Henderson v. Foster

Filing 20

ORDER signed by Judge J.P. Stadtmueller on 2/27/2018: DISMISSING Ground Four of Petitioner's Petition; DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DENYING Certificate of Appealability; and DISMISSING CASE with prejudice. See Order. (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

WARDEN SCOTT ECKSTEIN,
Respondent.
1.

ORDER

INTRODUCTION
On January 11, 2013, a jury in the Racine County Circuit Court found

Petitioner James Lamar Henderson (“Henderson”) guilty of attempted
murder and other charges related to an incident where Henderson fired a
gun at two people and hit one of them. (Docket #1 at 2). On February 15,
2013, Henderson was sentenced to over fifty years’ imprisonment. Id. He
filed a direct appeal and a later post-conviction motion in the Wisconsin
courts, both of which were denied at each stage of review. Id. at 3-6.
Henderson filed the instant petition for a writ of habeas corpus on June 19,
2017. As explained further below, the Court previously dismissed three of
the four grounds for relief Henderson’s petition presents. (Docket #15). As
to the final ground, Henderson filed a brief in support on November 29,
2017. (Docket #17). Respondent submitted his brief in opposition on
January 22, 2018. (Docket #18). Henderson filed a reply on February 26,
2018. (Docket #19).1 For the reasons explained below, Henderson’s petition
must be denied.

Henderson’s reply is technically late, as he was required to file it no later
than February 21, but it was not received by the Court until February 26. (Docket
1

2.

BACKGROUND
Though the underlying criminal proceedings have produced

multiple opinions from the Wisconsin Court of Appeals, the only relevant
decision was issued on March 15, 2017. State of Wisconsin v. Henderson, 2016AP-159, 2017 WL 1026237 (Wis. Ct. App. 2017). There, the court addressed
Henderson’s post-conviction motion filed pursuant to Wis. Stat. § 974.06.
Id. at *1. The court aptly summarized the operative facts:
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.
In January 2012, the State filed a criminal complaint
charging Henderson with two counts of attempted firstdegree intentional homicide with use of a dangerous weapon,
one count of first-degree reckless injury with use of a
dangerous weapon, one count of first-degree reckless
endangerment with use of a dangerous weapon, and four
related counts of misdemeanor bail jumping. The charges
stemmed from an incident at a New Year’s Eve party in which
Henderson shot a firearm at two individuals, striking one
with several bullets.
The matter proceeded to trial. There, 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.

#15 at 9). The Court will excuse the slight tardiness in this instance, as it does not
change the result.

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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.
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.
Id. The court affirmed the denial of Henderson’s post-conviction motion in
all respects. Id. at *2-3.
Henderson’s habeas petition initially presented four grounds for
relief. The first three were dismissed upon Respondent’s motion, as they
were issues of state law beyond review in a federal habeas proceeding.

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(Docket #15). Henderson’s fourth and final ground for relief is that his Sixth
Amendment right to confront witnesses against him was violated by
admitting the unidentified woman’s statements. (Docket #1 at 9).
3.

LEGAL STANDARD
State criminal convictions are generally considered final. Review

may be had in federal court only on limited grounds. To obtain habeas relief
from a state conviction, 28 U.S.C. § 2254(d)(1) (as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”)) requires the
petitioner to show that the state court’s decision on the merits of his
constitutional claim was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the United
States Supreme Court. 28 U.S.C. § 2254(d)(1); Brown v. Payton, 544 U.S. 133,
141 (2005). The burden of proof rests with the petitioner. Cullen v. Pinholster,
563 U.S. 170, 181 (2011). The relevant decision for this Court to review is
that of the last state court to rule on the merits of the petitioner’s claim.
Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006).
A state-court decision runs contrary to clearly established Supreme
Court precedent “if it applies a rule that contradicts the governing law set
forth in [those] cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of [the Supreme] Court but reaches a
different result.” Brown, 544 U.S. at 141. Similarly, a state court
unreasonably applies clearly established Supreme Court precedent when it
applies that precedent to the facts in an objectively unreasonable manner.
Id.; Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013).
The AEDPA undoubtedly mandates a deferential standard of
review. The Supreme Court has “emphasized with rather unexpected
vigor” the strict limits imposed by Congress on the authority of federal
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habeas courts to overturn state criminal convictions. Price v. Thurmer, 637
F.3d 831, 839 (7th Cir. 2011). It is not enough for the petitioner to prove the
state courts were wrong; he must also prove they acted unreasonably.
Harrington v. Richter, 562 U.S. 86, 101 (2005); Campbell v. Smith, 770 F.3d 540,
546 (7th Cir. 2014) (“An ‘unreasonable application of’ federal law means
‘objectively unreasonable, not merely wrong; even ‘clear error’ will not
suffice.’”) (quoting White v. Woodall, 134 S. Ct. 1697, 1702 (2014)).
Indeed, the habeas petitioner must demonstrate that the state court
decision is “so erroneous that ‘there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with [the Supreme]
Court’s precedents.’” Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (quoting
Harrington, 562 U.S. at 102). The state court decisions must “be given the
benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002); Hartjes v.
Endicott, 456 F.3d 786, 792 (7th Cir. 2006). As the Supreme Court has
explained, “[i]f this standard is difficult to meet, that is because it was
meant to be.” Harrington, 562 U.S. at 102. Indeed, Section 2254(d) stops just
short of “imposing a complete bar on federal-court relitigation of claims
already rejected in state proceedings.” See id. This is so because “habeas
corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Id.
at 102–103 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens,
J., concurring)).
4.

