United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Henyard, who is serving a life sentence for first degree
murder and a thirty-year term for armed robbery in Illinois
state prison, petitions for a writ of habeas corpus under 28
U.S.C. § 2254. Doc. 7. Henyard seeks habeas relief on
five grounds: (1) that the trial court improperly allowed two
witnesses to testify about their prior consistent statements;
(2) that the prosecutor withheld from the defense an enhanced
version of a surveillance video of the crime; (3) that his
appellate counsel was ineffective for failing to argue that
his trial counsel was ineffective for persuading him not to
testify; (4) that the indictment was substantially amended
without being resubmitted to the grand jury; and (5) that the
prosecutor knowingly relied on perjured testimony.
Henyard's petition is denied, and the court will not
issue a certificate of appealability.
federal habeas court presumes that the state courts'
factual findings are correct unless they are rebutted by
clear and convincing evidence. See 28 U.S.C. §
2254(e)(1); Jean-Paul v. Douma, 809 F.3d 354, 360
(7th Cir. 2015) (“A state court's factual finding
is unreasonable only if it ignores the clear and convincing
weight of the evidence.”) (internal quotation marks
omitted); Coleman v. Hardy, 690 F.3d 811, 815 (7th
Cir. 2012) (“We give great deference to state court
factual findings. After AEDPA, we are required to presume a
state court's account of the facts correct, and the
petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence.”)
(internal quotation marks omitted). The Appellate Court of
Illinois is the last state court to have adjudicated
Henyard's case on the merits. People v. Henyerd,
2013 IL App (1st) 112293-U ( Ill. App. Nov. 8, 2013)
(unpublished order) (reproduced at Doc. 20-25); People v.
Henyerd, No. 1-08-0468 ( Ill. App. Aug. 12, 2010)
(unpublished order) (reproduced at Doc. 20-20). (The state
court spelled his name, “Henyerd.”) The following
sets forth the facts as that court described them, as well as
the procedural background of the state criminal and
Factual Background and Trial
Martini, who owned Blue Ribbon Food Store, a grocery and
liquor store at the corner of Roosevelt Road and Whipple
Street in Chicago, was shot to death during a robbery on
October 12, 1992. Doc. 20-20 at 2. In 1995, Henyard was
convicted of first degree murder and armed robbery for his
participation in the crimes, but the convictions were
reversed on appeal in 1998. Ibid. In a second trial,
Henyard was convicted again, but in 2003 the convictions once
again were reversed on appeal. People v. Henyerd,
1-00-1717 ( Ill. App. 2003) (unpublished order) (reproduced
at Doc. 20-1 at 33-77), appeal denied, 806 N.E.2d
1069 (Ill. 2003). In 2008, Henyard was tried and convicted
for a third time. Doc. 7 at 1. Unless otherwise specified,
the facts and testimony described below refer to
Henyard's third trial.
prosecution witness at trial was Milton Sims, a Blue Ribbon
employee who was present when Martini was shot. Sims
testified that he arrived at work shortly after 6:00 a.m. on
October 12, 1992, and as he began to water down the produce,
a man wearing a ski mask grabbed him, placed a gun to his
neck, and directed him behind the counter. Doc. 20-20 at 2.
Sims identified the man as Joseph Dixon, whom Sims knew from
childhood. Id. at 2-3. Sims saw a second
man, also wearing a ski mask and carrying a gun, standing
behind Martini and rummaging through the store's safe.
Id. at 3. Sims identified that man as Henyard, with
whom Sims had grown up in the neighborhood. Ibid.
Martini and Henyard struggled, Sims heard a gunshot, Martini
fell with what proved to be a fatal wound to his back, and
Henyard and Dixon left the store. Ibid.
convicted felon, Sims had worked periodically at Blue Ribbon
since 1983. Ibid. On several occasions he had been
fired for stealing money, but Martini had rehired him
repeatedly, including in October 1992, shortly before the
murder. Ibid. Sims testified that in August 1992,
Dixon approached Sims, told Sims that he was going to rob
Blue Ribbon, and asked Sims detailed questions about Blue
Ribbon's hours and security, which Sims answered.
Id. at 3-4. On October 9, 1992, three days before
the robbery, Henyard and Dixon approached Sims and asked
about Blue Ribbon's security, when the store opened, how
early staff arrived, and whether the store received
deliveries. Id. at 4. After Sims answered those
questions, either Henyard or Dixon told Sims that they would
give him some money after they robbed the store; Sims,
however, did not believe that the men would actually rob the
store or kill Martini. Ibid.
October 12, 1992, when the police arrived at Blue Ribbon
after Martini's murder, Sims did not tell them that he
knew who the perpetrators were. Ibid. Sims returned
to store two days later and spoke to a detective, who took
him to the police station, where he gave a court-reported
statement. Ibid. Sims was eventually charged (along
with Henyard and Dixon) with the robbery and Martini's
murder, but he was acquitted in August 1994. Ibid.
At his own trial, Sims unsuccessfully moved to suppress his
statements, claiming that the officers had coerced the
statements by handcuffing him to a wall and beating him.
Id. at 4-5. At Henyard's first trial, in 1995,
Sims similarly testified that his statements were coerced and
that he did not know who committed the crimes. Id.
at 5. At Henyard's third and final trial, however, Sims
testified that his coercion claims-both at his own 1994 trial
and at Henyard's 1995 trial-were false, and that he had
made those claims because he was afraid of being convicted
and imprisoned. Ibid. At the 2008 trial, Sims
further testified that his current testimony was truthful
because an innocent man (Martini) had been killed and because
Sims since the 1995 trial had successfully completed a
rehabilitation program and was now working steadily.
counsel extensively cross-examined Sims about his testimony
that his previous testimony was perjured. Id. at 7.
