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Summary:
Between midnight and 9:00 a.m. on September 5, 1993, Henry entered
the home of acquaintances Carol Lea Arnold, age 57, and her mother
Hazel Rumohr, age 83. There were later no signs of forced entry.
While there, he viciously beat and stabbed both to death.
Two months after the murders, Henry walked into the Corpus Christi
Police Department to turn himself in to an officer he knew and
trusted, E.R. Frobish. Henry told Frobish, "I killed two people in
Portland, and I want to turn myself in to you."
Henry went on to make other confessions to the double murder,
admitting he used a knife and had worn work boots with knobby soles.
The soles of Henry's work boots matched bloody foot prints at the
crime scene.
Henry's oral confessions were substantiated by DNA
evidence: Rumohr's blood was found in Henry's car, and Henry's blood
was found on the victims' washing machine.
Final Meal:
None requested.
Final Words:
Henry nodded toward friends and relatives, then mouthed, "Bye-bye. I
love you. Here I go."
ClarkProsecutor.org
Texas Attorney General
Media Advisory
Thursday, November 13, 2003
Robert Lloyd Henry Scheduled to be Executed.
AUSTIN - Texas Attorney General Greg Abbott
offers the following information about 41-year-old Robert Lloyd
Henry, who is scheduled to be executed after 6 p.m. on Thursday,
November 20, 2003.
On November 4, 1994, Henry, a Potter County
native, was sentenced to die for the September 5, 1993, capital
murders of Hazel Rumohr and her daughter Carol Arnold, in Portland,
Texas. A summary of the evidence presented at trial follows.
FACTS OF THE CRIME
During the 1993 Labor Day weekend, Robert Lloyd
Henry murdered 83-year-old Hazel Rumohr and her daughter, 57-year-old
Carol Arnold, in their home at 1820 Portland Drive in Portland.
Henry and Arnold's son had been good friends during their teenage
years and Henry had regularly visited Arnold's home. Henry
maintained contact with the victims through Christmas cards.
Between midnight and 9:00 a.m. on September 5,
1993, Henry entered the victims' home leaving no signs of forced
entry. While there, he viciously beat and stabbed both Rumohr and
Arnold to death.
Rumohr, 83-years-old and physically frail due to
age and health problems, suffered multiple stab wounds. In addition
to the defense wounds on her hands and arms, Rumohr suffered stab
wounds in the neck, back, and chest. The cause of her death was a
slashing stab wound to the chest which began near her shoulder,
continued through her chest cavity, and punctured her heart.
Henry stabbed and beat Arnold severely about the
head and neck. The medical examiner described her face as "entirely
bruised" and it was unrecognizable to her neighbor of two and one-half
years who identified Arnold by her jewelry and clothing. A rope or
cord was attached to Arnold's leg, indicating that Henry intended
some sort of bondage. Arnold's cause of death was blunt trauma to
the head and brain.
Two months after the murders, Henry walked into
the Corpus Christi Police Department to turn himself in to an
officer he knew and trusted, E.R. Frobish. Henry told Frobish, "I
killed two people in Portland, and I want to turn myself in to you."
Henry went on to make other confessions to the double murder,
admitting he used a knife and had worn work boots with knobby soles.
The soles of Henry's work boots matched bloody foot prints at the
crime scene. Henry's oral confessions were substantiated by DNA
evidence: Rumohr's blood was found in Henry's car, and Henry's blood
was found on the victims' washing machine. The chances of the latter
match were 1 in 10,000.
PROCEDURAL HISTORY
-
July 15, 1994 - Henry was indicted for the
capital murders of Hazel Rumohr and Carol Arnold.
-
November 14, 1994 - Henry convicted and sentenced
to death.
-
October 2, 1996 - The conviction was affirmed by
the Texas Court of Criminal Appeals.
-
November 6, 1996 - Henry's motion for rehearing
is denied.
