Henderson v. Thieret

• Decision Date: 10 November 1988
• Docket Number: No. 87-2975,87-2975
• Parties: Curtis HENDERSON, Petitioner-Appellant, v. James THIERET, Warden of the Menard Correctional Center and Neil F. Hartigan, Attorney General of the State of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 492

859 F.2d 492

Curtis HENDERSON, Petitioner-Appellant, v. James THIERET, Warden of the Menard Correctional Center and Neil F. Hartigan, Attorney General of the State of

Illinois, Respondents-Appellees.

No. 87-2975.

United States Court of Appeals, Seventh Circuit.

Argued June 8, 1988.

Decided Oct. 5, 1988.

As Amended Oct. 7, 1988.

Rehearing and Rehearing En Banc Denied Nov. 10, 1988.

Richard D. Murphy, Jenner & Block, Chicago, Ill., for petitioner-appellee.

David E. Bindi, Office of Ill., Atty. Gen., Chicago, Ill., for respondents-appellants.

Before CUMMINGS, COFFEY and KANNE, Circuit Judges.

KANNE, Circuit Judge.

This appeal from the dismissal of Curtis Henderson's petition for habeas corpus once again thrusts us into the morass of procedural default and waiver.

We hold that a district court may, in considering a Sec. 2255 or Sec. 2254 petition, raise the question of procedural default sua sponte even where the state has failed to raise it. However, the court may not raise and consider procedural default where the state implicitly indicates a desire to waive that defense. Because we reach the merits of Henderson's habeas corpus and because we find that Henderson has failed to show that he was prejudiced, we affirm the district court's dismissal of the petition.

I. FACTS

In 1972, Curtis Henderson was convicted in an Illinois state court of participating in a murder and attempted robbery. At trial, the evidence revealed that Henderson and a co-defendant, Charles Allen, used a sawed-off shotgun to waylay Charles and Janice Hayes, a young married couple, outside a neighborhood grocery store in an attempted robbery. Henderson and Allen followed the Hayes couple out of the grocery store, came up behind them and said, "this is a stickup," then to Mr. Hayes, "if she says anything, just one word, I'm going to let you have it." Henderson and Allen forced Mrs. Hayes into the passenger side of the Hayes' car. While Allen held the shotgun on him, Henderson searched Mr. Hayes for valuables. During the search, Mr. Hayes began to struggle with Allen. At that point, Henderson stopped searching Mr Hayes and started to run. Within a second or seconds after Henderson stopped searching, Allen killed Mr. Hayes with a shotgun blast. Then Allen also ran. Henderson and Allen later regrouped at Henderson's apartment. Henderson was arrested the next day.

Juvenile jurisdiction over Henderson (who was 15 at the time of the crimes) was waived and he was tried as an adult offender. At trial, conducted by Judge Robert E. Cherry, ¹ Henderson was represented by Attorney George Lincoln of the Cook County Public Defender's Office. Following a jury trial, Henderson was convicted of both murder and attempted robbery. His sentencing was scheduled a few weeks after trial and before Judge Cherry, the same judge who had tried the case.

At sentencing, James Sammons, another public defender, substituted for Henderson's trial counsel. Attorney Sammons began his representation of Henderson by admitting that he was unfamiliar with Henderson's case file. Sammons then said:

Needless to say, I think your Honor knows the facts of this case, and I am not too familiar with them. I gather that this boy was not physically present at the moment of the shooting, although....

Sammons continued:

I gather from the notes Mr. Lincoln sent me ² there was no disagreement on his [Henderson's] presence....

....

... I think it should be considered on the sentence that he was not physically present and apparently tried to break and run when it looked like there was going to be physical violence....

(Report of Proceedings before Hon. Robert E. Cherry pp. 677-78).

At this point, Judge Cherry impatient with Sammons' presentation, cut off Sammons and recounted his own version of the facts as he remembered them from the trial. The judge noted that Henderson "unfortunately did not play ball" but played with "sawed-off shotguns instead," (a reference to certain trial testimony ³). The judge then said:

This was a needless killing, done with premeditation because sawed-off shotguns kill people ... a sixteen millimeter [sic] shotgun that tore apart the stomach of the deceased who had a right to life just like these young men have a right to come before this court and ask for mercy and justice at this time.

