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Henderson v. Six

United States District Court, District of Kansas

February 18, 2014

STEVEN SIX, Attorney General of the State of Kansas, Respondent.[1]


Sam A. Crow U. S. District Senior Judge

This case comes before the Court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Kansas prisoner. Mr. Henderson claims that his trial counsel was ineffective for introducing at trial the hearsay statement of a co-perpetrator “that infringed on right of confrontation.” The state courts found that Mr. Henderson failed to show constitutionally deficient performance on the part of his trial counsel as well as prejudice. This court concludes that petitioner has not met his burden of showing that the state court findings were objectively unreasonable. Accordingly, the federal petition is denied.


Mr. Henderson was convicted by a jury in the District Court of Shawnee County, Kansas, of aggravated robbery, aggravated burglary, criminal possession of a firearm, and criminal restraint. In April 2004, he was sentenced to 216 months in prison. He directly appealed to the Kansas Court of Appeals (KCA) claiming insufficient evidence. The KCA affirmed; and his Petition for Review was denied by the Kansas Supreme Court (KSC). See State v. Henderson, 133 P.3d 841, 2006 WL 1318808 (Kan.App. May 12, 2006).

In 2007 Mr. Henderson filed a motion for post-conviction relief pursuant to K.S.A. § 60-1507 claiming ineffective assistance of trial counsel and violation of his right to confrontation. The district court summarily denied the motion. Mr. Henderson appealed to the KCA, which affirmed in 2010. His Petition for Review was denied the same year.

Petitioner timely filed this federal application for habeas corpus relief. Respondent has filed his Answer and Return together with the state court records. Petitioner did not file a Traverse. The court has considered all materials in the file and conducted its own review of the state court records.


On April 14, 2002, D. Nash (D) was robbed and burglarized in her home. Around the same time, neighbors alerted authorities to a suspicious vehicle in the neighborhood, and a police officer made contact with Meghan Brandenburgh (hereinafter sometimes referred to as MB) who was waiting in the vehicle. The officer witnessed three men running toward the vehicle, and ordered them to stop. Two of them fled; while the third, Daniel Zapata, stopped and was arrested. Additional background facts and evidence presented at trial were detailed by the KCA in its opinion on petitioner’s collateral appeal in Henderson v. State, 223 P.3d 838, *1, 2010 WL 653144 (Kan.App. Feb. 19, 2010):

As officers combed the area in the direction of the fleeing assailants, they saw Henderson running and arrested him. Henderson was sweating profusely and breathing heavily. Officers took Henderson back to the scene where Brandenburgh identified him as one of the men fleeing the scene. Before his arrest, Henderson was seen running through a car wash. Officers found a dark blue sweatshirt in a trash dumpster at the car wash. The sweatshirt later tested positive with Henderson’s DNA. On the trail allegedly taken by the perpetrators, a police dog alerted to the computer bag taken from Nash’s residence, a blue and white bandana, and a silver handgun.
Nash identified Brandenburgh as the person who had knocked on her door before the perpetrators pushed through. However, Nash could not identify Zapata by face, but stated his complexion and clothing were similar. Nash said that she could not identify Henderson as one of the assailants but that he looked similar to one of the men except he was wearing different clothing. Nash stated one of the men had a blue bandana over his face and wielded a silver handgun.
At the police station, Detective Stephen King of the Topeka Police Department interviewed Zapata. Zapata denied being involved in the robbery. While Zapata was alone in the interview room, he muttered the phrase, “she’s tellin’ on us now, dog.” The issues raised in Henderson’s 60–1507 motion concern admission of this statement at trial[.]

Id. The KCA quoted the objection from the trial transcript and the ensuing discussion among the judge and counsel:

Q. [MR. SHEPHERD]: And then after you left the room Damian made a statement, didn’t he?
A. [DETECTIVE KING]: I believe there was a statement picked up on tape.
Q. Uh-huh. And that statement was?
MR. McELHINNEY [PROSECUTOR]: I’m going to object as hearsay.
MR. SHEPHERD: Can I approach?
THE COURT: Sustained. You may.
(At the bench with the Court and counsel out of the hearing of the jury:)
THE COURT: Before you go any further, let me just sort of give you a warning. You’ve opened the door for the State to put on Damian Zapata’s statement and you’re concerned about your ability to cross-examine him. You’ve invited the State to go into an area that I thought you were trying to protect.
MR. SHEPHERD: Well, I’m going into an area that just-that he made an incriminating statement.
THE COURT: But once you open the door the State is going to bring that statement out. Is that what you were intending?
MR. SHEPHERD: Well, actually it’s not the same statement, but-yes and that’s fine. This statement, though, is what he made on the videotape, the incriminating statement. He made an incriminating statement and there’s two basis for it to overcome or two exceptions to hearsay. One is the statement against interest, and two, it's a confession.
THE COURT: But the protection, though, was to-Mr. Shepherd, in that once you open the door, Mr. McElhinney’s going to be able to use those statements and you don’t have Mr. Zapata here to cross-examine.
MR. SHEPHERD: I want them to hear the statement. . . .
MR. SHEPHERD: I don’t represent Mr. Zapata.
THE COURT: And that’s why I’m telling you I wanted to make sure you’ve thought carefully about once you open this door. I trust or I suspect the State is going to want to come back and make some questions about the Zapata statement and it’s fair game.
MR. SHEPHERD: That’s fair. . . .
THE COURT: Well, it may be a bunch of nothing when it all comes down to it, but the defendant has indicated he wants to go into that area and you objecting, I’m going to go ahead and overrule the objection and allow that, the inquiry. But you know, I’m just suggesting that maybe you’re opening the door and I don’t know what Mr. McElhinney may want to do . . . .
MR. SHEPHERD: The statement is that-and you can actually see it on the video, if you’d like to dismiss the jury and just see the video, but he comes to the window and says, oh, ...

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