Petition for Writ of Certiorari — Henderson v. DeTella

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

SsUpomey VuUrTt, U.o.

oe FILED

4

~ 961406 mR 5 1997

OES OF THE CLERK

No.

In The

Supreme Court of the United States

October Term, 1996

*

LADELL HENDERSON, #N-51632,

Petitioner,

GEORGE E. DETELLA, Warden,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

¢

PETITION FOR WRIT OF CERTIORARI

a

KATHRYN T. DITMARS

McDermott, Witt & Emery

227 West Monroe Street

Chicago, Illinois 60610

(312) 372-2000

Attorney for Petitioner Ladell Henderson

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

II.

QUESTIONS PRESENTED FOR REVIEW

Whether Henderson’s custodial statement was admit-

ted erroneously and in violation of his Fifth and

Fourteenth amendment rights because, in light of

Henderson’s subpar mentality, the custodial state-

ment was not made voluntarily, nor was it made after

a voluntary, knowing and intelligent waiver of his

Miranda rights.

Whether the lower courts erred in failing to address

Henderson’s argument relating to the denial of due

process resulting from an erroneous attempted mur-

der jury instruction.

li

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI............ 1

OCPREGIORGS DULG. 6 sonic yo epee sae e 1

PASE SUE 0: 0k s 0.040 d diene lars 1

CONSTITUTIONAL PROVISIONS, STATUTES AND

RULES INVOLVED IN THIS CASE.............. 2

STATEMENT OF} TARE GAGE. 6st eiseeeies ss... 3

REASONS FOR GRANTING THE PETITION....... 5

I. HENDERSON’S CUSTODIAL STATEMENT

WAS ERRONEOUSLY ADMITTED IN VIOLA-

TION OF HIS FIFTH, SIXTH AND FOUR-

TEENTH AMENDMENT RIGHTS............ 5

A. Henderson’s Statement Was Not Given

Venue... . ...<4asnmeeie teens 7

B. Defendant Gave His Statement Without

An Intelligent, Knowing, and Voluntary

Waiver of his Miranda Rights............ 10

II. HENDERSON WAS DENIED DUE PROCESS

RIGHTS BY THE ERRONEOUS ATTEMPTED

MURDER INSTRUCTION. ............002000- 13

CONCLERIIING ..... «0 10 ccuenc epee enn ees 18

iii

TABLE OF AUTHORITIES

Page

Cases

Baskin v. Clark, 956 F.2d 142 (7th Cir. 1992). .... 6. 7, 20

Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93

ees NN PE SND sn. 5 os nla rev wo a.d.d-o 0 oe 0 7, 8

Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972)....... 11

Cupp v. Naughten, 414 U.S. 141, 94S. Ct. 396, 38 L.

Me A es ag SCS 6 bbw hordes eee ss cee daze 14

Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68

er MED bo kek esd vwciecncvstdebsdatvevs. 10

Grossart v. Dinaso, 758 F.2d 1221 (7th Cir. L.) 13

Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L.

Me ao bios so ou baw vw «be seoehes ccc, 10

Leyra v. Denno, 347 U.S. 556, 74 S. Ct. 716, 98 L. Ed.

UN Sone UR SLs saa es siveacce ie beessycavsce ce 7

Miller v. Dugger, 838 F.2d 1530 (11th Cir. 1988),

cert. den., 486 U.S. 1061 (1988) .................... 11

Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89

eM I I Nis vo wdccntes sede vivnsonce 10

People v. Harris, 72 Ill. App. 3rd 16, 377 N.E.2d 28

TREES veltnk bey 4045-0 44k ses vin-v vax'e eos 15, 16

People v. Henderson, 175 Ill. App. 3d 483, 529

N.E.2d 1051 (1st Dist. 1988), app. den. 125 Ill. 2d

NN nee Ek d oehe Nid uddhssa eaten iene 1, 4

People v. Henderson, 125 Ill. 2d 570, 537 N.E.2d 814

ERG ea wUu eer On ESS ¥ 05 ab <e00 ous 0sicoecceacs 2

People v. Trinkle, 68 Ill. 2d 198, 369 N.E.2d 888

ER Ghia obs Lacs 6 s% cavcscsecceccducecs 16

TABLE OF AUTHORITIES —- Continued

Page

Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450,

\ oo ae OS. +p | Per eeeerere re rer. errr 14

Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995)....... 13

Smith v. Duckworth, 910 F.2d 1492 (7th Cir. 1990)..... 8

United States ex rel. Martinez v. Thomas, 526 F.2d

TOO (28 Che, TOTS) enc cccecsant vung cin CAs svienes ses 11

Weidner v. Thieret, 866 F.2d 958 (7th Cir. 1989)........ 7

In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed.

Rh By, SP PPPeeere rer err ros Porc errs rea 14

STATUTES

28 USC. QTR) onc ccc crea cs carveskeconnernenvass 2

Ete Cay. eee MCN Orr pre oe) 2, 3, 7, 10

PETITION FOR WRIT OF CERTIORARI

Ladell Henderson respectfully prays that a writ of

certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Seventh Circuit

entered in this proceeding on October 3, 1996 and Decem-

ber 5, 1996, for the compelling reason that the decisions

represent a gross miscarriage of justice that erode Hen-

derson’s constitutional rights as guaranteed by the Fifth

and Fourteenth Amendments.

OPINIONS BELOW

ine opinion of the United States Court of Appeals for

the Seventh Circuit that gives rise to this petition is

published at 97 F.3d 942. It is reprinted in the Appendix

hereto at page A-1. By order filed December 5, 1996, the

Seventh Circuit denied Henderson’s petition for rehear-

ing. A-20.

JURISDICTION

Henderson was convicted of murder, attempted mur-

der, home invasion and conspiracy following a jury trial

in Illinois state court, and was sentenced by the trial court

to terms of natural life for murder and thirty years for

attempted murder. The Illinois appellate court affirmed

the convictions and sentences for murder and attempted

murder. People v. Henderson, 175 Ill. App. 3d 483, 529

N.E.2d 1051 (1st Dist. 1988), app. den. 125 Ill.2d 570 (1989).

A-33. The Illinois Supreme Court denied Henderson’s

petition for appeal. People v. Henderson, 125 I11.2d 570, 537

N.E.2d 814 (1989).

On November 13, 1991, Henderson filed a petition for

habeas corpus relief in the federal district court of the

Northern District of Illinois. Jurisdiction in the federal

district court was complete and correct pursuant to 28

U.S.C. § 2254 and the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution. On Sep-

tember 13, 1994, the district court entered an order deny-

ing Henderson’s petition and dismissed Henderson’s case

with prejudice. A-28.

Henderson filed a timely appeal to the United States

Court of Appeals for the Seventh Circuit, which affirmed

the district court’s decision in an opinion filed October 3,

1996. A-1. On December 5, 1996 the Seventh Circuit

denied Henderson’s motion for rehearing. Pursuant to

Supreme Court Rule 13(3), this petition has been filed

within 90 days of the denial of rehearing. A-20.

The jurisdiction of the Court is invoked pursuant to

28 U.S.C. § 1254(1).

=—®

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED IN THIS CASE

The Fifth Amendment to the United States Constitu-

tion provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

The Fourteenth Amendment to the United States

Constitution, Section One provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

The text of 28 U.S.C. § 2254 is appended hereto at

A-44-50, both as it existed at the time of the district

court’s ruling denying Henderson’s habeas corpus peti-

tion and as amended by the Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. 104-132, 110 stat. 1214.

+

STATEMENT OF THE CASE

Henderson appeals from the denial by the District

Court of his petition for a writ of habeas corpus. In the

Silinois state court, Henderson was found guilty of mur-

der, attempted murder, home invasion and conspiracy,

and was sentenced to natural life for murder and thirty

years for attempted murder. On appeal, Henderson

argued, among other things, that the trial court: (1)

denied Henderson’s constitutional rights under the Fifth

and Fourteenth Amendments by denying Henderson’s

motion to suppress a custodial statement that Henderson

made to an Assistant State’s Attorney; and (2) deprived

Henderson of his due process rights and a fair trial as a

result of an erroneous jury instruction on the charge of

attempted murder that allowed Henderson to be con-

victed without requiring a finding of a specific intent to

kill.

The Illinois appellate court affirmed the convictions

and sentences for murder and attempted murder. Hender-

son, 529 N.E.2d 1051. The court found that Henderson’s

sub-par mentality did not negate his waiver of Miranda or

make his statement involuntary. Henderson, 529 N.E.2d at

1054. The court also found that the jury instruction on

attempted murder was not erroneous. Henderson, 529

N.E.2d at 1053-54.

Pursuant to 28 U.S.C. § 2254, on November 13, 1991,

Henderson filed a timely petition for a writ of habeas

corpus in the United States District Court for the North-

ern District of Illinois, which was denied. The District

Court judge found that the state court’s finding of the

validity of Henderson’s Miranda waiver presumptively

was correct, and that Henderson’s statement was volun-

tary, but did not address the issue of the erroneous

attempted murder instruction.

Henderson timely appealed to the United States Court

of Appeals for the Seventh Circuit, which affirmed the

district court’s decision. The Seventh Circuit found that

i ee

Dek SE a ete ee

— at ANE of BR SP DAD RM

Henderson’s custodial statement was both voluntary and

made with a knowing and voluntary waiver of his Miranda

rights. The court relied on the state court’s apparent fac-

tual finding that Henderson knew he was speaking with

the State when he made the custodial statement. The court

declined to address Henderson’s erroneous instruction

argument because, although the parties raised and briefed

it on appeal, it was not specified in Henderson’s second

amended habeas corpus petition.

