Henderson v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 27, 2006

Charles R. Fulbruge III
Clerk
No. 04-70032

CATHY HENDERSON,

Petitioner-Appellant,

versus

DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Texas
(A-02-CA-758-SS)

Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

In 1995, Cathy Lynn Henderson was convicted in Texas state

court of capital child murder, see TEX. PENAL CODE ANN. § 19.03(a)(8),

and sentenced to death. After federal habeas relief was denied on

all 13 claims, the district court granted a certificate of

appealability (COA) for six of them, as well as a portion of

another.

Henderson seeks a COA from this court for four of the

remaining issues for which the district court denied a COA: (1)

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
whether her Fifth and Fourteenth Amendment rights were violated

because her confession to an FBI Agent was involuntary and coerced;

(2) whether, shortly after she was arrested for kidnapping the

child she later confessed to killing, her Sixth Amendment

confrontation and Fourteenth Amendment due process rights were

violated by the trial court’s denial of her request to be present

at the hearing on the State’s motion to compel the production of

evidence needed for the grand jury proceeding; (3) whether her

Sixth Amendment right to effective assistance of counsel was

violated by her trial counsel; and (4) whether her Sixth Amendment

confrontation and Fourteenth Amendment due process rights were

violated by the trial court’s post-trial findings of fact and

conclusions of law regarding its pre-trial denial of Henderson’s

motion to suppress evidence.

For each of the four issues, a COA is DENIED. A subsequent

opinion will address the numerous issues certified by the district

court.

I.

On the morning of 21 January 1994, the Baughs left their

three-and-one-half month old son, Brandon (the child), with

Henderson. Later that day, the child received massive head trauma,

causing his death.

Soon thereafter, on 23 and 25 January, respectively, state and

federal warrants were issued against Henderson for the felony

2
offense of kidnapping. Approximately a week later, on 1 February,

the FBI arrested Henderson in Kansas City, Missouri.

During her interrogation by FBI Agent Napier, Henderson

initially denied knowledge of the child’s whereabouts and stated

she had left him with his grandmother; then, she offered to provide

information about the child in exchange for an agreement that she

remain in Missouri. The Agent advised that he did not have

authority to negotiate such an agreement but that those who did

would need information on which to base their decision. Henderson

soon confessed to killing the child, claiming it was an accident,

and to burying him in a wooded area near Waco, Texas. When Agent

Napier asked Henderson to draw a map to the burial site, she

refused. After the Agent reduced Henderson’s comments to writing,

she refused to sign the statement and requested a lawyer.

Later that day, Henderson met with Ronald Hall, an assistant

federal public defender (AFPD) in Kansas City, and Ronald Ninemire,

chief investigator for the federal public defender’s office.

Concluding that he needed a Texas map to facilitate Henderson’s

cooperation with authorities’ efforts to locate the child, AFPD

Hall requested one from FBI Agent Hepperman. Unsure of the reason

for that request, the Agent did not assist AFPD Hall. Accordingly,

he obtained a map from Ninemire’s office in another building and

asked Henderson to draw a map to the burial site. At some point,

Henderson did so.

3
 After his interview with Henderson, AFPD Hall met with several

persons in law enforcement, including Carla Oppenheimer, an

Assistant United States Attorney (AUSA), and Agent Hepperman. AFPD

Hall opined that the child was dead. In addition, Agents testified

at trial that: AFPD Hall told them Henderson had drawn a detailed

map to the burial site; and Hall could find it using the map. AFPD

Hall denies making these statements or ever giving the Agents any

indication of any map’s existence. In any event, Agent Hepperman

and AUSA Oppenheimer formed the subjective belief that any map was

made with the intent of aiding law enforcement.

The next day, 2 February, AFPD Hall faxed maps prepared by

Henderson to Nona Byington, Henderson’s counsel in Texas, where the

case was being investigated by Travis County Sheriff Keel. Law

enforcement officers, who had learned from AFPD Hall that he

intended to send materials to Byington, contacted her and requested

the maps. After Byington attempted unsuccessfully to negotiate a

plea agreement in exchange for the maps, she refused to provide any

in her possession. Because of her refusal, Sheriff Keel publicly

accused Byington of being an accomplice in an ongoing crime.

(Byington’s subsequent defamation action against Sheriff Keel was

settled.)

On 3 February, Texas lawyer Linda Icenhauer-Ramirez was

appointed to represent Henderson on state kidnapping charges. That

same day, a Travis County grand jury issued a subpoena duces tecum

4
for Byington to appear with any maps. She refused, claiming

attorney-client privilege. An arrest warrant was issued for

Byington, as well as a search warrant for her automobile and house.

The arrest warrant was soon withdrawn. Authorities executed the

search warrant but did not find any maps.

Earlier, on 2 February, Henderson (who waived extradition) had

been returned to Texas. While in custody there, Henderson was

placed in solitary confinement under “firewatch”, a procedure

whereby inmates monitor another inmate for safety reasons. During

“firewatch”, between 5 and 8 February, Henderson befriended inmate

Bolivia Jackson. Jackson communicated with Henderson on numerous

occasions (correspondence primarily and a few conversations).

Jackson provided the correspondence to the correctional

authorities, as well as recounting the conversations. In these

communications, Henderson gave conflicting statements concerning

the child’s location. On the one hand, she told Jackson that she

could draw a map to where the child was dropped off in Missouri; on

the other, that the child was with his grandmother in Oklahoma.

