United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 11, 2006
Charles R. Fulbruge III
Clerk
No. 04-70032
CATHY HENDERSON,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, 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.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Cathy Henderson, convicted in 1995 of capital murder of a
child under age six (capital child murder), in violation of TEX.
PENAL CODE ANN. § 19.03(a)(8), and sentenced to death, seeks habeas
relief from our court pursuant to issues for which the district
court granted her a certificate of appealability (COA). (Recently,
our court denied her COA request on additional issues. Henderson
v. Dretke, 164 F. App’x 506 (5th Cir. 2006).)
Henderson was not charged with capital child murder for more
than two weeks after being charged with kidnapping the child.
Primarily at issue is whether, for events that occurred between the
two charges, she can assert Sixth Amendment claims regarding the
murder charge. The district court certified for appeal the claims
related to this issue because of the possible unfairness of those
claims being precluded by Texas v. Cobb, 532 U.S. 162, 167-68
(2001) (holding an accused’s Sixth Amendment right to counsel does
not attach to uncharged crimes “factually related” to the crime for
which the defendant has been charged). AFFIRMED.
I.
On the morning of 21 January 1994, parents left their three-
and-one-half month old son (the child) with Henderson. Later that
day, the child sustained 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
offense of kidnapping. Approximately one week later, on 1
February, the FBI arrested Henderson in Kansas City, Missouri.
During her interrogation by an FBI Agent, Henderson initially
denied knowledge of the child’s whereabouts and stated she had left
him with his grandmother; she soon confessed, however, to killing
the child (but claimed it was an accident) and to burying him in a
wooded area near Waco, Texas. Nevertheless, when the FBI Agent
asked Henderson to draw a map to the burial site, she refused; and,
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 an assistant federal public
defender (the AFPD) in Kansas City and that office’s chief
2
investigator (FPD investigator). Concluding that he needed a Texas
map to facilitate Henderson’s cooperation with authorities’ efforts
to locate the child, the AFPD requested one from a second FBI
Agent. This second FBI Agent had observed, through a one-way
mirror, Henderson’s interrogation by the other FBI Agent. Unsure
of the reason for that request, the second FBI Agent did not assist
the AFPD. Accordingly, the AFPD obtained a map from the FPD
investigator’s office in another building and asked Henderson to
draw a map to the burial site. Henderson did so no later than the
next day, 2 February.
After his interview with Henderson, the AFPD met with several
persons in law enforcement, including an Assistant United States
Attorney (AUSA) and the second FBI Agent. The AFPD opined that the
child was dead. In addition, state and federal law-enforcement
personnel testified at trial that: the AFPD told them Henderson
had drawn a detailed map to the burial site (the map or maps); and
the AFPD could find that site using the map. The AFPD denies
making those statements or ever giving the agents any indication of
any map’s existence. In any event, the second FBI Agent and the
AUSA formed the subjective belief that any map was made with the
intent of aiding law enforcement.
On 2 February, the AFPD faxed maps prepared by Henderson to
Nona Byington, Henderson’s counsel in Texas, where the case was
being investigated by Travis County Sheriff Keel. State law-
enforcement officers, who had learned from the AFPD that he
3
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.
On 3 February, Texas lawyer Linda Icenhauer-Ramirez was
appointed to represent Henderson on the 23 January state kidnapping
charges. That same day, a Travis County grand jury issued a
subpoena duces tecum for Byington to appear with any maps in her
possession. She refused, claiming attorney-client privilege. A
warrant was issued for her arrest, 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 had waived extradition)
had been returned to Texas, where she was placed in solitary
confinement under a “firewatch” — a procedure whereby inmates
monitor another inmate for safety reasons. During that firewatch,
between 5 and 8 February, Henderson befriended inmate Bolivia
Jackson and they communicated on numerous occasions (correspondence
primarily and a few conversations). Jackson provided the
correspondence to the correctional authorities and recounted 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
4
grandmother in Oklahoma. These communications indicated the child
was still alive, contrary to what Henderson had told the FBI a few
days earlier.
