263 F.3d 708 (7th Cir. 2001), 00-2091, Whitehead v Cowan

Docket Nº:00-2091
Citation:263 F.3d 708
Party Name:John Whitehead, Petitioner-Appellant, v. Roger D. Cowan, Warden, Menard Correctional Center, Respondent-Appellee.
Case Date:August 29, 2001
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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263 F.3d 708 (7th Cir. 2001)

John Whitehead, Petitioner-Appellant,


Roger D. Cowan, Warden, Menard Correctional Center, Respondent-Appellee.

No. 00-2091

In the United States Court of Appeals, For the Seventh Circuit

August 29, 2001

Argued June 19, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 5013--Ann Claire Williams, Judge.

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Before Bauer, Manion, and Kanne, Circuit Judges.

Manion, Circuit Judge.

Petitioner John Whitehead was convicted by a jury in Illinois state court of murder and aggravated kidnaping. Whitehead was then sentenced to death by the trial judge. The Illinois Supreme Court affirmed his conviction on direct appeal, and the United States Supreme Court denied a petition for writ of certiorari. Whitehead then filed several petitions for post-conviction relief in state court. The trial court denied these petitions, and the Illinois Supreme Court affirmed. Again the United States Supreme Court denied a petition for writ of certiorari. Whitehead then filed a petition seeking a writ of habeas corpus under 28 U.S.C. sec. 2254 alleging eleven constitutional errors during his state court trial and appeal. The district court denied the petition, and Whitehead appeals. We affirm.


The first Illinois Supreme Court opinion provides a thorough summary of the facts in this case, which we excerpt below:

Vickie Wrobel, a five-year-old girl who lived with her parents in Joliet, was missing from the family residence during the evening of August 9, 1982. While searching for her, Vickie Wrobel's mother asked the Wrobels' tenant, Esther Harmon, whether she had seen Vickie. Esther Harmon, her daughter, LeAllen Starbuck, and LeAllen's husband, William Starbuck, lived with the defendant

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in a house adjacent to the Wrobels' tavern and home. On speaking with Vickie Wrobel's mother, Esther Harmon discovered that both the defendant and the Harmon car, which the defendant sometimes used with her permission, were also missing. Local police agencies were notified that the defendant was suspected of stealing Esther Harmon's car and that he might have taken Vickie Wrobel.

Sometime after midnight the following morning, the defendant telephoned the Wrobels' tavern and spoke with LeAllen Starbuck. He told LeAllen that he was calling from Samuel and Jeanine Starbuck's in Godley; Jeanine is the defendant's sister and is married to William Starbuck's brother. LeAllen advised the defendant to stay at his sister's home, and she then told the police where the defendant was located.

Shortly after LeAllen's call, area police arrived at the Starbuck residence in Godley. The officers saw Esther Harmon's automobile parked in front of the residence, and from outside the car officers observed clothing on the front seat of the car that matched the description of clothing worn by Vickie Wrobel when she disappeared the previous evening. Samuel Starbuck let the officers into his living room, where the defendant was seated. The defendant admitted to being in possession of Esther Harmon's car, and he was arrested for auto theft. The defendant was questioned by two detectives of the Joliet police department from about 4 a.m. until 6:30 a.m. that day. He was generally responsive, but when questioned concerning the whereabouts or condition of Vickie Wrobel, the defendant made no statements other than "I can't" or "I can't tell you." The interrogation ended when the defendant indicated a desire to consult with an attorney.

An hour or so later, at approximately 7:30 a.m. on August 10, 1982, railroad workers discovered a naked body, later identified as the body of Vickie Wrobel, floating in the Mazon River. An autopsy revealed that the victim had been sexually molested and had been killed by strangulation and drowning. Physical evidence recovered alongside the river included articles of the victim's clothing and a shirt later identified as the shirt worn by the defendant on the evening of August 9. In the shirt pocket there was a lottery ticket with writing that a handwriting analyst identified as the defendant's.

Additional physical evidence implicating the defendant was found in Esther Harmon's automobile. Some of the victim's clothing was on the front seat. Also found was a plastic drinking cup similar to that given Vickie Wrobel by the Wrobels' bartender shortly before the girl disappeared. The armrest and passenger door panel were stained with a fluid that was determined to have a chemical composition consistent with the nonalcoholic "cocktail" served to Vickie Wrobel in the plastic cup. The floormats in Esther Harmon's car were damp, and vegetation like that growing along the Mazon River was also found on the floor area in front of thedriver's seat. Other evidence produced at trial placed the defendant in the general vicinity where Vickie Wrobel was playing immediately prior to her apparent kidnaping.

While in the custody of the Joliet police department on the 10th and 11th of August, the defendant made eight statements to investigating officers in which he admitted kidnaping, sexually assaulting, and killing Vickie Wrobel. His description of how he sexually abused the victim was consistent with the autopsy report, and the defendant's claim of having forced Vickie Wrobel to drink beer

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was also substantiated by the post- mortem examination.

People v. Whitehead, 508 N.E.2d 687, 689- 90 (Ill. 1987) ("Whitehead I").

In July 1983, Whitehead was convicted in the Circuit Court of Grundy County of murder and aggravated kidnaping. Whitehead waived his right to have a jury determine his sentence, and the trial judge sentenced Whitehead to death. On February 20, 1987, the Illinois Supreme Court affirmed on direct appeal. The United States Supreme Court denied a petition for writ of certiorari. Whitehead's subsequent petitions for state post-conviction relief were also denied, and on February 15, 1996, the Illinois Supreme Court again affirmed. Once again, the United States Supreme Court denied a petition for writ of certiorari.

On May 20, 1997, Whitehead filed a petition for writ of habeas corpus in federal district court. This petition was amended on August 10, 1998, and alleged eleven grounds for relief. On March 30, 2000, the district court denied habeas relief, and on April 13, 2000, Whitehead filed a motion for certificate of appealability. The district court denied the motion. On April 26, 2000, Whitehead appealed the denial of habeas relief, and this case was docketed. On May 15, 2000, Whitehead sought a certificate of appealability from this court, which was granted on five issues. Whitehead claimed his inculpatory statements were admitted in violation of the Fifth and Fourteenth Amendments; that he was not tried before a fair and impartial jury in violation of the Fifth and Fourteenth Amendments; that there was prosecutorial misconduct in violation of the Fifth and Fourteenth Amendments; that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments; and that there was an invalid waiver of a sentencing jury in a capital case, in violation of the Fourteenth Amendment.


As the habeas petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. sec. 2254, the standard of review contained therein governs Whitehead's claims. See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). The relevant portion of the AEDPA provides:

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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-- . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; . . . .

28 U.S.C. sec. 2254(d)(1).

As the Supreme Court has explained, a state court decision is "contrary to" clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is an "unreasonable application" of clearly established Supreme Court precedent when "the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case," or "the state court either

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unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407.

On appeal from a ruling on a petition for habeas relief, we review the district court's findings of fact for clear error and its rulings on issues of law de novo. See Denny v. Gudmanson, 252 F.3d 896, 900 (7th Cir. 2001). If the case falls under the "contrary to" clause of sec. 2254(d)(1), then we review the state court decision de novo to decide what is clearly established law as determined by the Supreme Court and whether the state court decision was "contrary to" that Supreme Court precedent. See id. If, on...

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