ANALYSIS
The Confrontation Clause of the Sixth Amendment protects the right

of criminal defendants “to be confronted with the witnesses against
[them].” U.S. Const. Amend. VI. The Supreme Court interprets this
provision as barring the use of testimonial out-of-court statements unless
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the declarant is unavailable for trial and the defendant had a prior
opportunity to cross-examine the declarant. Crawford v. Washington, 541
U.S. 36, 68 (2004). The Confrontation Clause applies with equal force in both
state and federal prosecutions. Id. at 42; Michigan v. Bryant, 562 U.S. 344, 352
(2011).
Critically, the right of confrontation applies only to testimonial
statements. Davis v. Washington, 547 U.S. 813, 821. Testimonial statements
are the equivalent of a “solemn declaration or affirmation made for the
purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51
(quotation omitted). In a criminal case, this is typically found when “[a]n
accuser . . . makes a formal statement to government officers.” Id. Nontestimonial statements do not implicate the Confrontation Clause, and a
defendant’s rights with respect to such statements are adequately protected
by traditional hearsay rules. Davis, 547 U.S. at 821. Davis provided a basic
test for differentiating between the two kinds of statements:
Statements are nontestimonial when made in the
course of police interrogation under circumstances
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency,
and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later
criminal prosecution.
Id. at 822. Determining the character of a statement requires an “objective[]
evaluat[ion] [of] the circumstances in which the encounter occurs and the
statements and actions of the parties.” Bryant, 562 U.S. at 359.
The Wisconsin Court of Appeals rejected Henderson’s claim of a
Confrontation Clause violation. Henderson, 2017 WL 1026237, at *2. It cited