On 7 February, after a grand jury issued another subpoena for

any maps, the State moved to compel their production. Following a

hearing on that motion (map hearing), at which Henderson’s counsel,

Linda Icenhauer-Ramirez and Nona Byington, as well as Byington’s

counsel, were present, but Henderson was not, the state court held:

an attorney-client relationship existed between Henderson and

5
Byington; but, any maps were not privileged because they were made

with the intent to aid law enforcement. Upon being ordered to

produce any maps in her possession, Byington produced two. Using

the maps, authorities found the burial site.

Henderson was charged on 9 February, and indicted on 22 April,

for the capital murder of the child. During pre-trial hearings,

which occurred over several months in 1994 and 1995, Henderson

moved to suppress all evidence obtained from, inter alia, the use

of the maps. The motion was denied. Post-trial, the court

prepared findings of fact and conclusions of law concerning that

denial, including: (1) Henderson “failed to meet [her] burden of

proof at the [map] hearing ... [and was thus] precluded from

attempting to suppress any evidence ... resulting from the

production of the maps by the introduction of additional evidence

which was available to [Henderson] at the time of the hearing on

the motion to compel”; (2) the maps were intended to aid law

enforcement in finding the child and were not intended to be

confidential; (3) AFPD Hall did not violate the attorney-client

privilege during his conversations with law enforcement; (4) the

crime-fraud exception to that privilege applied because there was

evidence of an ongoing kidnapping at the time of the map hearing;

(5) even if law enforcement knew the child was dead, the crime-

fraud exception still applied because of the ongoing crime of abuse

of a corpse; (6) even if the maps were privileged, the fruit of the

6
poisonous tree doctrine did not compel suppression; and (7)

Henderson was not denied effective assistance of counsel.

On 17 May 1995, Henderson was found guilty of the capital

murder of a child under age six. After the jury found, inter alia,

no mitigating factors to warrant a life sentence, Henderson was

sentenced to death on 30 May 1995.

On direct appeal, the Texas Court of Criminal Appeals

affirmed. Henderson v. State, 962 S.W.2d 544, 563 (Tex. Crim. App.

1997) (en banc) (Henderson I). The Supreme Court of the United

States denied a writ of certiorari. Henderson v. Texas, 525 U.S.

978 (1998).

In seeking state habeas relief in 1998, Henderson raised 18

grounds. Without holding an evidentiary hearing, the state habeas

court recommended relief being denied. In findings of fact and

conclusions of law, the court found to be “true” the affidavits of

Robert and Linda Icenhauer-Ramirez (Henderson’s trial counsel),

Keith Hampton (Henderson’s counsel on direct appeal), Sheriff Keel

(Travis County Sheriff who investigated the child’s disappearance),

and Robert Smith (an Assistant District Attorney who prosecuted

Henderson’s case). The Texas Court of Criminal Appeals summarily

denied habeas relief. Ex parte Henderson, No. 49984-01 (Tex. Crim.

App. 6 Mar. 2002) (per curiam) (unpublished).

Henderson sought federal habeas relief, raising 13 grounds.

Henderson v. Dretke, No. A-02-CA-758-SS, slip op. at 6-8 (W.D. Tex.

7
31 Mar. 2004) (Henderson II). Relief was denied. The district

court granted Henderson a COA for six of the issues, as well as

part of another: (1) whether Henderson’s Sixth Amendment rights

where violated when state law enforcement officials’ tactics

undermined the confidentiality of Henderson’s communications with

her attorney; and (2)-(7) whether Henderson’s Sixth Amendment right

to effective assistance of counsel was violated: (2) when AFPD

Hall revealed to law enforcement that Henderson had drawn the map;

(3) because Henderson’s initial Texas counsel, Byington, also told

law enforcement officials that Henderson had drawn the map; (4)

when Steve Brittain (Nona Byington’s attorney at the map hearing)

failed to adequately protect Henderson’s rights when he attempted

to plea-bargain on Henderson’s behalf; (5) when, at the map

hearing, Linda Icenhauer-Ramirez, appointed trial counsel, did not

adequately help prevent disclosure of the maps (this is the portion

of the IAC claim concerning Linda Icenhauer-Ramirez for which a COA

was granted; it was denied concerning trial); (6) because her

appellate counsel, Keith Hampton, provided constitutionally

inadequate assistance; and (7) when the police placed her under

“firewatch” to obtain incriminating statements, in violation of

Massiah v. United States, 377 U.S. 201, 206 (1964) (holding that

“the petitioner was denied the basic protections of [the Sixth

Amendment] guarantee when there was used against him at his trial

evidence of his own incriminating words, which federal agents had

8
deliberately elicited from him after he had been indicted and in

the absence of his counsel”). A COA was denied for all other

claims. Henderson v. Dretke, No. A-02-CA-758-SS (W.D. Tex. 15 July

2004) (unpublished order) (Henderson III).

II.

Henderson seeks a COA here. Her 28 U.S.C. § 2254 habeas

petition is subject to the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)

(AEDPA). See, e.g., Lindh v. Murphy, 521 U.S. 320, 336 (1997).

Under AEDPA, she must first obtain a COA from either the district,

or our, court before she can appeal the denial of a federal habeas

claim. 28 U.S.C. § 2253(c) (2000); FED. R. APP. P. 22(b)(1); Slack

v. McDaniel, 529 U.S. 473, 478 (2000). Federal Rule of Appellate

Procedure 22(b)(1) requires that the district court first decide

whether to grant the COA. Henderson filed a notice of appeal and

request for a COA in district court. As discussed, it granted a

COA for six issues and part of another and denied it for the

others, including those addressed infra.