Sims admitted that he had lied under oath both at his own
trial and at Henyard's first trial; that when Blue Ribbon
was robbed, Sims was on probation and faced a risk of
imprisonment; and that in 1995, he had received another
sentence of probation after pleading guilty to violating his
earlier probation. Ibid. Although Sims denied that
he expected Henyard and Dixon to pay him for the information
that he provided about Blue Ribbon before the robbery,
defense counsel impeached him with his testimony from
Henyard's second trial, in 2000, where he testified that
he had expected to be paid. Ibid. Similarly,
although at the 2008 trial Sims testified that he was not
handcuffed when he met with the officers at the police
station two days after the robbery and murder, defense
counsel impeached him with his 2000 testimony that the police
brought him to the station in handcuffs. Ibid.
redirect examination, and over a defense objection, the trial
judge permitted the prosecution to ask Sims about his prior
consistent statements, including his court-reported statement
two days after the robbery. Id. at 8. In that
statement, Sims described his first meeting with Dixon, his
meeting with Dixon and Henyard where they discussed store
security, and his recognition of Henyard during the robbery.
Id. at 8. The prosecutor read portions of the
statement back to Sims, elicited his agreement that he had
made those statements, and introduced the entire statement
through the testimony of an assistant state's attorney
who obtained the statement. Ibid. On
re-cross-examination, Sims admitted that at Henyard's
1995 trial he testified that: (1) he could not recognize
either assailant at Blue Ribbon; (2) the detectives asked him
to state falsely that he could recognize Henyard's facial
features through the robber's ski mask; (3) the officers
questioning him at the station pushed him against a wall,
kneed him in the groin, and told him that they knew who had
committed the crimes but needed him to provide details; and
(4) the August 1992 meeting with Dixon did not occur.
Id. at 8-9.
addition to Sims's testimony, the prosecutor introduced
evidence that at about 6:00 a.m. on the day of the robbery,
Herschel Brown, the manager of a car wash a block from Blue
Ribbon, saw a car resembling Dixon's pull into the car
wash and then drive in the direction of Blue Ribbon.
Id. at 5. Brown testified that he then saw Henyard
and Dixon on the sidewalk about 100 feet from Blue Ribbon.
Ibid. Brown identified Henyard and Dixon in lineups
and in court, and he identified Dixon's car.
Ibid. Martini's nephew, who also witnessed the
crime, id. at 3, identified a striped ski mask found
in Dixon's car as having been worn by one of the
assailants at Blue Ribbon. Id. at 6.
prosecutor also presented Devada Burns, a self-admitted
alcoholic and drug user who at the time of his testimony was
serving a sentence for forgery, which was to be followed by a
federal prison term for a drug conviction. Ibid.
Burns testified that in early October 1992, before the
robbery, Henyard approached him in an alley in the same area
and asked if he had a pistol. Ibid. Henyard told
Burns that he had robbed Anna's Food and Liquors, a
different store in the neighborhood, and that Blue Ribbon
would be next. Ibid.
cross-examination, Burns admitted that during the time period
when Henyard spoke to him about the robberies, Burns would
frequently drink alcohol “all day long, ” but he
denied that he was drunk when Henyard spoke to him.
Id. at 9. Defense counsel asked Burns if in 1999 the
State had helped him resolve a criminal case in which he
ultimately received probation; after a sidebar, the court
instructed the jury that Burns had been represented by
counsel in 1999, had entered into a negotiated guilty plea,
and that nothing in the record suggested that the State had
improperly disposed of that case. Ibid. Burns also
testified that in 2000, but not in 1995, he had remembered
the date on which he spoke to Henyard in October 1992; and
that he thought, but was not sure, that he had told someone
in 1992 that an individual named Andrew Young had also been
in the alley when Henyard spoke to him about the robbery.
Id. at 9-10.
redirect examination, the prosecutor, over a defense
objection, questioned Burns about prior consistent statements
that he made at Henyard's 2000 trial, including that
Henyard told him that he had “got” Anna's
Food and Liquors and that he planned to rob Blue Ribbon next.
Id. at 10. The prosecutor also elicited Burns's
testimony that he related largely the same facts to the grand
jury on October 19, 1992, and in a handwritten statement to
an assistant state's attorney on October 16, 1992.
Ibid. In addition, Muhammad Akrabawi, a former
cashier at Anna's, testified that he was working at
Anna's when Henyard robbed it on August 20, 1992, that he
saw Henyard in the store on previous occasions, and that he
identified Henyard during the Anna's robbery because of
large eye holes in the ski mask. Id. at 6-7.
Akrabawi had identified Henyard in a photograph and in a
lineup, and also did so through an in-court identification at
the trial. Id. at 7.
trial judge told Henyard that the decision to testify was his
alone, that his counsel could advise him on the issue but not
decide it for him, and that if he chose not to testify, the
jury would be instructed that his lack of testimony could not
be used against him. Doc. 20-12 at 118. Henyard indicated
that he understood and chose not to testify. Ibid.
jury convicted Henyard of armed robbery and first degree
murder, and the trial court sentenced him to thirty years
imprisonment and ...