Henderson v. Foster

Filing 15

ORDER signed by Judge J.P. Stadtmueller on 10/23/2017 GRANTING 10 Respondent's Motion to Dismiss and DISMISSING Grounds One, Two, and Three of Petitioner's Petition. Briefing to proceed on Ground Four as follows: Respondent to file answe r to the Petition within 30 days; Petitioner's brief in support of his Petition due within 60 days of filing of Respondent's answer; Respondent's opposition brief due within 60 days of service of Petitioner's brief or 120 days of this Order if Petitioner does not file a brief; Petitioner's reply due within 30 days of filing of Respondent's brief. Civil L.R. 7(f) governs page limitations. See Order for further details. (cc: all counsel, via mail to James Lamar Henderson at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES LAMAR HENDERSON,
Petitioner,

v.

Case No. 17-CV-849-JPS-JPS

SCOTT ECKSTEIN,
Respondent.
1.

ORDER

INTRODUCTION
Petitioner James Lamar Henderson (“Henderson”) filed a petition

for a writ of habeas corpus on June 19, 2017. (Docket #1). Magistrate Judge
William E. Duffin screened Henderson’s petition on July 27, 2017 and
determined that Henderson’s petition could proceed. (Docket #6). On
September 22, 2017, Respondent1 moved to dismiss some of the grounds for
relief identified in Henderson’s petition. (Docket #10). The motion is now
fully briefed. (Response, Docket #13; Reply, Docket #14). For the reasons
explained below, Respondent’s motion must be granted.
2.

BACKGROUND
The two opinions produced by the Wisconsin Court of Appeals in

Henderson’s state court litigation together provide the relevant
background to the instant case. On June 3, 2015, on direct appeal, the Court
of Appeals summarized Henderson’s crimes and arguments:
James Lamar Henderson appeals his judgment of
conviction for attempted first-degree intentional homicide,

Scott Eckstein has replaced Brian Foster as the warden of Green Bay
Correctional Institution, where Henderson is currently housed. The case caption
has been modified accordingly.
1

first-degree recklessly endangering safety, and first-degree
reckless injury, all by use of a dangerous weapon, and three
counts of misdemeanor bail jumping. He also appeals the
circuit court’s denial of his postconviction motion for a new
trial, alleging that his trial counsel was ineffective for not
moving to sever the bail jumping counts from the felony
charges and for not advising him to testify. We affirm.
Henderson was alleged in a criminal complaint and
information to have committed two counts of attempted firstdegree intentional homicide, one count of first-degree
reckless injury, and one count of first-degree reckless
endangerment, all by use of a dangerous weapon, in
connection with a shooting outside the American Legion Club
in Racine. Henderson was also charged with four counts of
misdemeanor bail jumping as at the time of the shooting,
Henderson was released on bond pending trial on the
condition that he not commit any crimes.
At trial, S.M. testified that he and his fianceé, B.S., were
leaving the American Legion on New Year's Eve when a man
called out a greeting to B.S. S.M confronted the man and was
approaching him when shots rang out. S.M. was hit five