-
November 8, 2000 - The Texas Court of Criminal
Appeals denied Henry's application for state habeas corpus relief.
-
July 2, 2002 - The U. S. District Court for the
Southern District of Texas denied Henry's petition for writ of
habeas corpus.
-
April 8, 2003 - The Fifth Circuit Court of
Appeals denied Henry's request for a Certificate of Appealability.
-
October 14, 2003 - The United States Supreme
Court denied certiorari review.
-
September 23, 2003 - Henry's execution was
scheduled for November 20, 2003.
CRIMINAL HISTORY
At the time of the offense, Henry had no previous
criminal history.
ProDeathPenalty.com
A San Patricio County jury found Robert Henry
guilty of murdering Hazel Rumohr, 83, and her daughter, Carol Lea
Arnold, 57. The women were found stabbed and bludgeoned to death in
a hallway in their Portland home Sept. 5, 1993. One year later,
Henry, a friend of Arnold's son, was convicted and sentenced to die.
San Patricio County District Attorney Patrick
Flanigan, who prosecuted the case, flatly denied any elicit scheme
to convict Henry. "Some death row inmates are concerned with their
own peace, getting right with their maker and making comments of
remorse," Flanigan said. "Others (like Henry) take the position that
they were wrongly convicted."
Grant Jones, one of Henry's defense
lawyers, also denied any conspiracy. He said he and his co-counsel
provided the best defense possible. Jones said the most damning
testimony was from a former co-worker who said Henry and he had
watched a sadistic and masochistic video the day before Henry went
to police about the case. Paul Johnson also testified Henry told him,
in tears, that he had "made his own bed and would have to lie in it,"
according to an October 1994 Caller-Times article.
Some days, Kristy Petersen wakes up and thinks
about her 2 slain family members, wanting to see the man convicted
of their murders die in the Texas death chamber. Other days, she
wants the state to spare the condemned man's life.
Petersen, 27,
whose grandmother and great-grandmother were murdered in 1993 in
Portland, has tried to prepare herself to view the execution
Thursday of Robert L. Henry.
She said she is convinced of Henry's
guilt, even though he has maintained his innocence all along. "I go
in and out on if I want to see him executed," said Petersen, who was
17 when the murders occurred. "Today I want him to be executed
because I am sick of it messing with my life. I have kids, and they
don't understand why mommy is upset. And I can't tell them why mommy
is upset." On days when Petersen opposes the execution, she said,
the voice in her head tells her, "Whether it was him murdering my
grandmother, or the state murdering him, murder is murder."
But for Petersen and her mother, Linda Arnold
Callais - Arnold's daughter - the end of Henry might not be the end
of their emotional pain.
There still is one unanswered question they
hope will not die on the gurney with Henry. "We've always had the
question, 'Why?'" Callais said. "And if he is still proclaiming his
innocence, there will still be no answer to the question." Callais
said from her home in Louisiana that she does not expect anything
from Henry before she and her daughter attend the scheduled
execution. Henry, himself, said last week that he had not put
together any words for the family. "I don't know what I could say
that'll help them," he said.
Texas Execution Information
Center by David Carson
Txexecutions.org
Robert Loyd Henry, 41, was executed by lethal
injection on 20 November 2003 in Huntsville, Texas for the murder of
two women in their home.
On the 7 September 1993, the bodies of Carol
Arnold, 57, and her mother, Hazel Rumohr, 83 were discovered inside
their home in Portland. Both women had been severely beaten and
stabbed. Arnold's cause of death was blunt trauma to the head.
Rumohr's cause of death was a slashing stab wound across her chest.
Arnold's body also had a rope attached to her leg.
Two months after the murders, Robert Henry, then
30, walked into the Corpus Christi police station and turned himself
in. He told E. R. Frobish, an officer he knew, "I killed two people
in Portland, and I want to turn myself in to you." He said that he
killed the women after smoking marijuana.
