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Henderson v. Eckstein

United States District Court, E.D. Wisconsin

October 23, 2017

JAMES LAMAR HENDERSON, Petitioner,
v.
SCOTT ECKSTEIN, Respondent.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         1. 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, Respondent[1] 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, 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 first-degree 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 nine-millimeter 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 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- 3. The court further held that Henderson himself chose not to testify, and in any event failed to demonstrate that his testimony ...


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