Henson v. Wardlow

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
______________________________________________________________________________
TERRY WAYNE HENSON,
Petitioner,
v. 	No. 1:22-cv-01275-JDB-jay
WARDEN ROBERT ADAMS, JR.,
Respondent.
______________________________________________________________________________
ORDER DENYING § 2254 PETITION, DENYING A CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO
APPEAL IN FORMA PAUPERIS
_____________________________________________________________________________
Before the Court is the habeas corpus petition filed by Petitioner, Terry Wayne Henson,
(“Petitioner” or “Henson”), pursuant to 28 U.S.C. § 2254. (Docket Entry (“D.E.”) 1 (the “§ 2254
Petition”).) For the following reasons, the § 2254 Petition is DENIED.
I. 	STATE COURT PROCEDURAL BACKGROUND
On June 12, 2017, a McNairy County grand jury returned an indictment charging Henson
with two counts of rape of a child, one count of incest, and two counts of violating the sex offender
registry restrictions. 	(D.E. 11-1 at PageID 45-48.) 	Henson was represented by attorney, Ross
Mitchell, in the trial court and on direct appeal. (D.E. 1 at PageID 5-6; D.E. 11-1 at PageID 69.)
On October 9, 2018, a jury convicted Henson on the two rape of a child counts, the incest
count and one of the violations of the sex offender registry restrictions counts.1 	(D.E. 11-1 at
PageID 128-31.) 	Henson was sentenced to an aggregate sentence of thirty-five years at one
hundred percent on those charges. (Id. at PageID 142-46.)
1 The State dismissed the other count of violating the sex offender registry restrictions before Henson’s trial.
See State v. Henson, No. W2019-00462-CCA-R3-CD, 2020 WL 6317113, at *1 (Tenn. Crim. App. Oct. 28, 2020).
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On November 28, 2018, Henson filed a motion for a new trial, arguing that the State “did
not prove that the offenses found in the indictment occurred on or between the dates included in
the indictment” and that the verdict was against the weight of the evidence presented. 	(Id. at
PageID 147.) The trial court denied Henson’s motion on February 12, 2019. (Id. at PageID 149.)
On March 13, 2019, Petitioner appealed. (Id. at PageID 151.) On appeal, he argued that
the verdict was contrary to state law “in that the state failed to prove that the offenses oc[c]urred
on or between the dates included in the indictment” and that the verdict was against the weight of
the evidence presented. (D.E. 11-7 at PageID 478.) On October 28, 2020, the Tennessee Court of
Criminal Appeals (“TCCA”) affirmed the trial court’s judgments. State v. Henson, No. W2019-
00462-CCA-R3-CD, 2020 WL 6317113, at *1 (Tenn. Crim. App. Oct. 28, 2020); (D.E. 11-9 at
PageID 513.) 	On December 23, 2020, Henson sought discretionary review. 	(D.E. 11-11.) 	On
March 23, 2021, the Tennessee Supreme Court (“TSC”) denied Petitioner’s application for
permission to appeal. (D.E. 11-13.)
Henson then filed a pro se Post-Conviction Petition pursuant to T.C.A. § 40-30-101 et seq.
(D.E. 11-14 at PageID 546-55.) He asserted four grounds of ineffective assistance of counsel: (1)
counsel failed to have an investigator interview the two victims prior to trial; (2) counsel did not
conduct a thorough pretrial investigation; (3) did not retain a medical expert to conduct rape
examinations on the two victims; and (4) failed to conduct meaningful plea negotiations with the
State. (Id. at PageID 550.) Henson filed a pro se amended petition on June 25, 2021, raising the
same four grounds of ineffective assistance as in his original petition. (Id. at PageID 559-68.)
On July 7, 2021, the post-conviction court appointed attorney, Rickey Griggs, to represent
Henson. (Id. at PageID 572.) On August 9, 2021, Petitioner, through counsel, filed notice that
“no amended petition will be filed in this matter.” (Id. at PageID 574.)
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The post-conviction court held an evidentiary hearing on October 25, 2021, (D.E. 11-15),
and on November 4, 2021, denied relief. (D.E. 11-14 at PageID 581-84.) Henson appealed. (Id.
at PageID 588.) On post-conviction appeal, Petitioner asserted only that “the post-conviction court
erred when it denied his petition” because Mitchell “was ineffective for failing to interview
potential witnesses before trial and for failing to call one of these potential witnesses to testify at
trial.” Henson v. State, No. W2021-01432-CCA-R3-PC, 2022 WL 4115375, at *5 (Tenn. Crim.
App. Sept. 9, 2022); (D.E. 11-18 at PageID 684.) On September 9, 2022, the TCCA affirmed the
denial of post-conviction relief. 	Henson, 2022 WL 4115375, at *1. 	Henson did not seek
permission to appeal to the TSC.