The soles of Henry's boots
were matched to bloody footprints left at the crime scene. Rumohr's
DNA was found in blood left in Henry's car, and Henry's blood was
found inside the victims' home. The time of the murders was
estimated as between midnight and 9:00 a.m. on 5 September.
Henry and Arnold's son had been friends during
their teenage years, and Henry had regularly visited Arnold's home.
He had maintained contact with Arnold and Rumohr over the years
through Christmas cards.
At his trial, Henry pleaded innocent, despite his
confession. A doctor testifying in his defense said that Henry
panicked at the police station and told police whatever he believed
would end the questioning quickly. Paul Johnson, a co-worker of
Henry's, testified that the day before Henry went to the police,
they were watching a video together, and Henry told him, in tears,
that he had "made his own bed and would have to lie in it."
The motive behind Arnold and Rumohr's murders was
never clear. Prosecutors alluded to a possible connection to a
bondage fetish, noting the rope that was found tied to Arnold's leg,
plus Johnson's testimony that the video he and Henry watched
together was an S&M video.
Henry had no previous criminal history.
A jury convicted Henry of capital murder in
November 1994 and sentenced him to death. The Texas Court of
Criminal Appeals confirmed his conviction and sentence in October
1996. All of his subsequent appeals in state and federal court were
denied.
In a death-row interview, Henry denied any
involvement in the murders. He said that the DNA evidence linking
him to the murders was contrived by prosecutors working in tandem
with his own lawyer.
He also said that he never confessed to the
murders, and that the confession that the Corpus Christi police had
was manufactured. Henry also refuted Paul Johnson's testimony. "I
kind of got suckered through the whole system," he told a reporter.
"I've maintained through the whole appeals process that all I need
is another shot. If I could have a second trial, I could have torn
the case up."
Grant Jones, the lawyer who defended Henry at his
trial, denied conspiring against him. Henry said that his work,
reviewing accident reports, often took him to the police department,
where he said he heard conversations about the slayings. "I started
having nightmares," Henry said. "I had a nervous breakdown."
Henry, who had previously been scheduled for
execution in April 2002, viewed his upcoming execution as "kind of a
relief." He said that he believed in reincarnation and that his
spirit would take on another body. However, "I want to stay around,"
he added. "I've got family and friends. Even if you are in here, you
can still see them," Henry said. "Once you're gone, that is pretty
much it."
Henry declined to make a last statement at his
execution. As the lethal injection was being administered, he smiled
and nodded at friends and relatives, then mouthed "bye-bye. I love
you. Here I go." He then blew them a kiss and immediately snorted
and gasped as the drugs took effect. He was pronounced dead at 6:19
p.m.
Henry's execution was the first in Texas in ten
weeks, and only the second in four months -- an unusually light
schedule in a state where two or three executions per month is more
typical. However, five more are currently scheduled for the first
two weeks of December.
Prisoner Condemned for Double Slaying Executed
By Michael Graczyk -
Fort Worth Star-Telegram
AP November 20, 2003
HUNTSVILLE, Texas - The convicted killer of an
elderly woman and her daughter at their Corpus Christi-area home was
executed Thursday night, the first in the nation's busiest capital
punishment state in nearly 2 1/2 months.
Robert Henry, 41, replied, "No sir," when asked
by the warden if he had a final statement. In the seconds before the
drugs began taking effect, he smiled and nodded toward some friends
and relatives watching nearby through a window, then mouthed, "Bye-bye.
I love you. Here I go." Then he blew them a kiss and immediately
snorted and gasped as the drugs took effect. Eight minutes later, at
6:19 p.m. he was pronounced dead. He never looked at relatives of
his two victims, who were watching through another window.
Henry was condemned for the fatal beating and
stabbing of Hazel Rumohr, 83, and her daughter, Carol Arnold, 57,
more than 10 years ago at their home in Portland, across the bay
from Corpus Christi.
