Mrs. O'Neal was killed with a shot from a .22-caliber
handgun in November 1980 as she worked at the used furniture store owned
by her and her husband.
Prosecutors said that before her killing, Henderson
retrieved a .22-caliber gun from a pawn shop and returned it to the pawn
shop later. Ballistics experts couldn't prove the same gun was used in
When asked if he had a final statement, Henderson said:
"Yes sir, I am an innocent man. God forgive you for what you
Arkansas executes man on victim's 68th
'I wanted to see him fry'
July 9, 1998
VARNER, Arkansas (CNN) -- A man who shot and
killed a woman as she worked at a used furniture store was executed
Wednesday, which would have been his victim's 68th birthday.
Willa Dean O'Neal's children watched via closed-circuit
television as Wilburn A. Henderson, 56, was put to death at Cummins
Unit prison, 65 miles southeast of Little Rock.
O'Neal's children had said they were tired of
grieving every July 8.
"It was a celebration, in a way. It was mama's
birthday," said O'Neal's daughter, Glenda Palmer of Sallisaw,
Oklahoma, after the execution.
"We haven't been able to celebrate mama's
birthday since she was murdered 17 years ago. Now we'll be able to,"
Palmer and her four siblings were allowed to view
Henderson's death under a 1997 Arkansas law that permits relatives
of a murder victim to witness the execution of the killer.
O'Neal was killed with a shot from a .22-caliber
handgun the night before Thanksgiving, 1980, as she worked at the
used furniture store owned by her and her husband in Fort Smith,
near the Oklahoma border.
Prosecutors said that before her killing,
Henderson retrieved a .22-caliber gun from a pawn shop and returned
it to the pawn shop later.
Henderson was arrested within days and sentenced
to death. However, 16 years of appeals frustrated seven successive
execution dates set by four successive governors of Arkansas.
President Clinton, while governor of Arkansas, set four of the
execution dates for Henderson.
Despite being allowed to watch Henderson's
execution, Palmer said she did not believe justice had been served.
"He didn't suffer. It was over in a few minutes.
His was a perfect death, and mama's wasn't," Palmer said.
"I wanted to see him hurt. I wanted to see him
fry," she said.
When asked if he had a final statement, Henderson
said: "Yes sir, I am an innocent man. God forgive you for what you
Henderson was the 17th person executed in
Arkansas since the state resumed killing death-row inmates in 1990.
'I am an innocent man'
A career criminal with a history of mental illness,
Wilburn Henderson was convicted of the Nov. 26, 1980, murder of Willa
Dean O'Neal, who owned a used-furniture store in Ft. Smith, Ark., with
her husband, Bob. O'Neal was shot, police said, in a robbery that netted
The case against Henderson was hardly overwhelming.
In 1991, the 8th Circuit U.S. Court of Appeals in St. Louis named five
other possible suspects, chief among them the victim's husband. The
court gave Henderson a new trial, saying the evidence against other
suspects "creates significant doubt about Henderson's guilt." But a
second jury convicted him.
Police had little direct evidence linking Henderson
to the murder. At the first trial, the prosecution said a yellow piece
of paper showed that Henderson had been in the furniture store. The
paper, found on the floor, had two phone numbers that Henderson had been
given by a real estate agent. Henderson conceded the paper was his, but
said he must have dropped it when he was in the store several days
Jurors were told that, before the murder, Henderson
obtained a gun from a pawnshop and then pawned it back just after the
murder. Ballistics tests, however, were inconclusive about whether that
gun was used in the slaying.
And jurors heard about a long, rambling statement
Henderson gave police after his arrest, saying another man committed the
crime and he just happened to be in the store at the time.
Henderson later recanted the statement, saying he
gave it because he feared police would harm him. He said he was in
another part of the state when O'Neal was killed, an alibi corroborated
by his wife.
Henderson's first conviction was set aside when the
appellate court ruled that his lawyer failed to investigate the other
suspects. The appeals court focused primarily on Bob O'Neal.
O'Neal, according to interviews and court records,
was violent and mentally unstable. In 1985, five years after his wife
was killed, he was committed for almost a year to the Arkansas State
Hospital for treatment of paranoid delusions. He died in 1992 of a heart
O'Neal owned the type of gun—a .22-caliber pistol—that
was used to shoot his wife. He told authorities his gun was stolen after
the murder, so it never was tested.
Immediately after the murder, Willa Dean O'Neal's
daughter and a stepdaughter—children from previous marriages—told police
that they suspected Bob O'Neal .
The daughters said in interviews with the Tribune
that O'Neal had abused their mother and that she had begun to talk about
divorcing him. Willa Dean O'Neal also had filed an alienation of
affection suit against a woman who was having an affair with her husband.
"My first instinct was that it was Bob," stepdaughter
Glenda Palmer said. "He was verbally abusive, mentally abusive—just a
According to court records and interviews, Bob O'Neal,
on the day before the murder, asked Willa Dean O'Neal's daughter, Glenda
Fleetwood, where her mother wanted to be buried. And on the morning of
the murder, he asked Fleetwood to break from the family's routine and
work with him on a house teardown instead of at the store with her
That afternoon Bob O'Neal, Fleetwood and her husband
stopped by the store before they went to salvage materials from a house.
Before they left, O'Neal went back inside briefly. He told Fleetwood and
her husband to wait outside, according to interviews and court records.
After he came back out, they left for the work site.
A few minutes later, O'Neal sent Fleetwood back to
get a root beer from the store. When she returned with a soda and
mentioned she had bought it at another store, he insisted she return to
the family business for electrical tape, according to court records and
That was when she discovered her mother's body.