S

REASONS FOR GRANTING THE PETITION

I

HENDERSON’S CUSTODIAL STATEMENT

WAS ERRONEOUSLY ADMITTED IN

VIOLATION OF HIS FIFTH, SIXTH

AND FOURTEENTH AMENDMENT RIGHTS

In his amended petition for a writ of habeas corpus

in the United States District Court for the Northern Dis-

trict of Illinois, Henderson argued that the trial court

erred in denying Henderson’s motion to suppress his

custodial statement when the circumstances failed to

establish that the statement was voluntary and given

after a voluntary, knowing and intelligent waiver of his

Miranda rights. Although Henderson denied in his state-

ment personally shooting the victims, the admission of

the statement at trial was crucial because it placed Hen-

derson at the scene of the crimes. In support of this

petition, Henderson cited evidence from the state court

trial that Henderson has an IQ of 64 and limited reading

and comprehension abilities, and that at the time he gave

the statement he was led to believe, and indeed believed,

that the Assistant State’s Attorney to whom he made his

statement was the lawyer he had been told would be

provided for him. The State introduced evidence at the

trial confirming that Henderson was confused concerning

the identity of the Assistant State’s Attorney at the time

Henderson gave his statement.

The Seventh Circuit properly addressed Henderson’s

claim using a two-part inquiry: (1) whether Henderson’s

statement was voluntary as a matter of law; and (2)

whether the record fairly supported the determination

that Henderson knowingly and voluntarily waived his

Miranda rights. However, the court erroneously relied

exclusively on the state court’s factual determination that

Henderson waived his Miranda rights, without indepen-

dently analyzing whether Henderson, in fact, could or

did voluntarily make the custodial statement to the Assis-

tant State’s Attorney.

A finding of a valid Miranda waiver does not compel

a finding that a confession was voluntary. Baskin v. Clark,

956 F.2d 142, 145 (7th Cir. 1992). Henderson’s statement

was involuntary, and therefore admitted in violation of

Henderson's rights under the Due Process clause of the

Fourteenth Amendment, because the police led him to

believe, and Henderson in fact did believe, that he was

speaking to his own attorney rather than to the State. In

addition, Henderson’s statement was given without a

voluntary, intelligent and knowing waiver of Hender-

son’s Miranda rights, in violation of Henderson’s Fifth,

Sixth, and Fourteenth Amendment rights, because Hen-

derson in fact did not know or understand that he was

waiving any rights by speaking with a person he believed

to be his own attorney.

A. Henderson’s Statement Was Not Given Volun-

tarily

Whether a statement is voluntary is a question of iaw

that is reviewed de novo by the federal appeals court.

Baskin v. Clark, 956 F.2d 142, 145 (7th Cir. 1992); Weidner v.

Thieret, 866 F.2d 958, 961 (7th Cir. 1989). Although the

reviewing court defers to the state court’s findings of

historical fact, Weidner, 866 F.2d at 961; 28 U.S.C.

§ 2254(d), whether the subsidiary facts amount to a show-

ing by the State that the statement was made voluntarily

is subject to plenary review. Id.

A statement is not voluntary within the due process

clause of the Fourteenth Amendment when there is some

element of police overreaching that is causally related to

the confession. Colorado v. Connelly, 479 U.S. 157, 164, 107

S. Ct. 515, 520, 93 L. Ed. 2d 473 (1986). An interrogation

becomes constitutionally objectionable, and thus coercion

occurs, when the person questioned is prevented from

making a rational choice. Weidner, 866 F.2d at 963. An

accused’s age, intelligence and education are relevant

considerations in determining whether the accused was

prevented from making a rational choice. Id. at 964.

Misrepresentations can result in coercive police activ-

ity. Id. See also, Leyra v. Denno, 347 U.S. 556, 74 S. Ct. 716,

98 L. Ed. 948 (1954) (A psychiatrist sent by the police was

introduced as a physician present to help the accused,

rendering the resulting confession involuntary.) Other

factors considered include the accused’s age, his educa-

tion level, his intelligence level, whether the accused was

advised of his constitutional rights, the length of his

detention, the nature of the questioning, and the use of

force or deprivation. Weidner, 866 F.2d at 964.

Police overreaching includes not only physical coer-

cion, but “more subtle form of psychological persuasion.”

Colorado v. Connelly, 479 U.S. at 164. The mental condition

of the accused is a significant factor in determining

whether a statement was made voluntarily. Id. “[I]t takes

less in terms of threats or other means of inducing fear to

interfere with the deliberate processes of one whose

capacity for rational choice is limited.” Smith v. Duck-

worth, 910 F.2d 1492, 1496 (7th Cir. 1990).

In the present case, testimony of the State’s witnesses

established that when Henderson was arrested, Hender-

son indicated that he understood the Miranda rights as

explained to him and that he did not wish to give a

statement. Indeed, the record demonstrates that until the

interview with the Assistant State’s Attorney, Henderson

denied any involvement with the alleged crimes.

During the four hours that Henderson was held at

the police station prior to his interview with the State,

Henderson testified that he was told by police that an

attorney would be coming to help him. During these

hours, police read Henderson his Miranda rights, includ-

ing that if he could not afford an attorney, the state would

provide one for him. While Henderson, a public defender

client, awaited this state appointed counsel, the Assistant

State’s Attorney, Kim Kardas, arrived. Henderson testi-

fied that shortly before Kardas arrived, a police officer

told Henderson that his attorney was there to help him.

The State’s version of the events surrounding Hen-

derson’s statement, which was accepted by the lower

sethehetetinhe te eo A a eee

Me eh BO bo

courts, does not address whether Henderson understood

that he was speaking to the State when he made the

statement, even if he was capable of understanding who

Assistant State’s Attorneys were and what their role was.

Given Henderson’s intelligence, the controlling question

should have been whether Henderson did understand,

not just whether he was capable of understanding, that

he was speaking to the State.

Furthermore, it is undisputed that Henderson gave

his statement and Kardas transcribed it. There is no evi-

dence that Henderson was offered the opportunity to

write his own statement or that Kardas inquired whether

he was able to do so. When attempting to read the state-

ment as written by Kardas, Henderson for the first time

realized that he had been speaking with the Assistant

State’s Attorney. It also is undisputed that Henderson

appeared confused when he tried to read the statement.

Henderson stated that he thought the Assistant State’s

Attorney was his attorney and also that the Assistant

State’s Attorney had said that he was Henderson’s attor-

ney.

Moreover, the trial court never made a finding that

Henderson was not told by Kardas that Kardas was there

as his attorney or that Henderson in fact did not believe

that Kardas was his attorney. This finding is required to

determine whether Henderson voluntarily made his

statement to the State. Because the evidence demonstrates

that Henderson was led to believe that Kardas was his

attorney, and indeed believed that he was, the statement

that Henderson made was involuntary and its introduc-

tion at trial deprived Henderson of his constitutional

rights under the Fifth and Fourteenth Amendments.

10

B. Defendant Gave His Statement Without An

Intelligent, Knowing, and Voluntary Waiver of

his Miranda Rights

Federal courts will defer to the state court determina-

tion of the validity of Miranda waivers, unless that deter-

mination is not fairly supported by the record. 28 U.S.C.

§ 2254; Baskin v. Clark, 956 F.2d 142, 145 (7th Cir. 1992).

The government must prove by a preponderance of the

evidence that a defendant knowingly and intelligently

waived his Miranda rights. Lego v. Twomey, 404 U.S. 477,

92 S. Ct. 619, 30 L. Ed. 2d 618 (1972).

A waiver is the intentional relinquishment of a

known right. See, Edwards v. Arizona, 451 U.S. 477, 482,

101 S. Ct. 1880, 68 L.E.2d 378 (1980) Relinquishment of a

right involves two dimensions. Moran v. Burbine, 475 US.

412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). First, the

waiver must have been voluntary and free of coercion. Id.

In addition, the waiver must be made “with a full aware-

ness of both the nature of the right being abandoned and

the consequences of the decision to abandon it.” Id.

Only if the ‘totality of the circumstances sur-

rounding the interrogation’ reveals both an

uncoerced choice and the requisite level of com-

prehension may a court properly conclude that

the Miranda rights have been waived.

Id. The state of mind of the police is irrelevant to the

question of an accused’s voluntary, knowing and intel-

ligent waiver of Miranda rights. Id. at 423. However, the

State of mind of the accused is crucial.

ORT LNG PR POLI TERN SRL Aoi a dh 6 ee ee eee

11

There is little doubt that mental illness can inter-

fere with a defendant's ability to make a know-

ing and intelligent waiver of his Miranda rights.

Competency to make such a waiver is, of course,

to be determined according to the totality of

circumstances.

Miller v. Dugger, 838 F.2d 1530, 1539 (11th Cir. 1988), cert.

den. 486 U.S. 1061 (1988).

Federal courts have held that the subpar mentality of

the accused impedes the accused’s ability to make a vol-

untary, knowing and intelligent waiver. In Cooper v.

Griffin, 455 F.2d 1142 (5th Cir. 1972), the court determined

that youths who had no experience with the criminal

justice system and IQs ranging between 61 and 67 were

incapable of making valid waivers. Other factors consid-

ered in determining whether an accused is capable

include age, mental deficiency, and lack of familiarity

with the criminal justice system. Id. at 1145; see also,

United States ex rel. Martinez v. Thomas, 526 F.2d 750, 756

(2d Cir. 1975) (defendant had I.Q. of 63).

In the present case, evidence established that Hen-

derson was 18 at the time of his arrest and that he had an

I.Q. of 64, in the mentally deficient range. Henderson was

induced to make a statement only after being led to

believe that the person questioning him was his own

attorney.

Moreover, although the form Kardas used when he

drafted Henderson’s statement provided standard Mir-

anda waiver provisions for Henderson’s signature, Kardas

never requested that Henderson sign the written waiver

provisions. Kardas, who had been in the Felony Review

12

rotation only two weeks when he interviewed Hender-

son, instead testified that he did not customarily request

written waivers when he was only speaking with a sus-

pect. If Kardas had requested the written waiver, Hender-

son would have had the Opportunity to see that the form

was from the Cook County State’s Attorney’s office.

The trial court merely found that State had borne its

burden of showing that Henderson’s statement was given

after Henderson “understandingly and knowingly

waived his Constitutional rights to remain silent.” How-

ever, the court did not address that Henderson was in

fact mentally deficient. In addition, it is uncontested that

upon reviewing the statement as written by Kardas, Hen-

derson stated that Kardas had told him that he was

Henderson’s attorney and that Henderson thought

Kardas was his attorney. It also is undisputed that as soon

as Henderson discovered that Kardas did not work for

him, he refused to sign the statement.

