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Howard v. Kharrington

United States District Court, Seventh Circuit

January 7, 2014

JEROME HOWARD, Petitioner,
v.
RIC KHARRINGTON, Respondent.[1]

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge.

Pro se petitioner Jerome Howard ("Howard") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court jury conviction of first degree murder, predicated on felony home invasion. (Dkt. No. 1.) For the reasons set forth below, Howard's petition is denied. Civil Case Terminated.

BACKGROUND

On December 24, 2002, the decedent, James Saunders ("Saunders") was shot and killed in Sherita Pollard's ("Sherita") town house, after Howard entered with his two nephews and confronted Saunders. Sherita and Howard were married at the time, but estranged, and Sherita was dating Saunders. Howard was not armed on December 24, 2002, but his nephews carried guns.

Howard was charged with home invasion and felony murder, predicated on home invasion. At trial, the government had the burden of proving beyond a reasonable doubt that Howard entered "the dwelling place of another" without authorization. See former 720 ILCS 5/12-11(a) (renumbered as 720 ILCS 5/19-6(a) (effective Jan. 1, 2013)). The facts relevant to this element of the crime, as summarized by the Appellate Court of Illinois, are as follows:

Sherita lived in the town house with her two adult children, Lavita Govan (Lavita) and Alfonso Govan (Alfonso). Although [Howard] had lived with Sherita in the town house in the past, he no longer lived there [at the time of the shooting] and had never been listed on the lease.
* * *
The evidence adduced at trial showed that Sherita and [Howard] had dated for several years before their marriage. During that time, [Howard] had apparently lived with Sherita intermittently in different apartments. In 1998, before [Howard] and Sherita were married, he moved into Sherita's town house. At the time, Sherita's children, Lavita and Alfonso, were teenagers. Sherita, Lavita and Alfonso were the only persons listed on the town house lease. [Howard] concedes that he was never on the lease. The town house rent was subsidized by the Chicago Housing Authority (CHA). Sherita paid the rent, gas, telephone, and electricity bills. [Howard] testified that Sherita would not have gotten the same lease rate from CHA if it knew that he was living there and was employed.
At some point in 2001, [Howard] and Sherita ended their relationship. Sherita started dating Saunders. She reunited with [Howard] and they married on July 18, 2002. The couple separated two weeks later. [Howard] moved out and took all of his personal belongings, except for his television, which was also Sherita's property, and some of his weights. He left no clothing or personal items. [Howard] testified that he still had a key and that he had continued to go to the apartment. Sherita, however, testified that she took her key back, that [Howard] was not permitted to have a key when he moved out, and she never saw him use a key to gain access to the town house. One of Sherita's sisters testified that she dropped by the town house once, two weeks before the crime, and that [Howard] was present at the apartment. Sherita, however, was not present.

People v. Howard, 870 N.E.2d 959, 961-62 (Ill.App.Ct. 1st Dist. 2007). On the day of the shooting, Howard entered Sherita's town house with his two nephews sometime after 11:00 p.m. and confronted Saunders. Id. at 962. As the appellate court noted, it was undisputed at trial that "nobody gave [Howard] permission to enter the town house on the night of the shooting" and, although Howard had lived in the town house in the past and was still married to Sherita on the night of the shooting, he had "moved out of Sherita's town house and took his belongings with him" prior to the night of the shooting. Id. at 968.

Howard was convicted by a jury of first degree murder, predicated on felony home invasion, on February 8, 2005, and was sentenced to 45 years of imprisonment.

PROCEDURAL HISTORY

Howard raised two claims on direct appeal, with the assistance of counsel. First, Howard argued that, as a matter of law, he did not invade the "dwelling place of another, " because Sherita's town house was his martial residence. (State Court Record, Ex. C. ("Appellant Br.") at 13-18.) Second, Howard argued that he was denied his right to a fair trial by "pervasive prosecutorial misconduct, " including (1) the prosecution's attempt to diminish its burden of proof by suggesting a theory of proximate causation during its cross examination of Howard; (2) the prosecution's use of deceptive photographs and testimony to suggest that Howard broke down the front door, when the government stipulated that it was the police who broke the door; and (3) the prosecution's impermissible use of other crimes evidence to suggest Howard's guilt. ( Id. at 19-31.) The appellate court rejected Howard's arguments and affirmed his conviction on June 15, 2007. See People v. Howard, 870 N.E.2d 959 (Ill.App.Ct. 1st Dist. 2007).

In his petition for leave to appeal to the Supreme Court of Illinois, filed with the assistance of counsel, Howard argued that the appellate court erred as a matter of law in holding that a married defendant can be convicted of home invasion for entering his marital residence unless he has both a tenancy interest and a possessory interest in the home. (State Court Record, Ex. F ("PLA").) The Supreme Court of Illinois denied Howard's PLA on his direct appeal on September 26, 2007. (State Court Record, Ex. G.)

