United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 9, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________
No. 01-41279
_____________________
JAMES LEE HENDERSON, Petitioner - Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, Respondent - Appellee.
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Appeal from the United States District Court for the
Eastern District of Texas, Tyler
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Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
James Lee Henderson was convicted of capital murder by a Texas
jury and was sentenced to death. He appeals the district court’s
denial of habeas relief on his ineffective assistance of counsel
claims. In addition, he requests a certificate of appealability
(“COA”) from this court for his claims that the prosecution
knowingly presented perjured testimony and failed to disclose
exculpatory information to the defense. We AFFIRM the denial of
habeas relief and DENY a COA.
I
On the night of October 28, 1993, Henderson, Willie Pondexter,
Deon Williams, and Ricky Bell decided to break into the home of 85-
year-old Martha Lennox in Palestine, Texas. They planned to rob
her, steal her car, and go to Dallas. They went to her home,
kicked the door open, and went upstairs. Henderson fired a shot
through Lennox’s bedroom door. After Williams took seven dollars
from Lennox’s wallet, Henderson shot Lennox in the head. Pondexter
then took the gun from Henderson and shot Lennox in the head. The
medical examiner testified that both wounds were fatal and that
either wound could have caused Lennox’s death.
After robbing and murdering Lennox, the group drove her
Cadillac to the home of Pondexter’s cousin, where they celebrated
the theft and murder. Then they took Lennox’s car to Dallas, where
Williams and Henderson robbed some young Mexican men. The police
arrested Pondexter and Bell, who were in Lennox’s car. Henderson
and Williams fled on foot. The police subsequently apprehended
Williams. A short time later, Henderson saw Lennox’s car being
towed away and called “911" to report that it had been stolen.
Henderson was arrested by the Dallas police officer to whom he made
the report about the stolen car. When he was arrested, Henderson
was in possession of a gun that was later determined to be the
murder weapon.
Williams, who was sixteen years old at the time of the murder,
testified at Henderson’s trial, as follows: He had been charged
with capital murder but had entered into a plea agreement in which
he agreed to plead guilty to a reduced charge of murder and to
2
testify against his co-defendants. He was to receive a sixty-year
sentence for murder, and would be eligible for parole after serving
thirty years. If he had been convicted of capital murder, he was
not eligible for the death penalty because of his age, but he would
have to serve forty years before becoming eligible for parole.
Williams testified further regarding the events surrounding
the murder: Henderson and Pondexter were members of the “107
Hoovas,” which is part of the Crips gang. Before the murder, they
were talking about “which Crip had the heart” to rob Lennox. On
his way out of Lennox’s bedroom after the robbery, he heard a
gunshot and looked back. He saw Lennox’s head slumped over.
Henderson had the gun in his hand and was handing it to Pondexter,
who took it and shot Lennox in the head. After they went to
Pondexter’s cousin’s house, Henderson and Pondexter were talking
about how they “smoked a bitch for her car,” and they did the “Crip
handshake.” On the way to Dallas in Lennox’s car, Henderson and
Pondexter were talking about “true Crips to the heart,” and they
listened to a tape of gangster songs over and over. While he and
Henderson were in the same jail, Henderson told him that the reason
he shot Lennox was “because she was looking at him like he had shit
on him.”
Pondexter’s girlfriend testified that she had heard Henderson
talk about being in a gang. When asked about the meaning of a
teardrop tattoo under a person’s eye, she testified that she had
3
always known it to mean that the person had killed someone. She
testified further that Henderson did not have a teardrop tattoo
under his eye on the night of the murder.
Joe Scott, who had shared a cell with Henderson, testified
that Henderson told him repeatedly that he had shot Lennox.
The jury convicted Henderson of capital murder.
At the punishment phase, Williams testified that Henderson
robbed some Mexican males in Dallas at gunpoint. He testified
further that a teardrop tattoo is a sign that you have killed
someone; that Henderson did not have a teardrop tattoo before the
murder; but that Henderson had a teardrop tattoo when he saw him in
jail following the murder; and that Henderson said that he got the
tattoo in the county jail in Dallas, after the murder. Williams
testified that Henderson told him that he killed Lennox because she
looked at him “like he had shit on him” and that, if he had not
gotten caught, he was going to go on a “killing spree.” On cross-
examination, Williams testified that he was charged with aggravated
robbery in Dallas County. When asked whether the aggravated
robbery charge was part of the deal in which he agreed to testify
at Henderson’s trial, Williams responded, “I don’t know.”
Also at the punishment phase, the court granted the State’s
request that Henderson step before the jury so that the jurors
could see the teardrop tattoo beneath his left eye.
4
In his closing argument at the punishment phase, the
prosecutor stated that, if the jury spared Henderson’s life, they
were “going to send this gangster-wannabe to gang heaven.” The
prosecutor also characterized the teardrop tattoo as a trophy that
was going to make Henderson a hero in prison.
The jury answered the special issue regarding future
dangerousness affirmatively and answered the special issue
regarding mitigating evidence negatively. Henderson was sentenced
to death. His conviction and sentence were affirmed on direct
appeal. Henderson v. State, No. 71,928 (Tex. Crim. App. 1996)
(unpublished). He did not file a petition for writ of certiorari.
