United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
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).For the reasons explained below,
Henderson's petition must be denied.
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, 2016- AP-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
In January 2012, the State filed a criminal complaint
charging Henderson with two counts of attempted first-degree
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
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.
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
Id. The court affirmed the denial of Henderson's
post-conviction motion in all respects. Id. at *2-3.
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. (Docket #15). Henderson's fourth and
final ground for relief is that his Sixth Amendment right to