Henderson v. Stephens

Filing 16

MEMORANDUM OPINION ORDER ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendations. Signed by District Judge Rodney Gilstrap on 2/7/18. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
KEVIN LeRAY HENDERSON, #1786607

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 2:14cv941

MEMORANDUM OPINION ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Kevin Henderson (Henderson), proceeding pro se and in forma pauperis, filed this
application for the writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his
conviction. This Court ordered that the matter be referred to the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules
for the Assignment of Duties to United States Magistrate Judges.
I. Background
Henderson challenges his Upshur County conviction for indecency with a child, with two
prior felony convictions. On May 30, 2012, Henderson was sentenced to eighty years’ imprisonment
after a jury found him guilty. He filed a direct appeal, in which the Sixth Court of Appeal affirmed his
conviction with a written opinion. See Henderson v. State, 2013 WL 1460501 (Tex.App.—Texarkana
2013). The Texas Court of Criminal Appeals refused his petition for discretionary review in June
2013.
Subsequently, in May 2014, Henderson filed a state application for a writ of habeas corpus,
which was denied in July 2014 without written order. He filed this timely federal petition in October
2014.

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II. Factual Background
The Sixth Court of Appeals summarized the facts of this case as follows:
R.A. testified that when she returned after picking up her daughter, M.A., from prekindergarten classes, she saw Henderson working in the second floor apartment above
her first floor apartment. After being in the apartment “a little bit of time,” R.A. and
M.A. returned to the parking lot. R.A. testified that she needed to untangle some
hangers before bringing them in the apartment. R.A. placed M.A. in the backseat, but
testified, “She would be in the truck for a little while and then she would get out and
I’d have to scoop her back in so I can keep an eye on her.” R.A. then described the
following events:
Like I said, it was hard to keep her in—intact in the Suburban. I kept having
to go after her, but there for a while, you know, I just got really occupied by
untangling hangers that there was just silence and, you know, with children if
it’s quiet, they’re into something or they’ve run off and it worried me and I
called out for M.A., she didn’t answer me. At that point I walked around my
truck, the Suburban, and I said M.A., and I didn’t see her directly in front, she
was on the other side in the parking area but at the corner of the passenger of
my Suburban and I saw that she was looking up at the apartment and I looked
up and I saw Mr. Henderson, he was masturbating and she saw him and I
screamed and I grabbed her and I took her in my apartment.
....
He was standing at the door, the door was wide open and it was—the way the door
was open it was kind of in the kitchen area and he was standing there. It was wide
enough and I saw what he was doing and my daughter saw. She’s—I don’t know how
long she saw but she saw him do that. She was paying attention to what he was doing.
On appeal and at trial, Henderson argued he was inside the apartment. R.A. testified
Henderson was standing “at the door” and the door was wide open. After R.A.
screamed, picked up her child, and when inside her apartment, Henderson ran down
the stairs saying, “[Y]ou didn’t see anything, y’all didn’t see anything, nothing
happened, I’m going to go talk to [A.D.].”
The State introduced evidence of an extraneous offense. J.B., a child under seventeen
years of age who resided at the apartment complex, testified that she observed
Henderson masturbating in a doorway on two occasions. On the first occasion, J.B.
saw Henderson “standing in the doorway with his hands in his pants and I just saw
like his hands moving and stuff, but I didn’t know what he was doing for sure or
whatever.” When asked, “Was he inside the apartment or outside,” J.B. responded,
“He wasn’t like—it was just in the doorway. I don’t know how to explain it . . . .” On
the second occasion, Henderson “expos[ed] his genitals.” The door was open and
Henderson was standing “in the doorway.”
Henderson, 2013 WL 1460501 at *2.
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III. Henderson’s Federal Habeas Petition and the Response
In his underlying federal petition, Henderson raised three claims for relief, maintaining that:
(1) the trial court abused its discretion when admitting evidence of extraneous offenses; (2) counsel
was ineffective for failing to investigate the facts and for failing to file a motion to quash the
indictment; and (3) actual innocence.

