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United States ex rel. Tenny v. Lemke

United States District Court, N.D. Illinois, Eastern Division

March 11, 2014

MICHAEL LEMKE, Warden Stateville Correctional Center, Respondent,



Petitioner Robert Tenny is serving a life sentence in the Illinois Department of Corrections for his participation in a 1978 home invasion that resulted in an armed robbery and double murder. Tenny seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition, filed in February 2013, identifies eight alleged bases for habeas relief: (1) the prosecutor violated Brady by failing to disclose potentially impeaching evidence about one of the state's witnesses; (2) the prosecutor knowingly presented false testimony at trial; (3) the trial court improperly limited cross-examination regarding the circumstances of petitioner's custodial statement; (4) trial counsel was constitutionally ineffective; (5) petitioner's natural life sentence predicated on death penalty eligibility factors violated double jeopardy where a jury previously found petitioner ineligible for the death penalty; (6) the sentencing hearing following petitioner's retrial violated Illinois law; (7) petitioner's natural life sentence violates Apprendi; and (8) the prosecutor failed to prove aggravating factors necessary for imposition of the death penalty or natural life imprisonment. Respondent Michael Lemke, the Warden of Stateville Correctional Center ("SCC") where Petitioner is incarcerated, has moved to dismiss Tenny's petition as untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") [17]. For the following reasons, the motion to dismiss [17] is granted. Tenny's petition [1] is dismissed, and the court declines to grant a certificate of appealability.


I. Trials and Direct Appeals

In 1989, a jury convicted Petitioner of two counts of first degree murder for his involvement in a 1978 home invasion, and the Cook County Circuit Court sentenced him to natural life imprisonment.[1] (R. 23 Order, People v. Tenny , No. 1-11-2284 (Ill.App.Ct. 1st Dist. Oct. 9, 2012), Ex. A to Resp't's Mot. to Dismiss [17], hereinafter "Resp't's Mot., " at 1.) Tenny appealed and the state appellate court reversed his conviction and remanded for a new trial, finding that the trial court had denied Petitioner a fair trial based on the cumulative effect of (1) the prosecution's reference in its opening statement to comments Petitioner had made to police that were never introduced as evidence at trial; and (2) restrictions on Petitioner's attorney's cross-examination of an accomplice witness. People v. Tenny, 224 Ill.App.3d 53, 66, 586 N.E.2d 403, 412 (1st Dist. 1991).

Tenny was re-tried in 1996, again convicted of two counts of first degree murder, and Judge Themis Karnezis sentenced to natural life imprisonment. (R. 23 Order, Ex. A to Resp't's Mot. at 2.) Petitioner again appealed, and this time the state appellate court affirmed the judgment on December 18, 1998. (Direct Appeal PLA, People v. Tenny , No. 87078 (Ill.), Ex. B to Resp't's Mot.) Petitioner filed a PLA to the Illinois Supreme Court, which denied the petition on June 2, 1999. (Order Denying Direct Appeal PLA, People v. Tenny , No. 87078 (Ill. 1999), Ex. C to Resp't's Mot.) Tenny did not seek a writ of certiorari from the United States Supreme Court; the deadline for doing so was August 31, 1999. (Tenny Pet. for Writ of Habeas Corpus, hereinafter "Tenny Pet., " at 2.)

