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Kaczmarek v. Hulick

February 9, 2009


The opinion of the court was delivered by: Wayne R. Andersen District Judge


This case is before the court on the petition of Henry Kaczmarek for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition for habeas corpus is granted as to Count II and denied as to Counts I and III-VII.


Following a jury trial in 1989, Henry Kaczmarek was convicted of murder, residential burglary, home invasion, and armed robbery. People v. Kaczmarek, 318 Ill. App. 3d 340, 341, 741 N.E.2d 1131, 1134 (1st Dist. 2000). On March 31, 1993, the Illinois Appellate Court overturned these convictions, and the case was remanded for a retrial. People v. Kaczmarek, 243 Ill. App. 3d 1067, 1082, 613 N.E.2d 1253, 1264 (1993). In 1997, Kaczmarek was again convicted of murder after a second jury trial. Kaczmarek, 318 Ill. App. 3d at 341, 741 N.E.2d at 1134. Factual findings by a state court "shall be presumed to be correct" in a federal habeas corpus proceeding unless they are rebutted "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Kaczmarek does not dispute the Illinois Supreme Court's factual findings, thus this court adopts the following account from the decision of that court in People v. Kaczmarek, 207 Ill.2d 288, 798 N.E.2d 713 (2003).

Defendant was tried for the murder of 86-year-old Millie Nielsen. The evidence indicated that defendant broke into Nielsen's apartment where he stabbed, beat, and strangled her in the course of an attack that apparently started in Nielsen's kitchen and concluded in her bedroom. Defendant took items of minimal value from Nielsen's residence and was later apprehended in possession of some of her bloodstained personal belongings. When he was arrested, officers observed bloodstains on the quilted shirt defendant was wearing, and bloodstained jeans were recovered from the trunk of his car. A witness testified that he had seen defendant in the backyard of Nielsen's apartment building on the night of the murder. The witness saw defendant carry a bag through the backyard, place it in the trunk of his car, and drive away. ...

Pamela Fish, an expert in electrophoresis, serology, and DNA analysis, testified to the results of her 1987 examination of the physical evidence. At that time, she determined the blood found on defendant's jacket and jeans was consistent with Nielsen's blood type and could not have come from defendant. Fish determined that the substance on other evidentiary items was human blood, but due to the small quantity provided, she was unable to identify a particular blood type. Prior to defendant's second trial, Fish attempted to perform DNA testing on blood samples collected in this case; however, their small size and degraded condition made testing ineffective.

Rod Englert, an expert in crime scene reconstruction and blood splatter, examined the physical evidence and photographs in the case. Englert stated that the blood on Nielsen's kitchen floor appeared smeared, indicative of a struggle in which someone bled. Englert noted that the blood on the kitchen wall immediately outside the bedroom represented classic medium velocity splatter, suggestive of blunt force being inflicted upon the victim. Given the low angle of projection, Englert believed that Nielsen had received numerous blows while on the kitchen floor. Englert concluded that the blood on the knees of defendant's jeans, and the back of his shirtsleeves, represented transfer stains-blood swiped against something or someone. The blood on the front of defendant's shirtsleeves represented medium velocity splatter. The blood at the bottom of defendant's jeans was also consistent with medium velocity splatter. Englert testified that these stains were not consistent with defendant having picked up a bag with blood on it or with such a bag having been placed on top of clothing. Englert further stated the stains were not consistent with defendant having kneed another person in the nose.

Defendant testified, offering an explanation for the blood on his clothes and his possession of Nielsen's belongings. Defendant claimed he had been involved in three fights prior to the night of Nielsen's murder, and he intimated that the blood on his clothing had been deposited there during one or more of those altercations. Defendant claimed two of the fights were with his friends, Tom Szeszol and Bill Henderson, while a third fight involved an unidentified man who was attempting to break into defendant's car. In the latter fight, defendant stated, he hit the man three or four times in the face and kneed him in the nose. According to defendant, everyone involved in the fights bled.

As for his possession of Nielsen's bloodstained property, defendant stated he had noticed a bag on the side of Nielsen's apartment building. He looked inside the bag and discovered therein a box of silverware. He picked up the bag, carried it to his car, and placed it in the trunk. Later that morning, defendant decided to look into the bag and removed the bag's contents, some or which were bloody. Defendant kept some items and disposed of others, including a bloody pillowcase, in a Dumpster. Defendant sold some of the items for $60. Id. at 291-93, 716-17.