When Henderson filed his initial state habeas application in
August 1997, he was represented by Pamela Campbell, who died prior
to the federal habeas proceedings. The state courts denied relief
on his ineffective assistance of counsel claims, and the Supreme
Court denied his petition for a writ of certiorari. Ex parte
Henderson, No. 37,658-01 (Tex. Crim. App.), cert. denied, 525 U.S.
1004 (1998).
In August 1998, the federal district court appointed counsel
for Henderson. In October 1998, the district court stayed
Henderson’s execution, which was set for December 2, 1998, and set
a deadline for the filing of his federal habeas petition.
In December 1998, Henderson’s federal habeas counsel’s
investigator obtained a series of sworn statements from Williams in
5
which Williams recanted much of his trial testimony. In those
statements, Williams claimed that he never saw Henderson shoot
Lennox, never heard Henderson state that he was going to kill some
Mexicans in Dallas, and never heard Henderson say that he was going
on a killing spree if he had not gotten caught. Williams stated
that he testified falsely at trial regarding gang membership and
symbols and that he testified against Henderson only because the
prosecutors had threatened him with the death penalty if he did not
do so.
The federal habeas proceedings were held in abeyance while
Henderson’s federal habeas counsel filed a subsequent application
for state habeas relief in which Henderson claimed, for the first
time, that the State knowingly presented perjured testimony, based
on Williams’s recantation of his trial testimony. The state courts
dismissed the application for abuse of the writ. Ex parte
Henderson, No. 37,658-02 (Tex. Crim. App. 1999) (unpublished).
Henderson then filed an amended petition for federal habeas
relief. The district court conducted an evidentiary hearing, at
which Williams, the prosecutors, Henderson’s trial counsel, and
others testified. Consistent with the statements given to federal
habeas counsel’s investigator, Williams testified at the federal
habeas evidentiary hearing that he had not told the truth when he
testified at Henderson’s trial, and that he had testified falsely
6
at trial because he wanted to please the prosecutors and get a
better deal for himself.
Immediately prior to the hearing, the State turned over its
trial file to Henderson’s federal habeas counsel, who had requested
it only a few days earlier. Among the documents in that file were
notes made by the prosecutors and Williams’s “Plea Negotiation
Agreement,” which included a provision granting him derivative use
immunity.1 The Plea Negotiation Agreement was signed by Williams,
Williams’s trial counsel, Clayton Hall, and Red River County
prosecutor Jack Herrington, and it was dated May 9, 1994, the first
day of jury selection in Henderson’s trial.
Henderson filed a post-hearing brief in which he asserted a
claim based on the State’s failure to disclose the derivative use
immunity provision in Williams’s plea agreement. Henderson claimed
that the derivative use immunity provision would have barred
Williams’s prosecution for the aggravated robbery in Dallas and the
unauthorized use of Lennox’s vehicle. Henderson also claimed that
the prosecutor’s notes reflected that Williams did not talk about
Henderson’s gang affiliation until after he was promised derivative
use immunity.
1
The clause provided that the prosecution would “not use any
evidence or testimony furnished under the provision of this
agreement or any other type of evidence derived directly or
indirectly from the defendant in any criminal prosecution against
said defendant except perjury, aggravated perjury or contempt.”
7
The district court denied habeas relief, but granted a COA for
two issues: (1) whether trial counsel rendered ineffective
assistance by failing to move for a mistrial at the close of the
State’s case-in-chief after the prosecutor had failed to introduce
into evidence the two incriminating statements by Henderson to
which the prosecutor had referred in his opening statement; and (2)
whether trial counsel rendered ineffective assistance by failing to
object to the introduction of gang evidence at the guilt-innocence
phase of trial. Henderson seeks a COA for one additional issue
encompassing two sub-claims: Whether the prosecution knowingly
presented perjured testimony and whether the prosecution had failed
to disclose exculpatory information to the defense.
II
We will address first those claims for which the district
court granted a COA, and then consider Henderson’s request for a
COA.
A
Standard of Review
We review the district court’s factual findings for clear
error and its legal conclusions de novo, applying the same standard
of review to the state court's decision as the district court.
Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir. 2002); Thompson v.
Cain, 161 F.3d 802, 805 (5th Cir. 1998). Henderson argues that the
district court erred by applying the deferential standard of review
8
set forth in Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996). As
Henderson notes, the Supreme Court rejected that standard in
Williams v. Taylor, 529 U.S. 362 (2000), decided more than a year
prior to the district court’s opinion. Although Henderson is
correct, the district court’s error is harmless, because Henderson
is not entitled to relief under the correct standard of review.
Because Henderson filed his federal habeas petition after the
effective date of the Anti-terrorism and Effective Death Penalty
Act (AEDPA), AEDPA governs our review of his claims. With respect
to those claims that were adjudicated on the merits in state court,
Henderson is not entitled to relief unless the state court’s
adjudication of the claims
(1) 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; or
(2) resulted in a decision that was based
on an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). A decision is “contrary to ... clearly
established Federal law, as determined by the Supreme Court of the
United States ... if the state court arrives at a conclusion
opposite to that reached by th[e] Court on a question of law or if
the state court decides a case differently than th[e] Court has on
a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. at 412-13. A decision “involve[s] an unreasonable
9
application of [] clearly established Federal law, as determined by
the Supreme Court of the United States ... if the state court
identifies the correct governing legal principle from th[e] Court’s
decisions but unreasonably applies that principle to the facts of
the prisoner’s case.” Id. at 413. A state court’s findings of
fact are presumed to be correct unless the petitioner rebuts the
presumption by “clear and convincing evidence.” 28 U.S.C. §
2254(e)(1).