times. B.S. identified the man as Henderson and said she saw
Henderson leaning over a car door with a gun at the time of
the shooting.
An off-duty police officer working at the club testified
that he witnessed a small, green Honda leaving the scene of
the shooting at a high rate of speed. The vehicle was traced to
Devlon Driggers and was located near a rooming house
where Driggers and Henderson resided in separate rooms.
During a search of Henderson's room, police found a ninemillimeter Kel–Tec semiautomatic handgun. A crime lab
examiner linked a bullet removed from S.M.’s arm to the
handgun.
Driggers, who was granted “use immunity” by the
State, testified that he drove alone on New Year's Eve to the
American Legion, where he met Henderson. He testified that
they hung out, danced, and played pool before deciding to
leave together. They were in Driggers’ car, listening to music
in the parking lot, when Driggers said that Henderson saw a
woman that he knew and spoke to her. Driggers testified that
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he saw Henderson fire his gun when a man started rushing
toward the car.
Some of Driggers’ testimony was contradicted by a
video from the club that showed he and Henderson arriving
together and by a statement that Driggers gave police that he
did not see Henderson with a gun until after he got back into
the car. Additionally, both S.M. and Driggers testified that
they each had numerous criminal convictions—S.M., eight,
and Driggers, nine. The lead investigator into the shooting
also testified that Henderson initially lied to police, claiming
that he had been home at the time of the shooting.
A jury convicted Henderson of attempted first-degree
intentional homicide, first-degree recklessly endangering
safety, and first-degree reckless injury, all by use of a
dangerous weapon, and three counts of misdemeanor bail
jumping. Postconviction, Henderson sought to vacate his
conviction on the ground that his trial counsel was ineffective
for not seeking to sever the bail jumping counts from the rest
of the charges and for not advising him to testify. At the
Machner hearing, Henderson’s trial counsel conceded that he
should have moved for severance, but that he was “not sure
it would have been granted.” Counsel also testified that he
told Henderson that it was his choice whether to testify and
that Henderson “indicated from the first time I met him,
basically, that he was not going to testify.” Henderson stated
at the hearing that his trial counsel had told him he could not
testify because he “would be eaten alive in the courtroom.”
The court determined that even if counsel performed
deficiently in not moving to sever the charges, Henderson
was not prejudiced. The court also found that although
Henderson might have been warned by counsel about the
consequences of testifying, it was ultimately Henderson’s
decision to not testify at trial. Accordingly, the court denied
the motion. Henderson appeals.
State of Wisconsin v. Henderson, 2014-AP-1175, 2015 WL 3476691, at *1-2 (Wis.
Ct. App. 2015). The court affirmed Henderson’s conviction because any
supposed error by his trial counsel visited no prejudice upon him. Id. at *2-

