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Henderson v. Walls

July 09, 2002


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 1079--John A. Nordberg, Judge.

Before Coffey, Diane P. Wood, and Evans, Circuit Judges.

The opinion of the court was delivered by: Diane P. Wood, Circuit Judge.

ARGUED JUNE 11, 2001

In 1987, a jury convicted Demetrius Henderson of kidnapping 16-year-old Kimberly Boyd, gang raping her, and then, to keep her from reporting the rape, killing her by stabbing her over 40 times and repeatedly running her over with a car. (A full recitation of the gruesome details, including the identities of the other three participants in the rape, can be found in People v. Henderson, 568 N.E.2d 1234 (Ill. 1990).) After Henderson waived his right to a sentencing jury, the trial judge conducted a sentencing hearing and determined that Henderson was eligible for the death penalty because he was over 18 years old at the time of the murder and he had killed Boyd in the course of another felony. The judge then found that there were no mitigating factors and sentenced Henderson to death. He also imposed sentences of 45 years for the aggravated criminal sexual assault and 10 years for the aggravated kidnapping. Henderson's execution has been stayed pending his appeals and petitions for post-conviction relief.

On direct appeal, the Illinois Supreme Court upheld Henderson's convictions and death sentence, although it reduced the prison term for the aggravated criminal sexual assault from 45 years to 30 years. People v. Henderson, 568 N.E.2d 1234. It denied his petition for a rehearing, and the United States Supreme Court denied Henderson's petition for a writ of certiorari. Henderson v. Illinois, 502 U.S. 882 (1991).

Henderson then filed a petition with the Circuit Court of Cook County for relief pursuant to the Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. The court considered the allegations raised in the petition, heard arguments, and concluded that Henderson had failed to establish that he was entitled to an evidentiary hearing. The Illinois Supreme Court agreed that the post-conviction petition had no merit. People v. Henderson, 662 N.E.2d 1287 (Ill. 1996). Once again, that court denied Henderson's petition for rehearing and the United States Supreme Court denied certiorari. Henderson v. Illinois, 519 U.S. 953 (1996).

The case now before us began on February 8, 1997, when Henderson filed a seven-count petition in the district court seeking a writ of habeas corpus under 28 U.S.C. § 2254. His petition alleged, among other things, that (1) his trial counsel was ineffective in failing to present medical evidence in support of his claim that he was physically coerced into confessing to the crimes; (2) he did not knowingly and intelligently waive his right to a sentencing jury; and (3) the prosecution discriminated against African-Americans in using its peremptory challenges. The district court rejected Henderson's first two claims but granted relief based on its finding that the Illinois Supreme Court had unreasonably applied Batson v. Kentucky, 476 U.S. 79 (1986), when it categorically refused to consider the similarities between excluded African-American venire members and accepted non-African-American jurors in its evaluation of Henderson's Batson argument. U.S. ex rel. Henderson v. Page, No. 97 C 1079, 2000 WL 1466204 (N.D. Ill. Sept. 29, 2000). The court ordered that the writ of habeas corpus would be granted unless the State of Illinois holds a new hearing on Henderson's Batson claim within 120 days of the date of the order.

The State appealed from the district court's conditional grant of the writ on the basis of the Batson violation. Henderson then cross-appealed after receiving a certificate of appealability from this court on the other two issues mentioned above: (1) whether he knowingly and intelligently waived his right to a sentencing jury since he was not informed that the jury must unanimously determine eligibility for the death sentence; and (2) whether trial counsel denied Henderson effective assistance of counsel at the suppression hearing in failing to present corroborating medical testimony that his confession was coerced. The later two errors, he argues, require additional relief not encompassed within the district court's order.


As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d) allows a federal court to grant a petition for a writ of habeas corpus only if the state court's adjudication of the relevant claims "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." (The post-1996 version of § 2254 applies because Henderson filed his petition after the effective date of AEDPA. See Gosier v. Welborn, 175 F.3d 504, 506 (7th Cir. 1999).) Even under these standards, our review of the district court's decision to grant or deny habeas petitions is de novo. Hall v. Washington, 106 F.3d 742, 748 (7th Cir. 1997). AEDPA has not altered this court's review of a district court's legal conclusions. In conducting our de novo review, however, the question is whether the state court "unreasonably" applied clearly established federal law as the Supreme Court has determined it. Id. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413 (2000).

The question then is "whether the [state court's] determination is at least minimally consistent with the facts and circumstances of the case." Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997). In making this determination, we do not "defer" to the state court decision; AEDPA does not provide for the Chevron deference afforded administrative agencies. See Lindh v. Murphy, 96 F.3d 856, 868 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320 (1997). We have recognized, however, that review under the amended statute is severely restricted: "the fact that we may think certain things could have been handled better by the state trial judge or by the prosecuting attorney or by a state reviewing court means very little." Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir. 1999). Nonetheless, our review is not so limited as to require a finding of judicial incompetence before we are allowed to overturn a state court's decision. See Hall, 106 F.3d at 749 ("Congress would not have used the word 'unreasonable' if it really meant that federal courts were to defer in all cases to the state court's decision.").

Applying these standards, we conclude that the district court correctly resolved all three claims we have identified here: the state courts unreasonably applied the Supreme Court's Batson decision, but their decisions on Henderson's other two arguments neither failed to apply the applicable law as announced by the United States Supreme Court nor did they unreasonably apply that law. We therefore affirm.