On 7 February, after a grand jury issued another subpoena for
any maps, the State moved to compel their production. A hearing
was held that same day on the motion (map hearing), at which
Henderson’s counsel, Icenhauer-Ramirez and Byington, as well as
Byington’s counsel, including Steve Brittain, were present, but
Henderson was not. The next day, 8 February, the state court
ruled: an attorney-client relationship existed between Henderson
and Byington; any maps were not privileged, however, because they
were made with the intent to aid law enforcement; and Byington was
to produce any in her possession. She produced two that day.
Using them, authorities found the child’s body that same day, 8
February.
Henderson was charged the next day, 9 February 1994, with
capital child murder. On 22 April 1994, she was indicted for that
offense.
During extensive pre-trial hearings in 1994 and 1995,
Henderson moved to suppress all evidence obtained from, inter alia,
use of the maps. The motion was denied. Post-trial, the court
prepared findings of fact and conclusions of law concerning that
denial. Among other things, they provided: (1) Henderson “failed
to meet [her] burden of proof at the [map] hearing ... [and was
5
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; and (3) the Kansas City AFPD did not violate
the attorney-client privilege during his conversations with law
enforcement.
In May 1995, Henderson was found guilty of the capital murder
of a child under age six, in violation of TEX. PENAL CODE ANN. §
19.03(a)(8). At the trial’s penalty phase, the jury found 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 (TCCA)
affirmed. Henderson v. State, 962 S.W.2d 544, 563 (Tex. Crim. App.
1997) (en banc). After rehearing was denied in March 1998, new
appellate counsel for Henderson (later serving, inter alia, as her
appointed counsel for the instant appeal), attempted to have the
mandate recalled. The attempt was based on in-camera comments made
by the trial judge during the map hearing; counsel for the direct
appeal had failed to include them in the record on appeal. (This
omission is the basis for the ineffective-assistance-of-appellate-
counsel claim at hand, addressed in part II.D. infra.) In July
6
1998, with one dissent, leave to withdraw the mandate was denied.
Henderson v. State, 977 S.W.2d 605 (Tex. Crim. App. 1998).
Henderson next requested a writ of certiorari from the Supreme
Court of the United States. It was denied. Henderson v. Texas,
525 U.S. 978 (1998).
Seeking state-habeas relief in 1998, Henderson raised 18
issues. Without holding an evidentiary hearing, the state-habeas
trial court (the same judge who had presided at, inter alia, the
map and suppression hearings and trial) recommended relief being
denied. Relief was summarily denied by the TCCA. Ex parte
Henderson, No. 49984-01 (Tex. Crim. App. 6 Mar. 2002) (per curiam)
(unpublished).
Henderson raised 13 issues in her federal habeas application.
Pursuant to the State’s summary-judgment motion, each claim was
denied. Henderson v. Dretke, No. A-02-CA-758-SS, slip op. at 6-8
(W.D. Tex. 31 Mar. 2004).
The district court, however, granted a COA for seven of the
issues Henderson requested certified for appeal. Henderson v.
Dretke, No. A-02-CA-758-SS (W.D. Tex. 15 July 2004) (unpublished
COA order). In addition to the COA granted for the claimed
ineffective assistance by appellate counsel on direct appeal, the
court granted a COA because of its concerns that Cobb’s application
possibly permitted improper conduct by law enforcement officials.
7
On 27 January 2006, our court denied Henderson’s COA request
for four issues the district court had refused to certify.
Henderson v. Dretke, 164 F. App’x 506 (5th Cir. 2006). In April,
oral argument was held on the issues certified for appeal by the
district court.*
II.
In general, for “a habeas corpus appeal, we review the
district court’s findings of fact for clear error and review its
conclusions of law de novo, applying the same standard of review to
the state court’s decision as the district court”. Martinez v.
Johnson, 255 F.3d 229, 237 (5th Cir. 2001) (quoting Thompson v.
Cain, 161 F.3d 802, 805 (5th Cir. 1998)). Here, “[b]ecause the
district court granted summary judgment to the State, this court
must determine whether the record discloses any ... issues ...
that would preclude summary judgment in the State’s favor”. Id.;
see FED. R. CIV. P. 56; see also Busby v. Dretke, 359 F.3d 708, 713
(5th Cir. 2004) (reviewing a summary-judgment denial of habeas
relief).
