Filed: Jan. 27, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT January 27, 2006 Charles R. Fulbruge III Clerk No. 04-70032 CATHY HENDERSON, Petitioner-Appellant, versus DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee. Appeal from the United States District Court for the Western District of Texas (A-02-CA-758-SS) Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges. PER CURIA
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT January 27, 2006 Charles R. Fulbruge III Clerk No. 04-70032 CATHY HENDERSON, Petitioner-Appellant, versus DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee. Appeal from the United States District Court for the Western District of Texas (A-02-CA-758-SS) Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges. PER CURIAM..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 27, 2006
Charles R. Fulbruge III
Clerk
No. 04-70032
CATHY HENDERSON,
Petitioner-Appellant,
versus
DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(A-02-CA-758-SS)
Before JONES, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
In 1995, Cathy Lynn Henderson was convicted in Texas state
court of capital child murder, see TEX. PENAL CODE ANN. § 19.03(a)(8),
and sentenced to death. After federal habeas relief was denied on
all 13 claims, the district court granted a certificate of
appealability (COA) for six of them, as well as a portion of
another.
Henderson seeks a COA from this court for four of the
remaining issues for which the district court denied a COA: (1)
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
whether her Fifth and Fourteenth Amendment rights were violated
because her confession to an FBI Agent was involuntary and coerced;
(2) whether, shortly after she was arrested for kidnapping the
child she later confessed to killing, her Sixth Amendment
confrontation and Fourteenth Amendment due process rights were
violated by the trial court’s denial of her request to be present
at the hearing on the State’s motion to compel the production of
evidence needed for the grand jury proceeding; (3) whether her
Sixth Amendment right to effective assistance of counsel was
violated by her trial counsel; and (4) whether her Sixth Amendment
confrontation and Fourteenth Amendment due process rights were
violated by the trial court’s post-trial findings of fact and
conclusions of law regarding its pre-trial denial of Henderson’s
motion to suppress evidence.
For each of the four issues, a COA is DENIED. A subsequent
opinion will address the numerous issues certified by the district
court.
I.
On the morning of 21 January 1994, the Baughs left their
three-and-one-half month old son, Brandon (the child), with
Henderson. Later that day, the child received massive head trauma,
causing his death.
Soon thereafter, on 23 and 25 January, respectively, state and
federal warrants were issued against Henderson for the felony
2
offense of kidnapping. Approximately a week later, on 1 February,
the FBI arrested Henderson in Kansas City, Missouri.
During her interrogation by FBI Agent Napier, Henderson
initially denied knowledge of the child’s whereabouts and stated
she had left him with his grandmother; then, she offered to provide
information about the child in exchange for an agreement that she
remain in Missouri. The Agent advised that he did not have
authority to negotiate such an agreement but that those who did
would need information on which to base their decision. Henderson
soon confessed to killing the child, claiming it was an accident,
and to burying him in a wooded area near Waco, Texas. When Agent
Napier asked Henderson to draw a map to the burial site, she
refused. After the Agent reduced Henderson’s comments to writing,
she refused to sign the statement and requested a lawyer.
Later that day, Henderson met with Ronald Hall, an assistant
federal public defender (AFPD) in Kansas City, and Ronald Ninemire,
chief investigator for the federal public defender’s office.
Concluding that he needed a Texas map to facilitate Henderson’s
cooperation with authorities’ efforts to locate the child, AFPD
Hall requested one from FBI Agent Hepperman. Unsure of the reason
for that request, the Agent did not assist AFPD Hall. Accordingly,
he obtained a map from Ninemire’s office in another building and
asked Henderson to draw a map to the burial site. At some point,
Henderson did so.
3
After his interview with Henderson, AFPD Hall met with several
persons in law enforcement, including Carla Oppenheimer, an
Assistant United States Attorney (AUSA), and Agent Hepperman. AFPD
Hall opined that the child was dead. In addition, Agents testified
at trial that: AFPD Hall told them Henderson had drawn a detailed
map to the burial site; and Hall could find it using the map. AFPD
Hall denies making these statements or ever giving the Agents any
indication of any map’s existence. In any event, Agent Hepperman
and AUSA Oppenheimer formed the subjective belief that any map was
made with the intent of aiding law enforcement.
The next day, 2 February, AFPD Hall faxed maps prepared by
Henderson to Nona Byington, Henderson’s counsel in Texas, where the
case was being investigated by Travis County Sheriff Keel. Law
enforcement officers, who had learned from AFPD Hall that he
intended to send materials to Byington, contacted her and requested
the maps. After Byington attempted unsuccessfully to negotiate a
plea agreement in exchange for the maps, she refused to provide any
in her possession. Because of her refusal, Sheriff Keel publicly
accused Byington of being an accomplice in an ongoing crime.
(Byington’s subsequent defamation action against Sheriff Keel was
settled.)
On 3 February, Texas lawyer Linda Icenhauer-Ramirez was
appointed to represent Henderson on state kidnapping charges. That
same day, a Travis County grand jury issued a subpoena duces tecum
4
for Byington to appear with any maps. She refused, claiming
attorney-client privilege. An arrest warrant was issued for
Byington, as well as a search warrant for her automobile and house.
The arrest warrant was soon withdrawn. Authorities executed the
search warrant but did not find any maps.
