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Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: November 26, 1980
Date of birth: 1942
Victim profile: Willa Dean O'Neal (used-furniture store owner)
Method of murder: Shooting (.22-caliber handgun)
Location: Sebastian County, Arkansas, USA
Status: Executed by lethal injection in Arkansas on July 8, 1998

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 the killing.

When asked if he had a final statement, Henderson said: "Yes sir, I am an innocent man. God forgive you for what you do."


Arkansas executes man on victim's 68th birthday

'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 added.

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 do."

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 $41.

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 before.

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 attack.

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 mean man."

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 mother.

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 interviews.

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 killing.

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, Appellee,
Willis Sargent, Warden, Arkansas Department of Correction, Appellant.

No. 901550

Federal Circuits, 8th Cir.

February 19, 1991

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

LAY, Chief Judge.

The State of Arkansas appeals the district court's1 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 death.2 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 her husband.

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 furniture store.3 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 gun.

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 murder.

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 to death.



In considering 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.4 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).5 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. [T.460]

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 time-barred.

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. denied, 485 U.S. 907 , 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988).

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 state courts.

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).6 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).7 Bell v. Lockhart, 795 F.2d 655, 657 (8th Cir.1986).

Under Strickland, 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.

Specifically, the 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 mother. [T.43]

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 the murderer.8 [T.358] The district court also heard testimony concerning four other possible suspects.9

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 substantial.

Counsel's decision not to investigate and pursue this evidence cannot be justified as a strategic decision.10 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 Cir.1990).

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)), cert. denied, 456 U.S. 910 , 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982).

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 use it.

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.11

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).12

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 capital murder.13

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 surprising manner.

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 compelling.

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 conviction.14


1 The Honorable United States District Judge G. Thomas Eisele, Chief Judge for the Eastern District of Arkansas

2 Henderson brought an unsuccessful direct appeal to the Arkansas Supreme Court challenging the sufficiency of evidence, constitutionality of the Arkansas death penalty statute, and various evidentiary rulings. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26, cert. denied, 464 U.S. 1012 , 104 S.Ct. 536, 78 L.Ed.2d 716 (1983). Henderson then brought a Rule 37 petition arguing that his trial counsel was ineffective in failing to 1) request a jury instruction for first-degree murder, 2) submit evidence of Henderson's impaired mental condition during the penalty phase, and 3) object to cross-examination of defense witnesses during the penalty phase. The Arkansas Supreme Court denied the Rule 37 petition. Henderson v. State, 281 Ark. 406, 664 S.W.2d 451 (1984). Henderson then brought his petition for a writ of habeas corpus to the district court

3 Testimony at the evidentiary hearing before the district court indicated that two sheets of paper were found, one by police on the day of the murder and one by Clarence Wilson, a store employee, the next day. [T.62] The sheet of paper found by police was traced to Henderson. It is unclear whether police ever determined the origin of the sheet of paper discovered by Clarence Wilson

4 The federal district court described trial counsel's performance at the penalty phase as follows:

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 circumstances.

Henderson v. Sargent, No. PB-C-84-151 at 458 (Mar. 5, 1990) (record of proceedings).

5 The Smittie court established the following analysis:

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 (citations omitted).

6 The Fourth, Seventh and Eleventh Circuits have addressed this issue. The Fourth Circuit has held that ineffectiveness of post-conviction counsel cannot constitute cause. Coleman v. Thompson, 895 F.2d 139, 144 (4th Cir.), cert. granted in part, --- U.S. ----, 111 S.Ct. 340, 112 L.Ed.2d 305 (1990). The Seventh Circuit has in dicta expressed varying views. Compare Madyun v. Young, 852 F.2d 1029, 1033 n. 2 (7th Cir.1988) (ineffectiveness of counsel in collateral proceeding may constitute cause) and Morrison v. Duckworth, 898 F.2d 1298, 1301 (7th Cir.1990) (might constitute cause) with Buelow v. Dickey, 847 F.2d 420, 426 (7th Cir.), cert. denied, 489 U.S. 1032 , 109 S.Ct. 1168, 103 L.Ed.2d 227 (1988) and Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir.1990) (cannot constitute cause). The Eleventh Circuit held that ineffective assistance in a collateral proceeding cannot constitute cause, but that decision has been vacated and rehearing in banc has been granted. Toles v. Jones, 888 F.2d 95, 99-100 (11th Cir.1989) (per curiam), vacated pending rehearing in banc, 905 F.2d 346 (1990); see also Johnson v. Dugger, 911 F.2d 440, 458 (11th Cir.), vacated pending rehearing in banc, 920 F.2d 721 (1990)

7 We recognize that Henderson's claim of ineffectiveness of post-conviction counsel may constitute cause for surmounting the procedural bar, but cannot constitute grounds for relief from his conviction because Henderson has no Sixth Amendment right to counsel in a state collateral proceeding. See Simmons, 915 F.2d at 376. The Simmons court analyzed ineffectiveness of post-conviction counsel under the Strickland standard, and we find use of that standard logical

8 Although not discoverable by trial counsel, Bob O'Neal made one other inculpatory statement while watching the coroner testify at Henderson's trial. The coroner was testifying that the victim had been sitting at the time she was shot. Bob O'Neal turned to Mr. Hudspeth, sitting next to him, and said "No, that's not the way it was. She dove out of the chair to miss the bullet." [T.69] This statement has never been explained by the state. Rule 37 counsel could have discovered the statement

9 John Hysell knew the victim and was said to be capable of murder. [T.167] Although Hysell lived in Kansas, he apparently robbed a store in Kansas and was seen in Fort Smith pawning coins two days after the murder. [T.166] Harry Anderson, a man with a criminal history and known to carry guns, was seen loitering "nervously" across the street from the store on the day of the murder. [T.162-64] Ollie Brown, the man named as the murderer by Henderson in his recanted statement to police, and Ruby Kiser, the defendant in the victim's lawsuit, also were possible suspects

10 Cf. Simmons, 915 F.2d at 377 (stating that "[a conflict of interest claim] should rarely be abandoned, and [is] not the kind of claim ... that can, in normal circumstances, reasonably be winnowed out in the process of selecting grounds counsel believes to be most promising")

11 Contrary to the state's argument, Glenda Fleetwood did not provide an alibi for Bob O'Neal. She placed him alone with the victim in the furniture store at the time of the murder, yet counsel did not even attempt to interview her

12 The doctrinal basis for the actual innocence exception and also the "ends of justice" exception for successive habeas petitions derives at least in part from Judge Friendly's frequently cited article advancing an innocence-based system for reviewing criminal convictions. Friendly, Is Innocence Irrelevant?: Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970); see also Smith, 477 U.S. at 539, 106 S.Ct. at 2668; Kuhlmann, 477 U.S. at 454, 106 S.Ct. at 2627. Judge Friendly described the actual innocence standard as follows:

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 his guilt.

38 U.Chi.L.Rev. at 160 (emphasis added)

13 Although the district court did not explicitly address the actual innocence exception, its findings suggest that the court would have found that the exception applied:

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 his acquittal.


14 Given our decision to vacate Henderson's conviction on the guilt phase claim, it is unnecessary to review the district court's grant of the writ for ineffectiveness of counsel during the penalty phase


United States Court of Appeals
For the Eight Circuit

No. 96-2709

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 murder.

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 Henderson again.

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 statement.

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 omitted). 

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 Counsel

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. 1996).

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 claim.

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 issue.


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) (No. 96-6298).



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