As we explained in Neal v. Puckett, 286 F.3d 230, 235 (5th
Cir. 2002) (en banc), cert. denied, 123 S.Ct. 963 (2003), “[i]n the
context of federal habeas proceedings, adjudication ‘on the merits’
is a term of art that refers to whether a court’s disposition of
the case was substantive as opposed to procedural.” When the state
court’s decision is unclear, “we determine, on a case by case
basis, whether the adjudication was on the merits.” Singleton v.
Johnson, 178 F.3d 381, 384 (5th Cir. 1999). In making that
determination, we consider three factors: “(1) what the state
courts have done in similar cases; (2) whether the history of the
case suggests that the state court was aware of any ground for not
adjudicating the case on the merits; and (3) whether the state
courts’ opinions suggest reliance upon procedural grounds rather
than a determination on the merits.” Id. Under Texas law,
“usually a denial of relief rather than a ‘dismissal’ of the claim
by the Court of Criminal Appeals disposes of the merits of a
10
claim.” Id. AEDPA’s standards apply, however, when the state’s
highest court rejects a claim without giving any indication of how
or why it reached that decision. See Weeks v. Angelone, 176 F.3d
249, 258 (4th Cir. 1999), aff’d, 528 U.S. 225, 237 (2000).
With respect to claims that were not adjudicated on the merits
in state court, the deferential AEDPA standards of review do not
apply. See Chadwick v. Janecka, 312 F.3d 597, 606 (3d Cir. 2002)
(if state court misunderstood the nature of a properly exhausted
claim and thus failed to adjudicate that claim on the merits,
AEDPA’s deferential standards of review are inapplicable).
Instead, we review those claims under pre-AEDPA standards of
review. See Jones v. Jones, 163 F.3d 285, 299-300 (5th Cir. 1998)
(applying de novo standard of review to ineffective assistance of
counsel claims that were raised in state court, but not adjudicated
on the merits); see also Chadwick v. Janecka, 312 F.3d at 605-06;
Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001); Weeks v.
Angelone, 176 F.3d at 258.
B
Ineffective Assistance of Counsel
Henderson claims that his trial counsel rendered ineffective
assistance in two respects: First, by failing to move for a
mistrial at the close of the prosecution’s case-in-chief; and,
second, by failing to object to the admission of gang-related
evidence during the guilt-innocence phase of trial.
11
“To establish an ineffective assistance of counsel claim,
[Henderson] must show both that his counsel’s performance was
deficient and that the deficient performance prejudiced his
defense.” Neal v. Puckett, 286 F.3d at 236 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “Counsel’s performance is
considered deficient if it ‘falls below an objective standard of
reasonableness’ as measured by professional norms.” Id. (quoting
Strickland, 466 U.S. at 688). “In scrutinizing counsel’s
performance, we make every effort to eliminate the distorting
effects of hindsight, and do not assume that counsel’s performance
is deficient merely because we disagree with trial counsel’s
strategy.” Id. (internal quotation marks and citations omitted).
“To establish prejudice, [Henderson] must show that there is at
least ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’” Id. at 241 (quoting Strickland, 466 U.S. at 694). A
“reasonable probability” is “a probability sufficient to undermine
confidence in the outcome.” Id.
1
Ineffective Assistance: Failure to Move for Mistrial
Henderson gave two statements to police after his arrest. In
the first, he denied any involvement in the murder, but used an
alias, “Johnny Leeon Mack.” In the second statement, he admitted
that he shot Lennox in the jaw after Pondexter had shot her in the
12
head. He also stated, “I said that I was going to see who had
heart, who was the bravest.” Prior to trial, the state trial
court, after conducting an evidentiary hearing, denied Henderson’s
motion to suppress the statements. In his opening statement, the
prosecutor made the following remarks regarding Henderson’s
statements:
We’re going to show you more. We’re
going to show you a couple of statements from
the defendant, himself. We’re going to show
you the first statement he gave immediately
after being arrested in Dallas and after the
discovery of Mrs. Lennox’s body; and I’m going
to tell you, folks, we’ll offer the statement
to you but the evidence is going to show it’s
a bunch of lies. That the defendant lied
about his involvement.
We’re going to show you a second
statement the defendant gave about three
months later, in December of 1993, and in that
statement the defendant admits, only to a
point, his involvement in this case. He
admits in his statement that he shot Mrs.
Lennox through the face, through the jaw. Of
course in that statement he says, “I did it
after Willie Poindexter shot her through the
brain,” but that’s a lie. It didn’t happen
that way and the physical evidence and the
other evidence you hear in this case will
prove to you that that was a lie and that
James Lee Henderson fired the first shot.