Earlier, on 2 February, Henderson (who waived extradition) had
been returned to Texas. While in custody there, Henderson was
placed in solitary confinement under “firewatch”, a procedure
whereby inmates monitor another inmate for safety reasons. During
“firewatch”, between 5 and 8 February, Henderson befriended inmate
Bolivia Jackson. Jackson communicated with Henderson on numerous
occasions (correspondence primarily and a few conversations).
Jackson provided the correspondence to the correctional
authorities, as well as recounting the conversations. In these
communications, Henderson gave conflicting statements concerning
the child’s location. On the one hand, she told Jackson that she
could draw a map to where the child was dropped off in Missouri; on
the other, that the child was with his grandmother in Oklahoma.
On 7 February, after a grand jury issued another subpoena for
any maps, the State moved to compel their production. Following a
hearing on that motion (map hearing), at which Henderson’s counsel,
Linda Icenhauer-Ramirez and Nona Byington, as well as Byington’s
counsel, were present, but Henderson was not, the state court held:
an attorney-client relationship existed between Henderson and
5
Byington; but, any maps were not privileged because they were made
with the intent to aid law enforcement. Upon being ordered to
produce any maps in her possession, Byington produced two. Using
the maps, authorities found the burial site.
Henderson was charged on 9 February, and indicted on 22 April,
for the capital murder of the child. During pre-trial hearings,
which occurred over several months in 1994 and 1995, Henderson
moved to suppress all evidence obtained from, inter alia, the use
of the maps. The motion was denied. Post-trial, the court
prepared findings of fact and conclusions of law concerning that
denial, including: (1) Henderson “failed to meet [her] burden of
proof at the [map] hearing ... [and was thus] precluded from
attempting to suppress any evidence ... resulting from the
production of the maps by the introduction of additional evidence
which was available to [Henderson] at the time of the hearing on
the motion to compel”; (2) the maps were intended to aid law
enforcement in finding the child and were not intended to be
confidential; (3) AFPD Hall did not violate the attorney-client
privilege during his conversations with law enforcement; (4) the
crime-fraud exception to that privilege applied because there was
evidence of an ongoing kidnapping at the time of the map hearing;
(5) even if law enforcement knew the child was dead, the crime-
fraud exception still applied because of the ongoing crime of abuse
of a corpse; (6) even if the maps were privileged, the fruit of the
6
poisonous tree doctrine did not compel suppression; and (7)
Henderson was not denied effective assistance of counsel.
On 17 May 1995, Henderson was found guilty of the capital
murder of a child under age six. After the jury found, inter alia,
no mitigating factors to warrant a life sentence, Henderson was
sentenced to death on 30 May 1995.
On direct appeal, the Texas Court of Criminal Appeals
affirmed. Henderson v. State, 962 S.W.2d 544, 563 (Tex. Crim. App.
1997) (en banc) (Henderson I). The Supreme Court of the United
States denied a writ of certiorari. Henderson v. Texas,
525 U.S.
978 (1998).
In seeking state habeas relief in 1998, Henderson raised 18
grounds. Without holding an evidentiary hearing, the state habeas
court recommended relief being denied. In findings of fact and
conclusions of law, the court found to be “true” the affidavits of
Robert and Linda Icenhauer-Ramirez (Henderson’s trial counsel),
Keith Hampton (Henderson’s counsel on direct appeal), Sheriff Keel
(Travis County Sheriff who investigated the child’s disappearance),
and Robert Smith (an Assistant District Attorney who prosecuted
Henderson’s case). The Texas Court of Criminal Appeals summarily
denied habeas relief. Ex parte Henderson, No. 49984-01 (Tex. Crim.
App. 6 A.K. Marsh. 2002) (per curiam) (unpublished).
Henderson sought federal habeas relief, raising 13 grounds.
Henderson v. Dretke, No. A-02-CA-758-SS, slip op. at 6-8 (W.D. Tex.
7
31 A.K. Marsh. 2004) (Henderson II). Relief was denied. The district
court granted Henderson a COA for six of the issues, as well as
part of another: (1) whether Henderson’s Sixth Amendment rights
where violated when state law enforcement officials’ tactics
undermined the confidentiality of Henderson’s communications with
her attorney; and (2)-(7) whether Henderson’s Sixth Amendment right
to effective assistance of counsel was violated: (2) when AFPD
Hall revealed to law enforcement that Henderson had drawn the map;
(3) because Henderson’s initial Texas counsel, Byington, also told
law enforcement officials that Henderson had drawn the map; (4)
when Steve Brittain (Nona Byington’s attorney at the map hearing)
failed to adequately protect Henderson’s rights when he attempted
to plea-bargain on Henderson’s behalf; (5) when, at the map
hearing, Linda Icenhauer-Ramirez, appointed trial counsel, did not
adequately help prevent disclosure of the maps (this is the portion
of the IAC claim concerning Linda Icenhauer-Ramirez for which a COA
was granted; it was denied concerning trial); (6) because her
appellate counsel, Keith Hampton, provided constitutionally
inadequate assistance; and (7) when the police placed her under
“firewatch” to obtain incriminating statements, in violation of
Massiah v. United States,
377 U.S. 201, 206 (1964) (holding that
“the petitioner was denied the basic protections of [the Sixth
Amendment] guarantee when there was used against him at his trial
evidence of his own incriminating words, which federal agents had
8
deliberately elicited from him after he had been indicted and in
the absence of his counsel”). A COA was denied for all other
claims. Henderson v. Dretke, No. A-02-CA-758-SS (W.D. Tex. 15 July
2004) (unpublished order) (Henderson III).
II.