Fleetwood summoned police and, accompanied by an officer, went to tell
O'Neal his wife was dead.
"When I came up with the police, he said, 'Somebody
killed her, didn't they?'" Fleetwood told the Tribune.
That comment still bothers Ron Fields, the former Ft.
Smith prosecuting attorney who twice tried Henderson. "The troubling
thing," Fields said, "was him having this psychic statement—you know,
knowing she was already dead. O'Neal couldn't ever explain it."
Yet Fields remains certain that Henderson killed
Willa Dean O'Neal.
"If the police could have arrested Bob O'Neal, they
would have. Everybody wanted him to be the murderer," said Fields, who
called O'Neal a "brute" and said he was widely disliked in town. "I
would have loved to have convicted O'Neal. And I could have without
breaking a sweat. Problem was, he didn't do it. Henderson did it."
Though other suspects were given lie-detector tests,
O'Neal was not, according to records.
At the trial, when the coroner testified that he
believed Willa Dean O'Neal was shot in the head as she sat in a chair,
Bob O'Neal whispered to a woman next to him, according to court records.
"No, that's not the way it was," the woman quoted him as saying. "She
dove out of the chair to miss the bullet."
With Henderson on Death Row, O'Neal wrote a letter to
the state insisting Henderson had been wrongfully convicted.
Before the second trial, Fields said he offered
Henderson several deals to plead guilty and avoid the death penalty. One
offer would have allowed Henderson to apply immediately for parole.
But Henderson, insisting on his innocence, wanted to
go to trial and be acquitted, said his lawyer, Gerald Coleman. "He never
wavered," Coleman said.
The defense tried to point toward O'Neal as the
killer at the second trial. But the prosecution offered a witness whose
testimony appeared to place O'Neal elsewhere at the time of the murder.
The witness, Clarence Wilson, lived a block from the
used-furniture store and had visited Willa Dean O'Neal the day of the
He said that Bob O'Neal had left the store by the
time he got there, and that Willa Dean O'Neal was still alive. That left
a brief window of time when Henderson could have committed the crime—and
mirrored what Wilson told police initially.
At an earlier hearing in federal court, however,
Wilson had testified differently, saying he left the store while Bob
O'Neal was still inside.
To implicate Henderson, the prosecution again used
Henderson's statement, the slip of paper and the information about the
gun. He was again convicted.
Henderson, 56, was executed by injection on July 8,
1998. "I am an innocent man," he told the warden. "God forgive you for
what you do."
926 F.2d 706
Wilburn A. Henderson,
Willis Sargent, Warden, Arkansas Department
of Correction, Appellant.
Circuits, 8th Cir.
LAY, Chief Judge, HENLEY, Senior Circuit
Judge, and McMILLIAN, Circuit Judge.
LAY, Chief Judge.
The State of Arkansas
appeals the district court's
order granting a writ of habeas corpus. The
petitioner, Wilburn Henderson, challenges
his conviction for capital murder on the
grounds that his trial counsel was
ineffective in both the guilt and penalty
phases of his trial. The court found that
trial counsel failed to investigate and
develop evidence implicating other suspects
in the murder. This evidence, available to
counsel at the time of trial, creates
significant doubt about Henderson's guilt.
The court also found that
trial counsel failed to present mitigating
evidence in the penalty phase of the trial
that indicated Henderson had suffered from
mental illness and possibly was not in
complete control of his actions when he
evaded police and confessed to witnessing
the murder. The district court ordered the
state to either retry Henderson or release
him. We affirm with regard to the guilt
phase claim, and therefore do not reach the
penalty phase claim.
Henderson was convicted
of the capital murder of Willa Dean O'Neal
on February 2, 1982, and was sentenced to
His first trial was declared a mistrial when
several jurors admitted they had seen the
extensive media publicity about the case. At
the second trial, the prosecution presented
evidence showing that the victim was found
shot to death behind the counter of the
furniture store she owned and operated with
The police established
she was murdered between 1:40 p.m., when her
husband Bob O'Neal, daughter Glenda
Fleetwood, and son-in-law Ricky Fleetwood
last saw her, and approximately 2:00 p.m.,
when a mail carrier and several customers
discovered the body. The cash register was
found open and at least $41 was missing.
A key piece of evidence
implicating Henderson was a folded sheet of
yellow paper found on the floor of the
The victim's daughter testified she had not
seen the paper there earlier in the day. On
the paper were two telephone numbers, the
name of a real estate agent, and a
description of a lake cabin. Police
contacted the real estate agent who stated
Henderson had made an appointment to discuss
the lake cabin described on the sheet of
paper. Henderson did not keep the
appointment. This paper was the sole
physical evidence connecting Henderson with
the scene of the murder.
Henderson, aware he was a
suspect, fled to Houston where he was
arrested by Houston police. Police by then
had discovered that Henderson had taken a
.22 caliber pistol out of pawn a few days
before the murder, and had returned it after
the murder. Ballistics evidence at trial
indicated O'Neal was killed by a .22 caliber
pistol, but the ballistics expert could not
conclusively match the bullet to Henderson's
Arkansas police traveled
to Houston to question Henderson, who
confessed he was at the murder scene and
claimed he had seen Ollie Brown kill O'Neal.
Henderson later recanted the confession and
stated he confessed only because he feared
the police would harm him.
At trial, Henderson
testified that he was in Springdale,
Arkansas, at 12:00 noon the day of the
murder and could not possibly have driven to
the murder site in Fort Smith in time to
commit the murder. His alibi was
corroborated by Selena Henderson, his wife
at the time, who claimed to have been with
him in Springdale on that day. Henderson
explained that he must have dropped the
yellow sheet of paper when he was shopping
in the O'Neals' store a few days before the
Based on this evidence
the jury found Henderson guilty of the
murder. At the penalty phase, Henderson's
mother testified that he was a loving son,
and another witness testified that he had
been doing good Christian work while in jail.
