Henderson v. Cockrell

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