Sammons then engaged the judge in a discussion about the judge's years in the legislature and gun legislation which prompted a long response from the court including the following:

It's reprehensible and it's unbelievable that in our state we cannot successfully pass a law to protect our citizens from those kind of people getting--the people who would be inclined to commit those kinds of crimes by guns, to pass a law successfully to prohibit them.

(Report of Proceedings p. 679).

At this point, Sammons attempted to steer the court back to the sentencing. But, the court, which by now had become extremely vexed at the state of the law and the nature of the offense he was dealing with, no longer wanted to hear from Sammons. Stating, "I think it's a duty of the court to protect society" and "I hope these young men can repent in whatever time they have to spend in jail," the court sentenced Henderson to forty to eighty years imprisonment.

With minimal input by Sammons, the sentencing was over. Sammons did not address any aspect of Henderson's pre-sentence report. Sammons did not call any witnesses on Henderson's behalf and did not request that Henderson be permitted to address the court. He had done no independent investigation of Henderson or his family.

After Henderson was sentenced to forty to eighty years for the murder and five to ten years for the attempted robbery, neither Lincoln nor Sammons filed a motion to reduce Henderson's sentence. When questioned about this at their depositions, both Lincoln and Sammons stated that they did not consider the sentence serious, under the state of the law at the time, because:

at the time in a juvenile case 40 to 80 years did not necessarily mean that he would serve it because the law on juveniles at the time that a long sentence would be imposed, and ... if the man behaved himself at the Youth Commission, he would be discharged without having to serve a sentence.

(Deposition of Lincoln p. 17).

In short, neither Lincoln nor Sammons thought Henderson would serve his time.

After losing his direct appeal and his petition for postconviction relief, Henderson filed this (his second petition for habeas relief ⁴) alleging: (1) ineffective assistance of counsel at pre-trial; (2) ineffective assistance of counsel at trial due to counsel's failure to investigate; (3) ineffective assistance of counsel at sentencing; (4) ineffective assistance of counsel on direct appeal--which did not include a claim that appellate counsel should have raised ineffective assistance at trial and sentencing; and (5) ineffective assistance of counsel at the post-conviction hearing--which did not include a claim that post-conviction counsel should have raised a claim of ineffective appellate assistance. 671 F.Supp. 1193.

The district court ruled that Henderson waived the claims of ineffective assistance of counsel at pre-trial, trial, and sentencing because he failed to raise those claims on direct appeal. The court acknowledged that if Henderson could show cause for his failure to raise those claims on direct appeal, his procedural default would not act as a bar to his claims.

One possible reason for Henderson's procedural default could have been ineffective assistance of appellant counsel, as alleged in the second claim of Henderson's habeas petition. However, in that claim, Henderson did not make any allegations about appellate counsel's failure to raise the ineffectiveness of counsel at trial, pre-trial, and sentencing. Thus, the district court found appellate counsel's ineffectiveness could not constitute cause for Henderson's procedural default with respect to the claims concerning trial, pre-trial, and sentencing.

Moving up a tier, the district court next found that Henderson waived his claims of ineffective assistance on direct appeal because he failed to raise that claim at the subsequent post-conviction proceeding. Nor was post-conviction counsel's ineffectiveness an alleged basis for Henderson's failure to raise his claim at the post-conviction proceeding.

Finally, moving to the top rung, the district court found that Henderson waived his claim of ineffective assistance at the post-conviction proceeding by failing to raise that issue during the post-conviction appeal.

In sum, Henderson failed to allege that counsel's ineffectiveness at each succeeding level constituted "cause" for his failure to attack preceding counsel's effectiveness. Thus, Henderson had not shown cause for his procedural defaults.

The district court's analysis might have been a proper basis for dismissing Henderson's habeas petition on appeal but for one important fact. The state attorney general, in responding to Henderson's petition, never raised the issue of procedural default except with regard to Henderson's claim of ineffective assistance of counsel on direct appeal. Thus, Henderson, who on appeal is only interested in preserving his claim that he received ineffective assistance of counsel at sentencing, protested to the district court that any defense by the state based on procedural default had been waived.

In addressing Henderson's contention, the district court ruled that although the government had only raised waiver as a bar to one claim, it had orally represented that it was not waiving that defense as to any of Henderson's claims. In addition, even if the state forfeited its waiver defense, the district court ruled it was not bound by that forfeiture.

Henderson now appeals the district court's denial of his habeas petition arguing first, that the district court impermissibly raised the issue of waiver; second, that waiver, if it...