*
Approximately two weeks before the 5 April 2006 oral
argument, which had been set on 17 February 2006, Henderson,
supported by appointed counsel, requested that new, uncompensated
counsel be permitted to present oral argument (uncompensated
counsel). The uncompensated counsel apparently had been assisting
Henderson since the fall of 2005 on a successive-habeas application
and volunteered to serve without compensation. On 29 March 2006,
we ordered that appointed and uncompensated counsel could divide
the argument, which they did.
8
Because Henderson filed her 28 U.S.C. § 2254 application after
enactment of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA), AEDPA
controls. See, e.g., Lindh v. Murphy, 521 U.S. 320, 336 (1997).
Pursuant to AEDPA, we may not grant relief on a claim adjudicated
on its merits by the state court unless at least one of two
scenarios occurs. 28 U.S.C. § 2254(d).
First, relief may not be granted “unless [that] adjudication
... resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States”. 28 U.S.C.
§ 2254(d)(1)(2004); see Busby, 359 F.3d at 713. A state-court
decision is “contrary to” federal law if it relies on legal
principles in direct conflict with prior Supreme Court holdings, or
if it reaches a different conclusion than that reached by the Court
on materially indistinguishable facts. Busby, 359 F.3d at 713. On
the other hand, an “unreasonable application” occurs where,
although “the state court correctly identifies the governing legal
principle ... [it] unreasonably applies it to the facts of the
particular case”. Id. (quoting Bell v. Cone, 535 U.S. 685, 694
(2002)). In this regard, “unreasonable” requires more than that
the state court applied clearly established federal law in an
erroneous or incorrect manner; instead, its application must be
9
objectively unreasonable. Rompilla v. Beard, 545 U.S. 374, 125 S.
Ct. 2456, 2462 (2005).
The second basis for habeas relief is if the state-court
adjudication “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in ... [that] proceeding”. 28 U.S.C. § 2254(d)(2). The
certified issues for appeal, however, primarily, if not totally,
concern subpart (d)(1) (“contrary to, or ... unreasonable
application of, clearly established Federal law”).
For an AEDPA inquiry under subpart (d)(1) or (2), the state
court’s factual determinations are “presumed to be correct”. Id.
§ 2254(e)(1); see Busby, 359 F.3d at 713. That presumption can be
rebutted only by “clear and convincing evidence”. 28 U.S.C. §
2254(e)(1).
Along this line, Henderson contests the presumption of
correctness accorded the state-habeas affidavits and the state-
habeas findings. She raised this challenge, however, for the first
time in district court. As Henderson’s appointed counsel
acknowledged at oral argument here, in state court the affidavits
were challenged or criticized only “obliquely”. As we held in
denying Henderson a COA, Henderson, 164 F. App’x at 517, this
contention fails because Henderson failed to contest those
affidavits and findings in state court.
10
The seven issues certified for appeal by the district court
concern the Sixth Amendment, which states in relevant part: “In
all criminal prosecutions, the accused shall ... have the
Assistance of Counsel for his defence”. U.S. CONST. amend. VI
(emphasis added). Applicable to the States through the Fourteenth,
the Sixth Amendment provides for the effective assistance of
counsel. E.g., United States v. Molina-Uribe, 429 F.3d 514, 518
(5th Cir. 2005), cert. denied, 126 S. Ct. 1616 (2006).
Four of the seven issues certified for appeal involve a claim
of pre-trial ineffective assistance of counsel (IAC). Therefore,
the issues can be reorganized into the following four claims: (1)
violation of Henderson’s Sixth Amendment rights by law enforcement
tactics; (2) pre-trial IAC by the Kansas City AFPD and three of the
lawyers present at the map hearing (Byington, Brittain, and
Icenhauer-Ramirez); (3) violation, during the firewatch, of her
Sixth Amendment rights, under Massiah v. United States, 377 U.S.
201, 206 (1964) (“hold[ing] 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 deliberately [and surreptitiously]
elicited from him after he had been indicted and in the absence of
his counsel”); and (4) IAC for her direct appeal.
