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Hensley v. Miles

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

August 13, 2019

CARLOS HENSLEY, Petitioner,
v.
SHERWIN MILES,[1] Respondent.

          OPINION AND ORDER

          SARA L. ELLIS UNITED STATES DISTRICT JUDGE

         Petitioner Carlos Hensley, currently incarcerated at Stateville Correctional Center, is serving a forty-five-year sentence for first degree murder and consecutive twenty-five and seventeen-year sentences for discharging a firearm in the commission of the murder and for attempted murder respectively. Hensley petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court reaches Hensley's claim of ineffective assistance of counsel, but Hensley fails to show that the state court unreasonably applied clearly established law. The Court finds the remainder of Hensley's claims procedurally defaulted or non-cognizable. Therefore, the Court denies Hensley's petition for a writ of habeas corpus.

         BACKGROUND

         The Court presumes that the state court's factual determinations are correct for the purpose of habeas review because Hensley has not pointed to clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The Court thus adopts the state court's recitation of the facts and begins by summarizing the facts relevant to Hensley's petition.

         I. Hensley's Trial and Conviction

         A shooting on May 24, 2008, killed Kiana Green and injured Christopher Smith. Prosecutors charged Hensley with first degree murder, attempted murder, and aggravated battery with a firearm in connection with that shooting. Hensley proceeded to a jury trial.

         At trial, the evidence established that on the day of the shooting, Darius Henry and Hensley's brother, Roselle, argued over a dice game near Hensley's house, with Hensley eventually interjecting on his brother's behalf. Hensley, displaying a .357 Magnum, told Henry to go get his gun. Henry left and returned with Ian Rush and Delorean Standley, both of whom had guns. Rush and Standley fired at Hensley, and Hensley returned fire.

         In the time between the initial fight over the dice game and Henry returning with Rush and Standley, Bernard Norvell and James Davis arrived at Hensley's house, where Hensley pointed the .357 at Norvell. Norvell told Hensley to “stop playing like that.” People v. Hensley, 22 N.E.3d 1175, 1181, 2014 IL App (1st) 120802, 387 Ill.Dec. 522 (2014). When gunshots were fired, Davis and Norvell ran through a gangway, but Hensley returned fire.

         Sometime after, Norvell drove his wife's car around the area with Hensley in the passenger seat and Davis in the backseat. They eventually saw a maroon, four-door Cutlass, a car Standley supposedly drove, and assumed the two occupants of the vehicle were Henry and Standley. But Standley had traded cars with Smith for the evening, with Green in the car on the passenger side. Upon seeing the car, Hensley remarked that “there they go.” Id. at 1182. Hensley asked Norvell to pull alongside the car, but Norvell refused. Hensley then got out of the vehicle and walked up to the passenger side of Standley's car and fired a shot through the back window and five shots in the passenger side of the car. The shots hit Smith and killed Green.

         Before trial, the State filed a motion to admit evidence of the dice game argument, fight, and resulting shootout that preceded the shooting of Smith and Green. The State argued that the evidence established Hensley's motive or intent and that the fight between Henry, Roselle, and Hensley was “inextricably linked” to the later shooting because it showed Hensley intended to kill Standley. Id. at 1180. The State also argued that ballistics evidence recovered from the scene indicated the shooter used a .38 or .357 handgun, and Norvell and Davis would testify that they saw Hensley with a .357 that day, proving identity. Hensley filed several motions in limine to exclude the other crimes evidence, arguing he acted legally in self-defense during the earlier shootout and that the State's retaliation theory was speculative and irrelevant. The trial court allowed the State to present the evidence, concluding “it is all one set of facts here.” Id.

         Also before trial, the State petitioned the court for a rule to show cause because Henry failed to appear in court in response to a subpoena. The State believed the police were looking for Henry in connection with an unrelated murder, but the police did not file charges or issue a warrant on that basis. Instead, police arrested Henry approximately a month later on the contempt of court warrant. At trial, Henry admitted he had been arrested for occupying a stolen car and that marijuana had been found in that car. On cross-examination, Hensley's counsel asked Henry, “you are under investigation or the subject of a murder investigation here in Chicago, aren't you?” Id. at 1183. Henry twice denied knowledge of any such investigation.

         In addition to hearing the evidence set forth above about the events of May 24, the jury heard testimony about the occurrence witnesses' credibility. Davis admitted the State compensated him for travel and lodging costs and that he had a prior record. He also indicated he had been drinking vodka the night of the shooting. Norvell acknowledged he had not been truthful when he first spoke to police and denied knowing who shot Green. He also admitted to having prior felony convictions and pending cases. Smith indicated that, although he drove to Trinity Hospital after the shooting, he did not initially report the shooting to police because he “wanted to take care of it” himself, or, in other words, kill Hensley. Id. at 1183. He also admitted to having prior convictions and to having smoked marijuana the night of the shooting. The parties stipulated that Smith's mother would have testified that, while he was recovering in the hospital, her son told her he did not know who shot him.

         A forensic investigator and forensic scientist testified at trial as well. The investigator testified about the processing of the Cutlass, which had gunshot damage. He acknowledged that no physical evidence linked Hensley to the scene of the crime and the police had not recovered the gun. The forensic scientist testified that all the bullets were fired from the same weapon, either a .38 or .357.

         Dr. Michel J. Humilier, who performed Green's autopsy, was no longer employed as a Cook County Medical Examiner at the time of trial. Dr. Ariel Goldschmidt testified in his place as an expert in forensic pathology, stating that a gunshot wound to the head killed Green and classifying the death as a homicide. Dr. Goldschmidt indicated he formed his own opinion after reading the autopsy report and reviewing photographs and hospital records. Dr. Goldschmidt was not present during Green's autopsy nor did he communicate with Dr. Humilier about the report. The State entered a certified copy of the autopsy report, dated July 7, 2011, into evidence, but this report did not go back to the jury. Prior to trial, Hensley filed a motion in limine to exclude Dr. Goldschmidt's testimony, arguing that allowing a substitute witness for Dr. Humilier would violate his confrontation and due process rights. But the court denied Hensley's motion and allowed the State to present Dr. Goldschmidt's testimony.

         After hearing the evidence, the jury found Hensley guilty of first degree murder, attempted murder, and aggravated battery with a firearm. The jury also found that Hensley personally discharged a firearm that proximately caused Green's death. Hensley filed a motion for a new trial, which the court denied. The court sentenced Hensley to forty-five years of imprisonment for first degree murder, twenty-five years for discharging a firearm during the murder, ...


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