II. 	EVIDENCE
On direct appeal, the TCCA summarized the evidence presented at trial:
This case arises out of the Defendant’s sexual abuse of his eight-year-old biological
daughter, S.M., and S.M.’s nine-year-old half-sister, A.G.H., during an October
weekend the two girls spent with the Defendant at his house trailer just prior to
Halloween of 2016. The girls reported the abuse to their sister-in-law immediately
after the weekend visit and a short time later to a law enforcement officer and a
sexual assault nurse examiner. 	The Defendant was subsequently indicted by the
McNairy County Grand Jury with two counts of rape of a child, one count of incest,
and two counts of violation of the sex offender registry requirements. The State,
however, dismissed one of the counts of violation of the sex offender registry prior
to the Defendant’s October 9, 2018 trial.
The State’s first witness at trial was Officer Dena Heathcock of the Jackson Police
Department, formerly employed as a patrol officer with the McNairy County
Sheriff’s Department, who testified that on October 30, 2016, while in her former
position, she was dispatched to meet with the victims and their mother at the
courthouse/jail complex in response to a “[f]ondling” call. She said she took the
victims’ statements and noted in her report that A.G.H. had a bruise on her right
breast. 	On cross-examination, she acknowledged that she could not recall any
specific details about the bruise. On redirect examination, she recalled that there
was one other person, “Brandi,” present with the victims and their mother when she
met with them at the complex.
Brandi Miller, the victims’ former sister-in-law, testified that A.G.H. made a
revelation to her about sexual abuse after they picked her up from her visit with the
Defendant. 	She 	stated 	that 	they 	immediately 	reported 	the 	abuse 	to 	law
enforcement, driving first to the Hardin County jailhouse and from there to the
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McNairy County Courthouse complex to speak with a female officer. 	She was
present when A.G.H. showed the officer her breast, and she observed that the breast
was red. On cross-examination, she denied that she coached the victims on what
to say to the officer.
Sexual Assault Nurse Examiner Mary Jane Cole, who examined both victims in the
early morning hours of October 31, 2016, testified that S.M. reported that her father
had “pinched [her] butt” and that he “puts his nu-nu, his bad part, in [her] nu-nu.”
S.M. showed her what she meant by “nu-nu” by pointing to the crotch area of a toy
and to her own crotch area. 	Her physical examination of S.M., which involved
gently pulling apart the outer lips, or labia majora, of S.M.’s vulva, revealed mild
redness in S.M.’s external genitalia.
Nurse Cole testified that A.G.H. reported that the Defendant: “put his thingy in
[her] butt”; “put his thingy to [her] front part,” which hurt; put his finger in her
“front private”; put his hand on her breast, which caused her pain; and kissed her
on the mouth. 	[86] 	She asked what A.G.H. meant by the Defendant putting his
finger in her private, and A.G.H. told her that the Defendant’s fingers moved “in
and out[.]” 	[87, line 1] 	Her physical examination of A.G.H. was limited due to
A.G.H.’s extreme discomfort and pain, even after she applied Lidocaine jelly, but
she was able to observe “[s]evere redness throughout . . . [A.G.H.’s] whole
vestibule, around the urethra, around the hymenal tissue, in the labia minora, on the
outside, the labia majora.”
On cross-examination, she testified that she did not see any acute injury on S.M.
and saw no noticeable redness on or around A.G.H.’s buttocks. 	She said she
collected two buccal swabs from S.M., two buccal swabs from A.G.H., two swabs
from around the outside of A.G.H.’s anus, and two swabs from A.G.H.’s labia
majora. She had no information of whether any foreign DNA was found on any of
the swabs. 	She acknowledged that either poor hygiene or an infection could
account for the redness in A.G.H.’s genital area but said that the child’s mother
gave no indication that A.G.H. had any prior issues with irritation of her genitalia.
She acknowledged that she was unable to determine whether penetration had
occurred in either child.
Ten-year-old S.M. testified that the Defendant, her father, touched her in a bad way
one weekend when she was staying with him at his house and watching the movie
“Bad Teacher.” Referring to the Defendant’s penis as his “bad part,” she said that
the Defendant, who was lying down on the couch, unzipped his pants, pulled out
his penis, and moved her so that she was sitting on top of his penis. The Defendant
did not remove her clothes but he pushed his penis several times against her
buttocks. 	Although she was not clear in her testimony, she indicated that the
Defendant either pushed his penis through the leg opening of her panties into her
vagina or her anus or pushed his penis, covered by the material of her panties, into
her vagina or her anus, testifying, “My clothes was on but you can feel it go
through.” She further testified that it felt as if the Defendant’s penis was inside of
her and that it was “coming into [her] butt.” His penis felt “[l]ike a mountain,” and
the Defendant was “moving everywhere.” The Defendant’s penis hurt her and she
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asked him to stop, but he continued. She felt “[a] little bit of pee” coming out of
his penis and “into [her] butt” before the Defendant finally stopped. She said she
told her sister-in-law, Brandi, about what the Defendant had done and that she later
went to the Carl Perkins Center for the Prevention of Child Abuse where a woman
examined her.