As noted, for all but the appellate IAC claim, a COA was
granted based on Cobb’s application vel non. Henderson, No. A-02-
11
CA-758-SS, slip op. at 4-5. For the reasons that follow, the
state-court decision was neither contrary to, nor an unreasonable
application of, clearly established federal law (collectively, not
unreasonable).
A.
The first certified issue in the district-court COA order is
whether “Henderson’s Sixth Amendment rights were violated when
state law enforcement officials engaged in tactics that compromised
the confidentiality of Henderson’s communications with her lawyer”.
Id. at 2 (emphasis added). Those communications occurred in early
February 1994.
In denying habeas relief for this claim, the district court
held it was unexhausted and, thus, procedurally defaulted.
Nonetheless, as it did for the pre-trial IAC and Massiah claims,
the court granted a COA based on its alternate ruling involving
Cobb. As discussed more fully in part II.B infra (pre-trial IAC),
the district court questioned the fairness of Cobb’s application.
Exhaustion of a claim in state court is required by AEDPA for
a federal court to consider the claim. 28 U.S.C. § 2254(b)(1)(A).
At oral argument here, Henderson’s appointed counsel conceded this
claim had not been exhausted in state court. Henderson also failed
in district court to present a claimed basis to overcome this
procedural bar. E.g., Morris v. Dretke, 413 F.3d 484, 491-92 (5th
Cir. 2005) (noting that such default may be overcome by
12
demonstrating cause and prejudice or that failure to consider the
claim would result in a fundamental miscarriage of justice).
Therefore, this unexhausted claim cannot be considered.
B.
The next certified issue in the COA order is whether Henderson
received pre-trial IAC from: the Kansas City AFPD, for
“reveal[ing] a privileged communication to law enforcement
officials — that Henderson had drawn a map indicating the location
of the victim’s body”; Byington, who “also informed law enforcement
officials Henderson had drawn a map of where the victim was
buried”; Brittain, for failing to “adequately safeguard Henderson’s
rights when he attempted to plea bargain on behalf of Henderson”;
and Icenhauer-Ramirez, who “did not adequately assist [Henderson]
on the matter of the map”. Henderson, No. A-02-CA-758-SS, slip op.
at 2-3.
In earlier denying habeas relief on this IAC claim, the
district court had held Henderson had no Sixth Amendment right to
the effective assistance of counsel for capital murder until she
was so charged. The events for which Henderson claims IAC occurred
no later than the map hearing on 7 February 1994; the map was
produced, and the child’s body located, on 8 February; and murder
proceedings were not initiated until the next day, 9 February.
Relying on Cobb, which held an accused’s Sixth Amendment right to
counsel does not attach to crimes “factually related” to the crime
13
for which the defendant has been charged, 532 U.S. at 167-68, the
district court rejected the IAC claim.
As discussed in part, supra, when faced subsequently with the
lower COA standard, however, the district-court COA order stated
the Cobb rule was “harsh” and could encourage “gamesmanship” by
authorities: it could shield conduct claimed to be in relation to
one charged offense that could assist in proving an anticipated new
charge to be made after that conduct. Henderson, No. A-02-CA-758-
SS, slip op. at 5. Accordingly, Henderson’s appellate brief seizes
on this comment, asserting that the kidnapping charge (brought in
January 1994 after the child disappeared while in Henderson’s care,
but before his body was located on 8 February 1994) was merely a
pretext that enabled authorities to obtain forensic evidence that
would support the subsequent 9 February murder charge.
For this IAC claim, the state-habeas trial court entered
findings of fact and conclusions of law, including that each of the
four attorneys was not constitutionally ineffective. The TCCA
adopted them in denying habeas relief. The adopted bases for its
holding need not be addressed in deciding, under AEDPA, whether its
decision was unreasonable. As explained below, Henderson had no
Sixth Amendment right to counsel for the child-murder charge when,
prior to that charge, each of these four attorneys acted on her
behalf concerning the kidnapping charge. Therefore, the TCCA’s
habeas-relief denial is not unreasonable under AEDPA.