The trial court’s finding is not supported by a fair

reading of the record because it is impossible for Hender-

son to knowingly and intelligently waive his rights to

counsel and to remain silent when he never believed that

he was making a staiement to anyone other than his

defense counsel. Henderson could not have understood

that any statement he made could be used against him at

trial.

A fair reading of the record below illustrates that no

court made the requisite independent finding that at the

time Henderson made his statement to Kardas, Hender-

son understood that he was making a statement that

would be used against him. Moreover, Henderson could

ae fe

PO OT EA NR IRE ASS CRI Cab ihe esl dab i

, ataaeiaalind ahaa atedialan tad ieaatd gL te ee LO ee

13

not have waived his right to counsel because he thought

he was speaking with his counsel. Henderson’s statement

was made without a voluntary, knowing, and intelligent

waiver of his Miranda rights and was erroneously admit-

ted at trial.

II

HENDERSON WAS DENIED DUE PROCESS

RIGHTS BY THE ERRONEOUS

ATTEMPTED MURDER INSTRUCTION

The Seventh Circuit did not address Henderson’s

argument that the state court’s erroneous jury instruction

deprived Henderson of his due process rights because

that argument was not raised in Henderson’s second

amended habeas corpus petition. Although issues not

raised in the district court generally are waived on

appeal, an appellate court may address issues of law that

are briefed fully on appeal, notwithstanding the appel-

lant’s failure to raise them below. Scholes v. Lehman, 56

F.3d 750, 760 (7th Cir. 1995). Additionally, an issue is not

waived in circumstances “where injustice might other-

wise result.” Grossart v. Dinaso, 758 F.2d 1221, 1226 (7th

Cir. 1985) (quoting Hormel v. Helvering, 312 U.S. 552, 557

(1941)).

These standards require consideration of the present

issue. The erroneous instruction claim is a purely legal

issue; no issues of fact need to be resolved or considered.

Additionally, both parties fully briefed this issue to the

Seventh Circuit. Henderson raised the erroneous instruc-

tion issue in the state appellate court and identified the

constitutional nature of this issue in his first amended pro

14

se petition in the district court. However, Henderson’s

appointed counsel prepared and filed a second amended

petition which failed to include this issue. Henderson

was not aware of this omission.

A federal court may Overturn a conviction resulting

from a state trial in which an erroneous jury instruction

was used if it is established that the instruction is erro-

neous and violated some right which is guaranteed to the

defendant by the Fourteenth Amendment. See, Cupp v.

Naughten, 414 U.S. 141, 146, 94S. Ct. 396, 38 L. Ed. 2d 368

(1973). When reviewing the instruction, the court does

not look at the instruction in isolation, but within the

context of the overall charge. Cupp, 414 U.S at 147. The

flawed instruction must have “so infected the entire trial

that the result violates due Process.” Id.

Due process requires a state to prove every element

of a crime beyond a reasonable doubt. In re Winship, 397

‘S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). A

defective jury instruction can violate this requirement by

allowing the state to presume the element of intent. See,

Sandstrom v. Montana, 442 USS. 510, 523, 99 S. Ct. 2450,

2458, 61 L. Ed. 2d 39 (1979).

In the present case, the trial court’s instruction on

attempted murder was erroneous because it allowed the

jury to find the defendant guilty of attempted murder

without finding that he acted with the specific intent to

kill. The jury was instructed regarding the charge of

murder as follows:

A person commits the offense of murder when

he kills an individual if, in performing the acts

which cause death, he intends to kill or do great

Na ta seb

15

bodily harm to that individual; or he knows that

such acts would cause death to that individual;

or he knows that such acts create a strong prob-

ability of death or great bodily harm to that

individual; or he is committing the offense of

home invasion.

The jury was instructed on attempted murder as follows:

A person commits the offense of attempt when

he, with intent to commit the offense of murder,

does any act which constitutes a substantial step

toward the commission of the offense of murder.

The offense attempted need not have been com-

mitted.

The jury further was instructed, in part:

To sustain the charge of attempt, the State must

prove the following propositions: First, that the

defendant, or one for whose conduct he is

legally responsible, performed an act which con-

stituted a substantial step toward the commis-

sion of the offense of murder; and, second, that

the offender, or one for whose conduct he is

legally responsible, did so with intent to commit

the offense of murder. If you find from your

consideration of all of the evidence that each

one of these propositions has been proved

beyond a reasonable doubt, you should find the

defendant guilty .. .

These jury instructions are clearly erroneous pur-

suant to Illinois law. The Illinois State Supreme Court has

held that an instruction must make clear that criminal

intent to kill is necessary in order to convict for

attempted murder. People v. Harris, 72 Ill. 2d 16, 27, 377

16

N.E.2d 28 (1978); People v. Trinkle, 68 Ill. 2d 198, 201, 369

N.E.2d 888 (1977).

In Harris and Trinkle, the attempted murder instruc-

tions stated that a person commits attempted murder

when acting with intent to commit murder. Harris, 377

N.E.2d at 32-33; Trinkle, 369 N.E.2d at 889. However, the

decisions held that reference only to the murder instruc-

tion allowed the jury to make a finding of guilt based on

a mens rea less than specific intent to kill. A finding of

guilt on the murder instruction could result if the defen-

dant had acted merely with the knowledge that his con-

duct created a strong probability of bodily harm. See,

Harris, 377 N.E.2d at 33; Trinkle, 369 N.E.2d at 890. “[T]he

jury could have found the defendant guilty of attempted

murder sans specific intent to kill.” Trinkle, 369 N.E.2d at

890.

Likewise, the jury instructions in Henderson’s case

allowed the jury to convict Henderson without the requi-

_ Site intent to kill because the attempted murder instruc-

tion included only the intent to commit murder. The

murder instruction allowed for various mental states,

rather than the specific, requisite intent to kill. Therefore,

the jury could find the defendant guilty of attempted

murder without a finding of specific intent to kill.

The evidence before the jury directly conflicted. The

State attempted to prove, largely on the basis of the

testimony of Mona Chavez, that the defendant committed

the crimes directly and personally. Chavez testified that

Henderson personally shot her and her uncle, Dennis

Leonard. The defense theory was that Henderson did not

17

pull the trigger but merely was present at the scene prior

to the shooting.

Indeed, the record shows that the jury was uncertain

as to the defendant’s mental state. During deliberations,

the jury tendered the following question to the judge:

Is it possible to reach a verdict of guilty on the

charge of murder if the jury is not convinced

that Ladell [Henderson] shot Dennis Leonard, is

not convinced that Ladell knew beforehand that

Dennis would be shot but is convinced that

Ladell aided and abetted other persons in the

crime of home invasion on the night of the

killing?

In response to their question, the judge merely

responded, “Read your instructions.” The jurors’ ques-

tion demonstrates their confusion on the intent issue.

This jurors’ question is not surprising given that Hender-

son’s statement, even if admissible, does not support the

finding that Henderson personally performed the shoot-

ing of Leonard and Chavez. If the jury believed Hender-

son and rejected Chavez’ testimony, it could still have

found Henderson guilty of attempted murder pursuant to

the erroneous instruction given by the court.

As illustrated by the jurors’ explicit question on this

issue, the erroneous instruction infected the whole trial

by permitting the state to avoid its burden of proving the

element of specific intent to kill. The jury’s question and

Henderson’s statement call into question whether the

jury would have found Henderson guilty of even the

attempted murder charge. That the jury questioned or

even rejected Chavez’ testimony that Henderson was the

shooter, demonstrates that this erroneous instruction

18

infected the entire deliberation process. The erroneous

instruction therefore violated Henderson’s Fourteenth

Amendment right to due process.

The evidence in the record, the erroneous instruction

regarding the requisite state of mind for attempted mur-

der, and the jury’s question illustrating the jury’s uncer-

tainty about the defendant’s mental state, all show that

the erroneous instruction on the charge of attempted

murder was not harmless beyond a reasonable doubt.

a

CONCLUSION

Henderson was denied his rights under the Fifth and

Fourteenth Amendments when the state trial court

denied his motion to suppress the custodial statement

Henderson made to the Assistant State’s Attorney. Hen-

derson is of a subpar mentality and was young and in

custody when the statement was made. Henderson was

led to believe, and in fact did believe, that he was speak-

ing with his state appointed counsel and not the State.

Henderson’s statement therefore was involuntary. More-

over, the totality of circumstances shows that Henderson

did not voluntarily, knowingly and intelligently waive his

right to counsel or his right to remain silent. Henderson

was also denied a fair trial by the erroneous instruction to

the jury that allowed Henderson to be convicted on the

charge of attempted murder without the required show-

ing by the State that Henderson possessed the specific

intent to kill.

WHEREFORE, Petitioner Ladell Henderson respect-

fully prays that a writ of certiorari issue to review the

19

judgment and opinion of the United States Court of

Appeals for the Seventh Circuit.

Respectfully submitted,

LADELL HENDERSON

By His Attorney

KATHRYN T. Drrmars

McDermott, Witt & EMERY

227 West Monroe Street

Chicago, Illinois 60606-5096

(312) 372-2000

APPENDIX INDEX

10-3-96 Judgment and Decision of the United

States Court of Appeals for the Seventh

I oh deth nes con a eked edu beel ORG, Pow: A-1

12-5-96 Order of the United States Court of

Appeals for the Seventh Circuit denying Hen-

derson’s motion for rehearing .................. A-20

10-23-96 Order of the United States Court of

Appeals for the Seventh Circuit granting Hen-

derson’s motion for an extension of I te nt A-21

4-4-95 Order of United States District Court Judge

Brian B. Duff Denying Petition for Certificate of

hia scripisthe e,,..., , eEe CE e e a A-22

1-10-95 Order of United States District Court

Judge Brian B. Duff Denying Petition for Certif-

icate of Probable Cause......................... A-23

9-13-94 Judgment, Order and Memorandum of

United States District Court Judge Brian B. Duff

denying Petition for Writ of Habeas Corpus....... A-28

People v. Henderson, 175 Iul. App. 3d 483, 529

PUNE WUE MOOD oo ividis oh dos acesvdvcvae since A-33

er I ae ees ue ela Cees oo A-44

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. 104-132, 110 Stat. 1214............ A-47

A-1

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT - WITH ORAL ARGUMENT

Date: October 3, 1996

BEFORE: Honorable ILANA DIAMOND ROVNER,

Circuit Judge

Honorable DIANE P. WOOD, Circuit Judge

Honorable TERENCE T. EVANS, Circuit

Judge

No. 95-1834

LADELL HENDERSON,

Petitioner-Appellant

v.