Defense counsel presented no other
mitigating evidence. The jury sentenced him
Henderson's petition, the district court
first considered whether Henderson had
procedurally preserved his claims of
ineffective assistance of counsel under
Murray v. Carrier, 477 U.S. 478, 106 S.Ct.
2639, 91 L.Ed.2d 397 (1986) and Wainwright
v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977). The state concedes
Henderson raised his claim of
ineffectiveness of counsel with regard to
the penalty phase in his Rule 37 petition.
Thus, the issue of procedural bar relates
only to Henderson's claim of ineffectiveness
of counsel during the guilt phase.
The district court
analyzed the question whether Henderson's
guilt phase claim was procedurally barred
under the test we established in Smittie v.
Lockhart, 843 F.2d 295, 296 (8th Cir.1988).
The court first found that Henderson did not
raise his guilt phase claim before the state
court. [T.459] Henderson met the exhaustion
requirement, however, because there were no
non-futile state remedies available to him.
Rule 37.2 of the Arkansas
Rules of Criminal Procedure requires
Henderson to bring any claim for collateral
review of his conviction "within three (3)
years of the date of commitment, unless the
ground for relief would render the judgment
of conviction absolutely void." The types of
claims that would render a conviction void
are very limited, and none are raised here.
See Smittie, 843 F.2d at 297-98. Thus, the
district court correctly found that
Henderson could not bring another petition
under this rule, as the petition would be
Before moving past the
exhaustion requirement to cause and
prejudice, we note that the Supreme Court "generally
requires that a claim of ineffective
assistance be presented to the state courts
as an independent claim before it may be
used to establish cause for procedural
default." Carrier, 477 U.S. at 489, 106 S.Ct.
at 2646; see also Leggins v. Lockhart, 822
F.2d 764, 768 n. 5 (8th Cir.1987), cert.
485 U.S. 907 , 108 S.Ct. 1080, 99 L.Ed.2d
Because Henderson alleges
as cause the ineffectiveness of counsel in a
state collateral proceeding, the state
conceded at oral argument that there is no
forum for review of this claim in state
court. Arkansas rules prohibit a rehearing
or successive petition in state collateral
proceedings unless the first petition was
specifically dismissed without prejudice.
Ark.R.Crim.P. 37.2(b), (d); Grooms v. State,
293 Ark. 358, 737 S.W.2d 648, 649 (1987);
Williams v. State, 273 Ark. 315, 619 S.W.2d
628, 629 (1981). Because Henderson's Rule 37
petition was not dismissed without prejudice,
we find he substantially complied with the
requirement to present this claim to the
Having met the exhaustion
requirement, Henderson must show sufficient
cause for not bringing his guilt phase claim
before the state court. The district court
found cause in the ineffectiveness of
Henderson's counsel in Henderson's state
collateral challenge to his conviction
brought under Rule 37 (Rule 37 counsel).
[T.460] In Carrier, the Supreme Court held
that ineffectiveness of counsel can
constitute cause. 477 U.S. at 488, 497, 106
S.Ct. at 2645, 2650. Although the Supreme
Court has "declined ... to essay a
comprehensive catalog of the circumstances
that would justify a finding of cause,"
Smith v. Murray, 477 U.S. 527, 533-34, 106
S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986),
this court has determined that
ineffectiveness of counsel in a state
collateral proceeding can constitute cause.
See Simmons v. Lockhart, 915 F.2d 372, 376
(8th Cir.1990); Bliss v. Lockhart, 891 F.2d
1335, 1339 (8th Cir.1989); Stokes v.
Armontrout, 851 F.2d 1085, 1092 n. 8 (8th
Cir.), cert. denied,
488 U.S. 1019 , 109 S.Ct. 823, 102
L.Ed.2d 812 (1988).
Ineffectiveness of appellate counsel is
measured under the standard set out in
Strickland v. Washington, 466 U.S. 668, 690,
104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
Bell v. Lockhart, 795 F.2d 655, 657 (8th
ineffectiveness of counsel is proven when
the defendant can show that "counsel's
conduct so undermined the proper functioning
of the adversarial process that the trial
cannot be relied on as having produced a
just result." 466 U.S. at 686, 104 S.Ct. at
2064. Counsel's errors must be "so serious
as to deprive the defendant of a fair trial,
a trial whose result is reliable." Id. at
687, 104 S.Ct. at 2064. Although a court
must endeavor to avoid "the distorting
effects of hindsight," id. at 689, 104 S.Ct.
at 2065, its ultimate inquiry must be to
determine "whether counsel's assistance was
reasonable considering all the circumstances,"
id. at 688, 104 S.Ct. at 2065.
defendant must show that counsel's
performance fell below an "objective
standard of reasonableness," id. at 688, 104
S.Ct. at 2064, and that "there is a
reasonable probability that, but for
counsel's unprofessional errors, the result
of the proceeding would have been different,"
id. at 694, 104 S.Ct. at 2068.
The district court found
Henderson's trial counsel and Rule 37
counsel ineffective after hearing testimony
that cast significant doubt about whether
Henderson was rightly convicted. This
testimony, which was not presented in any of
Henderson's previous trials or appeals,
demonstrated that at least three other
persons, particularly Bob O'Neal, had
motive, opportunity and ability to kill
Willa Dean O'Neal.
The record demonstrated
that the victim wanted a divorce from Bob
O'Neal, and Mr. O'Neal was "mad" about it.
