US ex rel. Henderson v. Thieret

• Decision Date: 23 October 1987
• Docket Number: No. 84 C 7475.,84 C 7475.
• Parties: UNITED STATES of America ex rel. Curtis HENDERSON, Petitioner, v. James THIERET, Respondent.
• Court: U.S. District Court — Northern District of Illinois

671 F. Supp. 1193

UNITED STATES of America ex rel. Curtis HENDERSON, Petitioner, v. James THIERET, Respondent.

No. 84 C 7475.

United States District Court, N.D. Illinois, E.D.

October 23, 1987.

COPYRIGHT MATERIAL OMITTED

Jeffrey E. Colman, Richard D. Murphy, Jr., Jenner & Block, Chicago, Ill., for petitioner.

David E. Bindi, Mark Rotert, Asst. Attys. Gen., Neil F. Hartigan, Atty. Gen., Crim. Appeals Div., Chicago, Ill., for respondent.

OPINION

ZAGEL, District Judge.

I

Curtis Henderson, convicted in state court of murder and attempt robbery, seeks a writ of habeas corpus.

The crimes occurred on an October night in 1972. The victim, Charles Hayes, and his wife were shopping in a grocery store. Four youths (Henderson, Allen, Bardney and Davis) entered the store and remained until the Hayeses departed. As the Hayeses were about to enter their automobile parked nearby, two youths approached them, one of whom was armed with a sawed-off shotgun, and told Mrs. Hayes to get into the car which she did. One youth pointed a shotgun at Mr. Hayes while the other searched Mr. Hayes's pockets. All three were standing near the passenger side of the car where Mrs. Hayes sat. As he bent down, she recognized the youth searching her husband as one of the boys who had been in the store. Then Mr. Hayes tried to grasp the shotgun, but the boy holding it shot and killed him. After the shot was fired both youths fled. The next day, Mrs. Hayes viewed two separate lineups and identified Henderson each time as the one who had searched her husband. She did not identify Allen, Bardney or Davis.

It was undisputed that all four youths were near the scene of the crimes shortly before they occurred and that all four fled the scene after they occurred and that they met at Henderson's home a short time later.

Henderson, Bardney and Davis were arrested the following evening despite their attempt to flee when police approached. They admitted being in the store prior to the shooting but denied involvement. They implicated Allen.

The versions of other events given by the four differ.

Allen, who was tried and convicted with Henderson, told the police that Bardney shot Hayes and said at trial that he saw Bardney with a sawed-off shotgun a few minutes before the slaying. He also testified that some unidentified person was with Bardney at the time of the shooting and it was not Henderson. At the time of his, Allen's, arrest, two sawed-off shotguns were found in the apartment where he was sleeping.

Davis, who is Henderson's nephew, testified that he saw Bardney carrying a sawed-off shotgun before the incident and that Bardney and Allen followed Hayes and his wife out of the grocery store. He further said that Bardney admitted shooting Hayes, the admission occurring after they had returned to Henderson's apartment.

Bardney, a People's witness, testified that Allen shot Hayes though he admitted he owned the shotgun that Allen carried.

Henderson testified that he was inside the grocery store when he heard a shotgun blast, that he and Davis ran out and saw Hayes on the ground, and that they ran home where they found Allen and Bardney, already arrived.

Mrs. Hayes contradicted Henderson. She identified him in open court and police line-ups as the one who searched her husband. She stated she was not in a position to see the man who held the gun.

The jury convicted Henderson (and Allen). He was sentenced to 40 to 80 years for murder and 5 to 10 years for attempt robbery.

He appealed and raised six points against his conviction and sentence: (1) denial of his statutory right to trial within 120 days from arrest (Ill.Rev.Stat. ch. 38, sec. 103-5 (1971)); (2) denial of his motion for severance of his trial from that of Allen; (3) improper expression of opinion by the prosecutor during closing argument; (4) failure to prove his guilt beyond a reasonable doubt; (5) improper passage of sentences for both crimes since the crimes were not separable; and (6) passage of a sentence too severe to be consistent with the state constitutional provision setting forth sentencing criteria. The Appellate Court rejected these claims and affirmed the convictions and sentences. People v. Henderson, 39 Ill.App.3d 164, 351 N.E.2d 225 (1st Dist. 1976). A pro se petition for leave to appeal was denied by the Supreme Court of Illinois on September 29, 1976.