GEORGE E. DeTELLA,

Respondent-Appellee

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 91 C 7288, Brian Barnett Duff, Judge

The judgment of the District Court is AFFIRMED, in

accordance with the decision of this court entered on this

date.

(1061-110393)

A-2

In the

United States Court of Appeals

For the Seventh Circuit

No. 95-1834

LADELL HENDERSON,

Petitioner-Appellant,

Georce E. DeTEta,*

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 91 C 7288 - Brian Barnett Duff, Judge.

ARGUED JANUARY 4, 1996 — Decipep Ocrtoser 3, 1996

Before Rovner, Diane P. Woop, and Evans, Circuit

Judges.

"In his habeas petition, the petitioner has named as

respondents George C. Welborn, currently the warden of the

maximum security facility at Tamms, Illinois, and James E.

Ryan, the Illinois Attorney General. Because the petitioner is

presently in custody at the Stateville Correctional Center

pursuant to the conviction he challenges in his habeas petition,

the proper respondent is George E. DeTella, the warden of that

facility. We have made the substitution pursuant to Fed. R. App.

P. 43 at the state’s suggestion.

iat

A-3

Rovner, Circuit Judge. An Illinois jury convicted

Ladell Henderson of murder and attempted murder, for

which he was sentenced to respective prison terms of life

and thirty years. His petition for a writ of habeas corpus

contends that his post-arrest confession of involvement in

these crimes was made without a voluntary, knowing,

and intelligent waiver of his rights under Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), and that the

trial court erred in barring him from presenting evidence

that the complaining witness used narcotics. The district

court denied Henderson’s petition. We affirm.1

1 After we heard oral arguments in this appeal, the

President signed into law what is known as the Anti-terrorism

and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110

Stat. 1214. Among other changes, the statute adds a new

provision to 28 U.S.C. § 2254, under which Henderson seeks

relief. Section 2254(d) now provides:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim -

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined by

the Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceeding.

This court held recently that the provisions of section 2254(d)

apply to habeas petitions filed prior to enactment of the new

statute. Lindh v. Murphy, No. 95-3608 (7th Cir. Sept. 12, 1996) (en

banc). We need not decide what effect, if any, these provisions

have on our review of Henderson’s claims. His petition fails

A-4

a.

In the early morning hours of February 28, 1984,

Mona Chavez was at home in Chicago watching televi-

sion with her uncle, Dennis Leonard. After nodding off to

sleep, Chavez was awakened by a pounding on the front

door. Leonard answered and was confronted by Hender-

son and two other men. Leonard was thrown to the floor.

Henderson told both Chavez and Leonard that they were

going to die. He pulled out a gun and fired two shots into

the back of Leonard’s head, killing him. Chavez, who was

sixteen years old, knew Henderson (age eighteen), from

the neighborhood. He had asked her on several occasions

to be “his lady.” (She testified that she had declined his

offer, although defense witnesses said that the two were

involved romantically.) Days before the shooting he had

broken into her apartment and stolen several items of

clothing. Now, as Chavez pleaded with Henderson to

spare her life, he told her that if he could not have her, no

one would. He grabbed her hair, put a gun to her ear, and

shot her three times.

Miraculously, Chavez survived. She regained con-

sciousness hours after the shooting, crawled from the

second floor apartment, stumbled down the stairs, and

sought help from a downstairs neighbor, who telephoned

the police. Chavez told the officer who arrived on the

scene that Henderson had shot her.

Henderson was located at a tavern and taken into

custody. (The record does not disclose the fate of his two

under either the new or the previous versions of the habeas

statute.

A-5

accomplices.) Officer Clifton Underwood testified that he

apprised Henderson of his Miranda rights both at the

scene of his arrest and later at the police station; he also

testified that Henderson acknowledged these rights as he

was informed of them. Henderson did not appear con-

fused to the officers who observed him. Although cooper-

ative, he declined to make a statement initially, other than

to profess ignorance as to the reason for his arrest and to

deny having killed anyone. However, according to

Underwood, Henderson later had a change of heart and

said that he wanted to tell Underwood “what really hap-

pened.” Underwood testified that he again told Hender-

son what his rights were, and that Henderson

acknowledged them. The two then spoke for twenty to

thirty minutes. Subsequently, Assistant State’s Attorney

Kim Kardas took a statement from Henderson. Kardas

knew Henderson from a previous prosecution in juvenile

court and later testified that he reminded Henderson of

this as he introduced himself. Detective Peter Valesares

was present while Kardas interviewed Henderson and

confirmed that Kardas and Henderson appeared to know

one another. Valesares also testified that he told Hender-

son before this interview that he was being charged with

shooting Chavez and killing Leonard and that a state’s

attorney would be coming to speak with him.

After speaking with Henderson, Kardas prepared a

written statement for him to sign. In substance, the state-

ment indicated that Henderson had taken two men

(“Billy Ray” and “Speedy”) to Chavez’s home for the

purpose of executing a contract on her life (she purpor-

tedly had “set up” an El Rukn gang member), but did not

participate in the shootings. When Henderson began to

A-6

review the statement, he noted a reference to Kardas

being an assistant state’s attorney. He purported to be

confused by that and said that he had understood Kardas

to be his own attorney, not the state’s. He then refused to

sign the statement. Henderson later testified at a suppres-

sion hearing that he had spoken to Kardas thinking that

Kardas was a defense attorney, not a prosecutor.

The state subsequently charged Henderson with

murder, attempted murder, conspiracy to commit murder,

and home invasion. Chavez testified at trial and identi-

fie. “Ienderson as the assailant. On cross-examination,

the defense inquired into her relationship with one Quin-

tin Jones and asked Chavez whether she had used

“speed” in the presence of Henderson and Jones. Chavez

acknowledged knowing Jones but denied that she had

been involved with him romantically and denied having

ever used speed. When the defense later attempted to

have Jones testify that he had seen Chavez use drugs on

numerous occasions, the trial court sustained the state’s

objection, noting that “the only reason [you’re] doing it is

to dirty up the witness.” In addition to Chavez’s testi-

mony, the state was permitted to offer into evidence the

written statement that Kardas prepared based on what

Henderson had told him. That statement, of course,

placed Henderson at the scene of the shooting. Hender-

son had moved unsuccessfully in advance of trial to

suppress the statement. Having failed in that effort, Hen-

derson’s theory of defense was that although he had

participated in the home invasion, he had done nothing

more. The jury rejected that theory and convicted Hen-

derson on all charges. The trial judge ordered Henderson

to serve a term of natural life in prison for Leonard’s

A-7

murder, thirty years for the attempted murder of Chavez,

and seven years for the conspiracy to commit murder. No

sentence was imposed for the home invasion.

On appeal, the Illinois appellate court vacated Hen-

derson’s conviction on the conspiracy charge, but

affirmed his conviction and sentence on the other

charges. People v. Henderson, 529 N.E.2d 1051 (Ill. App.

1988), leave to appeal denied, 537 N.E.2d 814 (Ill. 1989).

Among other issues, the court disposed of two that Hen-

derson has pursued in his habeas petition: the admission

of his post-arrest statement to the authorities and the

refusal to permit him to present extrinsic evidence of

Chavez’s past drug use. Henderson had moved to sup-

press his statement arguing that for two reasons his deci-

sion to waive his Miranda rights was not voluntary,

knowing, and intelligent. He contended that he had been

misled into thinking that Kardas was his own attorney

and that, in any event, his limited mental capacity and

below-average I.Q. (sixty-four) rendered him unable to

make a reasoned decision in this regard. The appellate

court did not specifically address the purported confu-

sion as to Kardas’ affiliation, although in its recitation of

the trial testimony the court noted that Kardas claimed to

have expressly identified himself as the state’s attorney,

not Henderson’s. The court did address the question of

Henderson’s mental capacity to waive his Miranda rights:

In reviewing the totality of circumstances sur-

rounding defendant’s statement, we find that a

preponderance of the evidence demonstrates

that the defendant understood and knowingly

waived his constitutional rights. Where as here

the record supports a finding that defendant’s

A-8

subpar mentality did not interfere with his abil-

ity to comprehend the meaning of a voluntarily

made statement or a right to counsel, his state-

ment will not be suppressed.

529 N.E.2d at 1054. The court also found no error in the

trial court’s decision to exclude Jones from testifying as to

Chavez’s purported drug use.

Defendant made no reference or qualification as

to when the victim allegedly used drugs or the

extent of impairment from the use of any drugs.

Thus, we are inclined to agree with the trial

court that such evidence would not shed light

on the victim’s ability to adequately perceive the

events as they occurred on the night of the

offense. To the contrary, this evidence would

simply “dirty up” the witness in the eyes of the

jury. Accordingly, we find that the trial court

properly excluded any evidence of the victim’s

alleged drug addiction.

Id.

Henderson renewed these arguments in his habeas

petition. His first amended petition (which, like the origi-

nal, was prepared pro se) also asserted a third claim that

the jury had been erroneously instructed on attempted

murder. After the district court appointed counsel for

Henderson, however, that petition was withdrawn and a

second amended petition was filed which omitted this

claim. The district court rejected the other two claims on

their merits. It noted that “[s]tate-court determinations of

the validity of Miranda waivers are presumed correct

under § 2254(d),” and that in this case the finding of a

knowing waiver was supported by the testimony of

Assistant State’s Attorney Kardas. United States ex rel.