One thing, one note I want to make about
that second statement. There are certain
things in the law that prohibit certain
evidence from coming in, and we’re all bound
by that. The State of Texas will offer that
second statement, but part of it will be
blacked out. The law allows us to do that--in
fact, compels us to do that. Ultimately, you
may or may not find out what the rest of that
says, but that is none of your concern at this
13
particular phase of the trial, so you will see
in that second statement parts that are
blacked out. Please do not try to guess what
that second statement--what that blacked-out
part says. I think it will become apparent to
you eventually but for the purposes of the
guilt-innocence part of this trial, please do
not concern yourselves with the blacked-out
portion. I just want to warn you. The State
is not trying to hide anything from you.
We’re just following the rules.
Although the state habeas trial court found, and the parties state,
that the trial court subsequently ruled that Henderson’s statements
were inadmissible, the Texas Court of Criminal Appeals held that
the state habeas trial court’s finding was not supported by the
record. In any event, Henderson’s statements were not admitted
into evidence.
Henderson’s argument is that his trial counsel rendered
ineffective assistance by failing to move for a mistrial at the
close of the State’s case-in-chief, based on the fact that the
prosecutor, in his opening statement, detailed to the jury two
incriminating statements Henderson gave to the police, but yet
those statements were never introduced into evidence. He asserts
that, because the motion for mistrial would have been made outside
the presence of the jury at the close of the evidence and after the
court had ruled that the statements were inadmissible, the omission
cannot be excused as trial strategy. He maintains that he was
prejudiced, because the purported statements corroborated his
cellmate’s testimony regarding his admissions that he had shot
14
Lennox, which the jury may otherwise have concluded was not
credible. He also argues that the prosecutor’s allegations that he
had lied to the police and that there was other evidence that the
jury was not allowed to hear changed the culpability balance in the
punishment phase of the trial. Finally, he argues that, if counsel
had moved for a mistrial, and if the trial court had denied the
motion, there is a reasonable probability that the Texas Court of
Criminal Appeals would have reversed his conviction and sentence
and remanded the case for a new trial.
There has been a problem in this case of the courts
misconstruing this argument. First, the state habeas court
misconstrued Henderson’s claim as being based on trial counsel’s
failure to object to the prosecutor’s opening statement. Based on
that mistaken interpretation, the state court concluded that an
objection to the prosecutor’s opening statement would have been
futile because the trial court had ruled that the statements were
admissible; therefore, counsel did not render deficient performance
by failing to object to the prosecutor’s opening statement. The
state court concluded that, even assuming deficient performance,
Henderson could not show prejudice because there was extensive
evidence corroborating his guilt, including his confession of
involvement to his cellmate, Scott. The state court found further
that the failure to object may have been trial strategy because
15
counsel did not want to call attention to the confessions,
including Henderson’s admissions to his cellmate, Scott.
Henderson notes that the two justifications advanced by the
state trial court for the failure of counsel to object -- futility
and not wanting to draw the jury’s attention to the confessions --
have no relevance to his actual claim that trial counsel performed
deficiently by failing to move for a mistrial, outside the presence
of the jury, at the close of the State’s case.
Henderson contends that, because the state courts misconstrued
his claim that he was denied effective assistance of counsel when
his trial counsel failed to move for a mistrial, AEDPA’s standard
of review applies only to the prejudice prong of his claim, and not
to the deficient performance prong. We agree. The state courts
did not address Henderson’s actual claim of deficient performance
-- counsel’s failure to request a mistrial at the close of the
State’s evidence. Instead, misconstruing his claim, they
considered only whether counsel rendered deficient performance by
failing to object during the prosecutor’s opening statement. Thus,
although Henderson exhausted his claim by properly presenting it to
the state courts, the state courts did not adjudicate the claim on
its merits. Accordingly, AEDPA’s standards of review are
inapplicable to the deficient performance prong of this ineffective
assistance claim. See Chadwick v. Janecka, 312 F.3d at 606 (AEDPA
standards of review inapplicable when state court misconstrues
16
nature of properly exhausted claim and thus fails to adjudicate
that claim on the merits); Jones v. Jones, 163 F.3d at 299-300
(applying de novo standard of review to ineffective assistance of
counsel claims that were raised in state court, but not adjudicated
on the merits).
Henderson asserted the same claim in his federal habeas
petition. However, in the district court the State only addressed
Henderson’s actual claim -- that counsel should have moved for a
mistrial at the close of the prosecution’s case-in-chief -- for the
first time in its supplemental answer and motion for summary
judgment filed in the district court. The State asserted that,
because the prosecutor’s conduct in failing to introduce
Henderson’s statements was not improper, defense counsel did not
perform deficiently by failing to move for a mistrial. The State
contended further that, because of the extensive evidence of
Henderson’s involvement in the crime, Henderson was not prejudiced.
This evidence included his repeated admissions to his cellmate
(Scott) that he committed the murder. Furthermore, the
prosecutor’s failure to introduce the statements was not such
egregious prosecutorial misconduct that it would have necessitated
a mistrial.
Still yet, the district court misconstrued Henderson’s claim.