II. State Post-Conviction Proceedings

On April 1, 1999, while Tenny's PLA to the Illinois Supreme Court was still pending, Petitioner filed a pro se petition for post-conviction relief.[2] ( See Post-conviction Common Law Record, People v. Tenny , No. 92 CR 11093 (Cir. Ct. Cook Cnty.), Ex. D to Resp't's Mot., at 14.) This petition's claims overlap, in part, with those of the habeas petition here; for instance, both assert that Tenny's trial counsel provided constitutionally ineffective assistance and that the prosecutor knowingly introduced perjured testimony. (R. 23 Order, Ex. A to Resp't's Mot., ¶ 3.) Later that month, Gwyndolette Ward-Brown from the Cook County Public Defender's office was appointed to represent Petitioner in his post-conviction proceedings. ( Id. ) Apparently unsatisfied by that appointment, Petitioner filed a pro se "Supplemental Petition for Postconviction Relief" two years later. In this supplemental petition, filed on May 8, 2001, Tenny challenged the constitutionality of his sentence under Apprendi and asked the court for "appointment of counsel other than the public defender." (Post-conviction Common Law Record, Ex. D to Resp't's Mot., at 18-40 (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)).) The trial court denied Tenny's post-conviction petition on May 23, 2001 without explanation.[3] ( Id. at 42.) Petitioner filed, pro se, a timely notice of appeal on June 8. (Pet.'s Resp. Mem. to Resp't's Mot. To Dismiss, hereinafter "Pet.'s Resp., " at 8.)

Evidently unaware of the trial court's decision, Ward-Brown wrote to Petitioner on both August 27, 2001 and October 2, 2001 to inform him that the hearing on his post-conviction petition had been continued to September 25, 2001 and December 10, 2001, respectively. (Letter from Ward-Brown to Tenny of 8/27/01, Ex. 9 to Pet.'s Resp.; Letter from Brown to Tenny of 10/02/01, Ex. 7 to Pet.'s Resp.) Based on these representations and the ambiguity of the trial court's opinion, Petitioner incorrectly believed that the court had dismissed only his supplemental petition (i.e., the Apprendi challenge) and had not yet reached the issues presented in his original post-conviction petition. (Pet.'s Resp. at 11.) According to Tenny, it was not until August 2002[4] that he learned that the trial court had, in fact, dismissed both his post-conviction petition and the supplemental petition. ( Id. ) On September 18, 2002, Petitioner wrote Ward-Brown to inquire about the status of his petitions, noting (1) that the circuit court clerk had no record of the court dates mentioned in Ward-Brown's prior letters (i.e., September 25, 2001 and December 10, 2001), and (2) that Tenny now believed that both petitions had been denied. (Letter from Tenny to Ward-Brown of 09/18/02, Ex. 8 to Pet.'s Resp.) Ward-Brown replied on October 18, 2002, informing Tenny that (1) his Apprendi issue had been dismissed and was now on appeal; (2) the post-conviction trial court had erroneously failed to address other issues raised in his initial petition; and (3) she was taking steps to bring this error to the court's attention. (Letter from Ward-Brown to Tenny of 10/18/02, Ex. 31 to Pet.'s Resp.) The next step in Petitioner's case, Ward-Brown indicated, was to "motion [his] case up for a December date, " at which point she would "inform [him] of the specific date." ( Id. ) Petitioner never heard back from Ward-Brown regarding the potential December 2002 court date. (Pet.'s Resp. at 9.) The next contact[5] between attorney and client was a July 11, 2003 letter from Tenny to Ward-Brown in which Petitioner asked his attorney to file an attached supplemental brief with the court. (Letter from Tenny to Ward-Brown of 7/11/03, Ex. 23 to Pet.'s Resp.) Counsel acknowledged receipt of this letter on August 1, 2003, and informed Petitioner that he had the option to file the supplemental brief on his own. (Letter from Ward-Brown to Tenny of 8/1/03, Ex. 13 to Pet.'s Resp.) Tenny claims that the next time he heard from his attorney was in July 2004 when she wrote a letter in response to a message from Petitioner.[6] In that letter, Ward-Brown informed Petitioner that there would be a status hearing for his case on September 9, 2004 (Letter from Ward-Brown to Tenny of 7/21/04, Ex. 32 to Pet.'s Resp.), but Petitioner claims that no such hearing was ever held. (Pet.'s Resp. at 9.)