A-9

Henderson v. Welborn, No. 91 C 7288, Mem. Op. at 3

(N.D.Ill. Sept. 13, 1994). The court observed further that

Henderson’s claim that he was not mentally equipped to

waive his rights was “belied by the fact that he attempted

to refute the validity of this Miranda waiver after reading

his statement.” Id. (emphasis in original). Under the total-

ity of the circumstances, then, the court found that Hen-

derson had waived his rights and had voluntarily made

the post-arrest statement admitted at trial. Id. The court

also rejected Henderson’s claim that the exclusion of

testimony concerning Chavez’s purported drug use vio-

lated the Confrontation Clause of the Sixth Amendment.

Id. at 2. The court noted that Henderson had been permit-

ted to cross-examine Chavez on the subject of drug use,

and he was not precluded from impeaching Chavez in

any manner, but only through Jones. Id.

II.

Henderson pursues these same two issues on appeal.

His Miranda waiver cannot be deemed voluntary, know-

ing, and intelligent, he insists, in light of evidence that he

was led to believe that he was talking to his own attorney

rather than the prosecutor when he waived his right to

remain silent, and in light of evidence that his intellectual

capabilities are limited. He also renews his argument that

he was deprived of his Sixth Amendment right to con-

front Chavez when the court precluded extrinsic testi-

mony concerning her purported drug use. Henderson

attempts additionally to raise a third issue: he contends

that he was deprived of due process by an instruction on

the attempted murder charge that (purportedly) permit-

ted the jury to convict him on that charge without finding

A-10

that he acted with the specific intent to kill Chavez. This

issue was, as we have noted, omitted from the second

amended petition prepared by Henderson’s counsel and

presented to the district court for decision; the first

amended pro se petition, which did raise this issue, was

withdrawn. As it was not before the district court, the

jury instruction issue is beyond our review in this appeal,

and we do not address it. Williams v. Turner, 5 F.3d 1114,

1116 (7th Cir. 1993); D.S.A. v. Circuit Court Branch 1, 942

F.2d 1143, 1152 n. 17 (7th Cir. 1991), cert. denied, 502 U.S.

1104, 112 S.Ct. 1196 (1992).

A. Waiver of Miranda Rights

When a Miranda waiver is challenged, two distinct

questions are presented: whether the waiver was volun-

tary, knowing, and intelligent as a matter of fact, and

whether it was involuntary as a matter of law. Baskin v.

Clark, 956 F.2d 142, 145 (7th Cir.), cert. denied sub nom.

Baskin v. Farley, 506 U.S. 835, 113 S.Ct. 109 (1992), and cert.

denied sub nom. Farley v. Baskin, 506 US. 904, 113 S.Ct. 296

(1992). Whether a petitioner actually waived his Miranda

rights, and whether he did so freely, knowingly, and

intelligently, are fact-dependent issues that the state

courts are best situated to resolve. Bryan v. Warden, Indi-

ana State Reformatory, 820 F.2d 217; 219 (7th Cir.), cert.

denied, 484 U.S. 867, 108 S.Ct. 190 (1987); Perri v, Director,

Dep't of Corrections, 817 F.2d 448, 451 (7th Cir.), cert.

denied, 484 U.S. 843, 108 S.Ct. 135 (1987). Frequently, for

example, the state and the petitioner offer conflicting

testimony as to whether the petitioner was apprised of

and willingly relinquished his rights; assessing the Mir-

anda waiver thus demands credibility assessments that

A-11

typically only the trier of fact can make. Bryan, 820 F.2d at

219; see also Weidner v. Thieret, 866 F.2d 958, 961 (7th Cir.

1989), cert. denied, 502 U.S. 1036, 112 S.Ct. 883 (1992). The

state court’s historical findings as to the petitioner’s

knowledge, understanding, and determination to forgo

his Miranda rights are, consequently, entitled to a pre-

sumption of correctness under 28 U.S.C. § 2254(e)(1)

(1996), formerly § 2254(d) (see n.1, supra). E.g., Jones v.

Page, 76 F.3d 831, 852 (7th Cir. 1996), petition for cert. filed

(U.S. June 28, 1996) (No. 96-5064); Bryan, 820 F.2d at

219-20 (collecting cases). Yet:

Whether a defendant made a voluntary, know-

ing and intelligent waiver of his Miranda rights

is distinct from the issue of whether, under the

totality of the circumstances, the challenged

statement was involuntary. Bryan, 820 F.2d at

219. A court may find that a defendant made a

valid waiver and yet still hold that a confession

was involuntary.

Baskin, 956 F.2d at 145. The ultimate question whether a

petitioner’s statement was involuntary, and thus whether

it was properly admitted at trial, is one of law. Bryan, 820

F.2d at 219, 220; see also Baskin, 956 F.2d at 145. The

Supreme Court has explained why:

Although sometimes framed as an issue of “psy-

chological fact,” Culombe v. Connecticut, 367 U.S.

[568], at 603, 81 S.Ct. [1860], at 1879 [(1961)], the

dispositive question of the voluntariness of a

confession has always had a uniquely legal

dimension. It is telling that in confession cases

coming from the States, this Court has consis-

tently looked to the Due Process Clause of the

Fourteenth Amendment to test admissibility.

See, e.g., Mincey v. Arizona, 437 U.S. [385], at 402,

A-12

98 S.Ct. [2408], at 2418 [(1978)]. The locus of the

right is significant because it reflects the Court's

consistently held view that the admissibility of a

confession turns as much on whether the tech-

niques for extracting the statements, as applied

to this suspect, are compatible with a system

that presumes innocence and assures that a con-

viction will not be secured by inquisitorial

means as on whether the defendant's will was in

fact overborne. See, e.g¢., Gallegos v. Colorado, 370

U.S. 49, 51, 82 S.Ct. 1209, 1211, 8 L.Ed.2d 325

(1962) (suggesting that “a compound of two

influences” requires that some confessions be

condemned); Culombe v. Connecticut, supra, 367

U.S., at 605, 81 S.Ct., at 1880 (describing volun-

tariness as an “amphibian”). This hybrid quality

of the voluntariness inquiry, subsuming, as it

does, a “complex of values,” Blackburn v. Ala-

bama, 361 U.S. [199], at 207, 80 S.Ct. [274], at 280

[(1960)], itself militates against treating the

question as one of simple historical fact.

Miller v. Fenton, 474 U.S. 104, 115-16, 106 S.Ct. 445, 452-53

(1985) (footnote omitted) (emphasis in Original). Thus,

whether the petitioner’s statement was the product of

fundamentally fair procedures, untainted by any type of

coercion, is a legal question that we review de novo.

Weidner, 866 F.2d at 961; Bryan, 820 F.2d at 219, 220: see

also United States v. Betts, 16 F.3d 748, 763 n.10 (7th Cir.

1994).

1. Involuntariness

We take up the legal question first. As we have

explained, Henderson argues that his statement was

involuntary as a matter of law because the authorities

A-13

deceived him into thinking that Kardas was his own

counsel. See, e.g., Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716

(1954) (confession to state-employed psychiatrist deemed

involuntary where defendant misled as to psychiatrist's

mission and allegiance). The admission of that statement

at trial was therefore assertedly in violation of the Due

Process Clause of the Fourteenth Amendment. As a legal

assertion, this claim demands plenary review. But the

assertion depends on a point of fact as to which the

parties disagree: did Kardas identify himself to Hender-

son as a prosecutor? On that subsidiary factual question,

we defer to the state court. Weidner, 866 F.2d at 961; Bryan,

820 F.2d at 221.

Henderson initially contends that neither the state

trial and appellate courts nor the district court have ever

addressed this claim. It is true that none of the courts to

whom Henderson has made this argument previously has

rejected it expressly. Yet, each court did find ultimately

that Henderson’s waiver was made voluntarily, know-

ingly, and intelligently (S.R. 35 (trial court), 529 N.E.2d at

1054 (appellate court), Mem. Op. at 3 (district court)), and

there is no requirement that a court detail its reasons for

rejecting each of the arguments the petitioner has

advanced for a contrary finding. See, e.g., Baskin, 956 F.2d

at 144; Weidner, 866 F.2d at 963; Bryan, 820 F.2d at 221.

Moreover, it seems clear to us is [sic] that each of the

courts did have in mind Henderson’s allegation as to

Kardas’ identity. For example, the Illinois appellate court,

in its factual summary of the case, noted:

Kardas testified that prior to his questions

directed to defendant, he informed defendant

that he was an assistant State’s Attorney. Kardas

A-14

read defendant his rights and defendant indi-

cated that he understood. According to Kardas,

defendant stated that he knew what an assistant

State’s Attorney was and also knew that Kardas

was not his lawyer.

People v. Henderson, 529 N.E.2d at 1052. That court plainly

understood why this testimony was relevant. Although

the court did not go on to find expressly that Henderson

was not misled as to whom Kardas represented, we

believe that finding was implicit in its conclusion that

“the defendant understood and knowingly waived his

constitutional rights” and that his limited mental abilities

“did not interfere with his ability to comprehend the

meaning of a voluntarily made statement or a right to

counsel... .” Id. at 1054.2 Likewise, when the district

court remarked that the state courts’ finding of a volun-

tary waiver “is supported by the statements of the Assis-

tant State’s Attorney,” we understand it to have meant

that Kardas’ testimony lent adequate support to the

notion that Henderson was properly apprised as to whom

Kardas owed his allegiance.

We treat the state courts’ implicit determination that

Henderson knew who Kardas was as presumptively cor-

rect (Bryan, 820 F.2d at 221), and having thoroughly

reviewed the record, we have found nothing that would

? Neither party, certainly, suggests that this is a case in

which the court might have accepted the factual premise of the

petitioner’s argument, yet still rejected the claim that a

constitutional violation occurred. Cf. Weidner, 866 F.2d at 962-64

(possibility that state court might have accepted some of

petitioner’s factual assertions required clarification of court’s

findings).