Additional facts were not discussed by the Illinois Supreme Court but were summarized by the Appellate Court in People v. Kaczmarek, 318 Ill. App. 3d 340, 741 N.E.2d 1131 (1st Dist. 2000).

Mitch Rea was called by the State as an expert in luminol testing and interpretation. During voir dire examination of his qualifications, Rea stated he is an insurance fraud investigator who had previously worked over 26 years as a police officer with the Phoenix Police Department in Arizona. Of his time at the department, Rea spent ten years working as a detective in the homicide unit where he processed over an estimated 350 murder crime scenes. Rea has received training in crime scene investigation and specialized training in chemical blood detection involving luminol. ...

Rea detailed the application and use of the luminol chemical as a detecting agent, and described its glowing effect when it reacts with particular substances, including blood. Rea acknowledged that luminol is not specific to blood and that it reacts with other substances, such as metals and cleansers.

Upon questioning by defense counsel, Rea acknowledged never being educated or trained in the field of chemistry. Rea further admitted that he does not perform any additional testing, like DNA analysis, to ensure the accuracy of results indicating the presence of blood.

Over defendant's objection, Rea was accepted by the court as an expert and testified that he performed luminol tests on defendant's quilted jacket in early 1994. Rea explained that an application of luminol to the right front panel of the jacket produced a bright luminance of several small spots. According to Rea, these luminances indicated the presence of blood. Rea further observed luminances about sections of the jacket which had been previously removed for Fish's examination, the right sleeve and cuff, and both the elbow region and back portion of the left sleeve. Rea stated that each of the foregoing luminances were consistent with the presence of blood. On cross-examination, Rea explained he did not perform any additional tests to confirm that the luminol reactions he observed were in fact reactions to blood. ...

To rebut the testimonies of Rea and Englert, the defense offered Dr. Kenneth Siegusmund as an expert in the fields of luminol processing and blood splatter analysis. During voir dire, Dr. Siegusmund testified he holds a Ph.D. and B.S. in biology and an undergraduate minor in chemistry. As his primary employ, Dr. Siegesmund works in the Department of Anatomy at the Medical College of Wisconsin developing a scientific instrument used in the field of immunology. The doctor admitted that this work is unrelated to the forensic science field. Previously, Dr. Siegesmund worked in the Department of Biology at Marquette University in Milwaukee. Dr. Siegesmund additionally teaches a general forensic sciences course at a local university, and has given lectures in the field to law enforcement personnel. Dr. Siegesmund holds memberships in the American Academy of Forensic Scientists, the Midwest American Association of Anatomy, the Neuroloectic Society of America, and the American Association for the Advancement of Science. ...

Responding to the defense's tender of Dr. Siegesmund as an expert, the court remarked that the doctor "appears to be a jack of all trades and [a] master of none." The court specifically commented on Dr. Siegesmund's credibility, stating that "his manner while testifying seemed disingenuous at times" undermining any attempt "to instill some confidence that someone is an expert in some kind of field." Finding the doctor's qualifications lacking, the court refused to accept Dr. Siegesmund as an expert in blood splatter analysis and luminol interpretation. The court, however, allowed Dr. Siegesmund to testify about the manner in which luminol testing is conducted.

Defense counsel did not proceed with Dr. Siegesmund as a witness, but instead made an offer of proof. Counsel explained Dr. Siegesmund would have testified that confirmatory testing is necessary when using luminol as a detecting agent for blood. In this regard, Dr. Siegesmund would have opined that Rea should have performed additional tests to confirm that the areas of luminance on defendant's jacket were in fact indicative of blood and, if so, a test to determine whether that blood was that of defendant. Dr. Siegesmund would have further refuted Englert's conclusions that the blood found on defendant's jacket represented splatter, and would have stated that the blood stains about the knee areas of defendant's jeans were indicative of lateral activity. The doctor would have also stated, contrary to Englert's opinion, that a majority of Ms. Nielsen's blood loss would have occurred prior to her death. On this basis, Dr. Siegesmund would have explained that the offender would have been covered in blood and, thus, would have likely left bloody shoe prints in the victim's apartment.

Following the presentation of rebuttal evidence by the State and the jury's deliberations, defendant was found guilty of murder and sentenced to a term of natural life imprisonment. Id.

