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United States ex rel Kendrick v. McCann

September 8, 2010


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


On April 5, 2006, following a jury trial in the Circuit Court of DuPage County, Illinois, Petitioner Antonio Kendrick was convicted on five counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse, all rising from an October 1, 2003 assault and rape of a 16-year-old girl. At the time of the offense, Kendrick was 31 years old. He is currently serving a natural-life sentence in the Stateville Correctional Center in Joliet, Illinois.*fn1 His conviction was affirmed on appeal, and the Illinois Supreme Court subsequently denied his petition for leave to appeal ("PLA"). On November 3, 2008, Kendrick filed a petition in this court seeking federal habeas relief pursuant to 28 U.S.C. § 2254, claiming, among other things, that the state deprived him of due process by improperly amending the indictment against him and failed to prove his guilt beyond a reasonable doubt.*fn2 For the reasons explained below, Kendrick's petition for habeas relief is denied.


Petitioner was arrested on October 3, 2003, based on an incident two days earlier in which a 16-year-old girl--whom the court will refer to only by her initials, C.D.-alleged that Petitioner had assaulted and raped her. C.D. reported that Petitioner forced her to accompany him to a Naperville motel, slapped and threatened her, and ultimately raped and sodomized her. On October 23, 2003, a grand jury returned a 23-count indictment against Petitioner. (Rule 23 Order, Ex. D to Resp.'s Ans. at 2.) The various counts, many of which were subsequently merged, alleged several offensive sexual acts by Petitioner. The counts further alleged that the victim sustained bodily harm when Petitioner struck her about the face and buttocks and sexually penetrated her vagina. (Id.) In addition, the indictment noted that Petitioner had previous convictions for sexual assault, an aggravating circumstance that would elevate his sentence under Illinois law. (Id. at 3.) Every count in the indictment alleged that Petitioner committed sexual contact with the 16-year-old victim by "use of force." (Id.)

Trial Proceedings

Petitioner pleaded not guilty to all charges on October 27, 2003, and trial began on July 28, 2004, before Judge Robert Anderson of the Circuit Court of DuPage County. The prosecutions first witness was the victim, C.D. C.D. testified that she had been born in Liberia, but civil war in her homeland forced her to emigrate to the United States when she was 10 years old. (Trial Tr., 07/28/04 AM at 29-30.) C.D. resettled in Minnesota and lived there with her mother until 2003. In early 2003, C.D. came to live with her older sister, Seniah Jensen, in Naperville, Illinois. (Id. at 30-31.) C.D. met Petitioner immediately upon her arrival in Illinois; he was the person who met her at the airport when she first arrived in the Chicago area. (Id. at 32.) C.D. knew Petitioner as a good friend of her sister's and a member of her church. Born in 1987, C.D. testified that she turned 16 years old in late September 2003.*fn4 (Id. at 33.)

On October 1, 2003, C.D. missed her school bus at the close of the day, so she went instead to the home of a friend after school. (Id. at 33.) She telephoned her sister to ask her to pick her up, but Jensen refused and told C.D. that she would have to find her own way home. (Id. at 34.) Jensen was angry that C.D. had missed her bus, C.D. testified, and she threatened to send C.D. back to Minnesota. (Id. at 34-35.) This threat frightened C.D., she testified, because she believed that it might also mean that she would be forced to return to Africa. (Id. at 35.) C.D. attempted to walk home and ultimately called a taxi. (Id. at 36-37.) When C.D. finally arrived home later that evening, her sister was out. C.D. searched for a telephone number where she might reach her sister, and ultimately came across Petitioner's telephone number. She called Petitioner and asked him to intercede with her sister so that Jensen would not send her away. (Id. at 37-39.) A few minutes after this conversation, C.D.'s sister called C.D. and told her she had just spoken to Petitioner, who was on his way over to the apartment to have a talk with C.D. (Id. at 39.) A short time later, C.D. went outside and met Jensen and Petitioner in the parking lot of the apartment complex. (Id. at 40.) Petitioner told C.D. to get into his vehicle and then, after he had a conversation with Jensen out of C.D.'s earshot, Petitioner returned and drove away with C.D. in the passenger seat. (Id. at 41.) When C.D. asked where they were going, she testified, Petitioner told her to shut up and announced that C.D. was "gonna take directions" from him and that "he was going to teach [her] a lesson." (Id. at 41-42.)

Petitioner drove C.D. to a nearby motel. When Petitioner stepped into the office to rent a room, C.D. testified, she attempted to run from the car, but Petitioner saw her attempting to flee.

He directed her to get back inside the car, promising that if she did so, he would drive her back to Jensen's apartment. (Id. at 42-43.) C.D. did return to vehicle, but, rather than take her home, Petitioner drove behind a store and stopped the car. (Id.) C.D. objected that where they had stopped was not Jensen's apartment, and Petitioner responded by slapping C.D. across the face, hurting her. (Id. at 43-44.) According to C.D., Petitioner announced that he was "gonna go back and do it right this time," and then reached over and pulled C.D.'s seat back down, pushing her into a reclining position in the car, where she remained as he drove back to the motel. (Id. at 44-45.)