Henderson seeks a COA for four of the issues the district

court refused to certify for appeal. (Henderson’s COA request

included a fifth issue: whether the “firewatch” violated Massiah.

As Henderson recognized, but only after the State noted this

erroneous COA request here, and as described above, the district

court granted a COA for that issue. Henderson III, slip op. at 5.

9
Therefore, we do not address it. Instead, it will be addressed in

our subsequent opinion concerning the issues certified for appeal

by the district court. On the other hand, this erroneous request

is in line with other errors and shortcomings in the COA request to

our court, discussed infra.)

Therefore, at issue are the COA requests for the following

claims: (1) Henderson’s Fifth and Fourteenth Amendment rights were

violated because her statement to FBI Agent Napier in Missouri was

involuntary and coerced; (2) Henderson’s Sixth Amendment

confrontation and Fourteenth Amendment due process rights were

violated when the trial court refused to allow Henderson to be

present at the map hearing; (3) Henderson’s Sixth Amendment right

to effective assistance of counsel was violated by her trial

counsel, Linda and Robert Icenhauer-Ramirez; and (4) Henderson’s

Sixth Amendment confrontation and Fourteenth Amendment due process

rights were violated by the trial court’s post-trial findings of

fact and conclusions of law concerning its pre-trial denial of her

suppression motion.

To obtain a COA, Henderson must “ma[k]e a substantial showing

of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2);

see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Restated, she

must demonstrate “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

10
deserve encouragement to proceed further”. Miller-El, 537 U.S. at

336 (quoting Slack, 529 U.S. at 484) (internal quotation marks

omitted). “This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of

the claims.” Id. Instead, it “requires an overview of the claims

in the habeas petition and a general assessment of their merits”.

Id. This being a death-penalty case, all doubts regarding “whether

a COA should issue must be resolved in [Henderson’s] favor”.

Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied,

531 U.S. 966 (2000).

Of course, for making this required threshold inquiry, we must

be mindful of AEDPA’s standards for merits-rulings. Under AEDPA,

for deciding a claim, a federal court must defer to the state

court’s resolution of that claim concerning questions of law and

mixed questions of law and fact, unless that “decision ... was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court”. 28

U.S.C. § 2254(d)(1); see Hill v. Johnson, 210 F.3d 481, 488 (5th

Cir. 2000), cert. denied, 532 U.S. 1039 (2001). “A state court’s

decision is ... contrary to clearly established federal law if it

reaches a legal conclusion in direct conflict with a prior decision

of the Supreme Court or if it reaches a different conclusion than

the Supreme Court based on materially indistinguishable facts.”

11
Miniel v. Cockrell, 339 F.3d 331, 337 (5th Cir. 2003), cert.

denied, 540 U.S. 1179 (2004).

Similarly, in deciding a claim pursuant to AEDPA, a federal

court must defer to the state court’s factual findings unless they

“resulted in a decision that was based on an unreasonable

determination of the facts in [the] light of the evidence presented

in the State court proceeding”. 28 U.S.C. § 2254(d)(2). These

findings are entitled to a presumption of correctness, which can be

rebutted only by “clear and convincing evidence”. Id. §

2254(e)(1).

Throughout her COA application here, which is often difficult

to decipher, Henderson attempts to incorporate additional

materials. Under both Federal Rule of Appellate Procedure

28(a)(9)(A) and local rules 28.2.3 and 28.3(j), Henderson may not

do so. Therefore, they will not be considered as part of

Henderson’s COA application here.

A.

First, Henderson contends she is entitled to a COA because

reasonable jurists could debate whether FBI Agent Napier violated

her Fifth and Fourteenth Amendment rights by causing an involuntary

and coerced confession. Henderson raised this issue on direct

appeal.

12
 During her interrogation by Agent Napier, Henderson confessed

to killing and burying the child. The Texas Court of Criminal

Appeals described this interrogation as follows:

Early in the interview, Agent Napier told
[Henderson] that she was at a crossroads, that
she could determine which path to take, and
that she could tell her story or let the
justice system take its course. Later in the
interview, [Henderson] offered to tell
everything she knew in exchange for staying in
Missouri. In response, Napier asked questions
such as: “What do you mean?” “What's
everything?” Napier never promised appellant
that she could stay in Missouri, and in fact,
told her that he was not in a position to make
any bargains, deals, or promises. He also
told her that the people in a position to make
a deal would want to have a basis for making
their decision. Later, through leading
questions, Napier elicited from [Henderson] a
confession that she killed the baby. He asked
[Henderson], “When you say the whole thing,
are you talking about that Brandon is dead,
that you know where the body's located, that
it was an accident, that you're sorry?”
[Henderson] responded by nodding her head.
Later Napier stated, “Brandon's dead. It was
an accident.” To this statement, [Henderson]
replied, “Yes.” Napier asked, “Did you bury
him[?]” [Henderson] responded, “Of course, I
did. He's just a baby.” Subsequent
interrogation led to [Henderson’s] statement
that she had buried Brandon in a wooded area
near Waco. At that point, Napier asked
[Henderson] to draw a map so that the
authorities could find Brandon. Napier talked
about Brandon's parents and talked about their
need to “put closure” on this episode.
[Henderson], however, refused to draw a map.

