Henderson v. Quarterman

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.

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).

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.

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.

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.

“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.