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Henderson v. Bunting

United States District Court, N.D. Ohio

August 24, 2017

PAUL S. HENDERSON, Petitioner,
JASON BUNTING, Warden, Respondent.

          OPINION & ORDER [Resolving Doc. Nos. 1, 15, 17 34, 35, 36, 37, 39]


         The Court considers Petitioner's habeas corpus petition after the Sixth Circuit's remand. On April 17, 2017, the Sixth Circuit vacated this Court's denial of Petitioner's habeas corpus petition as time-barred as it relates to his 2010 conviction.[1]

         Earlier, this Court had denied Henderson's habeas petition for a 2009 state court drug conviction. This Court denied Henderson a certificate of appealability for that decision and the Court of Appeals agreed.

         The Court now considers the six grounds for relief that Petitioner asserts in his habeas corpus petition with regard to his 2010 conviction. For the following reasons, the Court denies Henderson's habeas petition regarding his 2010 conviction and DISMISSES Henderson's petition as it relates to his 2010 conviction.[2]

         I. BACKGROUND

         On June 15, 2010, a state court jury convicted Petitioner Henderson of drug trafficking, drug possession, and possession of criminal tools.[3] The next day, the Cuyahoga County Court of Common Pleas sentenced Petitioner.[4]

         In September 2010, Petitioner moved for leave to file a delayed appeal from this trafficking conviction.[5] The Ohio Eighth District Court of Appeals granted Petitioner's motion on September 7, 2010.[6] And on March 15, 2012, the court of appeals affirmed Petitioner's conviction.[7]

         In a habeas corpus case from a state court judgment, the Court presumes that state court factual findings are correct.[8] The presumption of correctness also applies to factual findings made by a state appellate court based on the trial record.[9]

         The Eighth District Court of Appeals summarized the background regarding Petitioner's 2010 conviction:

{¶ 2} On December 10, 2009, appellant was named in a three-count indictment charging him with trafficking in marijuana in excess of 20, 000 grams, in violation of R.C. 2925.03(A)(2), a felony of the second degree; drug possession in excess of 20, 000 grams of marijuana, in violation of R.C. 2925.ll(A), a felony of the second degree; and possession of criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree.
{¶ 3} Appellant's jury trial commenced on June 4, 2010. The following testimony was presented at trial.
{¶ 4} Paulette Gentry testified that she was employed by Town Air Freight as a shift supervisor and dispatcher. Gentry stated that on September 9, 2009, she noticed a package that aroused her suspicions because it reminded her of a 2008 instance where authorities discovered a large quantity of marijuana in a package that had been delivered for pickup by appellant. With those suspicions in mind, Gentry immediately contacted Deputy Anthony Quirino, whom she knew as a K-9 officer with the sheriff's office from the 2008 investigation of appellant.
{¶ 5} Deputy Anthony Quirino testified that he was a K-9 handler and deputy with the Cuyahoga County Sheriff's Office. Deputy Quirino testified that he and his dog, Hugo, responded to a call from Town Air Freight that they possessed a suspicious package. Deputy Quirino testified that Hugo went directly to the suspicious package and signaled that it contained drugs. Subsequently, the package was taken to the police department for inspection. Upon obtaining a search warrant, Deputy Quirino inspected the package and confirmed that it contained approximately 60 pounds of marijuana, worth an estimated $60, 000. The package was then returned to Town Air Freight for a “controlled delivery, ” and appellant was informed that his package was ready to be picked up.
{¶ 6} Appellant's girlfriend, Patricia Casey, testified that on September 24, 2009, appellant drove her to the Town Air Freight warehouse and instructed her to go into the warehouse and sign for a package. Casey testified that the invoice identified “Paul Anderson” as the recipient and indicated that the package contained auto parts. Casey testified that she went into Town Air Freight and signed her name for appellant's package, and the package was loaded into appellant's van by a Town Air Freight employee.
{¶ 7}Deputy Ben Meder of the Cuyahoga County Sheriff's Department testified that he was assigned by his department to conduct surveillance of appellant's vehicle. Deputy Meder testified that unmarked police vehicles followed appellant once he left Town Air Freight with the package. After appellant dropped Casey off at her home, police officers stopped appellant's vehicle and arrested him. A cell phone and $21 in cash was found on appellant, and officers retrieved a second cell phone from appellant's vehicle.
{¶ 8}On June 7, 2010, the jury found appellant guilty of all counts. At his sentencing hearing, the trial court concluded that the possession and trafficking convictions were allied offenses, and the state elected to pursue sentencing on appellant's drug trafficking conviction. Appellant was sentenced to an aggregate nine-year term of imprisonment, a $7, 750 fine, court costs, driver's license suspension, and the forfeiture of two cell phones.[10]

