Henington v. Hobbs

Filing 17

ORDER ADOPTING 13 Report and Recommendations in its entirety; therefore, the habeas petition 2 is dismissed with prejudice; a certificate of appealability will not be issued. Signed by Judge J. Leon Holmes on 12/17/13. (vjt) (Docket entry modified on 12/18/2013 to correct the file date.) (thd).

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
DANNY RAY HENINGTON
ADC #144797
v.

PETITIONER

No. 5:12cv00320 JLH-JTK

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

The Court has received proposed findings and recommendations from United States
Magistrate Judge Jerome T. Kearney. After careful review of the findings and recommendations and
the timely objections thereto, as well as a de novo review of the record, the Court concludes that the
findings and recommendations should be, and are hereby, approved and adopted as this Court’s
findings in all respects in their entirety. Judgment shall be entered accordingly.
The Court writes to add the following comments. First, Danny Ray Henington1 was
represented by counsel in his Rule 37 proceedings, and he does not argue that his lawyers in his
Rule 37 proceedings were ineffective. Therefore, the Supreme Court’s holdings in Martinez v. Ryan,
132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012), and Trevino v. Thaler, 133 S. Ct. 1911, 185 L. Ed. 2d
1044 (2013), do not apply. Furthermore, the Court has reviewed the records from the state court
proceedings and has concluded that Henington’s claims are without merit. Nothing about the
admission of the testimony of D.W. violates the Fifth or the Fourteenth Amendments to the
Constitution of the United States, nor did the admission of K.J.’s videotaped interview violate the
confrontation clause since she testified at trial. Crawford v. Washington, 541 U.S. 36, 59 n.9, 124

1

The petitioner spells his name Hennington, but it is spelled Henington throughout the state
court proceedings.

S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Finally, there is no basis for Henington’s argument that his
trial lawyer was ineffective. Henington’s lawyer objected to D.W.’s testimony, and that objection
was overruled at a pretrial hearing on May 13, 2009. As to Henington’s argument that his lawyer
was ineffective for not investigating D.W.’s claim that she had reported the incident to a counselor,
Henington offers nothing to show what the counselor would have said. Cf. Williams v. Norris, 576
F.3d 850, 854 (8th Cir. 2009) (the petitioner must show what the omitted testimony was and how
it would have changed the outcome).
The Court will not issue a certificate of appealability because Henington has not made a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2).
IT IS SO ORDERED this 17th day of December, 2013.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

2