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3. The court further held that Henderson himself chose not to testify, and in
any event failed to demonstrate that his testimony would have a reasonable
probability of changing the outcome of the trial. Id. at *3.
On March 15, 2017, the Court of Appeals addressed Henderson’s
post-conviction motion filed pursuant to Wis. Stat. § 974.06:
James Lamar Henderson appeals pro se from an order
denying his motion for postconviction relief. He contends that
the circuit court erroneously admitted hearsay testimony in
violation of his constitutional right to confrontation. He
further contends that his trial counsel was ineffective. Finally,
he contends that he is entitled to a new trial in the interest of
justice. We reject Henderson’s arguments and affirm.
...
[At Henderson’s trial,] the jury heard from Sergeant
Terrance Jones of the Racine Police Department. Sergeant
Jones testified that on December 31, 2011, he was off-duty,
working security at the American Legion in Racine. Shortly
after midnight, his partner, Officer Robert Thillemann,
entered the building and said that there was a report of a
shooting outside. Sergeant Jones and Officer Thillemann
headed outside to investigate.
Sergeant Jones testified that as he was heading outside,
he talked to a woman who refused to give her name. When
the prosecutor asked Sergeant Jones what the unidentified
woman said to him, defense counsel objected on grounds of
hearsay and the right to confrontation. After a brief voir dire
of Sergeant Jones outside the presence of the jury, the circuit
court overruled the objection. The court determined that the
woman’s statements were admissible as present sense
impressions and did not raise a confrontation issue.
Sergeant Jones went on to describe two conversations
that he had with the unidentified woman. In the first
conversation, he asked whether she saw anyone shooting a
gun. The woman said that she saw a man firing one in the
back of the parking lot. This caused Sergeant Jones to
investigate the back of the parking lot where he discovered
the shooting victims.
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After talking to the shooting victims, Sergeant Jones
spoke again with the unidentified woman. In this second
conversation, the woman described the gunman. At that point
in time, Sergeant Jones did not know whether the gunman
was still in the area.
On the basis of this and other evidence, the jury
convicted Henderson of one count of attempted first-degree
intentional homicide with use of a dangerous weapon, one
count of first-degree recklessly endangering safety with use
of a dangerous weapon (this charge had been amended from
attempted first-degree intentional homicide with use of a
dangerous weapon), one count of first-degree reckless injury
with use of a dangerous weapon, and three counts of
misdemeanor bail jumping.
Henderson filed a postconviction motion accusing his
trial counsel of ineffective assistance for not moving to sever
the bail jumping counts from the felony charges and for not
advising him to testify. The circuit court denied the motion
following a Machner hearing. Henderson appealed, and this
court affirmed the judgment of conviction and circuit court
order denying the postconviction motion. State v. Henderson,
No. 2014AP1175-CR, unpublished slip op. (WI App June 3,
2015).
In December 2015, Henderson filed another motion for
postconviction relief pursuant to Wis. Stat. § 974.06 (2015-16).
The circuit court denied the motion without a hearing. This
appeal follows.
On appeal, Henderson first contends that the circuit
court erroneously admitted hearsay testimony in violation of
his constitutional right to confrontation. His argument centers
on the unidentified woman’s statements as recounted in
Sergeant Jones’ testimony.
State of Wisconsin v. Henderson [Henderson II], 2016-AP-159, 2017 WL
1026237, at *1-2 (Wis. Ct. App. 2017). The court affirmed the denial of
Henderson’s motion because the woman’s statements fell within
Wisconsin’s hearsay exception for present sense impressions. Id. at *2. The
court also held that Henderson’s right to confrontation was not violated
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because the statements were nontestimonial. Id. Finally, the court denied
Henderson’s additional claims of ineffective assistance of trial counsel
because they were both forfeited, as Henderson failed to raise them on
direct appeal, and were meritless in any event.
Henderson’s habeas petition presents four grounds for relief. First,
he claims that he was denied a fair trial because the bail jumping charges
were jointly tried with the underlying charges, and this resulted in
prejudice (“Ground One”). (Docket #1 at 6-7). Second, he alleges that his
trial counsel was ineffective for failing to challenge the joinder issue or
otherwise “present[] [a] legally sufficient defense” (“Ground Two”) Id. at 78. Third, Henderson maintains that the trial court abused its discretion in
admitting alleged hearsay statements from the unidentified woman
(“Ground Three”). Id. at 8. Finally, he contends that his Sixth Amendment
right to confront witnesses against him was violated by admitting the
woman’s statements (“Ground Four”). Id. at 9.
3.