When they reached the motel, Petitioner exited the car and walked around to the passenger side. He grabbed C.D. by the hood of her sweatshirt, she testified, and dragged her from the car into the motel room. (Id. at 45-46.) C.D. remembered that the room contained a chair and a bed, and that Petitioner initially instructed her to sit in the chair, while he sat on the bed adjacent to her. Very frightened at this point, C.D. told Petitioner that she was sorry for everything that had happened--a reference, C.D. explained on direct examination, to having missed her school bus. (Id. at 47.) Petitioner angrily replied that he was "no longer going to have this conversation," and ordered C.D. to stand up and take her shirt off. (Id. at 47-48.) C.D. reluctantly removed her sweatshirt and Petitioner ordered her to remove the rest of her clothing. (Id. at 48.) She was unwilling to do so, C.D. testified, but again complied out of fear. According to C.D., Petitioner instructed her to turn around and bend down in front of him. (Id. at 48-49.) When she did not bend down as far as Petitioner desired, C.D. testified, he struck her hard across the buttocks. (Id. at 49.) Now in pain, C.D. did as she was told and bent down further. (Id.) Petitioner struck her across the buttocks three more times, each time inflicting pain. (Id.)

After this beating, C.D. testified, Petitioner ordered her to get onto the bed. (Id. at 50.) He asked C.D. if she was a virgin. When C.D. responded that she was, Petitioner told her to put her finger in her vagina because, he said, he wanted her to make the vaginal opening bigger. (Id.) As he said this, Petitioner began to disrobe. (Id.) C.D. testified that she was unwilling to follow Petitioner's instructions but again she complied out of fear. (Id.) She testified that it was physically painful for her to insert her finger into her vagina. (Id.) Once he had undressed, Petitioner inserted his own finger into C.D.'s vagina, again causing her pain. (Id. at 51-52.) C.D. testified that Petitioner then climbed on top of her as she lay on her back on the bed, and inserted his penis into her vagina. (Id. at 52-53.) C.D. screamed out in pain, and Petitioner reacted by withdrawing and telling her that she had "two choices"; she could either "fuck [him] or suck [his] dick." (Id. at 53-54.) Petitioner then inserted his penis into C.D.'s mouth. (Id.) He also placed his mouth on C.D.'s breasts and vagina. (Id. at 55.) Petitioner ordered C.D. to "jack him," and when C.D. said that she did not know what he meant, Petitioner placed C.D.'s hands on his genitalia and told her to "suck his penis like a lolly pop." (Id. at 56.) C.D. did as she was instructed, she testified, and Petitioner ejaculated in her mouth. (Id. at 57.) After C.D. followed Petitioner's further instruction to wash her mouth out in the bathroom sink, he finally allowed her to put her clothes back on but told her that from then on, she "was gonna be his little bitch and learn to love his dick." (Id. at 57-58.)

Petitioner then drove C.D. back to Jensen's apartment, dropped C.D. off in the parking lot, told her to apologize to her sister, and drove away. Immediately after Petitioner had gone, C.D. told her sister what had happened. (Id. at 59.) Jensen drove C.D. to the hospital, where C.D. was interviewed by medical staff and underwent a series of physical examinations. She also gave a statement to police officers. (Id. at 63.)

On cross examination, Petitioner's attorney asked C.D. if she was aware that Jensen-who was married and had young children-was having an affair with Petitioner. C.D. answered that she was not aware of this, but she knew that her sister and Petitioner were very close. (Id. at 78.) Defense counsel questioned C.D. at length about the extent to which Petitioner had used force:

Q: Now, he didn't force you to sit in that chair [in the motel room]?

A: Is that a question?

Q: Yes. He didn't force you to sit in that chair?

A: Force me, what way?

Q: He didn't grab you and force you to sit in the chair?

A: No.

Q: And he didn't force you to take off your clothes?

A: He made it clear to me when he was [in the car] behind the store that if I try anything stupid, he was gonna beat me like I stole something, so I was very afraid.....

Q: You took off your clothes because he threatened to use force?

A: Yes.

Q: But you didn't take off your clothes because he actually used force?....

A: He did use force.

Q: He did not use force in having you take your clothes off?....

A: No. (Trial Tr. 07/28/04 PM at 10-13.) Defense counsel also elicited testimony that although Petitioner ordered her to place her finger in her vagina, he did not use actual physical force to make her do so. She testified that though Petitioner did not have his "hand around [her] throat" when he inserted his own finger into her vagina, he did use physical force to effectuate the penetration. (Id. at 14.) She explained that by "force," she meant the forcible manner in which Petitioner inserted his finger. (Id.) C.D. further stated that Petitioner had used force when he climbed on top of her and inserted his penis into her vagina, and he had stopped using force only when she began screaming. (Id. at 18.) Though at times confused by defense counsel's questions, C.D. was firm in asserting that Petitioner had used force in the attack:

Q: Now, you just described the allegation of the finger in your vagina as, ...

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