The U.S. Supreme Court last month refused to
review his case and no 11th-hour appeals were filed to try to stop
the lethal injection.
Henry, a family acquaintance, confessed to the
slaying to a police officer some two months after the killings over
the Labor Day weekend in 1993 but subsequently denied involvement in
the deaths. "I kind of got suckered through the whole system," he
said in an interview last week. "I'm getting a bum rap. You can't
avoid it... I'm stuck."
The victims were stabbed and slashed with
what authorities believed was a survivalist knife. Arnold's face was
beaten so badly that a neighbor could not identify her except by
jewelry and clothing. "Asking him why would be redundant at this
point," said Linda Callais, whose mother and grandmother were killed.
"I'm not accepting any answers out of him. ... He couldn't say
anything to change my mind or make me feel any better."
Henry was the 22nd convicted killer to receive
lethal injection in Texas this year and the first since early
September.
The 2 1/2-month hiatus has been the most lengthy
pause in capital punishment in Texas in some seven years, although
officials say the lull is probably a coincidence.
Five more Texas
inmates are scheduled to die next month, and at least six more are
on the execution calendar for early 2004. While the pace of
executions may have slowed somewhat, the number of convicted killers
sentenced to die has not. At the same time during the past 2 1/2
months, at least five new capital murder convicts have been sent to
Texas' death row, which now houses about 450 inmates.
San Patricio County District Attorney Patrick
Flanigan, who prosecuted Henry, said physical evidence tying him to
the slayings was overwhelming and included his blood, his boot print
at the murder scene and a victim's blood in his car. "When the crime
was committed, it sure sent a shock wave through the city of
Portland," Flanigan said of the community of about 15,000. "You
really don't expect this kind of thing to happen. We all think the
big city is where particularly bad stuff is happening."
Henry had been friends with Arnold's son during
their teen years and had no previous criminal record. His work,
reviewing accident reports for a company that sold the information
to physicians, lawyers and others, took him often to the police
department where he said he heard conversations about the slayings.
"I started having nightmares," Henry said. "I had a nervous
breakdown."
Killer of Mother, Daughter To Die Today
Brutal attack took place 10 years ago
By Michael Graczyk, Associated Press
The Houston Chronicle
Nov. 20, 2003
HUNTSVILLE -- Hazel Rumohr's tombstone carries
the engraved image of a clown face. There was nothing funny about
her death. Rumohr spent decades bringing joy to people as "Jollypop,"
a professional clown well known around her hometown of Portland,
just across the bay from Corpus Christi.
Over the Labor Day weekend in 1993, at age 83,
she was stabbed and slashed repeatedly. The same frenzied attack
claimed her daughter, Carol Arnold, 57, who was stabbed and beaten
so badly a neighbor could not identify her except for the jewelry
and clothing she wore.
A family acquaintance, Robert Henry, was
convicted of the double slaying at the Portland home where the
mother and daughter lived. He is set to die for it tonight. Henry,
41, would be the 22nd convicted killer to receive lethal injection
in Texas this year and the first in about 2 1/2 months.
Killer of Two Women Executed in Texas
TheDeathHouse.com
November 20, 2003
HUNTSVILLE, Tex. - A man who stabbed a mother and
daughter to death in their home in 1993 was executed by lethal
injection Thursday night at a state prison.
Robert Henry, 42, became
the 22nd condemned killer put to death in Texas in 2003 - and the
first in the state since September 10. Henry did not make a last
statement or request a final meal. The lethal injection began at
6:11 p.m. and Henry was pronounced dead eight minutes later.
Turns Self In
Henry had confessed to the Sept. 5, 1993 murders
of Carole Lea Arnold, 57, and her mother, Hazel Rumohr. The women
were stabbed to death in their home in Portland, Tex.
Two months
after the murders, Henry turned himself in to Corpus Christi police
and confessed. Henry told police he killed the two after smoking
marijuana, court documents stated. However, he later claimed he was
innocent. DNA evidence matched Rumohr's blood found in Henry's car.
