Henderson v. Cockrell

• Decision Date: 09 June 2003
• Docket Number: No. 01-41279.,01-41279.
• Citation: 333 F.3d 592
• Parties: James Lee HENDERSON, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

333 F.3d 592

James Lee HENDERSON, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 01-41279.

United States Court of Appeals, Fifth Circuit.

June 9, 2003.

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Steven C. Losch, Longview, TX, Eric Miller Albritton, Albritton Law Firm, Longview, TX, for Petitioner-Appellant.

Kelli L. Weaver, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

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 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 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.

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, 119 S.Ct. 516, 142 L.Ed.2d 428 (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 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 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.

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...