On cross-examination, S.M. testified that the Defendant removed both her t-shirt
and her pants, leaving her underwear on. She reiterated that the incident happened
at the Defendant’s house. She could not recall what time of day it occurred or how
old she had been at the time. She said no one else was in the home at the time.
On redirect examination, S.M. testified that a similar incident happened more than
once and agreed that she might have been confusing the two incidents when she
testified on direct examination that her clothes were on and on cross-examination
that her clothes were off. She also agreed that her sister was at home on some of
the occasions when “bad things happened” at the Defendant’s home.
Lieutenant Brad Johnson of the McNairy County Sheriff’s Department identified a
certified copy of the Defendant’s Georgia conviction for child molestation, as well
as 	the 	“Tennessee 	Sexual 	Offender/Violent 	Sexual 	Offender
Registration/Verification/Tracking Form, signed by the Defendant on August 8,
2016, in which the Defendant acknowledged receipt of the registry rules he was
required to follow, including the prohibition against being alone with a minor.
Eleven-year-old A.G.H. testified that on an overnight visit with the Defendant at
his house trailer in Michie just before Halloween, the Defendant told her to go into
S.M.’s bedroom, where he pushed her down on the bed, pulled down her pants, and
touched her breast and her private part with his finger. She said the Defendant put
his fingers inside her, which made her feel “awkward” and “weird.” The Defendant
then unzipped his pants, pulled out his private part, pushed it inside her private part,
and rubbed against her, which hurt her. The Defendant also tried to put his private
part inside her buttocks, but she squeezed her buttocks together to stop him.
A.G.H. testified that she asked the Defendant to stop, but he continued until his
girlfriend, who was cooking in the kitchen, called for him to “come and eat.” She
said S.M. was playing with dolls in the living room at the time. She identified on
anatomical drawings what she meant by her and the Defendant’s respective private
parts. She testified that the Defendant dropped her and S.M. off at the courthouse
at about 8:30 p.m., where their mother and Brandi picked them up. When she got
home, she told Brandi and her brother what had happened.
On cross-examination, A.G.H. testified that at the time of the incident, she was
wearing leggings and no underwear because her underwear was dirty. She said the
Defendant pulled her leggings down to her knees and unzipped his pants. 	The
Defendant was not wearing a shirt or any underwear. The Defendant pinched her
breast by sliding his arm underneath her shirt. She said the incident occurred in the
evening approximately two years earlier, when she was nine. 	On redirect
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examination, she testified that the incident happened on the same weekend in which
she talked to a police officer and went to a hospital for a physical examination.
The victims’ mother, called as a witness by the defense, testified that her romantic
relationship with the Defendant had ended approximately three years before the
date of trial. She acknowledged having told the judge in the general sessions court
that she did not believe that the Defendant would harm the victims. 	She stated,
however, that she now believed the victims’ allegations. 	On cross-examination,
she testified that although she did not believe the victims when she first learned of
the abuse, she had immediately taken them to be interviewed by law enforcement
and to the hospital for physical examinations.
The forty-nine-year-old Defendant testified that he had never been alone with
A.G.H. and denied he had ever inappropriately touched either victim or behaved
inappropriately around them. On cross-examination, he testified that he had been
alone with S.M. and reiterated that he had never been alone with A.G.H., although
he had been in the room with only A.G.H. and S.M. when S.M. was asleep.
Lynn Baker, owner of a construction company and the Defendant’s employer,
testified that he had observed that the victims appeared to be “crazy” about the
Defendant. He described the Defendant as an excellent employee and said that the
Defendant informed him of his Georgia criminal conviction on the day that he hired
him.
Henson, 2020 WL 6317113, at *1-3 (footnote omitted).
III. 	HABEAS PROCEEDINGS
Henson filed his pro se § 2254 Petition on December 12, 2022. 	(D.E. 1.) 	He alleges
ineffective assistance of counsel and references the four grounds of alleged ineffective assistance
he raised in his state post-conviction petition. (D.E. 1-1 at PageID 12-18.) On March 29, 2023,
the Court ordered Respondent to respond to the § 2254 Petition and file the state court record.
