The opinion of the court was delivered by: David R. Herndon Chief Judge United States District Court
MEMORANDUM AND ORDER HERNDON, Chief Judge:
In 1995, petitioner John Ashburn was convicted of first-degree murder in the death of Rick Muckenstrum in St. Clair County, Illinois, and sentenced to seventy-five years of imprisonment (case no. 93-CF-547). Mr. Ashburn, who is currently serving that sentence at Illinois' Menard Correctional Center, has brought the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Ashburn claims he is entitled to habeas relief for seven distinct reasons:*fn1
1. Ashburn's trial counsel was ineffective by failing to properly cross-examine Dr. Parks, the pathologist who performed the autopsy on Muckenstrum;
2. His counsel on direct appeal was ineffective;
3. The jury that convicted him was not fair and impartial;
4. The trial court's introduction of irrelevant and prejudicial evidence amounted to a denial of his due process rights;
5. The prosecutor elicited - and did not correct - testimony from Earl Kelly that the prosecutor knew to be perjured, in violation of Ashburn's due process rights;
6. The prosecutor elicited - and did not correct - perjured testimony from Dr. Harry Parks, who performed the autopsy on Ashburn's victim; and
7. The State of Illinois improperly broadened Ashburn's indictment to include a different theory of offense in the jury instructions after the evidence was closed, thereby violating Ashburn's Fifth, Fourteenth, and Sixth Amendment rights.
For the following reasons, Ashburn's petition (Doc. 1) is DENIED.
II. Factual and Procedural Background
The facts determined by a state court are presumed to be correct in the absence of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e); Badelle v. Correll, 452 F.3d 648, 659 (7th Cir. 2006). The following factual background relating to the instant petition has been taken from the Rule 23 unpublished direct appeal decision on petitioner's case rendered by the Illinois Fifth District Appellate Court on June 25, 1997 (case no. 5-95-0449), and from the appellate court's Rule 23 Order affirming the denial of Ashburn's petition for post-conviction relief (case no. 5-06-0405).
Ashburn was convicted of first-degree murder in 1995. The Illinois appellate court summarized his trial as follows:
. . . John Ashburn, and his co-defendant, Dave Clark, were charged with the murder of Rick Muckenstrum. Clark was convicted of the murder in a . . . jury trial, and Clark's conviction was upheld on appeal. People v. Clark, No. 5-94-0350 (August 14, 1996) (unpublished order under Supreme Court Rule 23 (134 Ill. 2d R. 23)). [Ashburn] was convicted by a jury for the same offense, and the court imposed a 75-year extended-term prison sentence. . . .
At trial, Melanie Collins, [Muckenstrum's] live-in girlfriend of nine years, testified that at the end of June or early July of 1990, she, Muckenstrum, and about six or seven other persons, including [Ashburn], went on a camping trip to Missouri. [Ashburn] loaned [Muckenstrum] money to go on the trip. At the campsite, many of the people were drinking. An argument broke out between [Ashburn] and [Muckenstrum] and continued for several hours. Collins and [Muckenstrum] decided to leave in Collins's car. [Ashburn] yelled at [Muckenstrum] to get out of the car or [Ashburn] was going to kill him. [Ashburn] also broke the window on the passenger side where [Muckenstrum] was sitting.
A few days after the camping trip, [Ashburn] came to Collins's apartment looking for [Muckenstrum]. According to Collins, [Ashburn] kicked her door open and told her he wanted her "old man" and that [Ashburn] was going to kill him.
Collins last saw [Muckenstrum] on July 10, 1990, when he left with Bobbie Johnston, Pete Parker, and Clark to go drinking.
L.T. Cook testified that on July 11, 1990, at about 3 p.m., he and a friend, Willie, went to Willie's chicken farm. As they went up the gravel road, Cook saw [Muckenstrum's] body laying in the grass next to the road. Cook reported his finding to the police.
Richard Aulabaugh testified that he owned a bar, called The Bar. On July 10, 1990, Aulabaugh first noticed that [Ashburn, Muckenstrum], and Clark were in the bar because [Ashburn] was arguing with [Muckenstrum] in a loud and offensive manner. After about 15 minutes, the three were asked to leave because other patrons complained.