It held that counsel’s performance was not deficient because any
objection to the prosecutor’s opening statement would have been
17
futile in the light of the state court’s earlier ruling that
Henderson’s statements were admissible. The district court
concluded that Henderson was not prejudiced in the light of the
weight of the evidence against him and because of Scott’s testimony
concerning Henderson’s admissions that he had shot Lennox.
As we have noted, because the state courts failed to address
the merits of Henderson’s actual claim that counsel’s performance
was deficient, we owe no deference to the state court’s
determination of the first prong of Henderson’s Strickland claim.
However, even if we assume that Henderson’s counsel rendered
deficient performance by failing to move for a mistrial at the
close of the State’s case-in-chief, Henderson has not demonstrated
that the state courts’ ultimate decision on his Strickland claim,
i.e., that he was not prejudiced, is unreasonable. He has not
shown that there is a reasonable probability that the trial court
would have granted a mistrial had counsel requested one.
Furthermore, considering the overwhelming evidence of Henderson’s
guilt, and especially in the light of Scott’s testimony regarding
Henderson’s repeated admissions that he shot Lennox, Henderson has
not shown that there is a reasonable probability that the
prosecutor’s remarks affected the outcome of either the guilt-
innocence phase or the punishment phase of his trial. Finally, he
has failed to demonstrate that there is a reasonable probability
that, if a motion for mistrial had been made and denied, the Texas
18
Court of Criminal Appeals would have reversed his conviction and
sentence on appeal. We thus find no reversible error in the
district court’s denial of habeas relief for this Strickland claim.
2
Ineffective Assistance: Failure to Object to Gang Evidence
Henderson next contends that his trial counsel rendered
ineffective assistance by failing to object to gang-related
evidence at the guilt-innocence phase of trial. Henderson
maintains that he was prejudiced because the prosecutor had no
other theory concerning his motive for committing murder and would
have found it difficult to convince the jury that the crime
occurred as alleged absent a motive that made sense. He contends
further that his appellate counsel rendered ineffective assistance
by failing to raise on appeal the error in admitting this evidence
at the guilt-innocence phase of trial.2 He argues that the failure
to preserve this error prejudiced him on appeal because the error
is not harmless.
The state habeas trial court concluded that Henderson’s gang
affiliation properly related to Henderson’s motive and intent and
was a proper subject of direct examination; therefore, Henderson’s
2
On direct appeal, Henderson’s appellate counsel argued that
the evidence regarding Henderson’s teardrop tattoo was irrelevant
to punishment. The Court of Criminal Appeals rejected that
argument, and held that “any complaint concerning the testimony
given in the guilt/innocence stage is waived on appeal for lack of
adequate briefing.” Henderson v. State, No. 71,928 (Tex. Crim.
App. 1996), at 18.
19
trial counsel did not render deficient performance by failing to
make a futile objection. The state court concluded further that,
even assuming counsel could have properly objected, Henderson was
not prejudiced because of the overwhelming evidence of his guilt.
The Texas Court of Criminal Appeals adopted the trial court’s
findings and conclusions.
In his federal habeas, Henderson’s trial counsel testified,
through a deposition, that he had a tactical reason for not
objecting to the gang evidence: He was trying to put the witness
Williams in the position of appearing to the jury to be the worst
of them all, and not credible. The State argued in district court
that, because of the overwhelming evidence of guilt, Henderson’s
complaint that counsel was ineffective for failing to object to the
admission of gang evidence did not prejudice him.
The district court held that counsel should have objected to
the gang evidence because it was clearly prejudicial and arguably
inadmissible under state rules of evidence. Moreover, the Texas
Court of Criminal Appeals had held that it was error to admit the
same evidence in Pondexter’s capital murder trial (although that
court concluded that the error was harmless). See Pondexter v.
State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996). The district
court stated, however, that it must give great deference to the
trial court’s determination because there is no clearly established
federal law on the admissibility of this type of evidence. The
20
district court concluded that, even assuming deficient performance,
Henderson was not prejudiced because there is not a reasonable
probability that the jury’s verdict would have been different
without the gang evidence.
We conclude that the state court’s decision that Henderson was
not prejudiced by counsel’s failure to object is not an
unreasonable application of Strickland. Even assuming that counsel
should have objected, and assuming further that the objection would
have been sustained, there is not a reasonable probability that the
jury would have acquitted Henderson. As the state court correctly
observed, the evidence of Henderson’s guilt was overwhelming.
Considering the brutal and senseless nature of the crime, the
evidence of Henderson’s utter lack of remorse, and the extremely
strong evidence of his guilt, including his confession to his
cellmate, there is not a reasonable probability that the evidence
of Henderson’s gang affiliation affected the outcome of the guilt-
innocence phase of his trial.3
C
Procedurally Defaulted Claims (COA Request)
3
In his reply brief, Henderson argues that he established at
the federal writ hearing that his cellmate testified falsely at
trial. The district court made no such finding, however. Instead,
the district court held that there was no factual basis for
Henderson’s claim that the prosecution knowingly sponsored the
false testimony of Scott. Moreover, Henderson did not request a
COA to appeal the district court’s ruling with respect to his claim
that the prosecution knowingly presented false testimony by Scott.