Henderson seeks a COA here. Her 28 U.S.C. § 2254 habeas
petition is subject to the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(AEDPA). See, e.g., Lindh v. Murphy, 521 U.S. 320, 336 (1997).
Under AEDPA, she must first obtain a COA from either the district,
or our, court before she can appeal the denial of a federal habeas
claim. 28 U.S.C. § 2253(c) (2000); FED. R. APP. P. 22(b)(1); Slack
v. McDaniel,
529 U.S. 473, 478 (2000). Federal Rule of Appellate
Procedure 22(b)(1) requires that the district court first decide
whether to grant the COA. Henderson filed a notice of appeal and
request for a COA in district court. As discussed, it granted a
COA for six issues and part of another and denied it for the
others, including those addressed infra.
Henderson seeks a COA for four of the issues the district
court refused to certify for appeal. (Henderson’s COA request
included a fifth issue: whether the “firewatch” violated Massiah.
As Henderson recognized, but only after the State noted this
erroneous COA request here, and as described above, the district
court granted a COA for that issue. Henderson III, slip op. at 5.
9
Therefore, we do not address it. Instead, it will be addressed in
our subsequent opinion concerning the issues certified for appeal
by the district court. On the other hand, this erroneous request
is in line with other errors and shortcomings in the COA request to
our court, discussed infra.)
Therefore, at issue are the COA requests for the following
claims: (1) Henderson’s Fifth and Fourteenth Amendment rights were
violated because her statement to FBI Agent Napier in Missouri was
involuntary and coerced; (2) Henderson’s Sixth Amendment
confrontation and Fourteenth Amendment due process rights were
violated when the trial court refused to allow Henderson to be
present at the map hearing; (3) Henderson’s Sixth Amendment right
to effective assistance of counsel was violated by her trial
counsel, Linda and Robert Icenhauer-Ramirez; and (4) Henderson’s
Sixth Amendment confrontation and Fourteenth Amendment due process
rights were violated by the trial court’s post-trial findings of
fact and conclusions of law concerning its pre-trial denial of her
suppression motion.
To obtain a COA, Henderson must “ma[k]e a substantial showing
of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2);
see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Restated, she
must demonstrate “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to
10
deserve encouragement to proceed further”. Miller-El, 537 U.S. at
336 (quoting
Slack, 529 U.S. at 484) (internal quotation marks
omitted). “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of
the claims.”
Id. Instead, it “requires an overview of the claims
in the habeas petition and a general assessment of their merits”.
Id. This being a death-penalty case, all doubts regarding “whether
a COA should issue must be resolved in [Henderson’s] favor”.
Hernandez v. Johnson,
213 F.3d 243, 248 (5th Cir.), cert. denied,
531 U.S. 966 (2000).
Of course, for making this required threshold inquiry, we must
be mindful of AEDPA’s standards for merits-rulings. Under AEDPA,
for deciding a claim, a federal court must defer to the state
court’s resolution of that claim concerning questions of law and
mixed questions of law and fact, unless that “decision ... was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court”. 28
U.S.C. § 2254(d)(1); see Hill v. Johnson, 210 F.3d 481, 488 (5th
Cir. 2000), cert. denied,
532 U.S. 1039 (2001). “A state court’s
decision is ... contrary to clearly established federal law if it
reaches a legal conclusion in direct conflict with a prior decision
of the Supreme Court or if it reaches a different conclusion than
the Supreme Court based on materially indistinguishable facts.”
11
Miniel v. Cockrell, 339 F.3d 331, 337 (5th Cir. 2003), cert.
denied,
540 U.S. 1179 (2004).
Similarly, in deciding a claim pursuant to AEDPA, a federal
court must defer to the state court’s factual findings unless they
“resulted in a decision that was based on an unreasonable
determination of the facts in [the] light of the evidence presented
in the State court proceeding”. 28 U.S.C. § 2254(d)(2). These
findings are entitled to a presumption of correctness, which can be
rebutted only by “clear and convincing evidence”. Id. §
2254(e)(1).
Throughout her COA application here, which is often difficult
to decipher, Henderson attempts to incorporate additional
materials. Under both Federal Rule of Appellate Procedure
28(a)(9)(A) and local rules 28.2.3 and 28.3(j), Henderson may not
do so. Therefore, they will not be considered as part of
Henderson’s COA application here.
A.
First, Henderson contends she is entitled to a COA because
reasonable jurists could debate whether FBI Agent Napier violated
her Fifth and Fourteenth Amendment rights by causing an involuntary
and coerced confession. Henderson raised this issue on direct
appeal.
12
During her interrogation by Agent Napier, Henderson confessed
to killing and burying the child. The Texas Court of Criminal
Appeals described this interrogation as follows:
Early in the interview, Agent Napier told
[Henderson] that she was at a crossroads, that
she could determine which path to take, and
that she could tell her story or let the
justice system take its course. Later in the
interview, [Henderson] offered to tell
everything she knew in exchange for staying in
Missouri. In response, Napier asked questions
such as: “What do you mean?” “What's
everything?” Napier never promised appellant
that she could stay in Missouri, and in fact,
told her that he was not in a position to make
any bargains, deals, or promises. He also
told her that the people in a position to make
a deal would want to have a basis for making
their decision. Later, through leading
questions, Napier elicited from [Henderson] a
confession that she killed the baby. He asked
[Henderson], “When you say the whole thing,
are you talking about that Brandon is dead,
that you know where the body's located, that
it was an accident, that you're sorry?”
[Henderson] responded by nodding her head.