Henderson I, 962 S.W.2d at 563-64 (emphasis added).

Applying AEDPA’s presumption of correctness, the district

court adopted the Texas Court of Criminal Appeals’ rulings on

13
direct appeal that: Agent Napier made no promises to, or deals

with, Henderson in exchange for her statement; and she confessed

before Agent Napier discussed the parents’ need for closure.

Henderson claims her confession to Agent Napier was involuntary and

coerced because: (1) she was led to believe that cooperation with

the FBI would lead to a deal; and (2) Agent Napier’s having

discussed the child’s parents’ need for closure and help in

recovering the child’s body, Henderson’s resulting confession was

not an act of free will.

Henderson fails, however, to provide any record support, much

less the clear and convincing evidence as mandated by AEDPA, for

her contentions. 28 U.S.C. § 2254(e)(1). Jurists of reason would

not disagree that the issue of whether Henderson’s confession was

involuntary and coerced is not “adequate to deserve encouragement

to proceed further”. Miller v. Dretke, 404 F.3d 908, 913 (5th Cir.

2005) (citing Miller-El, 537 U.S. at 336).

B.

Henderson next seeks a COA on whether her Sixth Amendment

confrontation and Fourteenth Amendment due process rights were

violated because: the trial judge denied her request to be present

at the 7 February 1994 map hearing; her rights were not adequately

protected at that hearing; and Henderson’s then-counsel, Byington,

was compelled to produce the maps, which were then used to find the

child’s burial site.

14
 Henderson’s unsupported allegations contrast with Linda

Icenhauer-Ramirez’s state habeas affidavit, which was found “true”.

(Henderson’s failed attack on the affidavit is discussed in part

II.C., concerning her ineffective assistance of counsel claims.)

That affidavit maintains Henderson was adequately represented at

the map hearing. Although Henderson emphasizes that Linda

Icenhauer-Ramirez did not meet with Byington’s counsel on the day

of the map hearing, or have any discussions with Byington’s counsel

during that hearing, Ms. Icenhauer-Ramirez’s affidavit stated:

[Henderson]’s attorney seems to be asserting
that Cathy Henderson’s rights were not
protected during the [map hearing]. It was
clear to everyone at the time and should be
clear to [Henderson]’s attorney now that Nona
Byington was still one of Cathy Henderson’s
attorneys at the time of the [map hearing].
Nona Byington fully represented her client and
protected her interests during that hearing.
Cathy Henderson was in no way hurt by the
actions of any of her attorneys during that
time.

Because Henderson did not raise these claims on direct appeal,

the state habeas court held they were procedurally defaulted. See

Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004)

(“Because the applicant did not raise the issue on direct appeal,

the applicant has forfeited his claim [on habeas review].”).

“The procedural-default doctrine precludes federal habeas

review when the last reasoned state-court opinion addressing a

claim explicitly rejects it on a state procedural ground.”

Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004). “Where, as

15
here, a state court clearly and expressly states that its judgment

rests on a state procedural bar, a presumption arises that the

state court decision rests on independent and adequate state law

grounds.” Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997).

The procedural default doctrine, resting on
our confinement to review of federal
questions, precludes federal habeas review
when the last reasoned state court opinion
addressing a claim explicitly rejects it on a
state procedural ground.... The doctrine
presumes that a state procedural ground is
adequate and independent — the rule must, for
instance, be regularly followed — and,
ordinarily, the burden is on the habeas
petitioner to demonstrate otherwise.

Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999) (emphasis

added), cert. denied, 528 U.S. 1145 (2000).

If the state court relies on an adequate and independent state

procedural rule, then federal habeas review is barred unless the

petitioner can show either (1) cause and prejudice or (2) that not

addressing the claim will result in a fundamental miscarriage of

justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Smith v.

Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000).

Although the district court noted the procedural default

holding by the state habeas court, it addressed instead alternative

holdings by that court: Henderson did not have a right to be

present at the map hearing; and even if she did, her absence was

harmless error because she addressed the subject of that hearing in

16
her subsequent suppression motion hearings. The district court

held:

It is far from clear that Henderson’s absence
from the February 7, 1994 [map] hearing in any
way implicated her right to confrontation
guaranteed under the Sixth and Fourteenth
Amendments, considering: (1) the hearing took
place before trial commenced and during the
grand jury investigation; (2) the attorneys
who represented Byington at the [map] hearing
vigorously defended that the map was protected
by attorney-client privilege and cross-
examined the State’s witnesses; and (3)
Henderson later had a chance to cross-examine
the witnesses and present evidence in support
of her position during the pre-trial hearings
on her motions to suppress the map. At the
very least, the Court cannot hold the state
habeas court unreasonably applied clearly
established federal law in concluding
Henderson did not have a right to be at the
map hearing.

Henderson II, slip op. at 33-34 (internal footnote and citations

omitted). In the alternative, the district court held the state

habeas court’s holding that any error was harmless was not

unreasonable in the light of the “extensive hearings” on the

suppression motion. Id. at 34.

Henderson has not demonstrated she is entitled to a COA on

this issue. In the light of the district court’s holdings, she has

failed to demonstrate that reasonable jurists would debate whether

these claims should have been resolved by the district court in a

different manner or that they deserve to proceed further.

C.