21
Relying on Williams’s recanting statements and his testimony
at the federal habeas evidentiary hearing, Henderson requests a COA
from this court for his claim that the prosecutors knowingly
presented the perjured testimony of Williams. He also seeks a COA
for his claim that his due process rights were violated by the
prosecution’s failure to disclose the derivative use immunity
provision in Williams’s plea negotiation agreement. Henderson
argues that the benefit Williams received as the result of the
reduced charge and 60-year sentence for Lennox’s murder would have
been completely negated had he not been granted immunity from
prosecution for the aggravated robbery in Dallas and the
unauthorized use of Lennox’s vehicle, because he could have been
sentenced to life in prison without parole had he been convicted of
those crimes. He thus contends that the derivative use immunity
provision of the plea agreement was a significant benefit that
should have been disclosed to the defense.
Henderson did not raise these claims on direct appeal or in
his initial state habeas application. The Texas Court of Criminal
Appeals held that these claims, presented for the first time in
Henderson’s second state habeas application, were barred by the
Texas abuse of the writ doctrine. The district court therefore
held that the claims were procedurally defaulted, and further
denied Henderson’s request for a COA on these claims.
22
Henderson now requests a COA from this court. “[U]ntil a COA
has been issued federal courts of appeals lack jurisdiction to rule
on the merits of appeals from habeas petitioners.” Miller-El v.
Cockrell, 123 S.Ct. 1029, 1039 (2003). To obtain a COA, Henderson
must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Miller-El, 123 S.Ct. at 1039;
Slack v. McDaniel, 529 U.S. 473, 483 (2000). To make such a
showing, he must demonstrate 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, 123 S.Ct. at 1039 (quoting Slack, 529 U.S. at 484).
Because the district court held that these habeas claims were
procedurally barred, Henderson 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.” Slack, 529 U.S. at
484.
In Miller-El, the Supreme Court instructed, as it had
previously held in Slack, that we should “limit [our] examination
to a threshold inquiry into the underlying merit of [the
petitioner’s] claims.” Miller-El, 123 S.Ct. at 1034. The Court
observed that “a COA ruling is not the occasion for a ruling on the
23
merit of petitioner’s claim....” Id. at 1036. Instead, our
determination must be based on “an overview of the claims in the
habeas petition and a general assessment of their merits.” Id. at
1039. “This threshold inquiry does not require full consideration
of the factual or legal bases adduced in support of the claims.”
Id. We do not have jurisdiction to justify our denial of a COA
based on an adjudication of the actual merits of the claims. Id.
Accordingly, we cannot deny an “application for a COA merely
because [we believe] the applicant will not demonstrate an
entitlement to relief.” Id. “[A] claim can be debatable even
though every jurist of reason might agree, after the COA has been
granted and the case has received full consideration, that
petitioner will not prevail.” Id.
Thus, we reiterate that our immediate task is to determine,
not the ultimate merits of Henderson’s claims, but only whether
Henderson has demonstrated 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.” Slack, 529 U.S. at 484.
We consider first whether “jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.” Id. In order to make that determination, it is necessary
that we consider the procedural default doctrine. A federal habeas
24
court plainly cannot grant relief where the last state court to
consider the claim raised by the petitioner expressly and
unambiguously based its denial of relief on an independent and
adequate state law procedural ground. Coleman v. Thompson, 501
U.S. 722, 729-30 (1991); Hughes v. Johnson, 191 F.3d 607, 614 (5th
Cir. 1999). A state procedural rule is adequate if it is “firmly
established” and regularly and consistently applied by the state
court. James v. Kentucky, 466 U.S. 341, 348 (1984); Johnson v.
Mississippi, 486 U.S. 578, 587 (1988). A state procedural rule is
independent if it does not “depend[] on a federal constitutional
ruling.” Ake v. Oklahoma, 470 U.S. 68, 75 (1985). When the state
court expressly relies on an adequate and independent procedural
bar, a federal habeas petitioner may not obtain relief unless he
establishes cause for the default and actual prejudice. Coleman,
501 U.S. at 750.4 The existence of cause for a procedural default
“ordinarily turn[s] on whether petitioner can show that some
objective factor external to the defense impeded counsel’s efforts
to comply with the State’s procedural rule.” Murray v. Carrier,
477 U.S. 478, 488 (1986).
1
Adequacy of Texas Abuse of Writ Doctrine
4
A federal habeas petitioner who is unable to make the
requisite showing of cause and prejudice can obtain habeas relief
if he can show that application of the procedural bar would
constitute a miscarriage of justice -- that he is actually innocent
of the crime. Henderson does not claim that the actual innocence
exception applies in his case.
25
The district court held that the Texas abuse of the writ
doctrine was an adequate procedural bar because it had become
“firmly established and regularly followed,” citing Ford v.
Georgia, 498 U.S. 411, 423 (1991) (quoting James v. Kentucky, 466
U.S. 341, 348 (1984)). The district court also noted that the
Texas abuse of the writ doctrine was strictly and regularly applied
at the time Henderson filed his first habeas petition on August 28,
1997, citing Emery v. Johnson, 139 F.3d 191, 195, 201 (5th Cir.
1997), and Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995).