Also Henry's blood was found in the victims' home, court documents
stated.
False Confession? At trial, Henry pleaded
innocent, despite the confession. A doctor who examined him said
Henry had an "obsessive-compulsive anxiety disorder, combined with
his high intelligence," which led him to fantasize that he was
responsible for the murders. The doctor said Henry panicked when
police began to interrogate him.
The doctor said a panic attack
caused Henry to say whatever he believed would end the questioning
quickly. The doctor also said that based on Henry's performance of
psychological test, Henry was probably not capable of committing the
murders. But others who examined Henry disagreed. A psychologist
countered that Henry might be capable of murder. And, a psychiatrist
expressed doubts that Henry could not remember committing the
murders.
National Coalition to Abolish
the Death Penalty
Robert Lloyd Henry, Texas - Nov. 20, 6:00 PM CST
The state of Texas is scheduled to execute Robert
Lloyd Henry Nov. 20, at 6:00 PM CST, for the 1994 murders of Carol
Lea Arnold and her mother, Hazel V. Rumohr, in San Patricio county.
Mr. Henry, a white man, has no prior history of violence, and
surrendered himself to police with a full confession soon after this
crime was committed.
Mr. Henry has filed claims citing ineffective
assistance of counsel, specifically, the failure of his lawyers to
challenge questionable testimony concerning his mental health.
There has been considerable attention focused on
the quality of defense that Texas provides to its indigent prisoners.
Recent studies have found that more than 100 people on death row
were represented by court appointed lawyers with state bar
disciplinary problems.
Two years ago, Texas legislators passed the Fair
Defense Act, which, in theory, ensures fair standards for poor
defendants. However, a report issued this month by the Equal Justice
Center and the Texas Defender Service found that the “quality of
legal representation for poor defendants comes woefully short of
national standards….the overwhelming majority of [Texas] counties
fail to comply with one or more of the Fair Defense Act’s standards.”
Furthermore, the standards themselves do not comply with the
recommendations set by the American Bar Association.
Texas has executed 310 people since the
reinstatement of capital punishment in 1976. The state has killed 21
people in 2003, and does not offer the sentence of life without the
possibility of parole. Please contact Gov. Rick Perry and urge him
to stop this execution.
Henry, about to die, claims innocence
Relatives
of the two Portland women he killed still ask, 'Why?'
By Tim Eaton - Corpus Christi Times
November 16, 2003
Some days, Kristy Petersen wakes up and thinks
about her two slain family members, wanting to see the man convicted
of their murders die in the Texas death chamber. Other days, she
wants the state to spare the condemned man's life.
Petersen, 27, whose grandmother and great-grandmother
were murdered in 1993 in Portland, has tried to prepare herself to
view the execution Thursday of Robert L. Henry. She said she is
convinced of Henry's guilt, even though he has maintained his
innocence all along. "I go in and out on if I want to see him
executed," said Petersen, who was 17 when the murders occurred. "Today
I want him to be executed because I am sick of it messing with my
life. I have kids, and they don't understand why mommy is upset. And
I can't tell them why mommy is upset."
On days when Petersen opposes the execution, she
said, the voice in her head tells her, "Whether it was him murdering
my grandmother, or the state murdering him, murder is murder."
A San Patricio County jury found Henry guilty of
murdering Hazel Rumohr, 83, and her daughter, Carol Lea Arnold, 57.
The women were found stabbed and bludgeoned to death in a hallway in
their Portland home Sept. 5, 1993. One year later, Henry, a friend
of Arnold's son, was convicted and sentenced to die.
Henry has run out of appeals in the Texas court
system. And still, knowing the exact hour of his almost imminent
death, Henry said in a death-row interview last week that he did not
kill Rumohr or Arnold. Henry said his lawyers and prosecutors
contrived DNA and other evidence linking him to the murders. He said
authorities were desperate to convict someone in the months
following the murder. He was an easy target, he said.