17
 Henderson claims she is entitled to a COA on whether she

received ineffective assistance of counsel (IAC) from trial counsel

Linda and Robert Icenhauer-Ramirez. (Byington, who represented

Henderson concerning the map production, ended her representation

prior to trial.) Henderson’s appointed lead trial counsel was

Linda Icenhauer-Ramirez, who requested that her then-husband,

Robert Icenhauer-Ramirez, be appointed co-counsel. Ms. Icenhauer-

Ramirez remained lead counsel throughout trial. Mr. Icenhauer-

Ramirez withdrew and was replaced. (Henderson has not asserted IAC

against the replacement. Henderson was appointed new counsel,

Keith Hampton, for her direct appeal.)

In deciding whether to grant a COA on any of Henderson’s five

IAC claims, our required threshold inquiry must include an overview

of the well-established two-prong test for those claims. On the

merits, Henderson was required to show: (1) counsel’s

representation fell below professional norms (deficient-performance

prong); and (2) a reasonable probability exists that, but for that

deficiency, the trial’s result would have been different (prejudice

prong). Strickland v. Washington, 466 U.S. 668, 687 (1984).

Under the first prong, counsel “has [the] duty to bring to

bear such skill and knowledge as will render the trial a reliable

adversarial” proceeding. Id. at 688. The proper standard is

“simply reasonableness under prevailing professional norms”. Id.

In making this determination, the totality of the circumstances are

18
considered. On the other hand, “[j]udicial scrutiny of counsel’s

performance must be highly deferential”. Id. at 689.

Under the second prong, at issue is whether there is a

reasonable probability that counsel’s deficient performance

rendered the proceeding’s result unreliable and, therefore, unfair.

Id. at 694. This requires a showing that counsel’s performance

“actually had an adverse effect on the defense”. Id. at 693.

Again, for COA purposes, we do not fully consider the merits

of Henderson’s IAC claims. Instead, we decide only whether

“reasonable jurists could debate whether ... [Henderson’s claims]

should have been resolved in a different manner or that [they] were

adequate to deserve encouragement to proceed further”. Miller-El,

537 U.S. at 336 (quoting Slack, 529 U.S. at 484) (internal

quotation marks omitted). In deciding this COA issue, we must

assume the last state habeas court (Texas Court of Criminal

Appeals) applied Strickland’s two-prong analysis, even though the

decision was rendered without a written opinion. Henderson II,

slip. op. at 19 (citing Catalan v. Cockrell, 315 F.3d 491, 493 (5th

Cir. 2002)). (As noted, the state habeas trial court entered

findings and conclusions, including the conclusion that Henderson’s

trial counsel did not provide constitutionally ineffective

assistance, although it did not discuss the two-prong analysis in

its findings and conclusions.)

19
 As a preliminary matter, Henderson contends that, even though

the state habeas court found them “true”, the affidavits of Robert

and Linda Icenhauer-Ramirez (trial counsel), Keith Hampton

(appellate counsel), Sheriff Keel, and Assistant District Attorney

Robert Smith (prosecutor) should not be entitled to the 28 U.S.C.

§ 2254(e)(1) presumption of correctness. Henderson neither

challenged these affidavits after the State presented them with its

reply to Henderson’s state habeas petition, nor did she challenge

them on federal habeas review in district court (either in her

habeas petition or in her response to the State’s summary judgment

motion). Not until her COA request to the district court did

Henderson challenge the “truth” of the affidavits. Needless to

say, this was far too late; we will not consider Henderson’s

challenge to those affidavits. (Along this line, Henderson

contends in her COA request here that she should have been granted

an evidentiary hearing in district court to resolve asserted

factual disputes in those affidavits. The record does not reflect,

however, that in district court Henderson ever requested, or was

denied, an evidentiary hearing.)

We note that, even if Henderson had preserved this challenge,

in order to rebut a state habeas court’s factual findings, she must

present, on the merits, “clear and convincing” evidence to the

contrary. See 28 U.S.C. § 2254(e)(1). Instead, Henderson only

briefs whether the affidavits of Robert and Linda Icenhauer-Ramirez

20
and Sheriff Keel are “clearly erroneous”. (Only against Linda

Icenhauer-Ramirez does she even raise any arguably substantive

claims; against Robert Icenhauer-Ramirez and Sheriff Keel,

Henderson makes personal attacks, which lack any record support.)

Moreover, any contentions she may have had regarding Hampton’s and

Smith’s affidavits are waived because of Henderson’s failure to

discuss them in her COA application, either to the district, or

our, court.

Henderson claims she is entitled to a COA because trial

counsel Linda and Robert Icenhauer-Ramirez were ineffective in five

respects. None of the claims satisfies the standard for a COA.

1.

Henderson first asserts a COA should issue for her contention

that Linda Icenhauer-Ramirez failed to pursue claims that law

enforcement eavesdropped on the “red room” while Henderson was

originally detained in Missouri. (This alleged conduct was

apparently in order to determine that Henderson had prepared the

map(s).) That room was where Henderson was originally interviewed

in Missouri by AFPD Hall and investigator Ninemire. According to

Henderson, Ms. Icenhauer-Ramirez stated that Henderson was

eavesdropped upon in that room. In support, Henderson references

a private investigator’s affidavit that Ms. Icenhauer-Ramirez told

him this was her belief. Henderson does not cite to Ms. Icenhauer-

Ramirez’s treatment of this issue at trial or her state habeas

21
affidavit where she discusses her investigation of the possible

eavesdropping.