14
Unlike the Fifth Amendment right against self-incrimination,
the Sixth Amendment right to counsel is offense-specific. See
McNeil v. Wisconsin, 501 U.S. 171, 175-77 (1991). Consistent with
the plain language of the Sixth Amendment (“Assistance of Counsel
for ... defence” limited to “[i]n all criminal prosecutions”, see
Cobb, 532 U.S. at 173 n.3), its protections attach at arraignment
or indictment for a particular offense, which “signals ‘the
initiation of adversary judicial proceedings’”. Michigan v.
Jackson, 475 U.S. 625, 629 (1986) (quoting United States v.
Gouveia, 467 U.S. 180, 187 (1984)). Only when such proceedings are
initiated has a government “committed itself to prosecute, and only
then [have] the adverse positions of government and defendant ...
solidified. It is then that a defendant finds himself faced with
the prosecutorial forces of organized society”. Id. (quoting
Gouveia, 467 U.S. at 189). Accordingly, “the right to counsel
granted by the Sixth ... Amendment[] means at least that a person
is entitled to the help of a lawyer at or after the time that
judicial proceedings have been initiated against him”. Maine v.
Moulton, 474 U.S. 159, 170 (1985) (quoting Brewer v. Williams, 430
U.S. 387, 398 (1977)).
“Incriminating statements pertaining to other crimes, as to
which the Sixth Amendment right has not yet attached, are, of
course, admissible at a trial of those offenses.” Id. at 180 n.16.
Along this line, the Supreme Court, in Cobb, clarified that its
15
“decision in McNeil ... meant what it said ... [:] the Sixth
Amendment right is ‘offense specific’”. 532 U.S. at 164. The
Court explained that several federal and state courts had
incorrectly read into McNeil’s offense-specific rule an exception
for crimes “factually related” to the charged offense. Id. at 168.
The decision reviewed in Cobb for that exception was,
interestingly, from the TCCA, whose state-habeas decision in 2002
(post-Cobb) is under AEDPA review here.
No “parade of horribles” having resulted from other courts’
not having broadened the offense-specific definition, the Court
declined to create an exception to the offense-specific rule for
“factually related” offenses. Id. at 171. In refusing to do so,
the Court noted no evidence had been presented that such events had
occurred, and observed that the claimed exception “fail[ed] to
appreciate the significance of two critical considerations”, id.:
First, there can be no doubt that a suspect
must be apprised of his rights against
compulsory self-incrimination and to consult
with an attorney before authorities may
conduct custodial interrogation. See Miranda
v. Arizona, 384 U.S. at 479; Dickerson v.
United States, 530 U.S. 428, 435 (2000)
(quoting Miranda). In the present case, police
scrupulously followed Miranda’s dictates when
questioning [Cobb]. Second, it is critical to
recognize that the Constitution does not
negate society’s interest in the ability of
police to talk to witnesses and suspects, even
those who have been charged with other
offenses.
16
Id. at 171-72 (internal footnote omitted). In conjunction with
Miranda’s critical role, the Court noted it
protect[s] a defendant’s right to consult with
counsel before talking to police. Even though
the Sixth Amendment right to counsel has not
attached to uncharged offenses, defendants
retain the ability under Miranda to refuse any
police questioning, and, indeed, charged
defendants presumably have met with counsel
and have had the opportunity to discuss
whether it is advisable to invoke those Fifth
Amendment rights. Thus, in all but the rarest
of cases, the Court’s decision today will have
no impact whatsoever upon a defendant’s
ability to protect his Sixth Amendment right.
Id. at 171 n.2.
Cobb provided one context in which the Sixth Amendment right
attaches for other offenses, holding: “even if not formally
charged, [they] would be considered the same offense under the
Blockburger [v. United States, 284 U.S. 299 (1932) double-jeopardy]
test”. Id. at 173. This test requires deciding “whether each
provision [under which the defendant is charged for committing the
same act] requires proof of a fact which the other does not”. Id.
(quoting Blockburger, 284 U.S. at 304) (alteration to Blockburger
in original).
Henderson was charged with kidnapping in late January 1994
(state charge on the 23rd; federal, the 25th); she was charged with
capital child murder on 9 February. Although Henderson is correct
that she could have been charged with murder in the course of a
kidnapping, under TEX. PENAL CODE ANN. § 19.03(a)(2), she was charged,
17
instead, with the murder of a child under age six, pursuant to TEX.