The statutory maximum for murder at the time of Kaczmarek's conviction was forty years, with the possibility of a sentence enhancement to natural life if the crime was determined to be "exceptionally brutal or heinous behavior indicative of wanton cruelty." 730 ILCS § 5/5-8-1(a)(1)(b). The trial court judge, who entered judgment prior to the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 446 (2000), found that the crime was brutal and heinous, and therefore enhanced Kaczmarek's sentence for the murder of Millie Nielsen to a natural life term. Kaczmarek directly appealed based on claims that: 1) his constitutional right to a speedy trial had been violated; 2) he was denied a fair trial due to the court's rulings regarding the state's blood splatter evidence (specifically, he claimed that Mitch Rea should not have been accepted as an expert and that Dr. Siegesmund should not have been rejected as an expert); and 3) his sentence enhancement was a violation of Apprendi.

On December 27, 2000, the Illinois Appellate Court upheld the trial court's verdict, ruling against Kaczmarek's speedy trial and evidentiary claims, but vacated his natural life sentence stating that the enhancement implemented by the trial court was a violation of Apprendi. Kaczmarek, 318 Ill. App. 3d at 354, 741 N.E.2d at 1143. The state appealed the vacated sentence and Kaczmarek filed a cross-appeal on the speedy trial claim. On October 2, 2003, the Illinois Supreme Court affirmed the Appellate Court's decision regarding the speedy trial claim, but overturned the Appellate Court's decision regarding the sentence, thus reinstating the sentence of natural life. Kaczmarek, 207 Ill.2d at 303, 798 N.E.2d at 723. The Illinois Supreme Court found that the sentence had been imposed in violation of Apprendi, but that Kaczmarek had not carried his burden of showing prejudice under the "plain error" test. Id. at 302, 798 N.E.2d at 722. Kaczmarek then filed a writ of certiorari to the Supreme Court of the United States. This writ of certiorari was denied on February 23, 2004. Kaczmarek v. Illinois, 540 U.S. 1199 (2004).

On March 24, 2004, Kaczmarek filed a post-conviction petition in the Circuit Court of Cook County claiming that: 1) his right to a fair trial was violated because Pamela Fish had supplied perjured testimony; and 2) he had received ineffective counsel because his attorney failed to challenge the State's luminol testing and blood spatter evidence under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Post-conviction petition, People v. Kaczmarek, No. 87 CR 6131 (Cir. Ct. of Cook County). The court summarily dismissed the petition on June 14, 2004, holding that the perjury claim did not follow the requirements of Section 122-2 of the Illinois Post-Conviction Hearing Act and that the petition did not present a valid constitutional claim for ineffective counsel. This ruling was affirmed by the Illinois Appellate Court on November 16, 2006. Rule 23 Order, People v. Kaczmarek, No. 1-04-2401 (1st Dist. 2006). Kaczmarek then filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court solely regarding the Appellate Court's interpretation of Section 122-2 of the Illinois Post-Conviction Hearing Act. The Illinois Supreme Court denied the PLA on May 31, 2007. Order Denying PLA, People v. Kaczamrek, No. 104184. Kaczmarek did not seek review in the United States Supreme Court.

On October 16, 2007, Kaczmarek filed this instant petition for a writ of habeas corpus alleging that: 1) his constitutional right to a speedy trial was violated by the delay between his first and second trials; 2) his sentence enhancement that resulted in a sentence of natural life is unconstitutional under Apprendi; 3) his claim that Pamela Fish committed perjury should not have been summarily dismissed under the Illinois Post Conviction Hearing Act; 4) his counsel was ineffective for failing to challenge the luminol testing and blood splatter evidence under Frye; 5) he was denied a fair trial when Dr. Siegesmund was not allowed to testify; 6) the trial court erred in qualifying Mitch Rea as an expert and allowing him to testify on the topic of luminol testing; and 7) he was denied a fair trial because his former girlfriend was not allowed to testify as to an alternative theory regarding the source of the blood on his jacket.


Federal courts can issue a writ of habeas corpus when a petitioner demonstrates that he is in state custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In order for the federal courts to grant habeas relief, the state court's judgment must be deemed to have "(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The Supreme Court has held that a state court decision is contrary to federal law when "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision involves an unreasonable application of a Supreme Court precedent "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

I. Petitioner's Procedurally Defaulted Claims

In order for a federal court to review the merits of a habeas petition, a petitioner must have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To avoid procedural default, "a habeas petitioner must have presented fully and fairly his federal claims to the state courts before he may obtain federal review of those same claims." Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001). "State prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Illinois, a state prisoner does not have a right "to review in the Illinois Supreme Court, but he does have a right . to raise his claims before that court." Id; see 28 U.S.C. § 2254(c). Thus, to complete one ...

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