(D.E. 7.) On April 24, 2023, Respondent filed the state court record (D.E. 11) and a response to
the § 2254 Petition (D.E. 12). 	Respondent argues that Henson’s claims are unexhausted,
procedurally defaulted, and lack merit. (See D.E. 12.) Petitioner has not filed a reply, and the time
for him to do so has expired. (See D.E. 7.)
IV. 	FEDERAL HABEAS REVIEW STANDARD
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The statutory authority for federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). 	Under § 2254, habeas relief is available only if the prisoner is “in
custody in violation of the Constitution or laws or treaties of the United States.” 	28 U.S.C. §
2254(a).
The availability of federal habeas relief is further restricted where the petitioner’s claim was
“adjudicated on the merits” in the state courts. 	28 U.S.C. § 2254(d). 	In that circumstance, the
federal court may not grant relief unless the state court decision “‘was contrary to’ federal law then
clearly established in the holdings of [the Supreme] Court; or . . . ‘involved an unreasonable
application of’ such law; or . . . ‘was based on an unreasonable determination of the facts’ in light
of the record before the state court.” 	Harrington v. Richter, 562 U.S. 86, 100 (2011) (citations
omitted) (quoting 28 U.S.C. § 2254(d)(1)-(2)).
A state court’s decision is contrary to federal law when it “arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law,” or when “the state court confronts
facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at”
an “opposite” result. Williams v. Taylor, 529 U.S. 362, 405 (2000). An unreasonable application
of federal law occurs when the state court, having invoked the correct governing legal principle,
“unreasonably applies the [principle] . . . to the facts of a prisoner’s case.” Id. at 409.
For purposes of § 2254(d)(2), a state court’s “factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). The Sixth Circuit construes § 2254(d)(2) in
tandem with § 2254(e)(1) to require a presumption that the state court’s factual determination is
correct in the absence of clear and convincing evidence to the contrary. Ayers v. Hudson, 623 F.3d
301, 308 (6th Cir. 2010) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). A state court’s
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factual findings are therefore “only unreasonable where they are ‘rebutted by clear and convincing
evidence and do not have support in the record.’” Moritz v. Woods, 692 F. App’x 249, 254 (6th
Cir. 2017) (internal quotation marks omitted) (quoting Pouncy v. Palmer, 846 F.3d 144, 158 (6th
Cir. 2017)).
Before a federal court will review the merits of a claim brought under § 2254, the petitioner
must have “exhausted the remedies available in the courts of the State.” 	28 U.S.C. §
2254(b)(1)(A). 	To be properly exhausted, a claim must be “fairly presented” through “one
complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526
U.S. 838, 845, 848 (1999).
The exhaustion requirement works in tandem with the procedural-default rule, which
generally bars federal habeas review of claims that were procedurally defaulted in the state courts.
Id. at 848. A petitioner procedurally defaults his claim where he fails to properly exhaust available
remedies (that is, fails to fairly present the claim through one complete round of the state’s
appellate review process), and he can no longer exhaust because a state procedural rule or set of
rules have closed-off any “remaining state court avenue” for review of the claim on the merits.
Harris v. Booker, 251 F. App’x 319, 322 (6th Cir. 2007). Procedural default also occurs where
the state court “actually . . . relied on [a state] procedural bar as an independent basis for its
disposition of the case.” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). To cause a procedural
default, the state court’s ruling must “rest[] on a state law ground that is independent of the federal
question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991)
(citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Klinger v. Missouri, 80 U.S. 257, 263
(1871)).
A petitioner will be entitled to federal court review of the merits of a claim that was
procedurally defaulted if he demonstrates “cause for the default and actual prejudice as a result of
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the alleged violation of federal law.” 	Id. at 750. 	The ineffectiveness of post-conviction trial
counsel may be cause to excuse the default of an ineffective-assistance-of-trial-counsel claim.
Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez v. Ryan, 566 U.S. 1, 14, 16-17
(2012)).
A petitioner may also overcome a procedural default by establishing a “gateway” claim of
actual innocence. 	Schlup v. Delo, 513 U.S. 298, 315 (1995). 	To open the gateway, a prisoner
must “support his allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—
that was not presented at trial.” Id. at 324. He must also show that, in light of the new evidence,
“it is more likely than not that no reasonable juror would have convicted him.” Id. at 327.
V. 	ANALYSIS
In his § 2254 Petition, Henson alleges ineffective assistance of counsel and references the
four grounds of alleged ineffective assistance he raised in his state post-conviction petition. (D.E.
1-1 at PageID 12-18.) Those grounds are that counsel failed to: (1) have an investigator interview
the two victims prior to trial; (2) conduct a thorough pretrial investigation; (3) retain a medical
expert to conduct rape examinations on the two victims; and (4) conduct meaningful plea
negotiations with the State. (D.E. 11-14 at PageID 550.)