A-15

permit us to set aside that determination. Kardas and

Detective Valesares asserted that Kardas was introduced

to Henderson as an assistant state’s attorney and that the

two knew one another already. The officers who had

observed Henderson and spoken with him that day indi-

cated that he seemed to comprehend what was happen-

ing. The state’s forensic psychiatrist testified that in his

interview of Henderson, Henderson had manifested an

appreciation of the difference between an assistant state’s

attorney and a defense attorney. See United States v. Frank,

956 F.2d 872, 878 (9th Cir.), cert. denied, 506 U.S. 932, 113

S.Ct. 363 (1992). By the state’s account, not until Hender-

son began to read the written statement Kardas had pre-

pared did he show signs of confusion. Whether that

confusion was genuine, and whether Henderson had

been misled as to whom Kardas represented, turned

entirely on the credibility of the witnesses who testified

before the state trial court. The state court plainly cred-

ited the state’s witnesses, and we have no basis to disturb

that credibility determination. Sprosty v. Buchler, 79 F.3d

635, 645 (7th Cir. 1996), petition for cert. filed (U.S. June 21,

1996) (No. 95-9393); Armstrong v. Young, 34 F.3d 421, 427

(7th Cir. 1994), cert. denied, 115 S.Ct. 1369 (1995).

Wrested of its factual premise - that Henderson was

deceived as to whom Kardas represented — the legal claim

of involuntariness necessarily fails. Looking to the total-

ity of the circumstances, we see no hint of coercion or

otherwise unfair behavior on the part of the state that

would justify a determination that Henderson’s statement

to Kardas was involuntary and that the admission of the

statement at trial was necessarily erroneous. This leaves

Henderson with the claim that he did not, as a matter of

A-16

fact, waive his Miranda rights. That claim we take up

next.

2. Waiver as a matter of fact

Based on the evidence of record, we also find no

reason to disturb the state courts’ determination that

Henderson made a voluntary, knowing, and intelligent

decision to waive his Miranda rights notwithstanding the

apparent limits of his intellect. Again, this was a factual

determination thet we treat as presumptively correct. See

Jones, 76 F.3d at 852; Perri, 817 F.2d at 451-52; Bryan, 820

F.2d at 219. Henderson’s purportedly low I.Q. and limited

reading and comprehension capabilities obviously call for

caution in assessing the uncounseled waiver of his consti-

tutional rights. See Sims v. Georgia, 389 U.S. 404, 407, 88

S.Ct. 523, 525 (1967) (per curiam); Miller v. Dugger, 838

F.2d 1530, 1539 (11th Cir.), cert. denied, 486 US. 1061, 108

S.Ct. 2832 (1988); Moore v. Ballone, 658 F.2d 218, 229-30

(4th Cir. 1981); Cooper v. Griffin, 455 F.2d 1142, 1145-46

(Sth Cir. 1972). Yet, as both the Illinois appellate court and

the district court recognized, such limitations, at least of

the degree presented here, do not preclude a finding that

Henderson could and in fact did make a reasoned and

independent decision to speak with the authorities. See

Toste v. Lopes, 861 F.2d 782, 783 (2d Cir. 1988) (per curiam),

cert. denied sub nom. Toste v. Meachum, 490 U.S. 1112, 109

S.Ct. 3170 (1989); Winfrey v. Wyrick, 836 F.2d 406, 411 (8th

Cir. 1987), cert. denied sub nom. Winfrey v. Armontrout, 488

U.S. 833, 109 S.Ct. 91 (1988); United States v. Glover, 596

F.2d 857, 866 (9th Cir.), cert. denied, 444 U.S. 860, 100 S.Ct.

124 (1979), and cert. denied sub nom. Morrow v. United

States, 444 U.S. 857, 100 S.Ct. 117 (1979); see also United

A-17

States v. Bad Hand, 926 F.Supp. 891, 899-900 (D.S.D. 1996)

(collecting cases). Here, in addition to the testimony of a

psychologist who documented Henderson’s below-aver-

age I.Q. and limited reading abilities, the state court had

other evidence suggesting that Henderson was able to

comprehend what his rights were and to waive them

knowingly and voluntarily. The state’s forensic psychia-

trist had deemed him fit for trial, finding, among other

things, that Henderson was able to appreciate the nature

of the charges against him. The police officers who

observed Henderson on the day of his arrest described

him as cooperative and understanding of what was tran-

spiring. According to those officers, Henderson had

acknowledged his rights on each of the several occasions

that they were explained to him. Henderson himself testi-

fied at the suppression hearing that he had been read his

rights, that he had heard them many times before, and

that he had told the police that he understood them.

Indeed, he declined to make a statement on the first two

of these occasions, and later began to speak, according to

Officer Underwood, of his own accord and at his own

initiative. He then gave a statement to Kardas, according

to the state’s witnesses, knowing full well who Karas

was. This was not, finally, Henderson’s first encounter

with the authorities. At age eighteen, Henderson already

had a significant criminal record and in fact had, by the

state’s account, already encountered Kardas in the con-

text of a juvenile prosecution. Under all of these circum-

stances, we must accept the state courts’ determination

that Henderson was able to make a valid decision to

forego his Miranda rights and speak with the police and

with Kardas and that he in fact did so.

A-18

B. Impeachment of Chavez

Chavez’s testimony was crucial to the state’s case

against Henderson. The use of narcotics can, obviously,

affect the ability of a witness to perceive, to recall, and to

recount the events she has observed. Whether Chavez

may have been under the influence of narcotics at the

time of the offense (or at some other pertinent time) was

thus an appropriate subject of inquiry and impeachment.

United States v. Cameron, 814 F.2d 403, 405 (7th Cir. 1987).

But we agree that Henderson was not deprived of his

right to confront the witnesses against him when the trial

court barred the testimony of Quintin Jones.3 Had the

proffer of Jones’ testimony established that Chavez was

using narcotics within the time frame of the events to

which she testified, it might have been improper and

prejudicial to Henderson to exclude the testimony.

Instead, however, Jones was held up as a witness who

would testify simply that he had known Chavez to use

drugs on many occasions; we do not know when those

occasions were in reference to the murder of Leonard and

the attempted murder of Chavez. It is thus not at all clear

that the testimony was probative of Chavez's ability to

recognize and identify the individual who committed the

3 The district court suggested that despite the fact that

Jones was not permitted to testify, Henderson himself could

have taken the stand to impeach Chavez on the subject of her

alleged drug use. Assuming that Henderson could have given

such testimony as a factual matter, we agree with Henderson

that this is irrelevant to the propriety of the trial court's decision

to exclude Jones’ testimony on this subject. Henderson, of

course, enjoyed a Fifth Amendment right not to take the stand,

which he exercised.

A-19

offense. See United States v. Robinson, 956 F.2d 1388, 1398

(7th Cir.), cert. denied, 506 U.S. 1020, 113 S.Ct. 654 (1992)

(testimony as to witness’ drug use properly excluded

where voir dire did not establish that it affected the

witness’ memory of relevant events). Absent a connection

to Chavez’s cognitive abilities, Jones’ testimony would

have served only to impeach her character, a purpose we

have repeatedly deemed improper. See United States v.

Neely, 980 F.2d 1074, 1081 (7th Cir. 1992); Robinson, 956

F.2d at 1397-98; Cameron, 814 F.2d at 406. Under these

circumstances, we see no error, and certainly none rising

to the level of a constitutional deprivation, in the decision

to bar Jones from testifying on this topic. Robinson, 956

F.2d at 1398; Cameron, 814 F.2d at 406.

Ill.

The record establishes no error in the state courts’

conclusion that Henderson voluntarily, knowingly, and

intelligently waived his Miranda rights and that the testi-

mony of Quintin Jones concerning Mona Chavez's pur-

ported drug use was properly excluded. The district

court’s decision to deny Henderson’s petition for a writ

of habeas corpus was therefore correct.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

' Appeals for the Seventh Circuit

A-20

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

December 5, 1996.

Before

Honorable ILANA DIAMOND ROVNER,

Circuit Judge

Honorable DIANE P. WOOD, Circuit Judge

Honorable TERENCE T. EVANS, Circuit

Judge

Nos. 95-1834

LADELL HENDERSON,

Petitioner-Appellant,

Appeal from the United

States District Court for the

Northern District of

V. Illinois, Eastern Division

GEORGE E. DeTELLA

Defendant-Appellee,

No. 91 C 7288

Brian Barnett Duff, Judge.

eee we we

ORDER

On consideration of the petition for rehearing filed

by petitioner-appellant on November 25, 1996, all of the

judges on the panel having voted to deny the same,

IT IS HEREBY ORDERED that the aforesaid petition

for rehearing be, and the same is hereby, DENIED.

A-21

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

October 23, 1996

Before

Hon. ILANA DIAMOND ROVNER,

Circuit Judge

LADELL HENDERSON, _]

Petitioner-Appellant, 7

No. 95-1834 _

GEORGE E. DETELLA, |!

Respondent-Appellee. :

Appeal from the United

States District Court for the

Northern District of

Illinois, Eastern Division.

No. 91 C 7288

Brian Barnett Duff, Judge.

Upon consideration of: “MOTION FOR EXTENSION

OF TIME TO FILE PETITION FOR REHEARING” filed on

October 17, 1996, by counsel for the petitioner-appellant,

IT IS ORDERED that the motion is GRANTED and

the Petition for Rehearing of the appellant is due Novem-

ber 25, 1996.