Later Napier stated, “Brandon's dead. It was
an accident.” To this statement, [Henderson]
replied, “Yes.” Napier asked, “Did you bury
him[?]” [Henderson] responded, “Of course, I
did. He's just a baby.” Subsequent
interrogation led to [Henderson’s] statement
that she had buried Brandon in a wooded area
near Waco. At that point, Napier asked
[Henderson] to draw a map so that the
authorities could find Brandon. Napier talked
about Brandon's parents and talked about their
need to “put closure” on this episode.
[Henderson], however, refused to draw a map.
Henderson I, 962 S.W.2d at 563-64 (emphasis added).
Applying AEDPA’s presumption of correctness, the district
court adopted the Texas Court of Criminal Appeals’ rulings on
13
direct appeal that: Agent Napier made no promises to, or deals
with, Henderson in exchange for her statement; and she confessed
before Agent Napier discussed the parents’ need for closure.
Henderson claims her confession to Agent Napier was involuntary and
coerced because: (1) she was led to believe that cooperation with
the FBI would lead to a deal; and (2) Agent Napier’s having
discussed the child’s parents’ need for closure and help in
recovering the child’s body, Henderson’s resulting confession was
not an act of free will.
Henderson fails, however, to provide any record support, much
less the clear and convincing evidence as mandated by AEDPA, for
her contentions. 28 U.S.C. § 2254(e)(1). Jurists of reason would
not disagree that the issue of whether Henderson’s confession was
involuntary and coerced is not “adequate to deserve encouragement
to proceed further”. Miller v. Dretke, 404 F.3d 908, 913 (5th Cir.
2005) (citing
Miller-El, 537 U.S. at 336).
B.
Henderson next seeks a COA on whether her Sixth Amendment
confrontation and Fourteenth Amendment due process rights were
violated because: the trial judge denied her request to be present
at the 7 February 1994 map hearing; her rights were not adequately
protected at that hearing; and Henderson’s then-counsel, Byington,
was compelled to produce the maps, which were then used to find the
child’s burial site.
14
Henderson’s unsupported allegations contrast with Linda
Icenhauer-Ramirez’s state habeas affidavit, which was found “true”.
(Henderson’s failed attack on the affidavit is discussed in part
II.C., concerning her ineffective assistance of counsel claims.)
That affidavit maintains Henderson was adequately represented at
the map hearing. Although Henderson emphasizes that Linda
Icenhauer-Ramirez did not meet with Byington’s counsel on the day
of the map hearing, or have any discussions with Byington’s counsel
during that hearing, Ms. Icenhauer-Ramirez’s affidavit stated:
[Henderson]’s attorney seems to be asserting
that Cathy Henderson’s rights were not
protected during the [map hearing]. It was
clear to everyone at the time and should be
clear to [Henderson]’s attorney now that Nona
Byington was still one of Cathy Henderson’s
attorneys at the time of the [map hearing].
Nona Byington fully represented her client and
protected her interests during that hearing.
Cathy Henderson was in no way hurt by the
actions of any of her attorneys during that
time.
Because Henderson did not raise these claims on direct appeal,
the state habeas court held they were procedurally defaulted. See
Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004)
(“Because the applicant did not raise the issue on direct appeal,
the applicant has forfeited his claim [on habeas review].”).
“The procedural-default doctrine precludes federal habeas
review when the last reasoned state-court opinion addressing a
claim explicitly rejects it on a state procedural ground.”
Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004). “Where, as
15
here, a state court clearly and expressly states that its judgment
rests on a state procedural bar, a presumption arises that the
state court decision rests on independent and adequate state law
grounds.” Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997).
The procedural default doctrine, resting on
our confinement to review of federal
questions, precludes federal habeas review
when the last reasoned state court opinion
addressing a claim explicitly rejects it on a
state procedural ground.... The doctrine
presumes that a state procedural ground is
adequate and independent — the rule must, for
instance, be regularly followed — and,
ordinarily, the burden is on the habeas
petitioner to demonstrate otherwise.
Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999) (emphasis
added), cert. denied,
528 U.S. 1145 (2000).
If the state court relies on an adequate and independent state
procedural rule, then federal habeas review is barred unless the
petitioner can show either (1) cause and prejudice or (2) that not
addressing the claim will result in a fundamental miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Smith v.
Johnson,
216 F.3d 521, 523-24 (5th Cir. 2000).
Although the district court noted the procedural default
holding by the state habeas court, it addressed instead alternative
holdings by that court: Henderson did not have a right to be
present at the map hearing; and even if she did, her absence was
harmless error because she addressed the subject of that hearing in
16
her subsequent suppression motion hearings. The district court
held:
It is far from clear that Henderson’s absence
from the February 7, 1994 [map] hearing in any
way implicated her right to confrontation
guaranteed under the Sixth and Fourteenth
Amendments, considering: (1) the hearing took
place before trial commenced and during the
grand jury investigation; (2) the attorneys
who represented Byington at the [map] hearing
vigorously defended that the map was protected
by attorney-client privilege and cross-
examined the State’s witnesses; and (3)
Henderson later had a chance to cross-examine
the witnesses and present evidence in support
of her position during the pre-trial hearings
on her motions to suppress the map. At the
very least, the Court cannot hold the state
habeas court unreasonably applied clearly
established federal law in concluding
Henderson did not have a right to be at the
map hearing.
Henderson II, slip op. at 33-34 (internal footnote and citations
omitted). In the alternative, the district court held the state
habeas court’s holding that any error was harmless was not
unreasonable in the light of the “extensive hearings” on the
suppression motion. Id. at 34.