A. 	Standard for Ineffective Assistance of Counsel Claims
A claim that an attorney’s ineffective assistance has deprived a criminal defendant of his
Sixth Amendment right to counsel is controlled by the standards stated in Strickland v.
Washington, 466 U.S. 668 (1984). To succeed on such a claim, a petitioner must demonstrate two
elements: (1) “that counsel’s performance was deficient”; and (2) “that the deficient performance
prejudiced the defense.” 	Id. at 687. 	“The benchmark for judging any claim of ineffectiveness
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must be whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Id. at 686.
To establish deficient performance, a petitioner “must show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 688. A court considering a claim of
ineffective assistance must apply “a strong presumption” that the attorney’s representation was
“within the wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action might be considered sound
trial strategy.” Id. at 689 (internal quotation marks and citation omitted).
An attorney’s “strategic choices” are “virtually unchallengeable” if based on a “thorough
investigation of law and facts relevant to plausible options.” Id. at 690. “[S]trategic choices made
after less than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. at 690-91.
To demonstrate prejudice, a petitioner must establish “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” 	Id. at
694. 	“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” 	Id. 	“It is not enough ‘to show that the errors had some conceivable effect on the
outcome of the proceeding.’” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693).
Instead, “[c]ounsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687).
The deference to be accorded a state court decision under 28 U.S.C. § 2254(d) is magnified
when a federal court reviews an ineffective assistance claim: “Federal habeas courts must guard
against the danger of equating unreasonableness under Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable.
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The question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. at 105.
Because these claims were raised in the post-conviction proceedings, the Court will address
the merits of these claims to the extent that they were exhausted.
B. 	Ground I: Failing to Interview the Two Victims
Henson asserts that trial counsel “failed to attempt to have an investigator interview the
two victims prior to trial.” 	(D.E. 1-1 at PageID 15.) 	According to Petitioner, these interviews
“would have assisted counsel in the cross-examination of the victims at trial, and potentially
revealed inconsistent statements of the victims, which could have been used to impeach the
victims’ testimony at trial.” (Id.) He raised this claim in his state post-conviction petition and trial
counsel testified at the post-conviction evidentiary hearing. Henson, 2022 WL 4115375, at *3.
On post-conviction appeal, the TCCA summarized the evidence about Mitchell:
Counsel testified that the Petitioner retained him shortly after the Petitioner’s
arraignment. Counsel understood that the Petitioner alleged that he failed to have
an investigator interview the two child witnesses. 	Counsel explained that both
children had been forensically interviewed in a thorough manner. Counsel had a
copy of that statement, and both girls testified at trial, giving him the opportunity
to cross-examine them. Counsel said that he did not believe that any further pretrial
interviews would have changed his cross-examination. Counsel additionally said
that, as a matter of strategy, he did not want the children to rehearse their statements
before trial, given that so much time had passed between the incident and the trial.
Id. On cross-examination, the attorney testified that “his trial strategy included attempting to get
the victims to testify the incident occurred on the date in the indictment that they were not with the
Petitioner.” Id. at *4.
Respondent argues that Henson has procedurally defaulted this claim for relief because he
“abandoned the issue on appeal” and, therefore, “fail[ed] to fully present it for state review.” (D.E.
12 at PageID 711.) On post-conviction appeal, Petitioner asserted only that “the post-conviction
court erred when it denied his petition” because Mitchell “was ineffective for failing to interview
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potential witnesses before trial and for failing to call one of these potential witnesses to testify at
trial.” 	Henson, 2022 WL 4115375, at *5. 	At no time on post-conviction appeal did Henson
challenge the post-conviction court’s conclusion that Mitchell was not ineffective for failing to
have an investigator interview the two witnesses before trial.
Petitioner failed to file a reply and so has not addressed the issue of procedural default. He
has failed to show cause and prejudice or a miscarriage of justice to overcome the procedural
default. 	Henson cannot rely upon Martinez to show cause and prejudice because “the rule
announced in that case does not extend to claims of ineffective assistance of appellate counsel.”
See Balducci v. Spatny, No. 25-3186, 2025 WL 2743906, at *2 (6th Cir. July 15, 2025) (citing
Davila v. Davis, 582 U.S. 521, 530-35 (2017)). 	The inmate also fails to show a miscarriage of
justice because he has not presented new reliable evidence of actual innocence. For these reasons,
Henson’s first claim for relief is procedurally defaulted.
Notwithstanding Petitioner’s procedural default of this claim, the claim also lacks merit.