We first consider the State's challenge to the district court's finding of a Batson violation. The record of this case comes to us in an unusual posture. The state court record at the trial level was somewhat cryptic regarding the Batson challenge, the Batson hearing (or lack thereof), and the racial make-up of the venire members both excluded and accepted. The Illinois Supreme Court noted the failure of the trial court to produce a proper record and conducted its own review of the facts regarding the number of challenges exercised by the parties and the races of the venire members challenged by the prosecution. Henderson, 568 N.E.2d at 1245. This, in our view, was a decision it was entitled to make. The only consequence for us is that it is the Illinois Supreme Court's own decision and its version of the facts that we now review, since that court chose to disregard the trial court's discussion and to conduct its own detailed review of the record. With that in mind, we turn to the merits of the Batson claim.

Voir dire in Henderson's case took place for two separate venires. Examination of the first venire ended after only four jurors had been sworn in. At that point, the only African-American on the venire panel told the judge that he would be unable to concentrate fully on the case, the judge excused him for cause, and he dismissed the other chosen jurors and the entire venire panel.

The trial judge then held a second voir dire of a 40-person panel. Three individuals were struck for cause, leaving 11 African-Americans and 26 non-African-Americans on the venire panel. The prosecution and the defense were each allotted 14 peremptory challenges; the prosecution used 10 and the defense used 13. Of the 10 peremptory challenges exercised by the prosecution, six (60%) were used against African-Americans. The prosecutor then accepted 27 members, five of whom were African-American. The defense then exercised its peremptory challenges; the net result was that three of the 14 venire members chosen to serve as jurors or alternates were African-American.

After the jurors and alternates had been sworn in, but before opening statements, defense counsel moved for a mistrial on the basis that the prosecution had intentionally excluded African-American venire members from the jury through his exercise of peremptory challenges. (Although defense counsel may have forfeited this argument by failing to object earlier, the State failed to argue forfeiture and instead attacked the motion's merits. The Illinois Supreme Court was not concerned with forfeiture, and thus neither are we.) Defense counsel pointed out that: (1) six of the ten venire members challenged by the prosecutor were African-American; (2) the jury consisted of ten nonAfrican-Americans and two African-Americans; and (3) two of the three peremptory challenges exercised by the prosecutor during the first voir dire were exercised against African-Americans. The State responded by pointing to the fact that the prosecution did accept at least two and possibly three African-Americans that it could have struck.

At that point, the trial judge recognized that under Batson he had to "make a decision as to whether [he] should require the State to show cause as to why they made certain decisions regarding the jury," but the judge decided to wait until the next day to make a decision. The next day, a white juror was excused after she told the judge that she had some serious personal problems that would make concentration difficult. The first alternate, an AfricanAmerican male, became a juror, leading to a final jury with three African-Americans. The judge then denied the Batson motion for a mistrial, finding that Henderson had not made out a prima facie case that the prosecution had excluded African-Americans from the jury in violation of Batson, especially in light of the fact that there were three African-Americans on the jury. The court's discussion was very limited. It reads as follows in the transcript:

COURT: I think the composition of the jury speaks for itself in terms of no pattern of systematic exclusion of blacks. I think further the fact that there were other blacks who were accepted by the State and that the defense opted to remove, leads me to believe that there was no systematic exclusion, therefore, I am not going to inquire further. . . . [T]he fact that there are five minority people on the jury and others that were accepted by the State is sufficient for me to indicate that there was no systematic exclusion, which is what my ruling is.

I also have been a trial lawyer for twenty years and have picked a lot of juries in my own time, and I don't find that people that were excluded, to my mind, were excluded toward unknown reasons, I mean, we all guess as to why all jurors are kept and why they're not, that's why we have challenges that no one has to explain under the present state of the law. . . .

Henderson was ultimately convicted by a jury consisting of nine non-African-Americans and three African-Americans.

On direct appeal to the Illinois Supreme Court, Henderson argued that the prosecution used its peremptory challenges to exclude African-Americans from the jury, in violation of the Fourteenth Amendment as interpreted by the Supreme Court in Batson v. Kentucky. The Illinois Supreme Court rejected this argument. Henderson, 568 N.E.2d 1234. It focused first on the fact that the prosecution had used only 60% of its peremptory challenges to exclude African-Americans and concluded that this was not enough to demonstrate a prima facie case of purposeful discrimination. Id. at 1249. Second, the court stated that the victim's race (African-American) negated any inference of prosecutorial discrimination, since (according to the court) prosecutors are more likely to use peremptory challenges in an improper way when they are trying to secure jurors of the same race as the victim in order to try and stir up racial hatred or fears. Id.

Henderson had argued that the only respect in which the struck African-Americans could be distinguished from the white jurors was by race. The court refused to consider this "comparison analysis" at the prima facie stage:

[A]t this stage of a Batson claim we are only concerned with whether the stricken black venire members shared any characteristics other than race; it is not our role to search for possible reasons for the prosecution's strikes or for similarities between stricken black and accepted white venire members. Id. at 1249-50.

The court then looked at several other factors which are not relevant to this appeal. While the court was concerned with the disparity between the percentage of African-Americans on the venire (30%) and the percentage of AfricanAmericans on the jury (plus alternates) (21%), the court found that the rest of the relevant factors were either neutral or tended to refute an inference of discrimination. Accordingly, the court held that the trial court's finding that the defendant failed to establish a prima facie case of purposeful discrimination was not against the manifest weight of the evidence. Id. at 1250.

In his petition for habeas corpus relief, Henderson repeated the arguments he had advanced in the Illinois Supreme Court. The district court found no error in most of the Illinois Supreme Court's holdings regarding Batson. It found, however, that the state court had erred in its application of the Batson test and it conditionally ...

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