[T.36] The victim told Glenda Fleetwood that
Bob had been threatening her about the
divorce. [T.37] He allegedly stated that if
the victim divorced him "he'd make sure no
other man ever had her." [T.37] Bob O'Neal
had been intimately involved with one Ruby
Kiser. [T.39] His wife had filed an
alienation of affection suit against Ms.
Kiser. [T.15] Bob O'Neal was the beneficiary
of his wife's life insurance policy and took
substantial property under her will.
[T.20-21, 40] He had a violent temper and
previously had broken Ruby Kiser's jaw.
[T.215, 240-41] He was mentally unstable and
ultimately was committed to a mental
treatment center. [T.355-56] He owned a .22
caliber pistol identical to the gun
submitted by the state as the murder weapon.
[T.23] He claimed his gun was stolen
sometime after the murder. Id. The district
court heard testimony from Glenda Fleetwood,
the victim's daughter. On the day of the
murder, contrary to their usual routine,
O'Neal insisted that Glenda work with him
rather than stay at the store with her
The morning before the
murder, O'Neal for the first time asked
Glenda where her mother wanted to be buried.
[T.41] They returned to the store around
noon that day, and left at about 1:40 p.m.
[T.42] As they were leaving, Bob O'Neal told
Glenda and her husband to stay out in the
truck while he went back into the store for
a few minutes. Id. The three then left, but
as soon as they reached their destination,
O'Neal sent Glenda back to the store for
root beer so he could take his medicine.
[T.44] When she returned with soft drinks
she obtained somewhere else, O'Neal insisted
that she go back to the furniture store to
get some electrical tape. Id. Glenda
returned to the store and discovered her
mother's body. Id. When Glenda returned from
the murder scene with the police, O'Neal
exclaimed without being told what happened:
"Someone has robbed and killed my--murdered
my wife!" [T.13] O'Neal himself testified
before the district court that he made this
statement, but never provided a satisfactory
explanation. Id. Later, Bob O'Neal wrote to
state officials, insisting Henderson was not
[T.358] The district court also heard
testimony concerning four other possible
None of this testimony
was presented by defense counsel at trial,
who maintained an alibi defense that was
diminished considerably by Henderson's
recanted statement that he was at the scene.
It is not by virtue of hindsight that the
district court found trial counsel
reasonably could have presented evidence
implicating O'Neal in the murder. Pursuing
such a theory would have been entirely
consistent with Henderson's alibi defense,
and the evidence against Bob O'Neal was
Counsel's decision not to
investigate and pursue this evidence cannot
be justified as a strategic decision.
This court has held that "[t]he decision to
interview a potential witness is not a
decision related to trial strategy. Rather,
it is a decision related to adequate
preparation for trial." Chambers v.
Armontrout, 907 F.2d 825, 828 (8th Cir.) (en
banc), cert. denied, --- U.S. ----, 111 S.Ct.
369, 112 L.Ed.2d 331 (1990). Reasonable
performance of counsel includes an adequate
investigation of the facts of the case,
consideration of viable theories, and
development of evidence to support those
theories. Counsel has "a duty ... to
investigate all witnesses who allegedly
possessed knowledge concerning [the
defendant's] guilt or innocence." Lawrence
v. Armontrout, 900 F.2d 127, 130 (8th
We have stated that " '[i]t
is the duty of the lawyer to conduct a
prompt investigation of the circumstances of
the case and explore all avenues leading to
facts relevant to guilt and degree of guilt
or penalty.' " Eldridge v. Atkins, 665 F.2d
228, 232 (8th Cir.1981) (quoting American
Bar Association Project on Standards for
Criminal Justice, Standards Relating to the
Prosecution Function and the Defense
Function Sec. 4.1 (Approved Draft 1971)),
456 U.S. 910 , 102 S.Ct. 1760, 72 L.Ed.2d
There is no reasonable
professional judgment that would support
trial counsel's failure to investigate these
witnesses. Counsel admitted he did not
investigate or develop evidence about any of
these possible suspects. [T.153-71] Indeed,
trial counsel admitted he never interviewed
the family of the victim, even though he was
presented with information from the police
that Bob O'Neal was capable of committing
the murder. [T.162] Counsel did not
interview Glenda Fleetwood, Ricky Fleetwood
or Bob O'Neal, even though they were among
the last to see the victim alive.
[T.153-71]. Counsel did not pursue any of
the leads contained in the police file,
which included polygraph test results, the
victim's alienation of affection suit
against Ruby Kiser, and memoranda discussing
possible suspects. Id.
Given this strong
evidence showing counsel's complete failure
to pursue a viable defense, we find trial
counsel ineffective for failing to
investigate the plausible defense theory
that Bob O'Neal committed the murder. We
also find trial counsel ineffective for
failing to assert this theory at trial. "[S]trategic
choices made after less than complete
investigation are reasonable precisely to
the extent that reasonable professional
judgment supports the limitations on
investigation." Strickland, 466 U.S. at
690-91, 104 S.Ct. at 2066. Trial counsel
admittedly did not know enough about this
evidence to make a reasoned decision not to
We similarly find Rule 37
counsel ineffective for failing to present
this theory in the state post-conviction
proceeding. Once again, Rule 37 counsel
could not have been exercising an informed
tactical judgment in failing to present this
evidence. There was everything to be gained,
and nothing to lose, from presenting this
evidence. In Lawrence, we held that a
tactical decision to pursue one defense does
not excuse failure to present another
defense that "would bolster rather than
detract from" the primary defense. 900 F.2d
at 130. In Chambers, we held that failure to
pursue the defendant's only "realistic"
defense constituted ineffectiveness. 907
F.2d at 828-32.
