Opinion
CASE NO. 2:12-CV-00153
08-15-2014
THOMAS A. HENDERSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CRIM. NO. 2:06-CR-0039
Magistrate Judge Elizabeth A. Preston Deavers
OPINION AND ORDER
On June 10, 2014, final judgment was entered dismissing the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on Petitioner's August 11, 2014, Motion for Certificate of Appealability and Notice of Appeal. For the reasons that follow, Petitioner's Motion for Certificate of Appealability (Doc. No. 195,), is GRANTED.
Petitioner actually has filed a request for an extension of time to file his notice of appeal. See Doc. 195, PageID# 3959. However, he indicates that he submitted his Notice of Appeal with prison officials for mailing on August 4, 2014, within sixty days of the Court's June 10, 2014, final judgment of dismissal, and as required under Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure. Pursuant to the prison "mailbox" rule of Houston v. Lack, 487 U.S. 266 (1988)(notice of appeal is deemed to have been filed on the date it is submitted to prison officials for mailing), the Court therefore need not address Petitioner's motion for extension of time, as his Notice of Appeal is timely.
This case involves Petitioner's convictions on two counts of retaliatory murder and use a firearm in connection with these killings. After pursing relief in the United States Court of Appeals for the Sixth Circuit, see United States v. Henderson, 626 F.3d 326-339 (6th Cir. 2010), Petitioner filed the instant § 2255 petition. He raises various claims of the denial of effective assistance of counsel, claims a conflict of interest with his attorney, and asserts that he was denied the right to testify on his own behalf. This Court dismissed these claims on the merits.
Petitioner has preserved for appeal only those claims to which he objected to the Magistrate Judge's recommendation of dismissal. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). These claims include his assertion that he was denied the effective assistance of counsel in regard to his attorney's cross examination of Agent Tim Creedon; failure to file a motion in limine to prevent certain prejudicial testimony by Stan Humphrey; failure to request limiting instructions on statements made by Ecolia Washington and Robert Bass; failure to object to improper comments during opening statement; and because his attorney advised him against testifying on his own behalf. Petitioner has also preserved for appeal his claim that he was denied the right to testify on his own behalf and unduly influenced or pressured in making the decision on whether to testify by the United States Marshal, denied the effective assistance of counsel based on his attorney's advice against testifying on his own behalf, and the dismissal of his claims without an evidentiary hearing. The Court dismissed all of these claims on the merits.
Where a claim has been denied on the merits, a certificate of appealability may issue where the petitioner establishes that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)(citing 28 U.S.C. § 2253(c); Barefoot v. Estelle, 463 U.S. 880, 894 (1983)). The Court is persuaded that Petitioner has met this standard here.
The following issues are certified for appeal:
1. Was the Petitioner denied his right to the effective assistance of counsel in regard to the cross examination of Agent Tim Creedon; the failure to file a motion in limine to prevent certain prejudicial testimony by Stan Humphrey; failure to request limiting instructions on statements made by Ecolia
Washington and Robert Bass; failure to object to improper comments during opening statement; and advice against testifying on his own behalf?
2. Was the Petitioner denied the right to testify on his own behalf or improperly pressured in making the decision of whether or not to do so?
3. Did the Court err in not conducting an evidentiary hearing?
IT IS SO ORDERED.
/s/_________
ALGENON L. MARBLEY
United States District Judge