Meanwhile, on March 21, 2003, the state appellate court affirmed the trial court's denial of the post-conviction petition, finding that Apprendi does not apply retroactively on collateral review. (R. 23 Order, People v. Tenny , No. 1-01-2593 (Ill.App.Ct. 1st Dist. 2003), Ex. E to Resp't's Mot. at 1-3.) The appellate court was silent as to any other arguments made by Tenny and it did not refer to Tenny's initial post-conviction petition other than to note that "[a] copy of that petition is not contained in the record." ( Id. at 2.) On April 23, 2003, Petitioner filed a timely pro se PLA, which the Illinois Supreme Court later denied on October 7, 2003. (Post-conviction PLA, People v. Tenny , No. 96195 (Ill. Oct. 7, 2003), Ex. F to Resp't's Mot.)

The final correspondence between Ward-Brown and Tenny in the record occurred in 2005, nearly two years after Petitioner's post-conviction PLA was denied.[7] On October 14 of that year, Ward-Brown wrote to Tenny, indicating that she had "motioned [Petitioner's] case up" in the circuit court, only to reverse course and remove it from the docket "after further review of the appellate opinion" revealed that the "case has already been adjudicated...." She advised Petitioner that his only option going forward was "to file another post-conviction petition with the issue that [his] previous petition was dismissed based on Apprendi only[.]" (Letter from Ward-Brown to Tenny of 10/14/05, Ex. 11 to Pet.'s Resp.) Petitioner seemingly took this advice, and filed a pro se "Motion to Put Post-Conviction Back On Call, " on December 7, 2005. ( See R. 23 Order, Ex. A to Resp't's Mot., at 2; R. 23 Order, People v. Tenny , No. 1-08-2533 (Ill.App.Ct. 1st Dist. May 31, 2011), Ex. G to Resp't's Mot., at 4.) On May 15, 2008, the trial court dismissed this motion, finding that the issues it raised had already been resolved in earlier proceedings. ( See R. 23 Order, Ex. G to Resp't's Mot., at 4-5.) Specifically, the circuit court noted that although the appellate court, on direct appeal, had identified errors made by the state at the 1996 retrial, those issues were not substantial enough to grant a new trial. ( Id. at 4.) Petitioner also filed a supplemental post-conviction petition, alleging ineffective assistance from his post-conviction counsel, Gwyndolette Ward-Brown.[8] ( Id. ) The circuit court held a hearing on that petition on August 18, 2008 and determined that "the new filings, as well as the old filings, much of this, maybe all of it, is matters already resolved, " and that there were no "infirmities in the conviction or sentence." ( Id. ) Based on this finding, the court dismissed Tenny's supplemental petition, and Petitioner appealed. The post-conviction appellate court issued its decision on May 31, 2011, finding that the circuit court lacked jurisdiction to consider Tenny's filings some four-and-a-half years after already dismissing the same claims in his initial post-conviction petition. ( Id. at 6.) The appellate court further rejected Petitioner's contention that his initial 1999 post-conviction petition was never addressed by Illinois's courts:

The record shows that [Petitioner] filed his 2001 supplemental petition before the trial court ruled on his initial 1999 post-conviction petition, and in doing so, evinced his intent to add the claims in his supplemental petition to his initial petition... Under these circumstances, there was but one post-conviction petition before the court, and... [t]he fact that the circuit court did not specifically address the allegations presented in the initial filing does not change the dismissal order.

( Id. at 7-8.)

In September 2009, while the above appeal was pending, Petitioner also filed a pro se motion for leave to file a successive post-conviction petition, challenging his life sentence as unconstitutional. (R. 23 Order, Ex. A to Resp't's Mot., ¶ 6.) The trial court denied the petition, and Tenny appealed, but later voluntarily dismissed that appeal. ( Id. ) Nearly two years later, in June 2011, Petitioner filed a second pro se motion for leave to file a successive post-conviction petition. The circuit court again denied this petition, and Petitioner again appealed. ( Id. ) In response to this appeal, appointed counsel filed a motion to withdraw based on her conclusion that there were no meritorious issues to be raised.[9] The state appellate court (1) granted Ward-Brown's motion, and (2) affirmed the circuit court's dismissal of Tenny's petition on October 9, 2012. (R. 23 Order, ...

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