Even assuming as true the statement attributed to Ms.

Icenhauer-Ramirez, Henderson is not entitled to a COA for this

issue because reasonable jurists would not debate whether the

district court correctly resolved this issue against Henderson. In

her state habeas affidavit, Ms. Icenhauer-Ramirez stated:

I traveled to Kansas City prior to the
pretrial hearings and prior to Dayna Blazey’s
and Robert Smith’s [Texas Assistant District
Attorneys assigned to Henderson’s case] trip
to Kansas City. I spent several hours with
[AFPD] Hall and Ron Ninemire at their office.
They were very open about their involvement in
the case and they even took me across the
street to the Federal Courthouse and showed me
the “red room”; the hallway where Ron Hall
talked to the FBI agents, the assistant U.S.
attorney, and the two Travis County deputies;
and the adjacent courtroom. As a result of
that visit, I was familiar with the “red room”
and the potential that someone might have
eavesdropped on the[ir] conversation [with
Henderson on 1 February 1994]. Unfortunately,
the information given to me by Hall and
Ninemire did not bear that possibility out.
It was clear after my trip to Kansas City that
it was through Ron Hall’s actions of
requesting a map from the FBI and from his
conversations with the FBI agents and
assistant U.S. attorney in the hallway outside
the courtroom that the authorities knew of the
existence of the map drawn by [Henderson].

As discussed supra, this affidavit is entitled to the AEDPA

presumption of correctness. Pursuant to this presumption, Ms.

Icenhauer-Ramirez did investigate the possibility that law

enforcement learned of a map’s existence by eavesdropping on the

22
“red room” and concluded to the contrary. Counsel is not

ineffective for failing to pursue a claim that is unsupported by

law or evidence. See, e.g., Hernandez v. Johnson, 108 F.3d 554,

564 (5th Cir.), cert. denied, 522 U.S. 984 (1997). In short,

jurists of reason would not debate the district court’s conclusion

that, in this regard, Ms. Icenhauer-Ramirez’s representation was

not deficient. Henderson II, slip op. at 23.

2.

Henderson next asserts reasonable jurists would debate whether

her trial attorneys were ineffective for failing to investigate,

and challenge, Henderson’s communications with Jackson, a fellow

inmate at the Travis County Jail, whom Henderson claimed was an

agent of the State. As discussed, Jackson was assigned to

“firewatch” duty, through which one inmate monitors another; while

monitoring Henderson, Jackson exchanged correspondence with, and

spoke to, her; and Jackson provided to law enforcement, inter alia,

letters written by Henderson, which gave conflicting accounts of

the child’s location.

a.

This information was critical evidence at the motion to

suppress hearing. The defense strategy was to show: when it

sought production of the maps, law enforcement was both

subjectively and objectively aware that the child was dead; and if

this were so, the crime-fraud exception to the attorney-client

23
privilege would not apply because there was no ongoing criminal

offense. See TEX. R. EVID. 503(d)(1). Obviously, any evidence

suggesting the child may have still been alive would be detrimental

to this strategy.

Ms. Icenhauer-Ramirez objected immediately to the firewatch

correspondence, contending that Jackson was acting as an agent for

the State; and her requested recess was granted. Upon resumption

of the hearing, she informed the court she was unable to proceed

without further investigation into Jackson’s communications (of

which she had learned only the previous day, during a detective’s

pre-trial hearing testimony), and the circumstances under which

they were made. The court recessed hearing this issue for

approximately one month.

In her state habeas affidavit, Ms. Icenhauer-Ramirez stated:

she then contacted Jackson, who told Ms. Icenhauer-Ramirez she was

not acting as an agent for law enforcement at the time she

communicated with Henderson. After meeting with Jackson,

Henderson’s counsel moved to suppress all statements Henderson made

to Jackson. (Counsel later abandoned the motion because Elvira

Eller failed to provide tapes, discussed infra, which allegedly

contained statements by Sheriff Keel demonstrating that he knew the

child was dead.)

The record belies the claim that Ms. Icenhauer-Ramirez failed

to adequately investigate the “firewatch” communications.

24
Therefore, jurists of reason would not debate the district court’s

ruling that “[t]he state habeas court thus did not apply Strickland

unreasonably when [it] concluded Icenhauer-Ramirez had provided

effective assistance”. Henderson II, slip. op. at 24.

b.

To the extent Henderson claims the “firewatch” communications

per se violated her Sixth Amendment right to counsel, the district

court held: because, when the communications occurred, Henderson

had not yet been charged with capital child murder, such rights had

not then attached for that offense. See Texas v. Cobb, 532 U.S.

162, 168 (2001) (holding the Sixth Amendment right to counsel

attaches only after being formally charged with a specific

offense). Nevertheless, the district court granted Henderson a COA

for this claim, noting the “harsh” nature of the Cobb rule and

expressing concern that, because, when the communications occurred,

Henderson had already been “charged with kidnap[p]ing the same

child she was eventually charged with murdering, there seems

significant danger of gamesmanship by authorities”. See Henderson

III, slip op. at 5. Therefore, we need not consider this subissue

for COA purposes.

c.

In regard to Henderson’s claim that a COA should issue because

Linda Icenhauer-Ramirez was ineffective for abandoning the motion

to suppress, a lawyer cannot be ineffective for failing to pursue

25
futile motions. See, e.g., Koch v. Puckett, 907 F.2d 524, 527 (5th

Cir. 1990). Jurists of reason would not debate the district

court’s conclusion that the state habeas court concluded correctly

that this issue would not be resolved in Henderson’s favor.