Respondent avers that Henson “did not present evidence as to the substance of what an additional
interview would have uncovered.” (D.E. 12 at PageID 714.) Respondent also contends that “there
is no basis to conclude that counsel would have been granted access to interview the victims, even
if he had asked, much less that a reasonable probability of a different trial result follows from
counsel not interviewing the victims.” (Id.)
In its order denying the inmate’s state post-conviction petition, the post-conviction court
cited and applied the clearly established Supreme Court precedent in Strickland. (D.E. 11-14 at
PageID 583.) 	The post-conviction court credited trial counsel’s testimony and accepted it as
“adequate trial strategy and representation.” (Id.) Mitchell testified that “in his opinion a pretrial
interview with the witnesses would only have benefited the State and would have helped the State
prep its witnesses.” (Id. at PageID 581.) Counsel was familiar with the victims’ testimony, and
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“there was no evidence presented that the victims would have voluntarily spoken with counsel or
that new information would have been developed.” (Id. at PageID 582.) Notably, Petitioner “did
not produce the testimony of either victim.” (Id.) Considering his failure to produce purported
additional testimony from either victim and counsel’s explanation for why he did not seek to
interview the victims, Henson could not show prejudice under Strickland. 	The post-conviction
court’s determination was not contrary to or an unreasonable application of clearly established
Supreme Court precedent and was not based on an unreasonable determination of facts in light of
the evidence presented. 	Accordingly, Henson’s first claim for relief is procedurally defaulted,
lacks merit, and is DENIED.
C. 	Ground II: Failing to Conduct a Thorough Pretrial Investigation
The inmate argues that counsel “failed to conduct an appropriate[] and thorou[g]h pre-trial
investigation.” 	(D.E. 1-1 at PageID 15.) 	According to Henson, counsel should have had an
investigator interview “friends, relatives, and other people who knew the victims, to inquire into
the victims’ veracity and credibility.” (Id.) Petitioner asserts that counsel could have discovered
evidence that the victims often lied or “made up stories” and used this evidence to impeach their
credibility at trial. (Id.)
On post-conviction appeal, the TCCA summarized the relevant testimony regarding
Mitchell’s performance:
Counsel also responded to the Petitioner’s allegation that he did not adequately
investigate the names of witnesses given to him by the Petitioner. Counsel said that
he contacted one of those witnesses listed, “Ms. Alexander,” who recounted that
she was the parent of a male child who was a prior victim of a sexual offense where
the Petitioner was the Defendant. Counsel felt adamantly that this witness should
not testify. Counsel noted that, at the time of the offense involving these two girls,
the Petitioner was on the sex offender registry for sexual offenses against “Ms.
Alexander’s” son.
The Petitioner also provided Counsel with the name of his ex-girlfriend as a
witness. The Petitioner was uncertain how to contact his ex-girlfriend, and Counsel
ultimately decided that the ex-girlfriend’s testimony might do more harm than good
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because she could corroborate the victims’ testimony about being at the Petitioner’s
home on the dates in question.
The other name that the Petitioner provided to Counsel, Mr. Lynn Baker, was the
Petitioner’s employer. 	Mr. Baker only had “positive things” to say about the
Petitioner, including that he was a “good worker.” Counsel noted, however, that
Mr. Baker was not in the home at the time of the incident. As such, Mr. Baker did
not have information necessarily relevant to the offenses. 	Regardless, Counsel
called Mr. Baker at trial and at sentencing. 	Counsel said he did not call the
Petitioner’s mother because she would clearly have been biased and she was not
present at the time or place of the offenses.
Henson, 2022 WL 4115375, at *4. On cross-examination,
Counsel testified that he met with the Petitioner five or six times out of court and
five or six times before or after court appearances. 	Counsel said that he did not
specifically recall the Petitioner asking him to talk to the Petitioner’s mother.
Counsel acknowledged that there was a discrepancy in dates of when the incident
occurred, and his trial strategy included attempting to get the victims to testify the
incident occurred on the date in the indictment that they were not with the
Petitioner. 	He did not recall, however, that the Petitioner’s mother could have
testified to the potential discrepancy.
Counsel said that, when he spoke with the Petitioner’s mother, she focused
primarily on disputes between the Petitioner and the mother of the children.
Counsel agreed that the victims testified that the Petitioner’s ex-girlfriend was
present at the time when these offenses occurred. He said that he and the Petitioner
determined that the ex-girlfriend worked at a local factory, but Counsel did not
speak with her. Counsel testified he did not believe that she could corroborate the
Petitioner’s story regarding what had happened.
Counsel said that he called the victims’ mother at trial because she had testified that
she did not believe the children at the time that they reported the abuse.
Id. at *4-5.
