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United States Ex Rel. v. Randy Pfister

July 28, 2011

UNITED STATES EX REL.
JOHNNIE HENDERSON, (#B01349), PETITIONER,
v.
RANDY PFISTER,*FN1 ACTING WARDEN, PONTIAC CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

Before the Court is Petitioner Johnnie Henderson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). For the following reasons, the Court denies Henderson's habeas petition and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

BACKGROUND

Henderson does not present clear and convincing evidence challenging the statement of facts in the last state court decisions to address his arguments on the merits, which are the Illinois Appellate Court's opinions on direct appeal and post-conviction appeal, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010). The Court therefore adopts the underlying facts as set forth by the Illinois Appellate Court in People v. Henderson, No. 1-02- 0532 (Ill.App.Ct. Sept. 10, 2003) (unpublished) and People v. Henderson, No. 1-08-3578 (Ill.App.Ct. July 27, 2010) (unpublished).

I. Factual Background

Five police officers, one detective, two forensic investigators, six forensic scientists, and a pathologist testified at Henderson's 2001 trial. Evidence at trial established that on the evening of December 14, 1998, Chicago police officers responded to a call of a burglary in progress at 5301 South Millard Street in Chicago, Illinois. The police officers went to the wrong house, after which two women directed them to Anthony Janicek's home where the police found Henderson and another individual, Tyrone Petties. Evidence also reveals that Henderson and Petties had pushed their way through the door of Janicek's home with guns in hand and repeatedly stabbed Janicek in the back and chest. Noticing blood at the bottom of the stairs to the basement, the police officers found Janicek face down on the floor in the basement moaning for help. Janicek then told the police officers that the two men had forced their way into his home, stabbed him, and forced him down the stairs. After Janicek was taken to a nearby hospital, he died. The police transported Henderson and Petties to the Eighth District precinct. DNA collected from Henderson's jeans and from a butcher knife matched Janicek's and Henderson's profiles. Janicek's blood was also found on Petties' right shoe.

II. Procedural Background

Following a trial in the Circuit Court of Cook County, the jury found Henderson guilty of first-degree murder, after which the Circuit Court sentence him to 75 years imprisonment. Henderson filed a direct appeal to the Illinois Appellate Court arguing that: (1) the prosecutor's opening statement and closing argument were improper; (2) he was denied his constitutional right to self-representation; and (3) the trial court erred by failing to appoint new counsel to explore Henderson's post-trial allegations that his trial counsel was ineffective. The Illinois Appellate Court affirmed Henderson's conviction and sentence on September 10, 2003. Harris then filed a petition for leave to appeal ("PLA") in the Supreme Court of Illinois arguing that the prosecutor's opening statement and closing argument were improper and prejudicial. On December 3, 2003, the Supreme Court of Illinois denied Henderson's PLA.

On February 4, 2004, Harris filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et. seq., after which the trial court appointed counsel. Subsequently, Henderson filed two additional pro se post-conviction petitions. The trial court denied Henderson leave to file his two successive petitions and dismissed his original post-conviction petition. Henderson appealed the dismissal of his post-conviction petition arguing that his post-conviction counsel was constitutionally ineffective and operated under a conflict of interest. On July 27, 2010, the Illinois Appellate Court affirmed the trial court's dismissal of Henderson's post-conviction petition concluding that: (1) his post-conviction counsel performed reasonably; (2) the trial court did not err in denying him leave to file the two successive petitions; and (3) he did not establish any conflict of interest.

In August 2010, Henderson filed a post-conviction PLA in the Supreme Court of Illinois arguing that: (1) post-conviction counsel was ineffective for determining that his ineffective assistance of trial counsel claims were barred by res judicata; (2) post-conviction counsel was ineffective for treating his second and third post-conviction petitions as successive rather than as amendments to his original petition; and (3) his trial attorney was constitutionally ineffective for not investigating the alleged tampering of DNA evidence. On November 24, 2010, the Supreme Court of Illinois denied Henderson's post-conviction PLA.

Thereafter, Henderson filed a motion for relief from judgment pursuant to 735 ILCS 5/2-1401, that the trial court denied. Henderson's appeal of this denial is still pending. As the Court explained in an earlier ruling in this case, a pending motion for post-judgment relief under 735 ILCS 5/2-1401 is not relevant to the Court's exhaustion analysis in the context of this habeas petition. Henderson v. Pierce, No. 11 C 0378, 2011 WL 1740076, at *2 (N.D. Ill. May 5, 2011).

III. Habeas Petition

On January 18, 2011, Henderson filed the present pro se petition for a writ of habeas corpus. See 28 U.S.C. ยง 2254(d). Construing Henderson's pro se habeas petition liberally, see Martin v. Bartow, 628 F.3d 871, 878 (7th Cir. 2010), he brings the following claims: (1) his trial counsel was constitutionally ineffective for failing to order a DNA test, failing to move to suppress evidence, failing to call expert or other witnesses, and failing to make a record of the pretrial publicity; (2) his post-conviction counsel was constitutionally ineffective for conceding that his post-conviction filings were successive petitions, rather than amended petitions, which prevented him from raising all of his post-conviction claims; (3) the trial court violated the double jeopardy clause of the Fifth Amendment by instructing the jury as to both the felony murder and underlying murder; (4) the trial court violated his right to a fair trial and right to be found guilty beyond a reasonable doubt by giving jury instructions that shifted the burden of proof and misstated elements of the offense; (5) the State violated his right to a fair trial by constructively amending the grand jury indictment through evidence and arguments presented at trial; (6) the trial court violated his right to an impartial jury by preventing full voir dire regarding pretrial publicity; (7) the trial court violated his Sixth Amendment rights when the court sentenced him based on facts not charged in the indictment and not ...


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