On November 16, 1979 Henderson sought state post-conviction relief pursuant to Ill.Rev.Stat. ch. 38., art. 122 (1985). He raised again the claim of denial of statutory speedy trial to which he added a claim that his federal speedy trial rights were violated.

A further paragraph, improperly phrased, contained essentially a claim that evidence adduced at trial was prejudicial to the extent it denied him his federal constitutional rights. The Cook County Public Defender who had represented Henderson at trial and on appeal was appointed to represent him. On July 16, 1980, the Assistant Public Defender informed the post-conviction hearing court that Henderson complained to her thirteen days before that his trial counsel failed to properly investigate his case and talk to certain witnesses that Henderson mentioned to trial counsel, specifically "a store clerk he felt would have been helpful to his case." Henderson, she said, "did not think the Public Defender ever contacted him." (Petition Exhibit C at 3, 8-9). She then asked leave to withdraw because she and trial counsel were from the same Public Defender's Office and, under state law, she had a conflict of interest. The post-conviction court rejected the request to withdraw and considered the claim of incompetent counsel. He denied it on the apparent grounds that there was no evidence that trial counsel didn't talk to the store clerk and that if he had, "it might have been his judgment that if he put him on the witness stand that he would not help ... the defense." The Assistant Public Defender requested, and was granted, time to examine the trial transcript to determine whether additional issues should be raised. On October 30, 1980, she appeared again and stated that, after examining the trial transcript, she had no wish to amend the petition. She restated for the record the claims made at the previous hearing and the rulings thereon, doing so because the trial judge had died. The Court then denied the post-conviction petition.

Henderson appealed this denial and the State Appellate Defender was appointed to represent him. On appeal his sole claim was that he was entitled to post-conviction counsel other than the public defender when he asserted that the public defender who represented him at trial had been incompetent. The Appellate Court found the argument unpersuasive in light of People v. Neely, 85 Ill.App.3d 1016, 41 Ill.Dec. 316, 407 N.E.2d 814 (1st Dist.1980). The Court also found that Henderson conceded post-conviction counsel demonstrated compliance with the obligations set forth by state Supreme Court rules. Finally, in its unpublished Rule 23 Order affirming the denial of the petition the Court said:

It is well established that errors in judgment or trial strategy do not establish incompetency of trial counsel. (People v. Murphy (1978) 72 Ill.2d 421 21 Ill.Dec. 350, 381 N.E.2d 677.) Incompetency of counsel requires a showing that trial counsel was actually incompetent in the performance of his duties as trial attorney in that substantial prejudice resulted to defendant without which the result of the trial probably would have been different. (People v. Talley (1981), 97 Ill.App.3d 439, 443 52 Ill.Dec. 875, 422 N.E.2d 1084.) Defendant's statement to the assistant public defender appointed to represent him in the post-conviction proceedings, that a store clerk could have testified that he was inside the store at the time of the shooting, was not a sufficient allegation of a denial of a constitutional right. The assistant public defender suggested in the trial court during the post-conviction proceedings that it would have been appropriate, many years after the shooting, to begin a search for the store clerk and, presumably, to amend the post-conviction petition accordingly. However, as the trial court noted, the decision whether to call such a witness would have been a question of trial strategy. Defendant himself did testify at trial that he was in the store at the time of the shooting, but his testimony was contradicted by the testimony of at least one accomplice and by an eyewitness, the victim's wife. Since any decision to call such a witness clearly is one involving a matter of trial strategy and the credible testimony of one witness is sufficient to sustain a conviction if the witness had an adequate opportunity to observe the accused (People v. Henderson 1976, 39 Ill.App.3d 164, 170, 351 N.E.2d 225), the post-conviction petition was properly dismissed for failure to allege a substantial violation of constitutional rights. Under these circumstances, we find no inadequacy in the representation of defendant by another assistant public defender in the post-conviction proceedings.

Prior to filing his state post-conviction petition, Henderson sought a writ of habeas corpus from this Court. United States ex rel. Henderson v. Franzen, No. 79 C 588 (N.D.Ill. June 21, 1979). He raised the same issues he raised on his direct appeal except that he omitted the claims about improper sentence. On June 21, 1979 Judge Marshall considered the merits of the claims and dismissed the petition. Henderson was not represented by counsel at this proceeding and did not seek to appeal the action of the District Judge.

In July, 1984, Henderson filed a second petition for the writ in the Southern District of Illinois which petition was transferred and received here on August 29, 1984. Counsel was appointed for petitioner and on January 16, 1986 an amended petition for the writ was filed. It is this amended petition (the "petition") which is before the Court for decision.

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