Henderson has not demonstrated she is entitled to a COA on
this issue. In the light of the district court’s holdings, she has
failed to demonstrate that reasonable jurists would debate whether
these claims should have been resolved by the district court in a
different manner or that they deserve to proceed further.
C.
17
Henderson claims she is entitled to a COA on whether she
received ineffective assistance of counsel (IAC) from trial counsel
Linda and Robert Icenhauer-Ramirez. (Byington, who represented
Henderson concerning the map production, ended her representation
prior to trial.) Henderson’s appointed lead trial counsel was
Linda Icenhauer-Ramirez, who requested that her then-husband,
Robert Icenhauer-Ramirez, be appointed co-counsel. Ms. Icenhauer-
Ramirez remained lead counsel throughout trial. Mr. Icenhauer-
Ramirez withdrew and was replaced. (Henderson has not asserted IAC
against the replacement. Henderson was appointed new counsel,
Keith Hampton, for her direct appeal.)
In deciding whether to grant a COA on any of Henderson’s five
IAC claims, our required threshold inquiry must include an overview
of the well-established two-prong test for those claims. On the
merits, Henderson was required to show: (1) counsel’s
representation fell below professional norms (deficient-performance
prong); and (2) a reasonable probability exists that, but for that
deficiency, the trial’s result would have been different (prejudice
prong). Strickland v. Washington, 466 U.S. 668, 687 (1984).
Under the first prong, counsel “has [the] duty to bring to
bear such skill and knowledge as will render the trial a reliable
adversarial” proceeding. Id. at 688. The proper standard is
“simply reasonableness under prevailing professional norms”.
Id.
In making this determination, the totality of the circumstances are
18
considered. On the other hand, “[j]udicial scrutiny of counsel’s
performance must be highly deferential”. Id. at 689.
Under the second prong, at issue is whether there is a
reasonable probability that counsel’s deficient performance
rendered the proceeding’s result unreliable and, therefore, unfair.
Id. at 694. This requires a showing that counsel’s performance
“actually had an adverse effect on the defense”.
Id. at 693.
Again, for COA purposes, we do not fully consider the merits
of Henderson’s IAC claims. Instead, we decide only whether
“reasonable jurists could debate whether ... [Henderson’s claims]
should have been resolved in a different manner or that [they] were
adequate to deserve encouragement to proceed further”. Miller-El,
537 U.S. at 336 (quoting
Slack, 529 U.S. at 484) (internal
quotation marks omitted). In deciding this COA issue, we must
assume the last state habeas court (Texas Court of Criminal
Appeals) applied Strickland’s two-prong analysis, even though the
decision was rendered without a written opinion. Henderson II,
slip. op. at 19 (citing Catalan v. Cockrell,
315 F.3d 491, 493 (5th
Cir. 2002)). (As noted, the state habeas trial court entered
findings and conclusions, including the conclusion that Henderson’s
trial counsel did not provide constitutionally ineffective
assistance, although it did not discuss the two-prong analysis in
its findings and conclusions.)
19
As a preliminary matter, Henderson contends that, even though
the state habeas court found them “true”, the affidavits of Robert
and Linda Icenhauer-Ramirez (trial counsel), Keith Hampton
(appellate counsel), Sheriff Keel, and Assistant District Attorney
Robert Smith (prosecutor) should not be entitled to the 28 U.S.C.
§ 2254(e)(1) presumption of correctness. Henderson neither
challenged these affidavits after the State presented them with its
reply to Henderson’s state habeas petition, nor did she challenge
them on federal habeas review in district court (either in her
habeas petition or in her response to the State’s summary judgment
motion). Not until her COA request to the district court did
Henderson challenge the “truth” of the affidavits. Needless to
say, this was far too late; we will not consider Henderson’s
challenge to those affidavits. (Along this line, Henderson
contends in her COA request here that she should have been granted
an evidentiary hearing in district court to resolve asserted
factual disputes in those affidavits. The record does not reflect,
however, that in district court Henderson ever requested, or was
denied, an evidentiary hearing.)
We note that, even if Henderson had preserved this challenge,
in order to rebut a state habeas court’s factual findings, she must
present, on the merits, “clear and convincing” evidence to the
contrary. See 28 U.S.C. § 2254(e)(1). Instead, Henderson only
briefs whether the affidavits of Robert and Linda Icenhauer-Ramirez
20
and Sheriff Keel are “clearly erroneous”. (Only against Linda
Icenhauer-Ramirez does she even raise any arguably substantive
claims; against Robert Icenhauer-Ramirez and Sheriff Keel,
Henderson makes personal attacks, which lack any record support.)
Moreover, any contentions she may have had regarding Hampton’s and
Smith’s affidavits are waived because of Henderson’s failure to
discuss them in her COA application, either to the district, or
our, court.
Henderson claims she is entitled to a COA because trial
counsel Linda and Robert Icenhauer-Ramirez were ineffective in five
respects. None of the claims satisfies the standard for a COA.
1.
Henderson first asserts a COA should issue for her contention
that Linda Icenhauer-Ramirez failed to pursue claims that law
enforcement eavesdropped on the “red room” while Henderson was
originally detained in Missouri. (This alleged conduct was
apparently in order to determine that Henderson had prepared the
map(s).) That room was where Henderson was originally interviewed
in Missouri by AFPD Hall and investigator Ninemire. According to
Henderson, Ms. Icenhauer-Ramirez stated that Henderson was
eavesdropped upon in that room. In support, Henderson references
a private investigator’s affidavit that Ms. Icenhauer-Ramirez told
him this was her belief. Henderson does not cite to Ms. Icenhauer-
Ramirez’s treatment of this issue at trial or her state habeas
21
affidavit where she discusses her investigation of the possible
eavesdropping.