For the first time in his COA application in this court,
Henderson argues that the Texas abuse of the writ doctrine is not
“adequate” to bar review of his claims because his case involves
“exceptional circumstances”. Because Henderson did not argue in
the district court that the Texas abuse of the writ doctrine was
inadequate to bar consideration of his claims under the procedural
default doctrine, it is unnecessary for us to consider it.5 See
5
Henderson’s current “exceptional circumstances” argument --
that his initial state habeas counsel rendered ineffective
assistance of counsel by failing to attempt to talk to Williams and
by failing to request a copy of, or an opportunity to review, the
State’s trial file -- also appears to be inconsistent with the
position he took in district court. In the district court, he
argued that the evidence he relies on in support of this claim was
not available to his initial state habeas counsel because Williams
was unwilling to speak to anyone concerning Henderson’s case until
well after the initial state habeas application was filed, and
there was no mechanism by which counsel could have compelled the
State to produce its trial file. In his post-hearing brief filed
in district court, Henderson argued that his initial state habeas
counsel had no reason to suspect that the prosecutors knowingly
allowed Williams to lie about his plea agreement and suppressed the
true terms of that agreement.
26
Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (“We
generally will not consider a claim raised for the first time in a
COA application.”).
Even if we were to consider Henderson’s “exceptional
circumstances” argument, it does not persuade us that reasonable
jurists would find debatable the district court’s procedural ruling
on the adequacy of the Texas abuse of the writ doctrine. In
support of his belated argument, Henderson relies on the Supreme
Court’s opinion in Lee v. Kenma, 534 U.S. 362 (2002). In that
case, Lee claimed that a Missouri trial court deprived him of due
process by denying an oral motion for an overnight continuance.
Lee had requested the continuance in order to locate subpoenaed
alibi witnesses who had been present earlier, but who had left the
courthouse without explanation during the trial. Although neither
the trial judge nor the prosecutor identified any procedural defect
in Lee’s continuance motion, the Missouri Court of Appeals held
that the denial of the motion was proper because Lee’s counsel had
not complied with procedural rules specifying the showing required
for such a motion and requiring that continuance motions be in
writing, accompanied by an affidavit. The Supreme Court held that,
under the exceptional circumstances of that case, “the Missouri
Rules, as injected into this case by the state appellate court, did
not constitute a state ground adequate to bar federal habeas
review.” Id. at 365. The Court found that four special
27
circumstances existed: (1) at trial, neither the trial court nor
the prosecutor referred to the procedural rules relied on by the
state appellate court; (2) there was no indication that formal
compliance with the rules would have changed the trial court’s
decision; (3) no published state decision required precise
compliance with the rules in the urgent situation presented in
Lee’s case; and (4) the purpose of the rules was served by Lee’s
submissions immediately before and at the short trial. Id. at 387.
Henderson argues that perfect compliance with Texas procedural
requirements was not possible because his initial state habeas
counsel rendered ineffective assistance. Although he had a
statutory right to the appointment of competent habeas counsel to
represent him in his initial state habeas application, the Texas
Court of Criminal Appeals has held that a subsequent habeas claim,
based solely on an alleged violation of the statutory right to the
appointment of competent habeas counsel in a prior habeas
proceeding, is not cognizable on a subsequent habeas application.
Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002). Henderson
therefore contends that he has no avenue of redress other than the
federal courts. He contends further that there are no published
Texas cases addressing the unique circumstances of his case.
Finally, he asserts that the application of the abuse of the writ
doctrine to the circumstances of his case eviscerates the
doctrine’s purpose of ensuring that a death row inmate has one full
28
and fair opportunity to present his claims and the purpose of
achieving a balance between the convicted prisoner’s constitutional
rights and society’s interest in the finality of criminal
convictions.
Henderson has not demonstrated the existence of “exceptional
circumstances” sufficient to persuade us that jurists of reason
would find it debatable whether the district court was correct in
its procedural ruling that the Texas abuse of the writ doctrine is
an adequate procedural bar. It is well-settled that “infirmities
in state habeas proceedings do not constitute grounds for federal
habeas relief.” Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th
Cir. 1992). Furthermore, “ineffective assistance of habeas counsel
cannot provide cause for a procedural default.” Martinez v.
Johnson, 255 F.3d 229, 241 (5th Cir. 2001). As the district court
noted, the Texas abuse of the writ doctrine is firmly established
and regularly followed, and it was strictly and regularly applied
at the time Henderson filed his first state habeas application.
Reasonable jurists would not find debatable the district court’s
ruling on the adequacy of this doctrine.
2
Cause and Prejudice
Regarding Williams’s alleged perjured testimony, the district
court held that Henderson had not established cause for the
procedural default because the evidence showed a lack of due
29
diligence on the part of his initial state habeas counsel, who made
no attempt to interview Williams. Even if cause had been shown,
the district court found Williams’s recantation testimony and
accusations against the prosecutors lacking in credibility. The
district court noted that the Red River County District Attorney,
the Special Prosecutor, and Williams’s defense counsel all
testified at the federal evidentiary hearing that Williams was an
eager witness, who cooperated so that he could get the best
possible deal for himself. In his recantation, Williams claimed
ignorance of gang activity, parlance, and behavior, and accused the
prosecutors of instructing him how to testify about such matters.