San Patricio County District Attorney Patrick
Flanigan, who prosecuted the case, flatly denied any elicit scheme
to convict Henry. "Some death row inmates are concerned with their
own peace, getting right with their maker and making comments of
remorse," Flanigan said. "Others (like Henry) take the position that
they were wrongly convicted." Grant Jones, one of Henry's defense
lawyers, also denied any conspiracy. He said he and his co-counsel
provided the best defense possible.
Jones said the most damning testimony was from a
former co-worker who said Henry and he had watched a sadistic and
masochistic video the day before Henry went to police about the
case. Paul Johnson also testified Henry told him, in tears, that he
had "made his own bed and would have to lie in it," according to an
October 1994 Caller-Times article. Henry admitted to a police
officer whom he trusted that he had nightmares about the women's
deaths. But he never confessed, he said Wednesday from behind a
glass partition on death row in Livingston. Instead, Henry said, the
police manufactured a confession used against him.
With his thick, salt-and-pepper hair, '50s-era
horned-rim glasses and long fingernails, Henry also discounted the
testimony of his co-worker during the interview. "I've maintained
through the whole appeals process that all I need is another shot,"
Henry said in slow speech. "If I could have a second trial, I could
have torn the case up." Unless the governor steps in, Henry will not
get that chance.
But he said he does not expect the governor to
step in and has begun to come to terms with death by lethal
injection. "There is a sense that things are going to keep going
on," Henry said. He added that he believes in reincarnation and that
the spirit will take another body. "It's kind of a relief," he said.
But he quickly clarified he would rather live and possibly
contribute something to society. "I want to stay around. I've got
family and friends. Even if you are in here, you can still see
them," Henry said. "Once you're gone, that is pretty much it."
But for Petersen and her mother, Linda Arnold
Callais - Arnold's daughter - the end of Henry might not be the end
of their emotional pain. There still is one unanswered question they
hope will not die on the gurney with Henry. "We've always had the
question, 'Why?'" Callais said. "And if he is still proclaiming his
innocence, there will still be no answer to the question."
Callais said from her home in Louisiana that she
does not expect anything from Henry before she and her daughter
attend the scheduled execution. Henry, himself, said last week that
he had not put together any words for the family. "I don't know what
I could say that'll help them," he said.
San Patricio County Man Set to Die for 1993
Double Slaying
By Tori Rowe.
The Huntsville Item
A man convicted of the double murder of his
friend's mother and grandmother is scheduled to die this evening by
lethal injection inside the Huntsville "Walls" Unit. Barring any
last-minute injunctions, Robert Lloyd Henry will become the 22nd
inmate executed in Texas this year. He will be the first inmate
executed in more than two months, one of the longest stretches
without an execution in Texas since the death penalty was reinstated
in 1982.
According to information provided by the Texas
Attorney General's office, Henry, 41, murdered Hazel Rumohr, 83, and
her daughter Carol Arnold, 57, at their Portland, Texas home during
the 1993 Labor Day weekend. Arnold's son and Henry had been friends
when they were teenagers and Henry had kept in contact with the
victims through Christmas cards.
Sometime between the hours of midnight and 9 a.m.
on Sept. 5, 1993, Henry entered the victims' home. There were no
signs of forced entry. He beat and stabbed both victims to death.
Rumohr sustained multiple stab wounds and defense wounds on her
hands and arms. She was also stabbed in the neck, back and chest.
Her cause of death was determined to be a slashing stab wound
beginning near her shoulder which continued through her chest cavity
and punctured her heart.
Arnold was stabbed and beat around the head and
neck areas. The medical examiner described Arnold's face as entirely
bruised, and according to the attorney general's office was
unrecognizable to her neighbor of more than two years who had to
identify Arnold by her jewelry and clothing. A rope or cord was
attached to her leg, indicating a possible intent of bondage. Her
cause of death was determined to be blunt trauma to the head and
brain.