During the post-conviction hearing, Petitioner testified that “he told [Mitchell] to speak
with his mother and several other people. Counsel did not indicate that he had done so. Counsel
did tell him that the witness ‘Ms. Alexander,’ who was also [Henson’s] sister, was not an
appropriate witness because of the offense against her son, who was also [Henson’s] nephew.” Id.
at *5. Petitioner “said that the victims had testified that there was a woman present in the home
when the offenses occurred. He gave [Mitchell] the woman’s name, and Counsel did not interview
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her.” 	Id. 	Henson “did not offer any of the witnesses that he said that [Mitchell] failed to
interview.” Id.
Respondent first argues that the inmate’s claim for relief is procedurally defaulted because
his theory of relief “differs from the theory advanced on state court appeal.” (D.E. 12 at PageID
715.) Respondent states that the claim Henson raises in his § 2254 Petition “alleges a failure to
investigate the victim[s’] credibility, but his claim in his state appeal alleged a failure to investigate
a witness who might have corroborated his own account.” (Id.)
In his state post-conviction petition, Henson asserted the same claim for relief that he now
asserts in his § 2254 Petition. 	(D.E. 11-14 at PageID 563.) 	However, in his brief on post-
conviction appeal, the inmate, through counsel, claimed that trial counsel’s failure to call Samantha
Campbell as a defense witness at trial amounted to ineffective assistance of counsel. (D.E. 11-16
at PageID 652.) 	Henson argued that Ms. Campbell “was at the house at the time the alleged
incidents of sexual abuse occurred and thus could have provided crucial alibi testimony and
corroborated the credibility of [his] testimony.” (Id. at PageID 652.)
The Sixth Circuit “has held that the doctrine of exhaustion requires that a claim be
presented to the state courts under the same theory in which it is later presented in federal court.”
Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998) (citations omitted). Here, while Henson raised
the same theory presented in his § 2254 Petition in his state post-conviction petition, he did not
raise that broader theory in his brief on post-conviction appeal. However, the TCCA appears to
have addressed the inmate’s claim under his broader theory of relief, stating that on appeal, Henson
“asserts that Counsel was ineffective for failing to interview potential witnesses before trial and
for failing to call one of these potential witnesses to testify at trial.” Henson, 2022 WL 4115375,
at *5. Given that, the Court declines to conclude that Henson has procedurally defaulted his second
claim for relief.
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In any event, Petitioner’s claim for relief also lacks merit. The TCCA cited and applied
the clearly established Supreme Court precedent in Strickland. 	Id. at *6. 	The TCCA rejected
Henson’s argument, noting that he “failed to present the testimony of any potential witnesses at
the post-conviction hearing. It has long been held that we cannot speculate on what the testimony
of any potential witness might have been if introduced.” Id. at *7. By failing to present testimony
from potential witnesses at the hearing, Henson “failed to prove that Counsel was deficient by not
calling any potential witness.” Id.
In his federal habeas proceedings, Petitioner again fails to offer any evidence regarding the
testimony of the potential witnesses and how this testimony would have been beneficial to his
defense. 	See Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005) (affirming denial of an
ineffective assistance claim based on counsel’s failure to call witnesses where a petitioner did not
“introduce [] affidavits or any other evidence establishing what they would have said”); United
States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[T]he testimony of a putative witness must
generally be presented in the form of actual testimony by the witness or on affidavit. A defendant
cannot simply state that the testimony would have been favorable; self-serving speculation will
not sustain an ineffective assistance claim.” (footnote omitted)). The TCCA’s determination was
not contrary to or an unreasonable application of clearly established Supreme Court precedent and
was not based on an unreasonable determination of facts in light of the evidence presented.
Accordingly, Henson’s second claim for relief lacks merit and is DENIED.
D. 	Ground III: Failing to Retain Medical Expert
The inmate contends that counsel “failed to retain a qualified medical doctor to conduct a
physical rape examination on the two alleged victims, to determine whether or not there was any
physical evidence that the victims had been ‘penetrated’ however slight.” (D.E. 1-1 at PageID 15.)
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First, this claim is procedurally defaulted for the same reasons that Henson’s first ground
for relief is procedurally defaulted. He fails to demonstrate cause and prejudice or a miscarriage
of justice to overcome his procedural default of this claim.
In any event, defense counsel testified regarding his failure to retain a medical expert at the
post-conviction hearing. The TCCA summarized:
Counsel acknowledged that the Petitioner claimed that Counsel failed to retain a
qualified medical doctor to conduct a physical rape examination of the two victims.
Counsel noted that a nurse at Jackson General Hospital, Mary Cole, had conducted
a rape examination on the children. Counsel said that Nurse Cole conducted what
appeared to be an unbiased and thorough examination, and Counsel had the
opportunity to cross-examine her. Further, the incident occurred in October 2016,
and Counsel was retained in June of 2017. Therefore, he failed to see how a medical
examination almost a year later would have been beneficial. 	Counsel said he
reviewed the medical information with the Petitioner.