Henderson's Rule 37
counsel pursued trial counsel's failure to
request a jury instruction and failure to
make certain evidentiary objections, but did
not offer the evidence heard by the district
court that creates serious doubt about the
reliability of Henderson's conviction. The
state alleges no strategic basis for that
decision, and indeed, there is none.
Rule 37 counsel's
reasonable investigation of the case would
have included consideration of trial
testimony and the police record. It would
have included conducting interviews with the
persons who testified at trial or had
firsthand knowledge of the events
surrounding the murder. The Supplemental
Investigation Report in the Fort Smith
Police File contained leads regarding Bob
O'Neal, indicating he was a suspect during
the investigation. Glenda Fleetwood gave a
statement to the police indicating she
thought Bob O'Neal was involved. [T.49] As
relatives of the victim and perhaps the last
people to see the victim alive, Glenda
Fleetwood and Bob O'Neal were obvious
persons for Rule 37 counsel to question.
There is no doubt that
after a reasonable investigation, Rule 37
counsel should have been aware of the
evidence implicating Bob O'Neal. The state
has not challenged the veracity of the
witnesses implicating O'Neal, nor has it
suggested that presentation of this evidence
would in any way detract from Henderson's
case. Thus, we cannot help but conclude that
Rule 37 counsel was ineffective for failing
to raise this viable defense. See Bliss, 891
F.2d at 1338 (granting writ of habeas corpus
when state failed to contradict evidence
supporting finding of ineffectiveness).
Having found cause, the
question of prejudice need not detain us
long. The record clearly supports the
district court's finding of prejudice. Had
the jury been aware of all the facts
surrounding the murder of Willa Dean O'Neal,
it would have been presented with
significant doubts about Henderson's guilt.
Without the evidence presented before the
district court, the jury that convicted
Henderson had no reason to question the
inferences the state drew from its
circumstantial case. This is not a case in
which the evidence against the defendant is
so overwhelming that ineffectiveness of
counsel might be deemed harmless. There is a
substantial probability that correction of
constitutional error at retrial will effect
a different result.
Even if we could not find
cause and prejudice, Henderson's claim
concerning ineffective assistance of trial
counsel exposes a defect at the heart of his
conviction. Cause need not be shown in an "extraordinary
case, where a constitutional violation has
probably resulted in the conviction of one
who is actually innocent." Murray, 477 U.S.
at 498, 106 S.Ct. at 2650; Dugger v. Adams,
489 U.S. 401, 109 S.Ct. 1211, 1217 n. 6, 103
L.Ed.2d 435 (1989). This court applied the
actual innocence exception when trial
counsel proceeded with joint representation
of co-defendants despite an obvious conflict
of interest. Bliss, 891 F.2d at 1342.
The court held that one
co-defendant had a defense of duress that
probably would lead to her acquittal at
retrial. Id. The Supreme Court has
acknowledged that concern for avoiding a
fundamental miscarriage of justice,
particularly regarding ineffective
assistance claims, must outweigh the
principles of comity and federalism that
form the basis for the procedural bar.
Carrier, 477 U.S. at 498, 106 S.Ct. at 2650.
In our system of justice,
a fundamental miscarriage of justice occurs
when a person is found guilty of a crime
even though the jury had reasonable doubt
about his guilt. This premise could never be
more true than in a capital case. The
Supreme Court, in applying the actual
innocence exception, has looked to whether
correction of the constitutional error at
retrial probably would result in a different
outcome. See Smith, 477 U.S. at 538, 106
S.Ct. at 2668 (considering whether
constitutional error served "to pervert the
jury's deliberations concerning the ultimate
question"); cf. Kuhlmann v. Wilson, 477 U.S.
436, 454 & n. 17, 106 S.Ct. 2616, 2627 n.
17, 91 L.Ed.2d 364 (1986) (plurality opinion)
(allowing successive habeas petition on
grounds of "ends of justice" when review of
all probative evidence on retrial would
cause jury to have reasonable doubt).
This court has found that
the actual innocence exception applies if
the defendant on retrial probably would be
acquitted. Edgemon v. Lockhart, 924 F.2d 126
(8th Cir.1990); Byrd v. Delo, 917 F.2d 1037,
1043 (8th Cir.1990); Stokes, 893 F.2d at
156. The actual innocence exception applies
in this case if a jury considering the
evidence presented to the district court
probably would not convict Henderson of
Henderson was convicted
on a circumstantial case with only a piece
of paper to place him at the murder scene.
His alleged motive was the robbery of $41,
yet the coroner testified there was no
evidence of a struggle that would require
the robber to kill Ms. O'Neal. In contrast,
Bob O'Neal had several motives to kill his
wife, had recently threatened her, owned the
type of gun used in the murder, was with the
victim during her last hour, made uncanny
statements that indicated his involvement,
and conducted himself in a bizarre and
The total lack of effort
by trial counsel to investigate and develop
obvious leads implicating O'Neal precluded
the development of the true facts
surrounding the murder. In light of the
circumstantial case against Henderson,
counsel's deficient performance causes us to
have serious doubts about the reliability of
his conviction. On this issue the district
court's findings are substantial and
Trial counsel's efforts
to investigate the facts of this case were
perfunctory. Counsel did not use an
investigator. [T.134, 138] He knew Bob
O'Neal was a violent person and was told by
a Fort Smith police officer that O'Neal was
capable of the murder, but counsel did not
investigate him. [T.154] He knew the victim
had filed an alienation of affection suit
against Ruby Kiser, but counsel did not
investigate her. [T.154-55] Counsel never
interviewed Bob O'Neal, Glenda Fleetwood or
Ricky Fleetwood, all relatives of the victim
who were among the last to see her alive.
