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Click here for the full text of this decision FACTS:Cathy Henderson, convicted in 1995 of capital murder of a child under age 6 (capital child murder), and sentenced to death, seeks habeas relief pursuant to issues for which the district court granted her a certificate of appealability (COA). Henderson was not charged with capital child murder for more than two weeks after being charged with kidnapping the child. HOLDING:Affirmed. The first certified issue in the district court COA order is whether “Henderson’s Sixth Amendment rights were violated when state law enforcement officials engaged in tactics that compromised the confidentiality of Henderson’s communications with her lawyer.” Exhaustion of a claim in state court is required by the Antiterrorism and Effective Death Penalty Act of 1996 for a federal court to consider the claim. 28 U.S.C. �2254(b)(1)(A). At oral argument here, Henderson’s appointed counsel conceded this claim had not been exhausted in state court. The next certified issue in the COA order is whether Henderson allegedly received pre-trial ineffective assistance of counsel from: the Kansas City assistant federal public defender, for “reveal[ing] a privileged communication to law enforcement officials that Henderson had drawn a map indicating the location of the victim’s body”; Nona Byington, Henderson’s counsel in Texas, who “also informed law enforcement officials Henderson had drawn a map of where the victim was buried”; Steve Brittain, for failing to “adequately safeguard Henderson’s rights when he attempted to plea bargain on behalf of Henderson”; and Linda Icenhauer-Ramirez, who “did not adequately assist [Henderson] on the matter of the map.” Relying on Texas v. Cobb, 532 U.S. 162 (2001), which held an accused’s Sixth Amendment right to counsel does not attach to crimes “factually related” to the crime for which the defendant has been charged, the district court rejected the ineffective assistance of counsel claim. When faced subsequently with the lower certificate-of-appeal standard, however, the district court COA order stated the Cobb rule was “harsh” and could encourage “gamesmanship” by authorities. For this ineffective assistance claim, the state-habeas trial court entered findings of fact and conclusions of law, including that each of the four attorneys was not constitutionally ineffective. The CCA adopted them in denying habeas relief. The adopted bases for its holding need not be addressed in deciding, under AEDPA, whether its decision was unreasonable. Henderson had no Sixth Amendment right to counsel for the child-murder charge when, prior to that charge, each of these four attorneys acted on her behalf concerning the kidnapping charge. Therefore, the CCA’s habeas-relief denial is not unreasonable under AEDPA. Unlike the Fifth Amendment right against self-incrimination, the Sixth Amendment right to counsel is offense-specific. The Supreme Court, in Cobb, clarified that its “decision in [McNeil v. Wisconsin, 501 U.S. 171 (1991)] . . . meant what it said . . . [:] the Sixth Amendment right is”offense specific.’ ” The court explained that several federal and state courts had incorrectly read into McNeil’s offense-specific rule an exception for crimes factually related to the charged offense. Cobb provided one context in which the Sixth Amendment right attaches for other offenses, holding: “ even if not formally charged, [they] would be considered the same offense under the Blockburger [v. United States, 284 U.S. 299 (1932) double-jeopardy] test.” Like the burglary and capital murder offenses in Cobb, the kidnapping and capital child-murder charges here constitute separate offenses under Blockburger. Cobb postdates Henderson’s conviction becoming final in 1998. Pursuant to Teague v. Lane, 489 U.S. 288 (1989), a new rule of constitutional law shall not be applied retroactively to cases on collateral review unless one of two exceptions, not applicable here, are met. “Henderson does not contend Teague bars the State from relying on Cobb. Also, that decision does not impose a barrier where a case merely explains or clarifies an earlier Supreme Court decision. Henderson seeks an exception to Cobb, claiming her factual situation presents the”parade of horribles’ that did not occur in Cobb. . . . Teague arguably bars Henderson’s attempt to create a new-rule exception to Cobb. In any event, her factual situation would not fit in such a parade.” The district court granted a COA for whether Henderson’s Sixth Amendment right to effective assistance of counsel was violated under the rule announced in Massiah v. United States, 377 U.S. 201 (1964), when the police placed her under “fire watch” (a procedure whereby inmates monitor another inmate for safety reasons) in early February 1994, prior to the Feb. 9 murder charge, in order to obtain incriminating statements from her. As in Cobb, the Sixth Amendment right to counsel under Massiah is offense-specific; this right cannot be violated until Sixth Amendment protections attach. Because Henderson’s offense-specific Sixth Amendment right to counsel for capital child murder had not attached when she communicated with another inmate, no Massiah violation could occur. Henderson claims ineffective assistance because, in conducting her direct appeal, appellate counsel failed to notice a span of pages missing from the record, and thus failed to include them in the record on appeal for the CCA. The missing pages contained an in-camera colloquy, during the Feb. 7, 1994, map hearing, between the state trial judge and Henderson’s counsel, Byington, in which the judge expressed his belief the child was dead. On Feb. 8, 1994, the judge compelled production of any maps in Byington’s possession on the basis that Henderson was represented by the attorneys present at the hearing and that, despite the attorney-client privilege, any maps were created to aid law enforcement. Henderson deems this missing portion of the record critical, claiming it would have shown the unreasonableness of any belief by law-enforcement officials that the child was still alive. This was the basis for seeking unsuccessfully in 1998 to have the CCA withdraw its mandate following its affirmance on direct appeal. This claim was next raised in the state-habeas application. “Pursuant to our restricted AEDPA review, the state-court decision on this IAC claim was not unreasonable because, in counter-factually determining the likely outcome, the court concludes the TCCA on direct appeal would have reached the same conclusion had it possessed the missing transcript.” OPINION:Rhesa Hawkins Barksdale, J.; Jones, C.J., Barksdale and Prado, J.J.

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