rene Jefferson could refute the testimony of Christy Collins. Id. Notably, the record is without any support for Petitioner's allegation that any of the witnesses he refers to would have assisted the defense at trial. This claim is without merit.
Petitioner asserts that his attorney unconstitutionally failed to object to improper comments by the prosecutor during opening statement. Specifically, Petitioner refers to the following:
[T]he government failed in this case. Two of our snitches were murdered and it will not happen in this case.Trial Transcript, Vol. VII, PageID #2034. Petitioner argues that the government thereby implied that Petitioner planned to murder prosecution witnesses in this case.
Respondent indicates that the statement at issue was intended to address the defense argument that David McClendon, an informant in this case, was unreliable because he had been provided moving expenses, an apartment, food and a cell phone by the government prior to trial.
This Court agrees that the prosecutor's remarks may have been construed by the jury as a reference to prosecution witnesses in the present case. Nonetheless, the prosecutor's remark was brief and, in view of substantial evidence of guilt, this Court cannot conclude that Petitioner has established prejudice, as that term is defined under Strickland.
Petitioner asserts he was denied effective assistance of counsel because his attorney failed to object to imposition of restraints by a stun belt against him during trial. Petitioner states he was in constant fear of being shocked, and unable to focus on his defense.
Contrary to Petitioner's argument here, however, the record reflects that defense counsel filed a written Motion for Leave to Appear at all Proceedings without Restraints, Doc. No. 43. The District Court denied that request. See Doc. No. 100, PageID #636. Petitioner cannot establish ineffective assistance of counsel on this basis.
Petitioner asserts he was denied effective assistance of counsel because his attorney failed to obtain exculpatory material for the defense. Specifically, Petitioner complains that his attorney failed to obtain Christie Collins' first statement to police indicating Mario Wiley shot Bob Bass. Wiley was originally charged with Bass' murder. Petitioner indicates that Collins changed her identification of Wiley as the shooter after Wiley was released from prison.
Attorney Diane Menasche indicates as follows regarding Petitioner's allegation:
Petitioner's claim that I failed to "request or pursue certain Brady material" is patently false. The pre-trial motion practice in this caseAffidavit of Diane Menashe, PageID #3880.
was vast and several of the motions specifically addressed the disclosure of Brady materials. Furthermore, counsel worked with the Government throughout the pendency of this case to obtain additional discovery, statements, etc. as they became available to the Government. Counsel for both sides had a working relationship and complied with discovery rules as set forth in the Criminal Rules.
Attorney David Stebbins indicates:
I recall that Ms. Menashe and I vigorously pursued discovery in this case including all Brady material and negotiated with the United States Attorneys throughout the proceedings for additional discovery - that we believed they had not been providing.Affidavit of David Stebbins, PageID #3885.
Defense counsel's opening statement indicates defense counsel knew the government initial charged Mario Wiley as Bass' killer:
A lot of people disliked Bobby Bass. A lot of people wanted Bobby Bass dead.Trial Transcript, Vol. VII, PageID #2068. Defense counsel's cross examination of Collins on the issue of her prior identification of Wiley as the shooter likewise indicates that defense counsel was aware of this issue. Petitioner therefore has failed to meet the two prong Strickland test.
You'll hear about Mario Wiley. Mario Wiley was arrested and eventually released. He was the first of many suspects in this case.
In claim two, Petitioner asserts he was denied the opportunity to testify on his own behalf and denied effective assistance of counsel because his attorneys advised him not to testify on his own behalf. He alleges that United States Marshall Stroh unduly influenced his decision and pressured him against testifying on his own behalf.
Attorney Diane Menashe indicates as follows regarding this claim:
My co-counsel and I met with Petitioner numerous [times] to discuss the issue of whether or not he would testify at trial. My co-counsel and I advised Petitioner that although it was his decision and his decision alone, we both believed it was in his best interest to not testify during his case in chief. Petitioner waivered back and forth as to his decision on this issue; however ultimately he decided to not testify. One of the main reasons for his decision to not testify was that if he did testify, his extensive criminal history that would have been admissible under Evid. R. 609. Petitioner ultimately agreed with us, that any possible value of his testimony would be negated by the detrimental effect of having the jury learn of his criminal history.Affidavit of Diane Menashe, PageID #3881.
***
I do not recall if U.S. Marshal Mark Stroh advised Petitioner of his opinion as to whether or not he should testify.
Attorney David Stebbins similarly indicates:
I recall that we had ongoing discussions with Mr. Henderson about the wisdom of his testifying at the trial phase of the case. Mr. Henderson waivered back and forth about this. Ms. Menashe and I strongly believed that it would not be in his best interest to testify -understanding, however, that we could not prevent him from doing so. We did try very hard to convince him not to testify. These efforts included a lengthy meeting with Mr. Henderson at the Franklin County Jail the night before he was either going to testify or we were going to rest without him testifying. This meeting lasted until after 10:00 p.m. Mr. Henderson agreed during the course of that meeting that it would not be in his best interest to testify. Ms. Menashe and I left the jail with the firm understanding that Mr. Henderson was not going to testify. We planned our trial strategy for the next day and the remainder of the trial accordingly.Affidavit of David Stebbins, PageID #3885.
The following morning, however. . . Mr. Henderson. . . announced to me that he had changed his mind and that he believed that he needed to testify. I started to try to again convince him that this was a bad idea. When Ms. Menashe arrived, the Marshall allowed us to go into another room away from the courtroom so we could more openly discuss this. The Marshall, Mark Stroh, accompanied us for security reasons. We had a lengthy - sometimes heated - discussion. Mr. Stroh added only one comment giving Mr. Henderson his opinion.
At the conclusion of this meeting, Mr. Henderson informed the court that he declined to testify.
The right of a defendant to testify at trial is a constitutional right of fundamental dimension and is subject only to a knowing and voluntary waiver by the defendant"; nevertheless, "[b]arring any statements or actions from the defendant indicating disagreement with counsel or the desire to testify, the trial court is neither required to sua sponte address a silent defendant and inquire whether the defendant knowingly and intentionally waived the right to testify, nor ensure that the defendant has waived the right on the record." United States v. Webber, 208 F.3d 545, 550-51 (6th Cir. 2000). Indeed, "when a tactical decision is made not to have the defendant testify, the defendant's assent is presumed," and if a defendant disagrees with this decision, he "must alert the trial court that he desires to testify or that there is a disagreement with defense counsel regarding whether he should take the stand." Id. at 551 (internal quotation marks omitted). "When a defendant does not alert the trial court of a disagreement, waiver of the right to testify may be inferred from the defendant's conduct. Waiver is presumed from the defendant's failure to testify or notify the trial court of the desire to do so." Id.Goff v. Bagley, 601 F.3d 445, 471 (6th Cir. 2010); see also Gonzales v. Elo, 233 F.3d 348, 357 (6th Cir. 2000).
The record fails to indicate Petitioner alerted the District Court he wanted to testify on his own behalf. To the contrary, when asked by the District Judge, Petitioner stated it was his own decision not to testify. Trial Transcript, Vol. XII , PageID #3081. Because petitioner did not make the District Court aware of his desire to testify or his disagreement with counsel over the issue, his waiver of the right to testify may be inferred. Under these circumstances, his agreement with the decision not to testify is presumed. Consequently, petitioner has not demonstrated the ineffectiveness of his trial attorneys.
WHEREUPON, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Procedure on Objections: If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal, the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
__________________________
Elizabeth A. Preston Deavers
United States Magistrate Judge