[T.161] Counsel knew that several suspects
had taken polygraph tests, but he did not
request the results. [T.159] The hearing
transcript shows that the investigation made
by counsel essentially was limited to
reading the police file on the case. [T.155]
We agree with the
district court that trial counsel's failure
to adequately investigate the facts of the
murder falls below the objective standard of
reasonable assistance required under the
Sixth Amendment. Eldridge, 665 F.2d at 237.
Adequate representation probably would have
produced a different result. The jury that
convicted Henderson knew of the
circumstantial evidence implicating him, but
had no reason to doubt the inferences the
state drew from the facts.
At retrial the jury will
be confronted with substantial evidence
supporting an alternative theory of the
murder. It would be a fundamental
miscarriage of justice to affirm Wilburn
Henderson's conviction in a capital case,
given the probability that a jury would have
reasonable doubt about his guilt if he were
tried with effective counsel.
Accordingly, we affirm
the district court's grant of the writ of
habeas corpus vacating Henderson's
The trial record of the
penalty phase of the petitioner's trial does
not reflect the thoughtful and careful
preparation that the law requires.
Perfunctory is the only word that I think
adequately can describe it.
The Court finds and
concludes that petitioner's attorney was
ineffective at the penalty phase in not
adequately investigating, developing and
presenting evidence concerning petitioner's
mental illness history at the penalty phase
of the trial and in not adequately
explaining and challenging those prior
convictions of the petitioner which the
State relied upon as aggravating
Henderson v. Sargent, No.
PB-C-84-151 at 458 (Mar. 5, 1990) (record of
Federal courts must
conduct a four-step analysis to determine
whether a petition may be considered when
its claims have not been presented to a
state court. First, the court must determine
if the petitioner fairly presented "the
federal constitutional dimensions of his
federal habeas corpus claim to the state
courts." If not, the federal court must
determine if the exhaustion requirement has
nonetheless been met because there are no "currently
available, non-futile state remedies,"
through which the petitioner can present his
claim. If a state remedy does not exist, the
court next determines whether the petitioner
has demonstrated "adequate cause to excuse
the failure to raise the claim in state
court properly." If the petitioner can show
sufficient cause, the final step is to
determine whether he has shown "actual
prejudice to his defense resulting from the
state court's failure to address the merits
of the claim." The petition must be
dismissed unless the petitioner succeeds at
each stage of the analysis.
Smittie, 843 F.2d at 296
Perhaps as good a
formulation of the criterion as any is that
the petitioner for collateral attack must
show a fair probability that, in light of
all the evidence, including that alleged to
have been illegally admitted (but with due
regard to any unreliability of it) and
evidence tenably claimed to have been
wrongly excluded or to have become available
only after trial, the trier of the facts
would have entertained a reasonable doubt of
How the jury would have
reacted to such additional evidence we
cannot state with any degree of certitude.
But the Court can state that it would
probably have been the source of some
considerable mental perplexity. The natural
response would be: "What is going on here?"
Of course, the jury may have sorted it all
out and come to the conclusion that whatever
else was going on, and whoever else might
have been involved, it nevertheless was
convinced of the defendant's guilt beyond a
reasonable doubt. On the other hand, that
same evidence may have caused the jury to
have a reasonable doubt as to the
defendant's guilt and thereby have required
United States Court of Appeals
For the Eight Circuit
Wilburn L. Henderson,
Larry Norris, Director
Arkansas Department of Correction.
Submitted: April 16, 1997
Filed: July 9, 1997
Wilburn Henderson appeals the district
court's denial of his 1petition for a writ of habeas corpus. We affirm.
Three times Wilburn Henderson has been tried for
the murder of Willa Dean O'Neal and three times he has been
convicted and sentenced to death. The first conviction was voided as
a result of juror exposure to pretrial publicity. The second
conviction was invalidated when this court affirmed the district
court's grant of habeas corpus relief. Henderson v. Sargent,926 F.2d
706 (8th Cir. 1991), modified, 939 F.2d 586 (8th Cir. 1991). The
third conviction is the subject of this appeal.
In November 1980, Ms. O'Neal was found shot to
death behind the counter of the family furniture store in Fort Smith,
Arkansas. She was murdered between approximately 1:40 and 2:00 p.m.
The cash register was found open and empty. Suspicion fell on
Henderson when a folded sheet of yellow paper with two telephone
numbers, the name of a real estate agent, and a description of a
lake cabin was found on the floor. Police contacted the real estate
agent who explained that Henderson had failed to keep an appointment
to discuss the cabin.
Further investigation revealed that Henderson had
taken a .22 caliber pistol out of pawn a few days before themurder,
and had returned it after the murder. Ballistic testing showed that
Ms. O'Neal was killed by a .22 caliber pistol, but could not
conclusively match the bullet to Henderson's gun.
Aware he was a
suspect, Henderson fled to Houston where he was later arrested
despite attempts to alter his appearance. Arkansas police questioned
Henderson in Houston. Henderson admitted that he was at the murder
scene but claimed he had only witnessed the murder. He later
recanted the statement, claiming it was involuntary.
At his first two trials, Henderson's defense was
that he had been in Springdale, Arkansas, at 12:00 noon the day of
the murder and could not possibly have driven to Fort Smith in time
to commit the crime. Both juries convicted Henderson of capital
After his second conviction, Henderson filed a
section 2254 petition contending that his trial counsel had failed
to investigate and presente vidence implicating the victim's husband,
Bob O'Neal, as the killer.
That evidence included Bob O'Neal's history of
violence and marital infidelity, Willa O'Neal's desire for a divorce,
and Bob O'Neal's suspicious behavior on the day of the murder. For
example, on this particular day, contrary to usual routine, Mr.