Through a picture window of the bar, Aulabaugh saw [Ashburn's] truck, which was backed into a parking space in front of the bar. He watched the three men leave and observed that all three went around the front of the truck to the passenger side. Clark stepped past the passenger door, opened the door, and [Muckenstrum] got in the middle of the truck. Clark got in the passenger seat, whereupon [Ashburn] closed the door and went back to the driver's side. According to Aulabaugh, [Ashburn] continued to argue with [Muckenstrum], as Aulabaugh saw [Ashburn] shaking his finger and talking to [Muckenstrum] in the truck. The three men left Aulabaugh's bar somewhere between 4:30 and 5 p.m.
Aulabaugh testified that, while in the bar, he overheard [Ashburn's] discussion with [Muckenstrum] about money. Aulabaugh heard [Ashburn] say that he had a full tank of gas and that they were going to drive around until [Ashburn] got his money.
Sharon Russell, the barmaid at The Bar, testified that, on July 10, 1990, at about 5:15 p.m., she was working when [Muckenstrum] came into the bar with [Ashburn] and Clark. Russell heard [Ashburn] arguing with [Muckenstrum] about $37 that [Muckenstrum] owed [Ashburn]. Because Russell received complaints from other patrons, Russell warned [Ashburn, Muckenstrum], and Clark to quiet down. After 10 or 15 minutes more, Russell told the three to leave.
When [Ashburn, Muckenstrum], and Clark left the bar, Russell saw [Muckenstrum] sitting in the middle of the truck, with Clark in the passenger seat and [Ashburn] in the driver's seat. Russell stated that [Muckenstrum] was wearing a yellow tank top and a pair of jeans that day. Russell testified that, based upon her review of a photograph, the clothes [Muckenstrum] had on at the time of his death were the same clothes he had on in the bar.
Dr. Harry Parks, a forensic pathologist, performed the autopsy on [Muckenstrum] on July 12, 1990. Parks removed a bullet from [Muckenstrum's] head. Parks testified that [Muckenstrum] received a bullet wound above his right eye, a half-inch stab wound on the right side of his neck, and a 5 1/2 -inch-deep slash wound in the upper right quadrant of his abdomen, which allowed the colon to protrude. Parks found blackening around the gunshot wound, indicating that the wound was made at close range. Parks found very little blood, and he stated that the lack of blood around a nick in the renal artery indicated to him that [Muckenstrum] did not live very long after the gunshot wound to the brain. Although Parks determined that the immediate cause of death was the gunshot wound, Parks was unable to say with any medical certainty whether the gunshot wound or the knife wounds occurred first. Parks testified that [Muckenstrum] had no defensive wounds on his hands and that a toxicology report revealed that [Muckenstrum] had a blood-alcohol content of .4366 at the time of his death.
Deanie Hinchcliffe's testimony basically corroborated Collins's testimony about the camping trip to Missouri. Hinchcliffe testified that, during the argument at the campsite, [Ashburn] pulled a knife on [Muckenstrum].
Janice Walker testified that Clark rented a room from her two weeks before [Muckenstrum's] death. A day or two after the murder, Clark and [Ashburn] came to Walker's home in [Ashburn's] pickup truck to get Clark's clothing. Walker noted that [Ashburn's] truck was wet inside the cab and out, indicating to her that the truck had been recently washed.
Billy Lee Parker testified that he went on the Missouri camping trip, and he corroborated the others' testimony about the altercation between [Ashburn] and [Muckenstrum]. On July 10, 1990, Parker met [Muckenstrum], Clark, and Johnston at Collins's apartment somewhere between 9 and 10 a.m. They drank some beer then proceeded to several bars, ultimately ending up at Jimmy's Tavern, where [Ashburn] was also drinking. [Ashburn] and [Muckenstrum] began arguing over the money owed [Ashburn] by [Muckenstrum], and Parker told them to go outside and settle the argument "like men." At the side of Jimmy's Tavern, Parker was following [Muckenstrum[ to the back of the bar, when [Ashburn] came running around the corner with a .32-caliber Derringer in his hand. Parker placed himself between [Muckenstrum] and [Ashburn], and [Ashburn] shot between Parker's legs. Clark came up behind [Ashburn], took the gun and emptied it, then gave the gun back to [Ashburn]. [Ashburn] stated that was okay because he had some more bullets. After some shoving and pushing behind the tavern, everyone went back inside. About 4:30 p.m., [Muckenstrum] left Jimmy's Tavern with [Ashburn] and Clark in [Ashburn's] truck. [Muckenstrum] was sitting in the middle, between Clark and [Ashburn]. That was the last time Parker saw [Muckenstrum] alive. Michael Hendrix's testimony also corroborated Collins's testimony about the argument between [Ashburn] and [Muckenstrum] and corroborated Parker's testimony about the events on July 10, 1990, at Jimmy's Tavern. Hendrix saw [Muckenstrum] leave Jimmy's Tavern with [Ashburn] and Clark in [Ashburn's] truck.