Even assuming as true the statement attributed to Ms.
Icenhauer-Ramirez, Henderson is not entitled to a COA for this
issue because reasonable jurists would not debate whether the
district court correctly resolved this issue against Henderson. In
her state habeas affidavit, Ms. Icenhauer-Ramirez stated:
I traveled to Kansas City prior to the
pretrial hearings and prior to Dayna Blazey’s
and Robert Smith’s [Texas Assistant District
Attorneys assigned to Henderson’s case] trip
to Kansas City. I spent several hours with
[AFPD] Hall and Ron Ninemire at their office.
They were very open about their involvement in
the case and they even took me across the
street to the Federal Courthouse and showed me
the “red room”; the hallway where Ron Hall
talked to the FBI agents, the assistant U.S.
attorney, and the two Travis County deputies;
and the adjacent courtroom. As a result of
that visit, I was familiar with the “red room”
and the potential that someone might have
eavesdropped on the[ir] conversation [with
Henderson on 1 February 1994]. Unfortunately,
the information given to me by Hall and
Ninemire did not bear that possibility out.
It was clear after my trip to Kansas City that
it was through Ron Hall’s actions of
requesting a map from the FBI and from his
conversations with the FBI agents and
assistant U.S. attorney in the hallway outside
the courtroom that the authorities knew of the
existence of the map drawn by [Henderson].
As discussed supra, this affidavit is entitled to the AEDPA
presumption of correctness. Pursuant to this presumption, Ms.
Icenhauer-Ramirez did investigate the possibility that law
enforcement learned of a map’s existence by eavesdropping on the
22
“red room” and concluded to the contrary. Counsel is not
ineffective for failing to pursue a claim that is unsupported by
law or evidence. See, e.g., Hernandez v. Johnson, 108 F.3d 554,
564 (5th Cir.), cert. denied,
522 U.S. 984 (1997). In short,
jurists of reason would not debate the district court’s conclusion
that, in this regard, Ms. Icenhauer-Ramirez’s representation was
not deficient. Henderson II, slip op. at 23.
2.
Henderson next asserts reasonable jurists would debate whether
her trial attorneys were ineffective for failing to investigate,
and challenge, Henderson’s communications with Jackson, a fellow
inmate at the Travis County Jail, whom Henderson claimed was an
agent of the State. As discussed, Jackson was assigned to
“firewatch” duty, through which one inmate monitors another; while
monitoring Henderson, Jackson exchanged correspondence with, and
spoke to, her; and Jackson provided to law enforcement, inter alia,
letters written by Henderson, which gave conflicting accounts of
the child’s location.
a.
This information was critical evidence at the motion to
suppress hearing. The defense strategy was to show: when it
sought production of the maps, law enforcement was both
subjectively and objectively aware that the child was dead; and if
this were so, the crime-fraud exception to the attorney-client
23
privilege would not apply because there was no ongoing criminal
offense. See TEX. R. EVID. 503(d)(1). Obviously, any evidence
suggesting the child may have still been alive would be detrimental
to this strategy.
Ms. Icenhauer-Ramirez objected immediately to the firewatch
correspondence, contending that Jackson was acting as an agent for
the State; and her requested recess was granted. Upon resumption
of the hearing, she informed the court she was unable to proceed
without further investigation into Jackson’s communications (of
which she had learned only the previous day, during a detective’s
pre-trial hearing testimony), and the circumstances under which
they were made. The court recessed hearing this issue for
approximately one month.
In her state habeas affidavit, Ms. Icenhauer-Ramirez stated:
she then contacted Jackson, who told Ms. Icenhauer-Ramirez she was
not acting as an agent for law enforcement at the time she
communicated with Henderson. After meeting with Jackson,
Henderson’s counsel moved to suppress all statements Henderson made
to Jackson. (Counsel later abandoned the motion because Elvira
Eller failed to provide tapes, discussed infra, which allegedly
contained statements by Sheriff Keel demonstrating that he knew the
child was dead.)
The record belies the claim that Ms. Icenhauer-Ramirez failed
to adequately investigate the “firewatch” communications.
24
Therefore, jurists of reason would not debate the district court’s
ruling that “[t]he state habeas court thus did not apply Strickland
unreasonably when [it] concluded Icenhauer-Ramirez had provided
effective assistance”. Henderson II, slip. op. at 24.
b.
To the extent Henderson claims the “firewatch” communications
per se violated her Sixth Amendment right to counsel, the district
court held: because, when the communications occurred, Henderson
had not yet been charged with capital child murder, such rights had
not then attached for that offense. See Texas v. Cobb, 532 U.S.
162, 168 (2001) (holding the Sixth Amendment right to counsel
attaches only after being formally charged with a specific
offense). Nevertheless, the district court granted Henderson a COA
for this claim, noting the “harsh” nature of the Cobb rule and
expressing concern that, because, when the communications occurred,
Henderson had already been “charged with kidnap[p]ing the same
child she was eventually charged with murdering, there seems
significant danger of gamesmanship by authorities”. See Henderson
III, slip op. at 5. Therefore, we need not consider this subissue
for COA purposes.
c.