On May 20, 2008, [2] Howard filed a pro se post-petition conviction in the Circuit Court of Cook County asserting numerous claims. ( See generally State Court Record, Ex. H at C:47-C:69 ("Post-Conviction Pet.").) First, Howard argued that his trial counsel was constitutionally ineffective for failing to call Alfonso[3] as a witness, and that his appellate counsel was constitutionally ineffective for failing to raise the ineffectiveness of trial counsel in this regard as an issue on direct appeal. Second, Howard argued that the state had presented insufficient evidence of home invasion, because Sherita had been coerced into giving false and misleading testimony at trial. In support of this argument, Howard also attached the affidavit of Debbie Ealy ("Ealy"), Sherita's sister, stating that Howard was "living with my sister on December 24, 2002, in the apartment located at 802 East 41 street apartment #C." (Post-Conviction Pet., Ex. B (C:61) ("Ealy Affidavit") ¶ 1.) Third, Howard argued that his appellate counsel was constitutionally ineffective for failing to raise seven specific issues on direct appeal, including: "(A) The State failed to prove petitioner guilty beyond a reasonable doubt.[;] (B) Due process violation of the U.S. and Illinois Constitution (1970).[;]... [and] (F) The State failed to prove every material allegation of the offense beyond a reasonable doubt." (Post-Conviction Pet. at C:52.) Fourth, Howard argued that his trial counsel was constitutionally ineffective for stipulating to Officer Williams's testimony that he could not gain entry into Sherita's town house when he arrived at the crime scene, and that Howard's appellate counsel was constitutionally ineffective for failing to raise the ineffectiveness of trial counsel in this regard as an issue on direct appeal. Fifth, Howard argued that he was denied his right to a fair and impartial trial when the trial court allowed pictures of the broken door at the crime scene to go to the jury; that his trial counsel was constitutionally ineffective for failing to object to the pictures; and that his appellate counsel was constitutionally ineffective for failing to raise the ineffectiveness of trial counsel in this regard on direct appeal. Finally, Howard argued that his trial counsel was constitutionally ineffective for failing to cross-examine Lavita with respect to her testimony that she observed Howard kick-in the front door, contrary to the police report stating that the police had to break down the door to enter the crime scene, and that his appellate counsel was constitutionally ineffective for failing to raise the ineffectiveness of trial counsel in this regard on direct appeal. The trial court dismissed Howard's post-conviction petition as "frivolous and patently without merit" on March 20, 2009. (State Court Record, Ex. H at C:74-C:83 ("3/20/09 Order") (Ford, J.).)

Howard appealed the dismissal of his post-conviction petition with the assistance of counsel, arguing that the trial court erred in summarily dismissing Howard's post-conviction petition because it raised an arguable claim of actual innocence based on the new evidence set forth in the Ealy Affidavit. (State Court Record, Ex. I ("Appellant's Post-Conviction Br.").) The appellate court, however, concluded that Howard "does not claim that Ealy's testimony is new evidence, but only that she can attest to the fact that he did not enter [Sherita's] home unlawfully because he lived with [Sherita] at that time." People v. Howard, No. 1-09-1007 (Ill.App.Ct. 1st Dist. Nov. 4, 2010) (State Court Record, Ex. L ("11/4/10 Order") at 5). The appellate court further concluded that Howard was procedurally barred from raising a claim of actual innocence based on newly discovered evidence, because he had not raised this issue in his post-conviction petition-instead relying on the Ealy Affidavit only for purposes of challenging the sufficiency of the State's evidence against him. ( Id. ) Finally, the appellate court held that Howard's sufficiency of the evidence claim was "barred by the doctrine of res judicata "-because Howard had already raised a sufficiency of the evidence claim on direct appeal-and that "[Howard's] petition was properly dismissed as frivolous and patently without merit." ( Id. at 6.)

Howard filed a pro se petition for leave to appeal with the Supreme Court of Illinois, arguing: (1) that the post-conviction trial court erred by summarily dismissing his post-conviction petition when it raised a gist of a claim of actual innocence based on new evidence, and the appellate court erred in affirming the trial court's ruling in this regard; (2) that the post-conviction trial court erred by dismissing Howard's petition based on res judicata without considering if fundamental fairness required relaxation of the res judicata doctrine, and the appellate court erred in affirming the trial court's ruling in this regard; and (3) the Supreme Court of Illinois should exercise its supervisory authority to correct a fundamental miscarriage of justice where the appellate court refused to rule on Howard's claim of ...


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