         In May 2012, Petitioner appealed the court of appeals' conviction affirmance to the Ohio Supreme Court.[11] On September 5, 2012, the Ohio Supreme Court declined jurisdiction over Petitioner's appeal.[12] Petitioner did not seek United States Supreme Court review. Petitioner filed several motions after the Ohio Supreme Court's September 2012 decision to deny review.[13]

         On October 10, 2014, Petitioner filed his § 2254 petition seeking relief from two trafficking convictions, one of which is the 2010 conviction at issue here.[14] The Court previously held that Henderson's petition based on both convictions was time-barred.[15] The Sixth Circuit vacated the Court's decision as it relates to Petitioner's 2010 conviction and remanded this case for further proceedings.[16] The Court now considers Petitioner's six grounds of relief based on his 2010 conviction:

(1) Violation of Fourth Amendment right against illegal seizure;
(2) Violation of Fifth Amendment right against self-incrimination;
(3) Ineffective assistance of trial counsel;
(4) Eighth Amendment violation;
(5) Cumulative errors from Grounds One through Four; and
(6) Insufficient evidence to convict.[17]


          A. Procedural Bar to Review: Procedural Default

         A federal court may not reach the merits of claims that a state prisoner procedurally defaulted, absent either a showing of cause and prejudice or a finding of actual innocence.[18]

         The Sixth Circuit uses a three-step analysis to determine whether a claim is procedurally defaulted.[19] Under this test, the Court decides (1) whether the petitioner failed to comply with an applicable state procedural rule; (2) whether the state courts actually enforced the state procedural sanction; and (3) whether the state procedural bar is an “independent and adequate” state ground on which the state can foreclose federal review.[20]

         The Court may excuse a petitioner's procedural default if the petitioner shows “cause” for the procedural default and “actual prejudice” from the alleged error.[21] “Demonstrating cause requires showing that an ‘objective factor external to the defense impeded counsel's efforts to comply with the state procedural rule.”[22] A petitioner may prove prejudice if they show “that the trial was infected with constitutional error.”[23] “The burden is on the petitioner to show that he was prejudiced by the alleged constitutional error.”[24] It is not necessary, however, to resolve the issue of prejudice if a petitioner has not shown cause.[25]

         B. Substantive Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), [26] governs a federal court's review of a state prisoner's habeas corpus petition. AEDPA limits federal review to those claims in which a petitioner contends that he is in custody in violation of the Constitution, laws, or treaties of the United States.[27] AEDPA provides that federal courts cannot grant a habeas petition for any claim that the state court adjudicated on the merits unless the adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”[28]

         To justify a grant of habeas relief under the “contrary to” clause, “a federal court must find a violation of law ‘clearly established' by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state court decision.”[29] Meanwhile, under the “unreasonable application” clause, “a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.”[30]

         Since the Petitioner is proceeding pro se, “his pleadings are held to a less stringent standard than those prepared by an attorney and are liberally construed in his favor.”[31]

         III. ANALYSIS

         A. Ground One (Fourth Amendment) is procedurally defaulted and also fails on the merits.

         Petitioner Henderson claims that his Fourth Amendment right to be free from illegal search and/or seizure was violated. This claim is procedurally defaulted. And even if the claim were not procedurally defaulted, Henderson's Fourth Amendment claim loses.