Henson, 2022 WL 4115375, at *4.
As noted above, in its order denying Henson’s state post-conviction petition, the post-
conviction court credited Mitchell’s testimony and accepted it as “adequate trial strategy and
representation.” (D.E. 11-14 at PageID 583.) Considering counsel’s explanation for why he did
not retain a qualified medical expert, Petitioner could not show prejudice under Strickland. The
post-conviction court’s determination was not contrary to or an unreasonable application of clearly
established Supreme Court precedent and was not based on an unreasonable determination of facts
in light of the evidence presented. 	Accordingly, Henson’s third claim for relief is procedurally
defaulted, lacks merit, and is DENIED.
E. 	Ground IV: Failing to Conduct Meaningful Plea Negotiations
The inmate alleges that counsel “failed to enter into meaningful plea negotiations with the
prosecution prior to trial, in an effort to secure a favorable plea offer for Petitioner.” (D.E. 1-1 at
PageID 16.) 	According to Henson, “[c]ounsel had no tactical reason not to attempt to secure a
favorable plea agreement for [him].” (Id.)
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First, this claim is procedurally defaulted for the same reasons that Henson’s first and third
grounds for relief are procedurally defaulted. Henson fails to demonstrate cause and prejudice or
a miscarriage of justice to overcome his procedural default of this claim.
In any event, Petitioner’s claim regarding plea negotiations wholly lacks merit. 	At the
post-conviction hearing, Mitchell “testified that he attempted to get a plea offer from the State’s
attorney. Counsel said that he met with the State’s attorney several times, always seeking to get a
better offer, and he took the offer to Petitioner. The Petitioner declined the offer and chose to go
to trial.” Henson, 2022 WL 4115375, at *4.
When the inmate testified, he “made an unclear allegation that the State’s attorney
informed the jury during the trial that she and Counsel had ‘made a deal the night before [trial].’
He indicated that the State’s attorney ‘pranced’ across the courtroom and indicated that she and
Counsel had talked the night before and made a deal without the Petitioner’s consent.” Id. at *5.
Mitchell “was recalled and testified that he and the State’s attorney never made a deal before trial
and that she had never so indicated in court.” Id.
When asserting that counsel rendered ineffective assistance with respect to rejection of a
plea offer, “[federal habeas petitioners] must demonstrate a reasonable probability they would have
accepted the earlier plea offer had they been afforded effective assistance of counsel.” 	See
Missouri v. Frye, 566 U.S. 134, 147-49 (2012). Henson fails to provide any evidence suggesting
he would have accepted any plea offer proffered by the State. 	As demonstrated by the post-
conviction hearing, Petitioner himself turned down any plea offer and chose to proceed to trial.
Furthermore, Henson provided no evidence to support his conclusory allegation that Mitchell and
the State’s attorney “made a deal” without his consent.
For these reasons, Henson’s fourth claim for relief is procedurally defaulted, lacks merit,
and is DENIED.
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For the foregoing reasons, Henson’s § 2254 Petition is DENIED because three of his claims
are procedurally defaulted and all of his claims lack merit. 	The Clerk is DIRECTED to enter
judgment for Respondent.
VI. 	APPEAL ISSUES
A § 2254 petitioner may not proceed on appeal unless a district or circuit judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA
may issue only if the petitioner has made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2)-(3). A substantial showing is made when the petitioner demonstrates
that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” 	Miller-El, 537 U.S. at 336 (2003) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). 	“If the petition was denied on procedural grounds, the
petitioner must show, ‘at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.’” 	Dufresne v. Palmer,
876 F.3d 248, 252-53 (6th Cir. 2017) (per curiam) (quoting Slack, 529 U.S. at 484).
In this case, reasonable jurists would not debate the correctness of the Court’s decision to
deny the § 2254 Petition. 	Because any appeal by Henson does not deserve attention, the Court
DENIES a COA.
Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on
appeal must first file a motion in the district court, along with a supporting affidavit. However,
Rule 24(a) also provides that if the district court certifies that an appeal would not be taken in good
faith, the prisoner must file his motion to proceed in forma pauperis in the appellate court. Fed.
R. App. P. 24(a).
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In this case, for the same reason it denies a COA, the Court CERTIFIES, pursuant to Rule
24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in forma
pauperis is therefore DENIED.2
IT IS SO ORDERED this 11th day of February 2026.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE
2 If Petitioner files a notice of appeal, he must also pay the full $605.00 appellate filing fee or file a motion
to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty days.
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