PENAL CODE ANN. § 19.03(a)(8). Under the Blockburger test, each
offense for which she was charged requires proof of a fact that the
other does not. The kidnapping charge requires that the child have
been taken from his guardians, while the capital child-murder
charge requires that the child have been killed. Like the burglary
and capital murder offenses in Cobb, the kidnapping and capital
child-murder charges here constitute separate offenses under
Blockburger. See Cobb, 532 U.S. at 173. Henderson does not claim
otherwise.
Cobb (2001) postdates Henderson’s conviction becoming final in
1998. Pursuant to Teague v. Lane, 489 U.S. 288 (1989), a new rule
of constitutional law shall not be applied retroactively to cases
on collateral review unless one of two exceptions, not applicable
here, are met. Id. at 307-08. (Neither Cobb, nor subsequent Court
opinions, address whether Cobb was intended to have retroactive
application.) As Teague explains, a new rule is created either if
“it breaks new ground or imposes a new obligation on the States or
the Federal Government”, or “if the result was not dictated by
precedent existing at the time the defendant’s conviction because
final”. Id. at 301 (emphasis in original).
Henderson does not contend Teague bars the State from relying
on Cobb. For that reason, and because, as reflected in the above-
18
quoted language from Teague, that decision does not impose a
barrier where a case merely explains or clarifies an earlier
Supreme Court decision, we need not speculate sua sponte on any
such issue. Id.; cf. United States v. Lopez, 248 F.3d 427, 432
(5th Cir.) (noting a decision may apply retroactively where it
states “what conduct is, and always has been, criminalized”
(internal quotation marks omitted) (emphasis in original)), cert.
denied, 534 U.S. 898 (2001). As discussed, in Cobb, the Court
expressed its holding as a clarification of McNeil (in 1991, prior
to Henderson’s conviction becoming final in 1998), which, as noted,
some courts (including this circuit and the TCCA) had
misinterpreted to create an exception for “factually related” or
“inextricably intertwined” charges. See Cobb, 532 U.S. at 168;
United States v. Walker, 148 F.3d 518, 529 (5th Cir. 1998)
(explaining, pre-Cobb, that Sixth Amendment “protections cover
[different] offenses” when they are “inextricably intertwined”,
defined as “whether the conduct leading to each offense is the
same”). The Court made clear that, based on its existing
precedent, as opposed to that of courts which strayed from its
McNeil holding, the result in Cobb was dictated by precedent. Cobb,
532 U.S. at 168.
In essence, Henderson seeks an exception to Cobb, claiming her
factual situation presents the “parade of horribles” that did not
occur in Cobb. See 532 U.S. at 171. Teague arguably bars
19
Henderson’s attempt to create a new-rule exception to Cobb. In any
event, her factual situation would not fit in such a parade. For
example, there is no claim she did not receive her Miranda
warnings. Moreover, as noted supra, her pre-trial motion,
subsequent to the map hearing, to suppress the evidence (maps)
produced as a result of that hearing, was heard extensively and
denied.
Following being charged with kidnapping, Henderson did not
have a Sixth Amendment right to counsel for capital child murder
when each of the attorneys acted on her behalf prior to her being
so charged. Accordingly, she may not, for the pre-trial conduct at
issue, claim IAC for that charge.
C.
The district court granted a COA for whether “Henderson’s
Sixth Amendment right to effective assistance of counsel was
violated under the rule announced in Massiah ... when the police
placed her under fire watch [in early February 1994, prior to the
9 February murder charge] in order to obtain incriminating
statements from her”. Henderson, No. A-02-CA-758-SS, slip op. at
3. As for the pre-trial IAC claim, the court granted a COA,
however, because of its earlier-discussed concern that, although
Henderson had not been charged with capital murder until post-
firewatch, permitting, based on Cobb, what transpired during the
firewatch would encourage “gamesmanship” by authorities. Id. at 5.