STANDARD OF REVIEW
The federal habeas corpus statute “permits a federal court to

entertain only those applications alleging that a person is in state custody
‘in violation of the Constitution or laws or treaties of the United States.’”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(a)). “As
amended by [the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”)], 28 U.S.C. § 2254 sets several limits on the power of a federal
court to grant an application for a writ of habeas corpus on behalf of a state
prisoner.” Id. As a result, the Court may grant a writ of habeas corpus only
if the state court’s decision with respect to that claim was: (1) “contrary to
. . . clearly established federal law, as determined by the Supreme Court of
the United States”; (2) “involved an unreasonable application of, clearly
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established Federal law, as determined by the Supreme Court of the United
States”; or (3) “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)(1–2); see also Conner v. McBride, 375 F.3d 643, 648-49 (7th Cir. 2004).
4.

ANALYSIS
Respondent moves to dismiss Grounds One, Two, and Three of

Henderson’s petition, conceding that Ground Four should proceed to a
review on its merits. (Docket #10 at 2). Henderson admits that Grounds One
and Two raise issues of state law which are not cognizable in a federal
habeas proceeding. Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[W]e have
repeatedly held that federal habeas corpus relief does not lie for errors of
state law. It is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.”) (quotations, citations, and
alterations omitted). Those grounds will, therefore, stand dismissed.
Respondent also argues that Ground Three presents questions of
state, not federal, law. (Docket #11 at 17-18). Henderson opposes dismissal
of this ground, asserting that it “goes beyond a state law issue.” (Docket #13
at 8). He says that under the Federal Rules of Evidence, the unidentified
woman’s statement was hearsay. Id. at 9-10. Henderson further contends
that the statements fall outside both the present sense impression and
excited utterance exceptions because she did not personally observe the
events she related to Sergeant Jones. Id. at 11-12. Respondent replies,
correctly, that the Federal Rules of Evidence, and precedent interpreting
them, are not binding on Wisconsin courts. See Fed. R. Evid. 101 (“These
rules apply to proceedings in United States courts.”). Wisconsin has its own
rules of evidence and those were applied in Henderson’s case. Henderson II,
2017 WL 1026237, at *2.
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Henderson’s only citation in support of his position is Idaho v.
Wright, 497 U.S. 805 (1990), which he says permits this Court to “consider
whether hearsay evidence violated a petitioner’s right to confrontation, and
whether it was admissible under present sense or excited utterance.”
(Docket #13 at 12). Henderson is correct in his first assertion. Wright
addresses the intersection of hearsay and the Sixth Amendment’s
Confrontation Clause. Wright, 497 U.S. at 813-25. Wright did not, however,
have anything to say on the second assertion; it did not hold that a federal
habeas court should apply the Federal Rules of Evidence, including those
concerning hearsay and its exceptions, to determine whether a state court
correctly admitted or excluded evidence in a state criminal proceeding. In
other words, in the instant case, “[t]he court’s role . . . is not to decide the
narrow issue of whether the challenged statements were admissible under
Wisconsin law. Rather, [it] ask[s] if the admission of the testimony violated
[Henderson’s] Sixth Amendment right to confrontation.” Martinez v.
McCaughtry, 951 F.2d 130, 133 (7th Cir. 1991). This is the very issue which
will be addressed by Ground Four, which Respondent does not seek to
dismiss at this time.
5.

CONCLUSION
For the reasons stated above, Respondent’s motion to dismiss must

be granted. In the same motion, Respondent requests that the Court set a
new briefing schedule to address Ground Four. (Docket #10 at 2). This
request will be granted, and the merits of Ground Four will be briefed in
line with the schedule detailed below.
Accordingly,
IT IS ORDERED that Respondent Scott Eckstein’s motion to dismiss
(Docket #10) be and the same is hereby GRANTED;
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IT IS FURTHER ORDERED that Grounds One, Two, and Three of
Petitioner James Lamar Henderson’s petition for a writ of habeas corpus
(Docket #1 at 6-8) be and the same are hereby DISMISSED; and
IT IS FURTHER ORDERED that the parties shall file briefs on the
merits of the sole remaining ground, Ground Four, in accordance with the
following schedule:
1.

The respondent shall file an answer to the petition within 30
days from the date of this order.

2.

The petitioner shall have 60 days after the filing of the
respondent’s answer within which to file a brief in support of
his petition, providing reasons why the writ of habeas corpus
should be issued. The petitioner is reminded that, in
accordance with 28 U.S.C. § 2248, unless he disputes
allegations made by the respondent in his answer or motion
to dismiss, those allegations “shall be accepted as true except
to the extent that the judge finds from the evidence that they
are not true.”

3.

The respondent shall file an opposition brief, with reasons
why the writ of habeas corpus should not be issued, within 60
days of service of petitioner’s brief, or within 120 days from
the date of this order if no brief is filed by petitioner.

4.

The petitioner may then file a reply brief, if he wishes to do
so, within 30 days after the respondent has filed a response
brief.

Pursuant to Civil L. R. 7(f), the following page limitations apply:
briefs in support of or in opposition to the habeas petition must not exceed
thirty pages and reply briefs must not exceed fifteen pages, not counting
any caption, cover page, table of contents, table of authorities, and/or
signature block.

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Dated at Milwaukee, Wisconsin, this 23rd day of October, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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