The district court found that Williams’s accusation was not
credible, because Williams admitted to observing gang behavior
while at the “state school” and in the county jail. The district
court also pointed out that Williams’s testimony at trial,
regarding who was holding the gun when the shots were fired, was
consistent with a statement that he gave to the Texas Rangers
shortly after the murder, before he spoke with the prosecutors, and
before he was offered a plea bargain in exchange for his testimony.
The district court therefore concluded that Henderson had failed to
show that the prosecutors knowingly sponsored false testimony by
Williams.
Henderson made two claims regarding the derivative use
immunity provision in Williams’s plea agreement: First, that the
30
prosecution knowingly presented Williams’s false testimony that he
did not know whether his sentence for the aggravated robbery in
Dallas was part of his plea agreement for Lennox’s murder; and,
second, that the prosecution failed to disclose the existence of
the derivative use immunity provision. The district court held
that Henderson had failed to establish cause for his procedural
default, because he made no showing that an objective factor
external to the defense impeded counsel’s efforts to comply with
the State’s procedural rule. The district court held that the fact
that Williams was never tried in the Dallas aggravated robbery case
or for the unauthorized use of Lennox’s vehicle was known at the
time Henderson filed his first state habeas application, and that
the other documents uncovered by Henderson to support his claim
were also readily available to Henderson’s initial state habeas
counsel, who failed to exercise due diligence to obtain those
documents.6
6
The district court held that, even assuming that Henderson
could show that the State withheld evidence that would have further
impeached Williams, he failed to show that the evidence was
material or that the alleged constitutional violation resulted in
the conviction of one who is actually innocent. As the district
court correctly observed, the evidence against Henderson was
substantial:
He was observed with the accomplices in the
murder shortly after the crime, waving the
murder weapon in the air in a joyous manner,
he was arrested in Dallas shortly after the
murder while attempting to retain possession
of Ms. Lennox’s Cadillac, and he was in
possession of the murder weapon at the time of
his arrest. At Petitioner’s arrest, he had
31
Henderson argues that he established cause for the procedural
default: The factual basis for his claims was unavailable through
the exercise of due diligence. He asserts that even if his initial
state habeas counsel had attempted to interview Williams, Williams
testified at the federal evidentiary hearing that he would not have
talked to her about Henderson’s case. As the district court
observed, however, Williams testified that no one representing
Henderson had contacted him prior to his being contacted by the
investigator for Henderson’s federal habeas counsel.
Henderson argues that Williams’s Plea Negotiation Agreement
was unavailable to his initial state habeas counsel because it was
“secret” and “hidden” in the State’s trial file, and there was no
mechanism whereby counsel could have compelled the State to produce
the file. He presented no evidence, however, that the agreement
was either “secret” or “hidden.” The prosecutors testified at the
federal habeas evidentiary hearing that they had an “open file”
policy in the case. Henderson’s trial counsel testified that he
had no recollection of having been provided a copy of the
agreement, but he could not say that he had not received it. The
prosecutor referred to the written agreement in open court at
two ammunition magazines on his person. One
had thirteen bullets in it and the other had
ten. Three shots were made from the gun
during the course of Ms. Lennox’s murder.
These facts, considered apart from any
testimony of co-defendant Williams ..., negate
any inference that Petitioner is “actually
innocent” of the crime.
32
Williams’s rearraignment. Although Williams and his mother
testified that immunity from prosecution for the aggravated robbery
in Dallas and for the unauthorized use of a motor vehicle charge
was part of the agreement, the prosecutors and Williams’s counsel
testified that those charges were not discussed in negotiating the
agreement and were not part of the agreement. Henderson’s federal
habeas counsel did not ask to see the State’s trial file until five
days before the federal habeas evidentiary hearing. Henderson
presented no evidence that his initial state habeas counsel ever
requested a copy of the file or an opportunity to view its
contents, much less any evidence that the State would have refused
such a request had it been made. As the district court noted, the
fact that Williams was not prosecuted for aggravated robbery or
unauthorized use of a motor vehicle was known to Henderson’s state
habeas counsel at the time his initial state habeas application was
filed. Thus, the district court’s ruling that Henderson failed to
show that the factual basis for his claims was unavailable when he
filed his first habeas application is not debatable among jurists
of reason.
In sum, Henderson has not shown that reasonable jurists would
find debatable the district court’s ruling that he failed to
establish cause for procedurally defaulting these claims.
Accordingly, it is not necessary for us to consider whether jurists
of reason would find it debatable whether the petition states a
33
valid claim of the denial of a constitutional right. See Foster v.
Johnson, 293 F.3d 766, 791 (5th Cir.) (when first prong of Slack
inquiry for procedural claims is not satisfied, court need not
address second prong), cert. denied, 123 S.Ct 625 (2002); Dowthitt
v. Johnson, 230 F.3d 733, 753 n.30 (5th Cir. 2000) (same). Because
Henderson has not made a substantial showing of the denial of a
constitutional right, we DENY his request for a COA for his claims
that the prosecution knowingly presented false testimony and failed
to disclose impeachment material.
III
For the foregoing reasons, we AFFIRM the district court’s
denial of habeas relief and DENY a COA.
AFFIRMED; COA Motion DENIED.
34
Henderson v. Cockrell
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-06-09
Citations: 333 F.3d 592
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