©2110 8.41015 jesUued

Ul POAIOD0) 8wW/818O s,Aindep

- woosjsnos

rs eonou Loge y -" Udi

‘ y pepew ojep ~ y

7 Sees “Aydp .

Bbunexsop ,

‘

peiexs0p

WaWNIOG eer] =. el by - «(Ud

se2"0u j

pO 2sQuwny 7

‘ebpner 010 216:60w/e6 pal °} A¥oo

“uss0) OS? OV HEN

‘seonou pew 0) 6unex200 | ~

‘pu0yde)s) Aq ;esunos walle

"yes s.ebpnl Aq peyew sesnoN

‘pesnbes te510u ON

"12NOD VEdO UI PEsIAPS ‘pes:Nbes tes0Uu ON

| ws04 22PI0 BNUw yeuibWV0 BY) ?p Peyote sapse

JO @$sBA8) uy) VO on Pos Pep JeYUN) 103) | H~ (1 1)

"(q)zz ‘a*’ddy*u*pegz o3 Ayuensaind asneos etqeqozd jo @AeOTJTAASVD e AOZ

uoT3IT3ed sy SeTUSep AxANOD sTtuL

“G66T ‘OT Atenuerc Jo AapxzO papuouwe rz9aquyg

[Aue 1e420p 20y10) (01)

(gtevir d2u3 | (s)tedir d2u3 |

ey) wera jvaweasbe aq

{VONND28010 JO JUBM) 4Z B)NY |e19U2aD |_| (@asas oO} osmyey) Uy ddu4 L|

$1802 INOYIIM PUR BIPNlaId =Yiim | eae PesSiweip 61 ese> SiyL

ie ©} penunvos pue pjay alas yersy Arne | jeu, YoueEg |

it 40) 188-32 | 40; 18S | perry

ie 10; wien 404 188 | 0} Panuinuosd | oie "PUD jBrse1g

ie 10} side 20) 108 | ©) panuivod | ss | Busey tmieis

Bue,

ie 10) 198 ve Bunny

ONp j911Q sa~suUR 0} Alday

@NP VONOW 0} je17Q JOeMSUY

aNP VOHOW jO JJODGOGNE UF jeg

[eacge 20Q .NOILON. uv! Bunsy esn) jo vonow peg

(6)

(g)

(2)

(9)

(s)

(>)

(e)

(Z)

(1)

- —ye WOU :

A-22

‘“AULNS LINDO

Hav Yd¥

BWj1JO191W 20) YUPS

['P21us8020 buieg VONOW ey) JO BsNIeU ey) Ayje1Iq e)816 (Q) PUP -NOLLOW

*“pnurerd Ayed-pic ‘luepuesep “ynuied “6'e ‘voNOw ey) Bunty Alve8d ey oe >d:pur (#) 20q Buimojjo; ey) Ui)

al

UIOQTSeM *A UOSTEepUusH 8sed

S66T ‘b TTady eg 88ZL AD TE JOQUNN esed

etpnr peuvbltty vey) ebpne ees 8:6eyw 20

20WIO pt ebpNe Bus Z3nGQ 2RQ98urteg uetag ebpnr pevbitty jo owen

SIONITY 30 -LOIWLSIO NYSHLYON “LHNOD LOIWLSIO SALVLS GAUNN

.

—

Se CAST. FL

ee

ems (0621 Ae) ws04 20P20 PIMUIA

}

}

;

:

>

4...

a

i |

handeadd

a |

co

—

—

=<

—_

<=

-_

Cs

° adhe

cS

A-23

(Reserved for use by the Court)

ORDER

The order of January 10, 1995 is amended to read as

follows: the petitioner comes before this court requesting

a certificate of probable cause pursuant to Fed.R.App.P.

22(b) to appeal this court’s denial of his state habeas

petition. The Circuit Court of Cook County convicted the

petitioner of murder, attempted murder of a second indi-

vidual, home invasion and conspiracy to commit murder.

The state court sentenced him to natural life imprison-

ment, thirty years for attempted murder and seven years

for conspiracy to commit murder. The petitioner appealed

his conviction in state courts and filed a habeas petition

before this court. The petitioner raised two grounds in his

habeas petition before this court: (1) Sixth Amendment

right to confront his accuser was violated when the state

court prevented him from introducing a witness to

impeach the surviving victim of the shooting and (2) Fifth

and Fourteenth Amendment rights were violated when

the state court refused to suppress petitioner’s confession

given to an Assistant State’s Attorney. In September 1994,

this court denied the petition for the reasons set forth in

the opinion.

A-24

To prevent frivolous appeals from delaying the abil-

ity of state courts to impose sentences, Congress estab-

lished the requirement that a prisoner obtain a certificate

of probable cause to appeal. Barefoot v. Estelle, 463 U.S.

880, 892 (1983), reh’g denied, 464 U.S. 874 (1983). A certifi-

cate of probable cause requires a petitioner to make a

“substantial showing of the denial of [a] federal right.”

Id. at 893 (quoting Stewart v. Beto, 454 F.2d 268, 270 n.2 (5th

Cir. 1971), cert. denied, 406 U.S. 925 (1972). A petitioner

may demonstrate this by showing that the issues are

debatable among jurists of reason, that a court could

resolve the issues in a different way or that the questions

are adequate to deserve further proceedings. Lozada v.

Deeds, 498 U.S. 430, 432 (1991).

After reviewing the facts, this court is convinced that

the petitioner’s current claims concerning the Fifth, Sixth,

and Fourteenth Amendments do not warrant the issuance

of a certificate of probabie cause for appeal. We believe

that the state trial court, appellate courts and this court

adequately treated these and other issues, including the

petitioner’s fitness to stand trial. We feel that the peti-

tioner’s claims fail to meet the Lozada standard and to

show that he was denied rights guaranteed by the Consti-

tution, laws or treaties of the United States. For this

reason, we deny the petition for a certificate of probable

cause pursuant to Fed.R.App.P. 22(b).

/s/ Brian Barnett Duff

A-25

» i" \ O21 6.41015 1esIVeED ’

aad =, Ut Perredes ew/eieg +, Aindep ’ /

a ; woomsnos ’

wsyeu a lA e i v Pee

_. poyew sep Coo! to AL e6pne e18s18:6ewsebpni 0; Adod

t ‘ws0} OS? OV HEN

Y sjennut Aidp f) . . :

p ead buneys0p ®t es i ‘ ih teonou pew 0} Buiexs0

4 *eUu0\ude;e) Aq setunos

peienr0p “aa { | NYT. ydo;e) Aq

# JUaWNDOQ o1ep be "yeis s.eBpni Aq payrew teonon

t2>n0u .. ‘pemnbes t8510u ON

yO 282Qwny

Spo

1/NOD VEDGO UI PeETIAPS ‘pesmnbes &a31)0uU gn

ee ie

[| wr) 2210 ainuiw yeurb0 Our =O DaUEIe an

OOF [PIEP sEUIIN, 104)

pO @bsdass dul VO ed 4

‘(q)zz ‘a°’ddy°u’pagz o3 3uensand

asned etTqeqoid jo a jeoTJTZI95 e AOZ uoTATIed |aYyR SeTUep yANOD sTuL

[Anue tex20p 28y10)

(Zitelie d3us|

(adlelie é2us|

{VOVIMD 9600 40 1Ue™) IZ aIhy 1k1dUaH ee (Paras 0) O2me)) (Oy ddud |

aye juaweasbe sl |

wenens POCCiwEeIP bt OFHD Siu)

$1803 INOYUI™ Pues BdIPNla:ad was

y

(14)

(01)

(6)

(8)

ie C1 PaeNuiivod pue play ies yersy Ane | pPray siti

ie 70) wages Ot 70) 18S | jerry (2)

ie Ty) casted ‘| 10) 188 | O1 penunvo>? acted JVO> ere|8sg (9)

we Ty) pais 104 108 Ol penunvod | ated | Ourseey tnivis (Ss)

LU Buiseey

e 10) 198 vo bunny (p)

PNP 1911Q seu OF Aiday eND UdONOW 0} [01/Q JOmMtUy

OND VOollOWw 10 OddNE UI 481g

[as0Qae 109 .NOLIION. vt Busy etn) jo VONOWw pejry

(¢)

(2)

(1)

"BEST AVAILABLE COPY

‘ye d Aysed-psc “ivepuesep “yrs * Be “vonow eur Buy Aised ou ere >'pul (e) 20qQ Buimoso; eu) vi)

ee “AHINS LIXDOG

my 7 | AY :

cAI | | NY

AMI W1140491W 404 yuag |

: ['peivestesd Bureg vonow ey) jO BsNIeU BY) Ajjorsq 01836 (Q) pu® -NOLLOW

UIOGTOM *A UoSzrepUEeH

ay

asey

‘or Azenuer 21e9

S66T 887L AD TE

JOQUINN ese

eSpnr peubsssy veyy

10WIO ph OBPNE Bulg

73NQ JISeUAegG UPTIAg

eipne ejessibey 10

ebpnr peubitty ;O eweN

SIONITH 20. “YLSIO NHSHLYON ‘LHNOD LOIMLS!I~ “SLVLS GEUNN

) (oe/zs Ae)

®.

wsi0y 1910 SINVIR

A-26

(Reserved for use by the Court)

ORDER

The petitioner comes before this court requesting a

certificate of probable cause pursuant to Fed.R.App.P.

22(b) to appeal this court’s denial of his state habeas

petition. The Circuit Court of Cook County convicted the

petitioner of murder, attempted murder of a second indi-

vidual, home invasion and conspiracy to commit murder.

The state court sentenced him to natural life imprison-

ment, thirty years for attempted murder and seven years

for conspiracy to commit murder. The petitioner appealed

his conviction in state courts and filed a habeas petition

before this court. The petitioner raised two grounds in his

habeas petition before this court: (1) Sixth Amendment

right to confront his accuser was violated when the state

court prevented him from introducing a witness to

impeach the surviving victim of the shooting and (2) Fifth

and Fourteenth Amendment rights were violated when

the state court refused to suppress petitioner’s-confession

given to an Assistant State’s Attorney. In September 1994,

this court denied the petition for the reasons set forth in

the opinion.

To prevent frivolous appeals from delaying the abil-

ity of state courts to impose sentences, Congress estab-

lished the requirement that a prisoner obtain a certificate

A-27

of probable cause to appeal. Barefoot v. Estelle, 463 U.S.

880, 892 (1983), reh’g denied, 464 U.S. 874 (1983). A certifi-

cate of probable cause requires a petitioner to make a

“substantial showing of the denial of [a] federal right.”

Id. at 893 (quoting Stewart v. Beto, 454 F.2d 268, 270 n.2 (Sth

Cir. 1971), cert. denied, 406 U.S. 925 (1972). A petitioner

may demonstrate this by showing that the issues are

debatable among jurists of reason, that a court could

resolve the issues in a different way or that the questions

are adequate to deserve further proceedings. Lozada v.

Deeds, 498 U.S. 430, 432 (1991).

After reviewing the facts, this court is convinced that

the petitioner’s current claims concerning the Fifth, Sixth,

and Fourteenth Amendments do not warrant the issuance

of a certificate of probable cause for appeal. We believe

that the state trial court, appellate courts and this court

adequately treated these and other issues, including the

petitioner’s fitness to stand trial. We feel that the record

before us presents no constitutional issue. For this reason,

we deny the petition for a certificate of probable cause

pursuant to Fed.R.App.P. 22(b).