20
Massiah (1964) held a criminal defendant may not have “used
against him at his trial evidence of his own incriminating words,
which federal agents had deliberately [and surreptitiously]
elicited from him after he had been indicted and in the absence of
his counsel”. 377 U.S. at 206. A Massiah violation has three
elements: (1) the Sixth Amendment right to counsel has attached;
(2) the individual seeking information from the defendant is a
government agent acting without the defendant’s counsel’s being
present; and (3) that agent “deliberately elicit[s]” incriminating
statements from the defendant. Id.; Creel v. Johnson, 162 F.3d
385, 393 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999). The
relevant state-habeas trial court’s findings and conclusions
included finding Jackson did not act as an agent for the State in
interacting with Henderson. The TCCA adopted those findings and
conclusions in denying this claim.
As in Cobb, the Sixth Amendment right to counsel under Massiah
is offense-specific; this right cannot be violated until Sixth
Amendment protections attach. Walker, 148 F.3d at 528-29. Again,
they do so at arraignment or indictment for a particular offense.
Michigan, 475 U.S. at 629.
As discussed supra, Henderson’s Sixth Amendment rights for
capital child murder did not attach before 9 February, when formal
criminal proceedings were initiated against her for that offense.
All communications with Jackson took place earlier, between 5 and
21
8 February. Because Henderson’s offense-specific Sixth Amendment
right to counsel for capital child murder had not attached when she
communicated with Jackson, no Massiah violation could occur. See
Massiah, 377 U.S. at 206. Therefore, it is not necessary to
consider the other elements required for a Massiah violation.
D.
“A criminal defendant has a constitutional right to receive
effective assistance of counsel on direct appeal.” United States
v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000). The final issue
certified for appeal in the district-court COA order concerns the
direct appeal to the TCCA: whether “Henderson’s Sixth Amendment
right to effective assistance of counsel was violated because she
received constitutionally inadequate assistance from her appellate
counsel”. Henderson, No. A-02-CA-758-SS, slip op. at 3.
An IAC claim involves the very familiar two-prong requirement
under Strickland v. Washington, 466 U.S. 668 (1984): deficient
performance and resulting prejudice. Id. at 687. The IAC
standards applied to trial counsel apply to appellate counsel as
well. See, e.g., Busby, 359 F.3d at 714 (applying Strickland test
to appellate counsel’s performance).
Of course, for our AEDPA review of a state-habeas denial of an
IAC claim, we do not decide whether IAC has been established. That
22
is the role of the state court. As our court has repeatedly
explained,
the test for [AEDPA] purposes is not whether
[the petitioner made the showing required
under Strickland]. Instead, the test is
whether the state court’s decision — that [the
petitioner] did not make the Strickland-
showing — was contrary to, or an unreasonable
application of, the standards, provided by the
clearly established federal law (Strickland),
for succeeding on his [IAC] claim.
Id. at 717 (first alteration added; other alterations and emphasis
in original) (quoting Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th
Cir. 2003)). Accordingly, supporting evidence for the two-prong
Strickland test is reviewed under the AEDPA lens in deciding
whether the state-court decision satisfies AEDPA’s reasonableness
standard.
Therefore, in state court, for the first prong of the
Strickland test, Henderson had to “demonstrate that [appellate]
counsel’s representation ‘fell below an objective standard of
reasonableness’”. Soffar v. Dretke, 368 F.3d 441, 472 (5th Cir.
2004) (quoting Strickland, 466 U.S. at 688). Next, the prejudice
prong required Henderson in state court to “establish a ‘reasonable
probability that, but for [appellate] counsel’s unprofessional
errors, the result of the proceeding would have been different’”.
Id. at 478 (quoting Strickland, 466 U.S. at 694). This required
showing an error “sufficient to undermine confidence in the
outcome”. Strickland, 466 U.S. at 694. Under this prong for an
23
appellate IAC claim, “we must counter-factually determine the
probable outcome on appeal had” the performance not been deficient.
United States v. Reinhart, 357 F.3d 521, 530 (5th Cir. 2004)
(internal quotation marks omitted).
Appellate IAC is usually claimed where counsel fails to raise
a particular issue on appeal; in that context, “[a]ppellate counsel
is not deficient for not raising every non-frivolous issue on
appeal”. Id. at 525. Where, as here, the habeas petitioner
instead challenges appellate counsel’s failure to provide an
appellate court with the necessary parts of the record, we find
less guidance. In Goodwin v. Johnson, 132 F.3d 162 (5th Cir. 1997)
(reviewed under pre-AEDPA standards), the petitioner claimed IAC
because of counsel’s failure to include in the record on appeal the
full transcript of a pretrial suppression hearing. Id. at 176.
