In Henness v. Bagley, ___ F.3d ___, 2014 WL 4401252 (6th Cir. Sept. 8, 2014)
, the Sixth Circuit (Siler, with Boggs and Sutton) affirmed the denial of Ohio death row inmate Warren Henness’s Rule 60(b) motion which alleged that intervening changes in the law established cause to overcome the procedural default of his ineffective assistance of trial counsel claims. The panel found that “neither Martinez
sufficiently changes the balance of the factors for consideration under Rule 60(b).” In addition, the Sixth Circuit has previously ruled that Martinez
does not apply to Ohio and has questioned whether Trevino
does. But even assuming that Trevino
does apply to Ohio, the panel ruled that Henness was unable to meet the requirement of presenting a substantial claim as to both portions of the Strickland
test. As to his claim that trial counsel was ineffective in failing to properly investigate the crime scene, Henness did not make the requisite showing of prejudice. A key issue at trial was whether Henness had acted with “prior calculation and design” in killing the victim. To show this, the prosecutor presented evidence that the victim was bound and gagged at the time he was shot. Henness alleged that with proper investigation, this scenario could have been called into question. In support of the claim, he presented an affidavit from an independent forensic-science consultant who reviewed the crime scene evidence and opined that the victim was bound and gagged after death. The panel found that this expert’s opinion “strains believability” and it was unlikely to have resulted in at least one juror finding that Henness was not guilty. Another allegation concerned the failure of trial counsel to fully investigate Henness’s wife’s background. His wife was a witness for the prosecution who testified, inter alia, that Henness had admitted having committed the murder. Given the considerable doubt that had been raised at trial regarding her credibility, the panel found it unlikely that additional evidence challenging her credibility would have changed the result. Finally, Henness alleged that a more thorough investigation would have allowed counsel to provide more accurate advice about the strengths and weaknesses of the case against Henness. In the absence of such advice, Henness had unwisely rejected a plea offer. The panel found, however, that Henness failed to show that further information would have caused him to plead guilty. It appeared that trial counsel understood the strengths of the prosecution’s case. While Henness suggested that further investigation would have uncovered potential holes in the prosecution’s theory of the case, the panel observed that “if Henness was unwilling to plead guilty with a full understanding of the prosecution’s case against him, he seems unlikely to have changed his mind if he had learned of possible weaknesses in that case.” Henness also argued that his dysfunctional relationship with trial counsel led to the decision to reject the plea offer. The panel disregarded this contention as it was unrelated to his allegations about a deficient investigation.