Two months after the murders, Henry turned
himself into the Corpus Christi Police Department stating, "I killed
two people in Portland, and I want to turn myself in to you."
Details of his confession were substantiated by DNA evidence.
Rumohr's blood was found in Henry's car and his blood was found on
the victims' washing machine. Henry admitted he used a knife and had
worn work boots with knobby soles. His work boots matched bloody
footprints found at the crime scene.
Henry was convicted on Nov. 14, 1994, and
sentenced to death. He was 30 years old at the time of the murders
and had no prior criminal history. The execution is scheduled to
take place at 6 p.m.
327
F.3d 429
Robert
Lloyd
Henry, Petitioner-appellant,
v.
Janie Cockrell, Director, Texas Department of
Criminal Justice,
Institutional Division, Respondent-appellee
United States Court of Appeals,
Fifth Circuit.
April 7, 2003
Appeal from the United States
District Court for the Southern District of
Texas.
Before DAVIS, WIENER, and
EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit
Judge:
Texas
prisoner Robert
Lloyd
Henry seeks a
certificate of appealability (COA) to
challenge the district court's denial of his
28 U.S.C. § 2254 petition for a writ of
habeas corpus. Henry
contends that his conviction and death
sentence should be overturned because his
trial counsel rendered ineffective
assistance by presenting the expert
testimony of Dr. George Kramer without
adequately investigating the basis for that
testimony.
Henry was convicted
and sentenced to death for the murders of
Carol Arnold and Hazel Rumohr. Arnold and
Rumohr were, respectively, the mother and
grandmother of a friend from
Henry's teenage
years, and Henry
had been a frequent visitor to the Portland,
Texas home shared by the two women.
Two months
after Rumohr and Arnold were brutally
murdered in their home,
Henry entered the Corpus Christi
Police Department and made a detailed
confession to the murders. This confession
was later substantiated by DNA evidence
matching Rumohr's blood to blood found in
Henry's car and
Henry's blood to
blood found in the victims' home.
At trial,
Henry's defense
counsel presented the expert testimony of
Dr. Kramer in an attempt to explain why
Henry, who claimed
to be innocent, had confessed to the murders.
Dr. Kramer opined that
Henry's obsessive-compulsive anxiety
disorder, combined with his high
intelligence, led him to fantasize that he
was responsible for the murders and that,
once the police began to interrogate him, a
panic attack caused him to say whatever he
believed would end the questioning quickly.
Dr. Kramer further testified that
Henry's performance
on certain psychological tests did not
suggest that Henry
was capable of committing the murders.
According
to Dr. Kramer, this opinion was based on his
own examination and testing of
Henry as well as
his review of evaluations and tests
performed by others. Specifically, he
reviewed a letter written to defense counsel
by Dr. Joel Kutnick, a psychiatrist retained
to evaluate Henry's
competency to stand trial. In this letter,
Dr. Kutnick expressed doubts about
Henry's claim that
he could not remember the events surrounding
the murders and suspected that
Henry was
malingering, a conclusion which Dr. Kramer
ultimately rejected. Dr. Kramer also
reviewed the results of tests performed by
Jim Williams, a contractor who held a
master's degree in psychology.
In his
evaluation, Williams concluded that
Henry might have
been capable of committing the murders.
Although Dr. Kramer incorporated much of
Williams' evaluation into his own report, he
omitted any reference to this conclusion.
The materials prepared by Dr. Kutnick and
Williams were used to impeach Dr. Kramer and
were introduced into evidence without
objection as bases for Dr. Kramer's expert
opinion. These materials were also discussed
by the State's expert at sentencing.1
Henry's conviction
and sentence were affirmed on direct appeal.