3.

Henderson asserts that a COA should issue because her trial

counsel failed to obtain a ruling on Henderson’s pre-trial motion

to suppress any maps created by Henderson. Identifying the

specific claim Henderson raises requires detailing the progression

of this claim on federal habeas. In her petition, Henderson

claimed that the Icenhauer-Ramirezes, in their motion to suppress,

failed to use an “ex parte deposition” (presumably of AFPD Hall

and/or investigator Ninemire) that would demonstrate that, but for

the actions of Hall, Ninemire, and Byington, “law enforcement

authorities would never have learned of the existence of a map

indicating the location of the child’s body”. In ruling, the

district court stated it did not believe Henderson was prejudiced

by the Icenhauer-Ramirezes’ failure to use the deposition,

concluding “it is unlikely the deposition testimony would have

changed the result”. Henderson II, slip op. at 22.

In her COA request in district court, in challenging her

representation at the suppression motion, Henderson took a

different approach. She contested Linda Icenhauer-Ramirez’s

contention that she could fully litigate the suppression issue at

26
trial; Henderson asserted that the suppression “motion was never

ruled on, and the State’s collateral estoppel motion precluding

relitigation was granted by the trial court”. Improperly seeking

to incorporate other materials, Henderson accused trial counsel of

“arbitrarily unreasonably [choosing] to disbelieve evidence which

could have helped their client”. The district court appears not to

have addressed this claim, which was presented out of order and in

a nonsensical fashion. Instead, with regard to Henderson’s trial

counsel, the district court granted a COA concerning only Ms.

Icenhauer-Ramirez for her “ineffective assistance ... regarding the

map only”. Henderson III, slip op. at 5. It denied a COA for the

IAC claim concerning Linda and Robert Icenhauer-Ramirez’s

representation at trial.

In our court, Henderson’s COA application challenged Linda

Icenhauer-Ramirez’s failure to obtain a ruling on her suppression

motion. In stating that “the suppression motion only challenged

the actions of the Missouri attorney [AFPD Hall] and did not

address the action or inaction of any counsel at the map hearing”,

Henderson appears to conflate the pre-trial suppression motion with

the earlier map hearing. We are puzzled, to say the least, by

Henderson’s assertion that Ms. Icenhauer-Ramirez failed to obtain

a ruling on her suppression motion; it was denied during pre-trial

hearings.

27
 In the light of the progression of this claim through federal

habeas, we conclude that the specific claim presented to our court

— which reveals a lack of understanding of the pre-trial motions in

this case — was not raised until Henderson’s COA request to the

district court. Because it was not timely raised, we will not

consider it.

In the alternative, we conclude that reasonable jurists would

not disagree with the district court’s conclusion that Ms.

Icenhauer-Ramirez’s representation was not, in this regard,

unreasonable; had the suppression motion been conducted

differently, the motion’s result would likely have been the same.

4.

Henderson next contends a COA should issue for whether her

trial attorneys were ineffective for providing to the prosecution

information provided by Elvira Eller, who had a personal

relationship with Sheriff Keel during the pre-trial period of

Henderson’s proceedings. Eller contacted Henderson’s attorneys,

informed them of that relationship, and claimed she possessed tapes

proving the Sheriff knew the child was dead when the State was

seeking production of the maps. Eller, however, never produced any

tapes supporting that claim. Ms. Icenhauer-Ramirez eventually

notified the prosecution about Eller and disclosed the

communications and tapes Eller had provided to defense counsel.

28
 Henderson contends Ms. Icenhauer-Ramirez was ineffective in

doing so, because her actions resulted in no advantage to Henderson

and only helped the prosecution by putting it on notice that

Sheriff Keel might present character issues harmful to the State’s

case. In a 1998 deposition with Henderson’s appellate counsel, Ms.

Icenhauer-Ramirez stated she felt that, if a tape did exist, it was

critical, material evidence and “we felt like we had an obligation

to inform the DA’s office of that”.

Henderson offers nothing, other than conclusory statements, in

support of her claim that Ms. Icenhauer-Ramirez’s providing this

information to the prosecution was unreasonable. Ms. Icenhauer-

Ramirez’s state habeas affidavit stated:

None of the [audio] tapes which Ms. Eller
delivered to us had anything to do with the
Cathy Henderson case. They contain[ed]
[communications detailing the personal
relationship] between Ms. Eller and [Sheriff]
Keel. Although Ms. Eller asserted to us back
in 1995, that she had a recording of [Sheriff]
Keel saying that he knew Brandon Baugh was
dead during the time [Sheriff] Keel was
hounding Nona Byington, despite exhaustive
attempts on our part, Ms. Eller never produced
such a tape recording.

As discussed supra, this affidavit is entitled to the AEDPA

presumption of correctness. None of the materials provided to the

prosecution had any bearing on Henderson’s case, and “exhaustive

attempts” were made to procure the allegedly taped conversation in

which Sheriff Keel allegedly stated he knew the child was dead.

Therefore, reasonable jurists would not disagree with the district

29
court’s conclusion that, in this regard, Ms. Icenhauer-Ramirez’s

representation was not deficient.

5.