Hendrix testified that, earlier on July 10, 1990, he went with [Ashburn] and Brian Smith in [Ashburn's] truck to the bank and back to a bar. In [Ashburn's] truck, [Ashburn] showed Hendrix a gun [Ashburn] had purchased, a .32-caliber Derringer. Hendrix had seen Clark with a knife about two weeks before [Muckenstrum's] murder, when Hendrix was sharpening some kitchen knives at his home. Clark asked Hendrix to sharpen his knife.
Brian Smith testified that he often drove [Ashburn's] truck for [Ashburn]. Smith drove [Ashburn's] truck to the camping trip in Missouri. Smith's testimony of the argument between [Ashburn] and [Muckenstrum] at the campsite paralleled the other witnesses' testimony.
On July 10, 1990, Smith drove [Ashburn] to Missouri, where [Ashburn] purchased some .32-caliber bullets. Smith also saw a gun in [Ashburn's] glove box that day. Smith corroborated Hendrix's testimony about going to the bank with [Ashburn] and then returning to a bar. Smith, too, testified to the events at Jimmy's Tavern. Smith stayed at Jimmy's tavern when [Muckenstrum, Ashburn], and Clark left the bar. On cross-examination, Smith stated that he had never seen [Ashburn] clean his truck from the time [Ashburn] bought the truck until July 10, 1990, the last day Smith saw [Ashburn].
Dee Heil, a crime scene technician for the Illinois State Police, testified that he recorded and collected evidence from the scene where [Muckenstrum's] body was found. He arrived at the scene about 3:30 p.m. on July 11, 1990. Heil found a red plastic identification holder on the ground by [Muckenstrum's] feet. Inside the identification holder were two business cards, two union cards with [Ashburn's] name on them, two fishing licenses (1989 and 1990) with [Ashburn's] name on them, and a 1989 hunting license with [Ashburn's] name on it.
Heil attended [Muckenstrum's] autopsy, where he received the bullet removed from [Muckenstrum's] head. Heil took the bullet to the crime laboratory for testing. Heil also testified that he served a search warrant for [Ashburn's] home upon [Ashburn]. In the search of [Ashburn's] home, a knife and a knife box for a new knife, with a sales receipt dated July 14, 1990, were found. These objects were identified by Heil at trial and admitted into evidence.
James Hall, a forensic scientist for the Illinois State Police Crime Lab, testified that he specializes in firearms and tool mark identification. He examined the bullet removed from [Muckenstrum's] body. Hall determined that the .32-caliber bullet was fired from a Davis Industries Derringer or pistol. Hall explained that to fire a Derringer, a person has to cock the hammer before he pulls the trigger.
Earl Patrick Kelly testified that he was currently serving a prison sentence in Springfield, Missouri. Kelly knew [Muckenstrum] for a year prior to [Muckenstrum's] murder. Kelly talked to [Ashburn] in 1992, at which time [Ashburn] told Kelly that [Ashburn] and Clark murdered [Muckenstrum]. [Ashburn] told Kelly that [Ashburn] and [Muckenstrum] argued over money owed to [Ashburn], that they left a bar, and that they went riding around. According to Kelly, [Ashburn] told him that "the other guy stabbed [Muckenstrum] in the stomach, and then they took him to Brooklyn [where [Muckenstrum's] body was found] and dropped him off in a field and Clark told Ashburn to shoot [Muckenstrum] so he couldn't tell on him." Kelly testified that [Ashburn] told him he shot [Muckenstrum] "in the eye," then [Ashburn] and Clark left and went to another bar. [Ashburn] told Kelly he lost his fishing license when they disposed of [Muckenstrum's] body.