In his state habeas petition,
Henry argued,
inter alia, that his trial counsel
should have objected to the admission of the
documents prepared by Dr. Kutnick and
Williams. The state trial court concluded
that Henry's trial
counsel did not render ineffective
assistance. The Texas Court of Criminal
Appeals adopted the trial court's findings
and conclusions and denied relief.
Henry then filed an
application for federal habeas relief in
which he reasserted his failure to object
claim and argued for the first time that
trial counsel was ineffective in relying on
Dr. Kramer's testimony without adequately
investigating the basis for his opinion.
Henry contended
that defense counsel should have discovered
that Dr. Kramer's opinion was based on
materials that contained damaging statements.
After ordering additional briefing and
holding a hearing on Henry's
ineffective assistance claims, the district
court concluded that the failure to
investigate claim was not presented to the
state courts and, thus, was procedurally
barred. The court denied
Henry's failure to object claim on
the merits and refused to grant a COA.
Under the
Antiterrorism and Effective Death Penalty
Act (AEDPA), a petitioner must obtain a COA
before he can appeal the district court's
decision. 28 U.S.C. § 2253(c)(1). A COA will
be granted only if the petitioner makes "a
substantial showing of the denial of a
constitutional right." 28 U.S.C. §
2253(c)(2). In order to make a substantial
showing, a petitioner must demonstrate that
"reasonable jurists would find the district
court's assessment of the constitutional
claims debatable or wrong." Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct.
1595, 146 L.Ed.2d 542 (2000).
When the
district court has denied a claim on
procedural grounds, however, the petitioner
must also demonstrate that "jurists of
reason would find it debatable whether the
district court was correct in its procedural
ruling." Id. As the Supreme Court
made clear in its recent decision in
Miller-El v. Cockrell, 537 U.S. 322, 123
S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003), a
COA is "a jurisdictional prerequisite," and
"until a COA has been issued federal courts
of appeals lack jurisdiction to rule on the
merits of appeals from habeas petitioners."
When considering a request for a COA, "[t]he
question is the debatability of the
underlying constitutional claim, not the
resolution of that debate." Id. at
1042.
In his COA
request, Henry
focuses on defense counsel's alleged
ineffective assistance in failing to
investigate the basis for Dr. Kramer's
testimony.2
"[A]bsent special circumstances, a federal
habeas petitioner must exhaust his state
remedies by pressing his claims in state
court before he may seek federal habeas
relief." Orman v. Cain, 228 F.3d 616,
619-20 (5th Cir.2000); see 28 U.S.C.
§ 2254(b)(1) ("An application for a writ of
habeas corpus on behalf of a person in
custody pursuant to the judgment of a State
court shall not be granted unless it appears
that ... the applicant has exhausted the
remedies available in the courts of the
State....").
Henry argues that
he has met the exhaustion requirement with
respect to his failure to investigate claim
because the facts underlying that claim were
presented to the state habeas courts in the
course of adjudicating his failure to object
claim. Under our precedent, however, "[i]t
is not enough that all the facts necessary
to support the federal claim were before the
state courts or that a somewhat similar
state-law claim was made." Wilder v.
Cockrell, 274 F.3d 255, 259 (5th
Cir.2001) (quoting Anderson v. Harless,
459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3
(1982)). "Indeed, where petitioner advances
in federal court an argument based on a
legal theory distinct from that relied upon
in the state court, he fails to satisfy the
exhaustion requirement." Id. (quoting
Vela v. Estelle, 708 F.2d 954, 958 n.
5 (5th Cir.1983) (internal quotation marks
omitted)). Because Henry
did not provide the state courts with a
"fair opportunity to apply controlling legal
principles to the facts bearing upon his
constitutional claim," Anderson, 459
U.S. at 6, 103 S.Ct. 276, the district court
correctly concluded that his failure to
investigate claim was procedurally barred.
Henry has not
demonstrated that jurists of reasons would
find the district court's procedural ruling
debatable. Accordingly, his request for a
COA is DENIED.
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