In response, Respondent argued that counsel was not

ineffective, citing defense counsel’s affidavit filed in the state habeas case, and that admitting
Henderson’s extraneous offenses was proper.
After a review of the pleadings and the state court record, the Magistrate Judge issued a
Report, (Dkt. #13), recommending that Henderson’s petition be dismissed with prejudice. The
Magistrate Judge also recommended that he be denied a certificate of appealability. Henderson has
filed timely objections, (Dkt. #15).
IV. Standard of Review
The role of federal courts in reviewing habeas corpus petitions filed by state prisoners is
exceedingly narrow. A prisoner seeking federal habeas corpus review must assert a violation of a
federal constitutional right; federal relief is unavailable to correct errors of state constitutional,
statutory, or procedural law unless a federal issue is also present. See Lowery v. Collins, 988 F.2d
1364, 1367 (5th Cir. 1993); see also Estelle v. McGuire, 503 F.3d 408, 413 (5th Cir. 2007) (“We first
note that ‘federal habeas corpus relief does not lie for errors of state law.’”) (internal citation omitted).
When reviewing state proceedings, a federal court will not act as a “super state supreme court” to
review error under state law. Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007).
Furthermore, federal habeas review of state court proceedings is governed by the
Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. Under the AEDPA, which
imposed a number of habeas corpus reforms, a petitioner who is in custody “pursuant to the judgment
of State court” is not entitled to federal habeas corpus relief with respect to any claim that was
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adjudicated on the merits in State court proceedings unless the adjudication of the claim—
1. resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established 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 proceedings.
28 U.S.C. § 2254(d). The AEDPA imposes a “highly deferential standard for evaluating state court
rulings,” which demands that federal courts give state court decisions “the benefit of the doubt.” See
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations omitted); see also Cardenas v. Stephens,
820 F.3d 197, 201-02 (5th Cir. 2016) (“Federal habeas review under the AEDPA is therefore highly
deferential: The question is not whether we, in our independent judgment, believe that the state court
reached the wrong result. Rather, we ask only whether the state court’s judgment was so obviously
incorrect as to be an objectively unreasonable resolution of the claim.”). Given the highly deferential
standard, a state court’s findings of fact are entitled to a presumption of correctness and a petitioner
can only overcome that burden through clear and convincing evidence. Reed v. Quarterman, 504
F.3d 465, 490 (5th Cir. 2007).
V. Henderson’s Objections and Discussion
As mentioned, Henderson maintained that the trial court abused its discretion when admitting
evidence of extraneous offenses because it was only introduced to establish character conformity.
The Magistrate Judge found that (1) the appellate court specifically addressed and rejected this claim
on direct appeal, which Henderson failed to demonstrate was unreasonable or contrary to federal
law; (2) the extraneous evidence was relevant to show knowledge; and (3) that the extraneous offense
was rationally connected to Henderson’s charge.
On objection, Henderson insists that the State lied when it maintained that he previously
exposed himself to a different child on two occasions. He claims that the victim lied in court and that
there exists reasonable doubt. Moreover, Henderson notes that he wanted to testify at trial, but was
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advised not to. Finally, he insists that he could not have been seen exposing himself inside secondfloor apartment doorway from the parking lot ground.
The Magistrate Judge correctly determined that Henderson’s claim was meritless. Evidence
of other wrongs, acts, or crimes is not admissible to prove the character of the defendant in order to
demonstrate that the acted in conformity or similarly therewith. See Tex. R. Cr. Evid. 404(b)(1).
Crucially, however, such evidence may be admissible if it has relevance apart from the tendency to
show that the defendant acted in conformity with those other wrongs, acts, or crimes.

See

Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App. 1990) (“Hence, a party may introduce
such evidence where it logically serves to make . . . more probable or less probable as an element of
fact.”) (emphasis supplied). Stated differently, an extraneous offense may be admitted—without
violating the due process clause—if the State demonstrates that the extraneous offense is “rationally
connected with the offense charged.” See Story v. Collins, 920 F.2d 1247, 1254 (5th Cir. 1991)
(internal citation omitted); Bagley v. Collins, 1 F.3d 378, 380 (5th Cir. 1993).
Here, Henderson’s objections are an attempt to relitigate his underlying claim, which was
thoroughly analyzed on direct appeal. While Henderson objects to the Report, he does not specifically
object to the Magistrate Judge’s analysis of his claim. Instead, he raises new issues for the first time
on objection: The State lied about the extraneous offense; the victim lied; he wanted to testify but was
told not to; and the view from the second-floor to the parking lot would not have allowed the victim’s
mother to see him expose himself. Because issues raised for the first time on objection are not
properly before the Court, Henderson’s objections are without merit.

See Omran v. Prator, 674

Fed.App’x 353, 355 (5th Cir. 2016) (“Omran’s equal-protection claim will not be considered because
it was raised for the first time in his objections to the magistrate judge’s report and recommendation”);
Finley v. Johnson, 243 F.3d 215, 222 n.3 (5th Cir. 2001) (“We have held that issues raised for the

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first time in objections to the report of a magistrate judge are not properly before the district judge.”);
United States v. Armstrong, 951 F.2d 626 (5th Cir. 1992).
VI. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Petitioner objected. See 28 U.S.C. §636(b)(1)
(District Judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”). Upon such de novo review,
the Court has determined that the Report of the United States Magistrate Judge is correct and the
Petitioner’s objections are without merit. Accordingly, it is
ORDERED that the Petitioners’ objections, (Dkt. #15), are overruled and the Report of the
Magistrate Judge, (Dkt. #13), is ADOPTED as the opinion of the District Court. Furthermore, it is
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ORDERED that the above-styled petition for the writ of habeas corpus is DISMISSED
WITH PREJUDICE. It is also
ORDERED that Petitioner Henderson is DENIED a certificate of appealability sua sponte.
Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 7th day of February, 2018.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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