On cross-examination, Kelly said he and [Muckenstrum] were convicted for a burglary in which they both participated. Kelly admitted he did not tell the authorities about his conversation with [Ashburn] until 1994, a couple of months before he was sentenced in Federal court. Kelly stated he would have taken anything the authorities wanted to give him for the information, but he did not tell the police for that reason, and he received no benefit from his telling the police about the conversation. Kelly said he told the police because he was a friend of [Muckenstrum's], he knew Collins, and he knew [Muckenstrum's] children.
Clarence Banks, an investigator for the Illinois State Police, testified that he investigated [Muckenstrum's] murder. He corroborated that [Ashburn's] identification holder was found by [Muckenstrum's] body. Banks's testimony established that the distance between The Bar, where [Muckenstrum] was last seen with [Ashburn] and Clark and where [Muckenstrum's] body was found, was approximately 2 1/2 miles.
Robin Blaha, an Illinois State Police officer, participated in the investigation of [Muckenstrum's] murder. On July 12, 1990, at about 11 a.m., Blaha, Banks, and Donald Leach, another State Police officer, went to [Ashburn's] home. When [Ashburn] opened the door, Blaha told [Ashburn] they needed to talk to [Ashburn] about an investigation involving [Muckenstrum]. Blaha asked [Ashburn] when was the last time he saw [Muckenstrum], to which [Ashburn] responded that it had been two weeks prior, on a camping trip. Blaha told [Ashburn] that they had been told that [Ashburn] was seen with [Muckenstrum] a couple of nights earlier, and [Ashburn] stated that he had been drinking with [Muckenstrum] then but that he had forgot.
The jury found [Ashburn] guilty of first-degree murder. At [Ashburn's] sentencing hearing, the trial court determined that [Muckenstrum's] murder was brutal and heinous, thereby permitting the court to impose an extended-term sentence on [Ashburn]. The court found no factors in mitigation and, after considering the factors in aggravation, sentenced defendant to 75 years' incarceration. (Doc. 13-1, pp. 11--19).
In early 1997, Ashburn appealed his conviction and sentence: On appeal, [Ashburn contended] that the trial court abused its discretion when it denied his motion for mistrial based upon a prejudicial newspaper article published during trial, thereby denying him a right to a fair trial; that the State failed to prove him guilty beyond a reasonable doubt; that the court erred in admitting irrelevant and prejudicial evidence [in the form of a knife, knife box, and receipt for a knife found at Ashburn's mobile home]; and that the court abused its discretion when it imposed an extended-term sentence of 75 years' incarceration. (Doc. 13-1, p. 11). The appellate court affirmed Ashburn's conviction and his sentence. Regarding the issue of whether a prejudicial newspaper article led to an unfair trial, the Court reasoned:
Defendant contends that the court abused its discretion in not granting his motion for mistrial due to a newspaper article about the trial which appeared in the Belleville News Democrat on the morning of the second day of trial. Defense counsel brought the newspaper article to the court's attention. Defendant asked that the court grant his motion for mistrial because of the article.
In the article, it stated that defendant drove a Corvette and that he was "bankrolled" by a back injury settlement, and that defendant had displayed [Muckenstrum's] body at a party at Pontoon Beach on the night of his killing. The article also stated that it took five years to bring defendant to trial because [Ashburn] had threatened witnesses, and that these threats stalled the murder investigation. It was also reported that a second man had been found guilty in this case and was serving an 80-year prison term. The article discussed [Ashburn's] prior criminal history.
Before the trial commenced that morning, the court asked the jurors if anyone had read that morning's Belleville News Democrat. One juror . . . admitted that he had read an article about defendant and the trial. In chambers, the court inquired further about what [the juror] had read. The court also asked [the juror] if he had discussed the article with any other jurors, if he had brought the newspaper to the jury room with him, or if [he] had seen a copy of the paper in the jury room. [The juror] responded negatively to these three questions. Because [he] read the article and recalled some of the details, [the juror] was excused from the jury and replaced by an alternate juror. Back in the court room, the court again asked the jurors if any of them had read the newspaper that morning. Another juror . . . stated that he read the sports page, but when he saw ...