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).

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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

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