O'Neal insisted that his daughter Glenda work with him rather than
with her mother at the store. They returned to the store around noon
that day, and left at about 1:40 p.m. As they were leaving, Mr.
O'Neal told Glenda and her husband to stay in the truck while he
wentback into the store for a few minutes. The three then left, but
as soonas they reached their destination, Mr. O'Neal sent Glenda
back to the store, first to get soda and then (when she bought the
drink elsewhere) to get electrical tape. Glenda returned to the
store and discovered her mother's body. When Glenda arrived with the
police, Mr. O'Neal exclaimed without being told what happened: "Someone
has robbed and killed my--murdered my wife!"
The district court held an extensive evidentiary
hearing, which included the testimony of Clarence Wilson, a part-time
employee of the O'Neals. The court then issued a writ of habeas
corpus. We affirmed, finding that Henderson's counsel had been
constitutionally defective in the second trial by failing to develop
this evidence and bring it before the jury. Henderson v. Sargent,
926 F.2d at 712.
Henderson was assigned new counsel and was tried
again. This time, the defense further explored the evidence
implicating Mr. O'Neal, includingall of the facts recited above.
After the defense's presentation, the government called Wilson as a
rebuttal witness. Wilson testified that he checked with Ms. O'Neal
between 10:00 and 11:00 a.m. on the day of the murder, to see if she
had work for him. He further testified that he returned to the store
around 1:00 p.m. and that Ms. O'Neal told him that her family had
stopped for lunch but had left. Wilson testified he then lef the
store and did not return until after the murder.
Wilson's testimony that he had seen Ms. O'Neal
alive after her husband left the store essentially eviscerated
defense contentions that Mr.O'Neal was the killer. On
cross-examination, defense counsel asked why Wilson had only
mentioned being at the store twice and not three times at the habeas
hearing two years before. Wilson responded that it must have"slipped
[his] mind." Trial Tr. at 1565. On redirect examination, the state
referred to a statement Wilson made to police shortly after the
murder, that detailed all three trips to the store. Over defense
objection, the trial court received the evidence. The jury convicted
After exhausting his state remedies, see
Henderson v. Arkansas, 844S.W.2d 360 (Ark. 1993) and Henderson v.
Arkansas, No. CR 93-849, 1994 WL91313 (Ark. Mar. 14, 1994),
Henderson filed this section 2254 petition. The district court
denied relief; Henderson appeals.
A. Wilson's Testimony
Henderson argues that Wilson's testimony
denied him due process and rendered his third trial
fundamentally unfair, meriting habeas corpus relief.
Specifically, Henderson complains that the trial court: (1)
improperly allowed the state to present Wilson's testimony in
rebuttal; and (2) erred in allowing reference to Wilson's police
On habeas review, evidentiary errors are only
relevant to the extent that the presentation or admission of
particular proof infringed on "a specific constitutional
protection or was so prejudicial as to deny due process."
Hobbs v. Lockhart, 791 F.2d125, 127 (8th Cir. 1986) (quotation
Only evidentiary errors that are so grossly
prejudicial that they fatally infect the entire trial,
preventing it from being fundamentally fair, will justify habeas
corpus relief. Rainer v. Department of Corrections, 914
F.2d 1067, 1072 (8th Cir. 1990). To make this
determination, we "review the totality of the facts in the case
and analyze the fairness of the particular trial under
consideration." Hobbs, 791 F.2d at 128.
Henderson alleges that he was denied a fair
trial and due process when the state presented Wilson's
testimony in rebuttal rather than in its case-in-chief. We
agree with the district court that the timing of Wilson's
testimony at trial was not fundamentally unfair. Under
Arkansas procedural rules, the only significant difference
between testimony in the state's case-in-chief and rebuttal is
that rebuttal witnesses need not be disclosed to the defense
prior to trial. Ark. R. Crim. P. 17.1(a)(i).
The Arkansas courts have reversed convictions
procured with testimony by witnesses about which the defense was
not notified on the grounds that they were not true rebuttal
witnesses. E.g., Birchett v. Arkansas, 708 S.W.2d 625, 626
(Ark. 1986). However, here, Wilson's identity was hardly
unknown to the defense. Not only had Wilson testified at
Henderson's first habeas corpus hearing, he had been subpoenaed
by the defense for the third trial. Henderson was
not subject to unfair surprise by the state's presentation of
Wilson in rebuttal, and was therefore not denied due process by
the timing of his testimony.
Likewise, we see no fundamental unfairness in
the prosecution's reference on redirect to Wilson's police
statement. The trial court overruled defense objections to the
questions and allowed the testimony as evidence of a prior
consistent statement. Ark. R. E. 801(d)(1)(ii). Henderson
asserts that the trial court erred in its interpretation of
state evidentiary rules, and claims the error was of
constitutional magnitude. He characterizes counsel's
cross-examination as merely an attack on Wilson's memory, and
argues that a prior consistent statement can only be admitted
when a witness has been attacked as having a motive to lie.
As an initial matter, Henderson has not even
established that state evidentiary rules proscribed reference to
Wilson's statement. The Arkansas Supreme Court has held that
attacking the accuracy, even without impugning the integrity, of
a witness's testimony, allows admission of a prior consistent
statement under 801(d)(1)(ii). Frazier v. Arkansas, 915
S.W.2d 691, 693 (Ark. 1996).
More fundamentally, Henderson's assertion
amounts to nothing more than reargument of the state law
question he presented to the Arkansas Supreme Court. These
positions were rejected twice by that court. Henderson has
not made any additional showing that the introduction of this
evidence violated his constitutional rights or was flagrantly
unjust. We fail to see how the reference to Wilson's
statement was fundamentally unfair, as the Federal Rules of
Evidence provide for its admission. See United States v.