In her final IAC COA request, Henderson contends that a COA

should issue for whether Linda Icenhauer-Ramirez was ineffective

for failing to object to the following jury instruction: “A person

is criminally responsible if the result would not have occurred but

for her conduct”. See TEX. PENAL CODE ANN. § 6.04 (Vernon 1994).

Henderson maintains that, for capital murder, the defendant must

intend the result as opposed to the conduct. See Medina v. State,

7 S.W.3d 633, 639 (Tex. Crim. App. 1999), cert. denied, 529 U.S.

1102 (2000).

The jury was also instructed, however, that it was required to

find “beyond a reasonable doubt that ... Henderson ... knowingly

or intentionally cause[d] the death of an individual ... under six

years of age ....” (Emphasis added.) This language closely tracks

the Texas murder statute. See TEX. PENAL CODE ANN. § 19.02(b)(1)

(Vernon 1994) (stating that an offense is committed by

“intentionally or knowingly caus[ing] the death of an individual”).

Because this instruction was proper, reasonable jurists would not

disagree with the district court’s conclusion that: any objection

by Ms. Icenhauer-Ramirez would have been futile; therefore, her not

objecting was reasonable; and, in this regard, her performance was

30
not deficient. See, e.g., Clark v. Collins, 19 F.3d 959, 966 (5th

Cir.), cert. denied, 512 U.S. 1284 (1994).

In sum, the district court’s rulings on the reasonableness of

trial counsel’s challenged conduct are not debatable among jurists

of reason on whether they constituted deficient performance (first

prong). Accordingly, for COA purposes, it is unnecessary to

consider whether jurists of reason would debate whether any of the

actions by trial counsel prejudiced Henderson (second prong). See

Strickland, 466 U.S. at 687 (“Unless a defendant makes both

showings, it cannot be said that the conviction or death sentence

resulted from a breakdown in the adversary process that renders the

result unreliable.”).

D.

Henderson’s final COA request concerns whether her Sixth

Amendment confrontation and Fourteenth Amendment due process rights

were violated by the trial court’s post-trial findings of fact and

conclusions of law concerning her pre-trial motion to suppress,

which was denied before trial. Henderson characterizes these

findings and conclusions as “ex parte”.

1.

The district court declined to address Henderson’s Sixth

Amendment confrontation claim for this issue because it was

inadequately briefed. See Henderson II, slip op. at 30 n.13. We

agree with that conclusion and, therefore, will not address this

31
claim. See, e.g., Trevino v. Johnson, 168 F.3d 173, 181 n.3 (5th

Cir.) (stating that inadequately argued claims in a habeas petition

are deemed waived), cert. denied, 527 U.S. 1056 (1999).

2.

Concerning Henderson’s COA request for a claimed violation of

her due process rights, she contends the trial court erred by

issuing findings and conclusions drafted post-trial by the

prosecution and denied her due process by not allowing her to

relitigate issues from the map suppression hearing at trial.

Generic due process violations exist only where the trial

court commits an error that renders the proceeding fundamentally

unfair. Styron v. Johnson, 262 F.3d 438, 454 (5th Cir. 2001). An

error makes a proceeding “fundamentally unfair [where] there is a

reasonable probability that the verdict might have been different

had the trial been properly conducted”. Id. (quoting Rogers v.

Lynaugh, 848 F.2d 606, 609 (5th Cir. 1988)).

a.

Henderson notes the findings and conclusions were entered over

40 days after she was sentenced, as well as after the court denied

her new-trial motion. Henderson was found guilty and sentenced in

May 1995; the findings and conclusions were filed that July. The

motion to suppress upon which these findings and conclusions were

based, however, was denied during Henderson’s pre-trial hearings.

Henderson claims this demonstrates the findings and conclusions

32
were drafted to assist Sheriff Keel in his then-pending civil

action with Nona Byington, yet she fails to provide any citation to

the record to support this arguably off-the-wall assertion. (As

noted, Byington’s defamation action against Sheriff Keel was

settled.) No reliable evidence has been presented, however, to

suggest the findings and conclusions were delayed for an improper

purpose.

In his state habeas affidavit, prosecutor Robert Smith stated

that he provided the proposed findings and conclusions only as

suggestions. Moreover, he denied they were drafted in order to aid

anyone in an unrelated civil suit. As discussed supra, this

affidavit was found “true” by the state habeas court and is

presumed correct under AEDPA. As also discussed supra, Henderson

fails to even discuss this affidavit, much less offer the requisite

clear and convincing evidence to rebut this presumption. In the

light of Smith’s affidavit, Henderson fails to show jurists of

reason would disagree with the district court that “it is hard to

see how the judge’s admittedly late entry of the findings of fact

and conclusions of law impacted the outcome of her case or even his

decision of how to rule on that particular motion to suppress”.

Henderson II, slip. op. at 31.

b.

Finally, Henderson claims her due process rights were denied

when, at trial, she was not allowed to relitigate issues from the

33
map suppression hearing. She asserts that the “State’s motion

precluding relitigation of those issues at trial was granted for

the first time in an ex parte set of findings, entered after trial,

that were never served on trial counsel”. Needless to say, this is

yet another puzzling claim; again, Henderson’s suppression motion

was denied during her pre-trial hearings. We need not address this

claim because Henderson did not adequately address it in her COA

request to the district court.

III.

For the foregoing reasons, a COA is DENIED for each of

Henderson’s four COA requests. A subsequent opinion will address

the claims for which the district court granted a COA.

COA DENIED

34