Our court disagreed, explaining that, even had the appellate court
possessed the missing testimony, it would still be required to
accept the trial court’s credibility determinations. Id.
“The appellate process exists solely for the purpose of
correcting errors that occurred at the trial court level.” Id. at
174. Consequently, the right to effective counsel on appeal “‘is
recognized not for its own sake, but because of the effect that it
has on the ability of the accused to receive a fair trial’”. Id.
(quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (alteration
to Lockhart in original)).
24
Henderson claims IAC because, in conducting her direct appeal,
appellate counsel failed to notice a span of pages missing from the
record, and thus failed to include them in the record on appeal for
the TCCA. The missing pages contained an in-camera colloquy,
during the 7 February 1994 map hearing, between the state trial
judge and Henderson’s counsel, Byington, in which the judge
expressed his belief the child was dead.
As discussed supra, on 8 February 1994, the judge compelled
production of any maps in Byington’s possession on the basis that
Henderson was represented by the attorneys present at the hearing
and that, despite the attorney-client privilege, any maps were
created to aid law enforcement. Henderson deems this missing
portion of the record critical, claiming it would have shown the
unreasonableness of any belief by law-enforcement officials that
the child was still alive.
As also discussed supra, this was the basis for seeking
unsuccessfully in 1998 to have the TCCA withdraw its mandate
following its affirmance on direct appeal. This claim was next
raised in the state-habeas application.
Accompanying the state’s response to that application were
several affidavits. Among them were two by Henderson’s appellate
counsel, in which he stated: he read the 44-volume record “more
than once”; and he “did not see or know about the in camera
colloquy between [the] Judge ... and Byington before [he] wrote
25
[his appellate] brief, and therefore did not use it on direct
appeal”. Both of these affidavits were found “true” by the state-
habeas trial court, which “conclude[d] that [counsel’s]
representation of [Henderson] on appeal was competent”. As noted,
the TCCA adopted those findings and conclusions.
We need not address, through the AEDPA filter, the first of
the two prongs for showing IAC: the state-court decision
concerning whether counsel’s failure to notice, or to supplement,
this missing portion of the record constituted deficient
performance. Instead, because Henderson had to satisfy both prongs
in state court, we proceed to review that decision as it concerns
the second, prejudice, prong. Pursuant to our restricted AEDPA
review, the state-court decision on this IAC claim was not
unreasonable because, in counter-factually determining the likely
outcome, we conclude the TCCA on direct appeal would have reached
the same conclusion had it possessed the missing transcript. See
Reinhart, 357 F.3d at 530.
As the district court explained in denying Henderson habeas
relief on this issue, “what mattered ... [for the direct] appeal
was whether the [map-hearing] trial judge believed the law
enforcement officers when they said they thought there was a chance
[the child] was still alive, not what the trial judge himself
believed about whether [the child] was alive”. Henderson, No. A-
02-CA-758-SS, slip op. at 28 (emphasis added). Indeed, on direct
26
appeal, the TCCA emphasized the importance of the law-enforcement
authorities’ belief, despite considerable evidence to the contrary:
“At the time the trial court compelled production of the maps,
authorities had reason to believe that the baby might still be
alive”. Henderson, 962 S.W.2d at 557. For example, during the
firewatch shortly before the map hearing, Henderson communicated to
Jackson that the child was still alive. Although the TCCA, on
direct appeal, did not have the judge’s in-camera statement before
it, its subsequent discussion during state-habeas proceedings of
the conflicting information provided by Henderson acknowledged what
the TCCA ruled on direct appeal. For that direct appeal, it
stated: it was likely a “remote possibility” that the child
remained alive; authorities, nonetheless, “were entitled to pursue
that remote possibility”. Id. Under AEDPA, the state-habeas
denial of this claim was not unreasonable.
III.
For the foregoing reasons, the denial of habeas relief is
AFFIRMED.
27