Coleman, 631 F.2d 908, 914 (D.C. Cir. 1980) ("Even where the
suggestion of contradiction is only imputation of an inaccurate
memory, a prior consistent statement is admissible to rebut the
inference." )(citing cases). Henderson makes no
claim that Wilson's police statement, made shortly after the
murder, was false or in any way unreliable. Reference to
the statement did not constitute grossly unfair prejudice in
this case. The district court correctly withheld habeas
relief on these claims.
B. Ineffective Assistance of
Henderson complains that his trial counsel
was ineffective in cross-examining Wilson and in failing to
offer the transcript of Wilson's habeas corpus testimony into
evidence. To prevail on an ineffective assistance of
counsel claim, Henderson must show that his attorney's
performance fell below professional standards of competence and
that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). We
presume attorneys provide effective assistance and will not
second-guess strategic decisions or exploit the benefits of
hindsight. Payne v. United States, 78 F.3d 343, 345 (8th Cir.
We first address Henderson's claim that
counsel was ineffective for failing to adequately cross-examine
Wilson. Henderson does not specify how counsel should have
proceeded, simply describing counsel's performance as "lame."
Appellant's Brief at 23. This is not the type of error, if
indeed it was error at all, that the Sixth Amendment functions
to correct. The cross-examination of a witness is a
delicate task; what works for one lawyer may not be successful
for another. Courts generally entrust cross-examination
techniques, like other matters of trial strategy, to the
professional discretion of counsel. Barnes v. United
States, 859 F.2d 607, 608 (8th Cir. 1988).
We have recently observed that "there are a
few, if any, cross-examinations that could not be improved upon.
If that were the standard of constitutional effectiveness, few
would be the counsel whose performance would past muster. "
Willis v. United States, 87 F.3d 1004, 1006 (8th Cir. 1996).
A careful review of the transcript convinces us that counsel's
cross-examination was not constitutionally infirm.
Henderson also claims that counsel's failure
to introduce a transcript of Wilson's habeas corpus testimony
constituted ineffective assistance. Henderson argues that
the habeas transcript was "substantive evidence that Wilson's
testimony was incorrect [and] served to exculpate Henderson."
Appellant's Br. at 27. We disagree. First, Henderson
has provided no reason, at trial or in any subsequent proceeding,
to think that Wilson's statement made the day of the murder is
less accurate than his testimony at the first habeas hearing,
ten years after the fact.
Furthermore, Wilson's prior testimony could
not have been properly admitted as substantive evidence under
state rules of evidence. Henderson v. Arkansas, No. CR 93-849,
1994 WL 91313 at *2 (Ark. Mar. 14, 1994) (explaining why
transcript was inadmissible under state law).
Finally, even had the habeas testimony been
admissible, we fail to see how Henderson was prejudiced by its
absence. The jury was informed, through cross-examination,
of the contradiction between Wilson's habeas and trial testimony.
They were free to discredit Wilson based on this inconsistency.
Counsel's failure to proffer evidence that was both inadmissible
and cumulative does not constitute ineffective assistance.
The district court correctly withheld habeas relief on this
C. Henderson's Statement
Henderson next contends that the trial court
violated the Constitution by admitting his police statement into
evidence. Although a confession's voluntariness is a question of
law, state court factual findings about the circumstances
surrounding a confession are presumed to be correct.
Miller v. Fenton, 474 U.S. 104, 117 (1985).(2)
On direct appeal, the Arkansas Supreme Court
found that Henderson had only been in custody for two days; was
informed of and appeared to understand his rights; willingly
spoke with Arkansas police; had a normal level of intelligence;
and gave no indication of psychosis during his interrogation.
Henderson v. Arkansas, 844 S.W.2d at 362. In light of
these undisputed factual determinations, Henderson's challenge
to the state court's legal conclusions must fail.
Henderson alleges that his statements to
police were not voluntary because of his "schizophrenic reaction,
schizo affective type with paranoid trends." Appellant's
Br. at 29. However, he makes no allegation of coercive
police conduct, a necessary prerequisite to the conclusion that
a confession was involuntary. See Colorado v. Connelly,
479 U.S. 157, 167 (1986).
We have interpreted Connelly to mean that the
"personal characteristics of the defendant are constitutionally
irrelevant absent proof of coercion brought to bear on the
defendant by the State. " United States v. Rohrbach, 813
F.2d 142, 144 (8th Cir. 1987) (quotation omitted). Because
Henderson has failed to prove, or even allege, that the police
officers' conduct was coercive, we reject hisargument that his
incriminating statements were involuntary. The district
court correctly withheld habeas relief on this issue.
D. Cumulative Error
Henderson's final contention is that all of
his other allegations of error combine to constitute cumulative
error warranting section 2254 relief. As Henderson himself
acknowledges, "cumulative error does not call for habeas relief,
as each habeas claim must stand or fall on its own." Scott v.
Jones, 915 F.2d 1188, 1191 (8th Cir. 1990).
The district court correctly withheld habeas relief on this
For the foregoing reasons, the district
court's denial of Henderson's petition for a writ of habeas
corpus is affirmed.
The Honorable William R. Wilson, United States District Court
Judge for the Eastern District of Arkansas.
Although the standard by which federal courts review state court
determinations of law was changed by the Anti-terrorism and
Effective Death Penalty Act of 1996, the United States Supreme
Court has held that those changes are not applicable to cases
which, like this one, were pending at the time the AEDPA was
enacted. Lindh v. Murphy, 65 U.S.L.W. 4557 (U.S. June 23, 1997)