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Davis for the proposition that only testimonial statements are subject to
confrontation. Id. Couching its holding in the Davis test, the court found
that the woman’s statements “were nontestimonial because the primary
purpose of Sergeant Jones’ questioning was to meet an ongoing
emergency.” Id.
The questions before this Court are whether the Wisconsin Court of
Appeals’ decision was contrary to Supreme Court Confrontation Clause
precedent, and whether it unreasonably applied such precedent. Brown, 544
U.S. at 141. As to the first question, the Wisconsin Court of Appeals
appropriately identified Davis and its controlling test for the testimonial
nature of a statement.
As to the second question, this Court cannot say that the Wisconsin
Court of Appeals was wrong, much less that it acted unreasonably. Bryant
held that a statement to police was non-testimonial when the victim,
twenty-five minutes after the shooting, identified his assailant and stated
that the attack had occurred in a different location. Bryant, 562 U.S. at 34950. The police had asked him about what had happened, who had shot him,
and where. Id. at 349. The Court held that there was no indication that the
emergency had ended, as the shooter was still on the loose and it was not
clear whether he would attack the victim again or someone else. Id. at 37477. The primary purpose of the officers’ inquiry, then, was to enable them
to meet the present emergency by determining the level of danger to the
victim, themselves, and the public. Id. Further, the questioning occurred
informally, which failed to alert the victim that his statements were meant
for prosecutorial ends. Id. at 377.
Likewise, Sergeant Jones’ questions to the unidentified woman
occurred before Henderson was definitively identified and captured.
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Because Henderson’s whereabouts were unknown, as well as the
motivation for the attack—whether to simply kill people generally or the
victims in particular—the emergency had not passed. Additionally, the
questioning was informal. It occurred in a spur-of-the-moment fashion both
at the entrance to the American Legion Hall and in a parking lot, as opposed
to a formal interview at a police station. Thus, the Wisconsin Court of
Appeals did not err in finding that the woman’s statements were nontestimonial. Henderson’s right to confront her in person at trial was not
implicated.
Henderson’s arguments to the contrary lack merit. His opening brief
rests its analysis on the old test for the interaction between hearsay and the
Confrontation Clause announced in Ohio v. Roberts. 448 U.S. 56, 66 (1980)
(“[W]hen a hearsay declarant is not present for cross-examination at trial,
the Confrontation Clause normally requires a showing that he is
unavailable. Even then, his statement is admissible only if it bears adequate
‘indicia of reliability.’ Reliability can be inferred without more in a case
where the evidence falls within a firmly rooted hearsay exception. In other
cases, the evidence must be excluded, at least absent a showing of
particularized guarantees of trustworthiness.”); (Docket #17 at 10-14). This
analysis is misplaced; Crawford abrogated Roberts’ approach some fourteen
years ago. Crawford, 541 U.S. at 60-69. The distinction between testimonial
and non-testimonial statements, announced in Crawford and developed in
Davis and its progeny, now control in confrontation jurisprudence. The
remainder of Henderson’s opening brief takes issue with whether the
woman’s statements were properly admissible under various exceptions to
the rule against hearsay. (Docket #17 at 9-11, 14-18). This is entirely

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irrelevant given that the corresponding ground for relief has already been
dismissed. (Docket #15 at 6-8).
Henderson’s reply does no better. He cites Crawford therein, (Docket
#19 at 4-5), but because he does so for the first time, the Court could treat
the argument as waived, United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir.
2006). Even absent waiver, Henderson makes only a few conclusory
gestures with respect to the Crawford approach. (Docket #19 at 4-5, 9-11). He
does not attempt to argue how the woman’s statements could be considered
testimonial. Instead, he continues his focus on the immaterial issue of
whether the woman’s statements fell within a hearsay exception. Id. at 6-9.
Ultimately, Henderson’s reply is presented largely as a response to
Respondents argument that admission of the woman’s statements, even if
erroneous, was a harmless error. See, e.g., id. at 7, 11. The Court has not
reached that contention, however. This Court finds that the Wisconsin
Court of Appeals committed no error at all, at least insofar as the standard
of review which controls here.
5.

CONCLUSION
Henderson has not shown that the Wisconsin Court of Appeals

unreasonably applied Supreme Court precedent in deciding whether his
confrontation right was violated. Indeed, he has not even shown that its
conclusion was wrong. Most importantly, Henderson has failed to
demonstrate that no fairminded jurist could agree with the Wisconsin
Court of Appeals’ decision. Jackson, 569 U.S. at 508-09. The Court must,
therefore, deny the fourth and final ground for relief in Henderson’s
petition and dismiss this action with prejudice.
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it enters
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a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Henderson must make a
“substantial showing of the denial of a constitutional right” by establishing
that “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). As the Court discussed above, no reasonable jurists could debate
whether Henderson’s petition has merit because the Wisconsin Court of
Appeals clearly and correctly applied controlling Supreme Court
precedent. As a consequence, the Court is compelled to deny a certificate of
appealability as to Henderson’s petition.
Finally, the Court closes with some information about the actions
that Henderson may take if he wishes to challenge the Court’s resolution of
this case. This order and the judgment to follow are final. A dissatisfied
party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within 30 days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Fed. R.
App. P. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask
this Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil
Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e)
must be filed within 28 days of the entry of judgment. The Court cannot
extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal
Rule of Civil Procedure 60(b) must be filed within a reasonable time,
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generally no more than one year after the entry of the judgment. The court
cannot extend this deadline. See id. A party is expected to closely review all
applicable rules and determine what, if any, further action is appropriate in
a case.
Accordingly,
IT IS ORDERED that Ground Four of Petitioner’s petition for a writ
of habeas corpus (Docket #1 at 9) be and the same is hereby DISMISSED;
IT IS FURTHER ORDERED that Petitioner’s petition for a writ of
habeas corpus (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner’s petition be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 27th day of February, 2018.
BY THE COURT:

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

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