In regard to Henderson’s claim that a COA should issue because
Linda Icenhauer-Ramirez was ineffective for abandoning the motion
to suppress, a lawyer cannot be ineffective for failing to pursue
25
futile motions. See, e.g., Koch v. Puckett, 907 F.2d 524, 527 (5th
Cir. 1990). Jurists of reason would not debate the district
court’s conclusion that the state habeas court concluded correctly
that this issue would not be resolved in Henderson’s favor.
3.
Henderson asserts that a COA should issue because her trial
counsel failed to obtain a ruling on Henderson’s pre-trial motion
to suppress any maps created by Henderson. Identifying the
specific claim Henderson raises requires detailing the progression
of this claim on federal habeas. In her petition, Henderson
claimed that the Icenhauer-Ramirezes, in their motion to suppress,
failed to use an “ex parte deposition” (presumably of AFPD Hall
and/or investigator Ninemire) that would demonstrate that, but for
the actions of Hall, Ninemire, and Byington, “law enforcement
authorities would never have learned of the existence of a map
indicating the location of the child’s body”. In ruling, the
district court stated it did not believe Henderson was prejudiced
by the Icenhauer-Ramirezes’ failure to use the deposition,
concluding “it is unlikely the deposition testimony would have
changed the result”. Henderson II, slip op. at 22.
In her COA request in district court, in challenging her
representation at the suppression motion, Henderson took a
different approach. She contested Linda Icenhauer-Ramirez’s
contention that she could fully litigate the suppression issue at
26
trial; Henderson asserted that the suppression “motion was never
ruled on, and the State’s collateral estoppel motion precluding
relitigation was granted by the trial court”. Improperly seeking
to incorporate other materials, Henderson accused trial counsel of
“arbitrarily unreasonably [choosing] to disbelieve evidence which
could have helped their client”. The district court appears not to
have addressed this claim, which was presented out of order and in
a nonsensical fashion. Instead, with regard to Henderson’s trial
counsel, the district court granted a COA concerning only Ms.
Icenhauer-Ramirez for her “ineffective assistance ... regarding the
map only”. Henderson III, slip op. at 5. It denied a COA for the
IAC claim concerning Linda and Robert Icenhauer-Ramirez’s
representation at trial.
In our court, Henderson’s COA application challenged Linda
Icenhauer-Ramirez’s failure to obtain a ruling on her suppression
motion. In stating that “the suppression motion only challenged
the actions of the Missouri attorney [AFPD Hall] and did not
address the action or inaction of any counsel at the map hearing”,
Henderson appears to conflate the pre-trial suppression motion with
the earlier map hearing. We are puzzled, to say the least, by
Henderson’s assertion that Ms. Icenhauer-Ramirez failed to obtain
a ruling on her suppression motion; it was denied during pre-trial
hearings.
27
In the light of the progression of this claim through federal
habeas, we conclude that the specific claim presented to our court
— which reveals a lack of understanding of the pre-trial motions in
this case — was not raised until Henderson’s COA request to the
district court. Because it was not timely raised, we will not
consider it.
In the alternative, we conclude that reasonable jurists would
not disagree with the district court’s conclusion that Ms.
Icenhauer-Ramirez’s representation was not, in this regard,
unreasonable; had the suppression motion been conducted
differently, the motion’s result would likely have been the same.
4.
Henderson next contends a COA should issue for whether her
trial attorneys were ineffective for providing to the prosecution
information provided by Elvira Eller, who had a personal
relationship with Sheriff Keel during the pre-trial period of
Henderson’s proceedings. Eller contacted Henderson’s attorneys,
informed them of that relationship, and claimed she possessed tapes
proving the Sheriff knew the child was dead when the State was
seeking production of the maps. Eller, however, never produced any
tapes supporting that claim. Ms. Icenhauer-Ramirez eventually
notified the prosecution about Eller and disclosed the
communications and tapes Eller had provided to defense counsel.
28
Henderson contends Ms. Icenhauer-Ramirez was ineffective in
doing so, because her actions resulted in no advantage to Henderson
and only helped the prosecution by putting it on notice that
Sheriff Keel might present character issues harmful to the State’s
case. In a 1998 deposition with Henderson’s appellate counsel, Ms.
Icenhauer-Ramirez stated she felt that, if a tape did exist, it was
critical, material evidence and “we felt like we had an obligation
to inform the DA’s office of that”.
Henderson offers nothing, other than conclusory statements, in
support of her claim that Ms. Icenhauer-Ramirez’s providing this
information to the prosecution was unreasonable. Ms. Icenhauer-
Ramirez’s state habeas affidavit stated:
None of the [audio] tapes which Ms. Eller
delivered to us had anything to do with the
Cathy Henderson case. They contain[ed]
[communications detailing the personal
relationship] between Ms. Eller and [Sheriff]
Keel. Although Ms. Eller asserted to us back
in 1995, that she had a recording of [Sheriff]
Keel saying that he knew Brandon Baugh was
dead during the time [Sheriff] Keel was
hounding Nona Byington, despite exhaustive
attempts on our part, Ms. Eller never produced
such a tape recording.
As discussed supra, this affidavit is entitled to the AEDPA
presumption of correctness. None of the materials provided to the
prosecution had any bearing on Henderson’s case, and “exhaustive
attempts” were made to procure the allegedly taped conversation in
which Sheriff Keel allegedly stated he knew the child was dead.