         1. Procedural Default

         As previously noted, the Sixth Circuit uses a three-step analysis under Maupin to determine whether a claim is procedurally defaulted.[32]

         Under the first prong of the Maupin test, there is no dispute that Henderson failed to raise this claim under the applicable Ohio time period. Under Ohio Rule of Criminal Procedure 12(C)(3), the suppression of evidence must be raised in a pretrial motion.[33] Here, Henderson never challenged the search and seizure before his trial.[34] As a result, the first prong of the Maupin test is satisfied.

         The second prong of the test is also satisfied. The Ohio court of appeals deemed that Henderson had waived merit review of this claim because of Henderson's failure to challenge the search before trial. The Ohio Court of Appeals ruled that Henderson did not satisfy Ohio Rule 12(C)(3) and thus “removed [the claim] from [their] consideration.”[35] Thus, the state court enforced the procedural rule on direct review.

         The third prong of the Maupin test - adequate and independent state grounds - is also met. Because Ohio state law considers the failure to move to suppress under Rule 12(C)(3) to be a waiver, [36] it is an expression of the state's contemporaneous objection rule. The Sixth Circuit, in turn, has held that Ohio's contemporaneous objection rule is an adequate and independent state ground for purposes of procedural default.[37] Accordingly, the state court's enforcement of Rule 12(C)(3) here satisfies the third prong of the Maupin test.[38]

         Since the Petitioner's claim of a Fourth Amendment violation is procedurally defaulted, the Court must reject his petition unless Henderson succeeds in showing “cause” and “actual” prejudice.[39] In making this showing, “[h]abeas petitioners cannot rely on conclusory assertions of cause and prejudice to overcome procedural default.”[40] “[T]hey must present affirmative evidence or argument as to the precise cause and prejudice produced.”[41]

         Even after liberally construing Henderson's petition, the Court finds that Petitioner failed to specifically state any cause or prejudice for his procedural default.[42]

         Petitioner seems to argue that he suffered prejudice because he is actually innocent.[43]However, that is a separate inquiry from prejudice. In order for actual innocence to excuse Petitioner's procedural default, Petitioner must “present new evidence that shows that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”[44] Petitioner fails to bring any new evidence to demonstrate his innocence.

         Accordingly, the Court finds that the Petitioner procedurally defaulted on his first ground for relief.

         2. Failure on the Merits

         Alternatively, Petitioner's first ground for relief fails on the merits.

         “[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”[45]

         The Sixth Circuit employs a two-part inquiry to determine whether the State has provided an opportunity for full and fair litigation of Petitioner's Fourth Amendment claim. First, the “‘[C]ourt must determine whether the state procedural mechanism, in the abstract, presents the opportunity to raise a Fourth Amendment claim. Second, the Court must determine whether presentation of the claim was in fact frustrated because of a failure of that mechanism.'”[46]

         First, the Sixth Circuit has stated that, in the abstract, Ohio Rule of Criminal Procedure 12 provides litigants with a full and fair opportunity to litigate Fourth Amendment claims.[47] Second, Petitioner failed to make this Fourth Amendment claim in his pretrial motion pursuant to Rule 12.[48] Thus, it is unclear whether Petitioner's presentation of his Fourth Amendment claim could have been frustrated.

         As a result, even if Ground One were not procedurally defaulted, it fails on the merits.

         B. Grounds Two (Self-Incrimination) and Six (Insufficient Evidence) are procedurally defaulted and also fail on the merits.

         Petitioner Henderson bases his second ground for relief on a violation of his Fifth Amendment right against self-incrimination. In his sixth ground for relief, Henderson claims that there was insufficient evidence to convict him, which violated his Fifth and Fourteenth Amendment rights.

         Both claims are procedurally defaulted because Petitioner did not present either of these claims on direct appeal. But even if they were not procedurally defaulted, they both fail on the merits.

         1. Grounds Two and Six are ...

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