Therefore, reasonable jurists would not disagree with the district
29
court’s conclusion that, in this regard, Ms. Icenhauer-Ramirez’s
representation was not deficient.
5.
In her final IAC COA request, Henderson contends that a COA
should issue for whether Linda Icenhauer-Ramirez was ineffective
for failing to object to the following jury instruction: “A person
is criminally responsible if the result would not have occurred but
for her conduct”. See TEX. PENAL CODE ANN. § 6.04 (Vernon 1994).
Henderson maintains that, for capital murder, the defendant must
intend the result as opposed to the conduct. See Medina v. State,
7 S.W.3d 633, 639 (Tex. Crim. App. 1999), cert. denied,
529 U.S.
1102 (2000).
The jury was also instructed, however, that it was required to
find “beyond a reasonable doubt that ... Henderson ... knowingly
or intentionally cause[d] the death of an individual ... under six
years of age ....” (Emphasis added.) This language closely tracks
the Texas murder statute. See TEX. PENAL CODE ANN. § 19.02(b)(1)
(Vernon 1994) (stating that an offense is committed by
“intentionally or knowingly caus[ing] the death of an individual”).
Because this instruction was proper, reasonable jurists would not
disagree with the district court’s conclusion that: any objection
by Ms. Icenhauer-Ramirez would have been futile; therefore, her not
objecting was reasonable; and, in this regard, her performance was
30
not deficient. See, e.g., Clark v. Collins, 19 F.3d 959, 966 (5th
Cir.), cert. denied,
512 U.S. 1284 (1994).
In sum, the district court’s rulings on the reasonableness of
trial counsel’s challenged conduct are not debatable among jurists
of reason on whether they constituted deficient performance (first
prong). Accordingly, for COA purposes, it is unnecessary to
consider whether jurists of reason would debate whether any of the
actions by trial counsel prejudiced Henderson (second prong). See
Strickland, 466 U.S. at 687 (“Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the
result unreliable.”).
D.
Henderson’s final COA request concerns whether her Sixth
Amendment confrontation and Fourteenth Amendment due process rights
were violated by the trial court’s post-trial findings of fact and
conclusions of law concerning her pre-trial motion to suppress,
which was denied before trial. Henderson characterizes these
findings and conclusions as “ex parte”.
1.
The district court declined to address Henderson’s Sixth
Amendment confrontation claim for this issue because it was
inadequately briefed. See Henderson II, slip op. at 30 n.13. We
agree with that conclusion and, therefore, will not address this
31
claim. See, e.g., Trevino v. Johnson, 168 F.3d 173, 181 n.3 (5th
Cir.) (stating that inadequately argued claims in a habeas petition
are deemed waived), cert. denied,
527 U.S. 1056 (1999).
2.
Concerning Henderson’s COA request for a claimed violation of
her due process rights, she contends the trial court erred by
issuing findings and conclusions drafted post-trial by the
prosecution and denied her due process by not allowing her to
relitigate issues from the map suppression hearing at trial.
Generic due process violations exist only where the trial
court commits an error that renders the proceeding fundamentally
unfair. Styron v. Johnson, 262 F.3d 438, 454 (5th Cir. 2001). An
error makes a proceeding “fundamentally unfair [where] there is a
reasonable probability that the verdict might have been different
had the trial been properly conducted”.
Id. (quoting Rogers v.
Lynaugh,
848 F.2d 606, 609 (5th Cir. 1988)).
a.
Henderson notes the findings and conclusions were entered over
40 days after she was sentenced, as well as after the court denied
her new-trial motion. Henderson was found guilty and sentenced in
May 1995; the findings and conclusions were filed that July. The
motion to suppress upon which these findings and conclusions were
based, however, was denied during Henderson’s pre-trial hearings.
Henderson claims this demonstrates the findings and conclusions
32
were drafted to assist Sheriff Keel in his then-pending civil
action with Nona Byington, yet she fails to provide any citation to
the record to support this arguably off-the-wall assertion. (As
noted, Byington’s defamation action against Sheriff Keel was
settled.) No reliable evidence has been presented, however, to
suggest the findings and conclusions were delayed for an improper
purpose.
In his state habeas affidavit, prosecutor Robert Smith stated
that he provided the proposed findings and conclusions only as
suggestions. Moreover, he denied they were drafted in order to aid
anyone in an unrelated civil suit. As discussed supra, this
affidavit was found “true” by the state habeas court and is
presumed correct under AEDPA. As also
discussed supra, Henderson
fails to even discuss this affidavit, much less offer the requisite
clear and convincing evidence to rebut this presumption. In the
light of Smith’s affidavit, Henderson fails to show jurists of
reason would disagree with the district court that “it is hard to
see how the judge’s admittedly late entry of the findings of fact
and conclusions of law impacted the outcome of her case or even his
decision of how to rule on that particular motion to suppress”.
Henderson II, slip. op. at 31.
b.
Finally, Henderson claims her due process rights were denied
when, at trial, she was not allowed to relitigate issues from the
33
map suppression hearing. She asserts that the “State’s motion
precluding relitigation of those issues at trial was granted for
the first time in an ex parte set of findings, entered after trial,
that were never served on trial counsel”. Needless to say, this is
yet another puzzling claim; again, Henderson’s suppression motion
was denied during her pre-trial hearings. We need not address this
claim because Henderson did not adequately address it in her COA
request to the district court.
III.
For the foregoing reasons, a COA is DENIED for each of
Henderson’s four COA requests. A subsequent opinion will address
the claims for which the district court granted a COA.
COA DENIED
34