/s/ Brian Barnett Duff

A-28

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Eastern Division

Henderson, Ladell JUDGMENT IN A

js CIVIL CASE

George Welbourne CASE NUMBER: 91 c 7288

DOCKETED SEP 20 1994

[ ] Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury

has rendered its verdict.

[X] Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED Because peti-

tioner has not shown that he was denied rights guaran-

teed by the Constitution, laws or treaties of the United

States, we deny his petition and dismiss this case with

prejudice.

September 13, 1994 H. STUART CUNNINGHAM

Date Clerk

/s/ Alicia Castillo

(By) Deputy Clerk

4

# \UaWwN0Q

Pa'ew s1ep

J Sj@ewe Aldp

bureyoop

Peiaxs0p

10 22Qwnyu

AS ee ©21D 8 960.5 11 ve? putas

ft z Ut DOABIOs Bw's IED + .fraaee 7

wOusInos ji °

U

eo0u

aie

ta a0u

‘a

; - *. oe @uv0yda)a) Aq jatunos sisiiadla

e6pnrer cess bewsebpni 0; A005

‘wi01 0S? Ov len

Sd20uU pew OF Buna"d09

‘pers s ebpnl Aq payew saonoN

Te" Oe pemnbe, $250U ON

14NOS VECO Ui PStiape ‘pesmnbes €2391;0u ON

[ ws0) 22010 Fimuew yeurbio Bur OF Payseie ois

IOJ uoTITIEed s,uoszapuay Auap

‘aotpnlCaad yatta

10 2819434 Bui VO il

‘eased sTy2 ssTwsTp pue jJaetTex pszz §

em ‘MOTEq parerzs suosPax au rA0g

(14)

BFS CISD sBYIIN, 104)

(01)

[Asiua 1enD0D sayWIO)

iWdledir o2us|

(sdtedar 4303!

°1 nr jvue2weaasbe aq |

(vOuN>2I80IG 50 lwew) 42 aPy esauey []

$1803 INMOUls™ DUB 2>9'PANlaIG Yiw |

(aasa8 Op aanpes) (hy goug |

(6)

oe ak POTS ws Ct BEe> Sry

(8)

ie OF Damurucd pue Piay sieces: a Wray ok Wray wee

ie sy sat a 105 18S | jerry (2)

ie 40, 19% O2 | sO; 1398 | O1 panhurwvods | — J¥OS [PIO 1g (9)

it 10; 1298 "7 20) 128 | ©: DeNunwod | sai Survey snieis (s)

bul. ey,

i? 104 Jas vo Bunny (p>)

FNP jP1Q La SUe OL AIday

(¢)

aD VONOW 0} )311Q Ja™BUy

(2)

[2.0Q% 10Q .NOILON. Ut Bunsy esn] jo vonow peyy (1)

aND VONOw JO VJOGGNSE UI jag

-AYINS 1LIHDOO

“yl | 0 ds

A-29

['paivesesd bBuraq vouow ay jo asMieu ey) Ajje1sQ 01816 (Q) pYe NOLLOW

"yes Ayved psc “Wwepuejep “jjwiesd * 6-0 “vonow ey) Suny Arved ous a1e2:pul (8) 20qQ Burmoyso; ous Vv) z

od

uIOqTeM *A UOSrepuseyH ase

y.%

v66T

‘ET requaqdas

aeg

887L-D-TE

eSpne poubissy vey,

1om19 ' OBpNE Buns

n eureg uerTz LL eipne ejess:Sey 10

J3nGQ 33 | I [conne-poutthG 10 owen

jase AA NS tat aD a RCRA a a AE So POLAR ili eC ee dace oe

SIONITN 3O 19 ** SIG NYSBHLYON “LHNOD LOIUSIC

AE8/-SL

_

r al

.~

71S OSU

sisiiadeiadiinceliminmamel es oo an aa eee Meret ea Sadar

(06/21 aey)

9” \ yw

ees Tupelo mnuin

a oY ta 2 54

Pa

BEST AVAILABLE COPY”

A-30

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES ex rel. LADELL

)

HENDERSON, )

ws )

Petitioner, ) No. 91-C-7288

vs. )

GEORGE WELBORN, Warden,

Respondent. )

MEMORANDUM OPINION

Ladell Henderson brings this petition for 28 U.S.C.

§ 2254 relief on two grounds: (1) his Sixth Amendment

right to confront his accuser was violated when the state

court refused to allow him to introduce a witness who

may have impeached the government's primary witness;

(2) his Fifth and Fourteenth Amendment rights were vio-

lated when the state court refused to supress [sic] a

statement given by petitioner to an Assistant State’s

Attorney. The statement was allegedly inadmissible

because Mr. Henderson did not waive his Miranda rights

and because his confession was not voluntary.'

“Federal habeas actions do not lie for mere errors of

state laws.” Stephens v. Miller, 13 F.3d 998, 1001 (7th Cir.

1 We asked counsel for the petitioner to submit briefs on the

question of whether Mr. Henderson was fit to stand trial,

because of his alleged deficient mental capacity. Counsel for the

petitioner has assured us that the state court adequately

considered this issue and decided that Mr. Henderson was

indeed fit to stand trial.

A-31

1994) en banc. Our inquiry is therefore limited to whether

Henderson was denied his rights under the “Constitu-

tion, laws or treaties of the United States.” Id.

“Because the admissibility of evidence in State court

Proceedings generally is a matter of State law, state court

evidentiary rulings rarely will serve as grounds for grant-

ing a writ of habeas corpus.” Lilly v. Gilmore, 988 F.2d 783,

786 (7th Cir. 1993) cert. den. 114 S.Ct. 154 (1993). Error in

the exclusion of evidence reaches constitutional magni-

tude if the excluded evidence creates a reasonable doubt

that otherwise did not exist. Id.

Here, the trial court’s decision to exclude the

impeachment testimony of Quentin Jones neither creates

a reasonable doubt a [sic] to Henderson’s guilt nor consti-

tutes a violation of the Sixth Amendment's confrontation

clause. First, there was ample evidence in the record of

Henderson’s guilt. Second, the state court did not pro-

hibit Henderson from impeaching the government's wit-

ness’ alleged use of drugs and her relationships with the

other perpetrators. Indeed, counsel for Henderson ques-

tioned the witness about her drug use, and could have

impeached her through Henderson’s testimony, since the

government's witness allegedly used drugs in his pres-

ence. The trial court did not preclude the petitioner from

attempting to impeach the witness, only from attempting

to impeach her through Jones’ testimony. Jones’ testi-

mony was not exculpatory, and, looking at the record as a

whole, we find that Henderson was not deprived of “a

meaningful opportunity to elicit available, relevant infor-

mation that was likely to effectively impeach the cred-

ibility of the witness.” U.S. v. Cameron, 814 F.2d 403, 406

(7th Cir. 1987).

~

OO

A-32

Petitioner’s argument that his post-arrest statement

was unconstitutionally admitted because he did not

waive his Miranda rights is likewise without merit. Both

the trial and appellate courts found that Henderson

knowingly waived his Miranda rights. People v. Henderson,

175 Ill. App. 3d 483, 489 (1st Dist. 1988). State-court

determinations of the validity of Miranda waivers are

presumed correct under § 2254(d). Baskin v. Clark, 956

F.2d 142 (7th Cir. 1992), cert. den. 113 S.Ct. 109 (1992).

Here, the state-court determination is supported by the

statements of the Assistant State’s Attorney.

Further, Henderson’s claims of involuntariness

because of mental deficiency is belied by the fact that he

attempted to refute the validity of his Miranda waiver

after reading his statement. Under the totality of the cir-

cumstances presented in the record, we find that Hender-

son waived his Miranda rights, and that he voluntarily

made the disputed statement. See e.g., United States v.

Carter, 910 F.2d 1524, 1529 (7th Cir. 1990), cert. den. 499

U.S. 978 (1991).

Because petitioner has not shown that he was denied

rights guaranteed by the Constitution, laws or treaties of

the United States, we deny his petition and dismiss this

case, with prejudice.

ENTER:

/s/ Brian Barnett Duff

I. DUFF,

JUDGE

UNITED STATES

DISTRICT COURT

DATE: September 13, 1994

A-33

175 Ill.App.3d 483

124 Ill.Dec. 934

PEOPLE of the State of Illinois,

Plaintiff-Appellee,

Vv.

Ladell HENDERSON,

Defendant-Appellant.

No. 85-1290.

Appellate Court of Illinois,

First District, Third Division.

Sept. 28, 1988.

Rehearing Denied Oct. 24, 1988.

Defendant was convicted in the Circuit Court, Cook

County, Earl Strayhorn, J., of murder, attempted murder,

home invasion, and conspiracy to commit murder, and he

appealed. The Appellate Court, Rizzi, J., held that: (1)

instruction did not allow jury to find defendant guilty of

attempted murder without finding that he had specific

intent to kill; (2) evidence of alleged drug use of com-

plaining witness could be excluded; (3) evidence of

defendant’s impaired intellectual capabilities and his

below average I.Q. did not establish that defendant's

statement was not made voluntarily and that he did not

knowingly waive his right to counsel; (4) testimony of

victim and police officer as to victim’s prior identification

of defendant was admissible to corroborate in-court iden-

tification; (5) sentence to term of natural life imprison-

ment for murder conviction was not abuse of discretion;

and (6) defendant could not be convicted and sentenced

on both murder and conspiracy to commit murder

charges.

A-34

Affirmed in part; reversed in part.

Steven Clark, Chicago (Cheryl M. Berdelle, of counsel),

for defendant-appellant.

Richard M. Daley, Chicago (Thomas V. Gainer, Jr.,

Christopher J. Cummings, Michael J. O’Brien, of counsel),

for plaintiff-appellee. |

Justice RIZZI delivered the opinion of the court:

Defendant, Ladell Henderson, was found guilty of

murder, attempted murder, home invasion and conspir-

acy to commit murder. Defendant was sentenced to natu-

ral life imprisonment for murder, thirty years for

attempted murder and seven years for conspiracy to com-

mit murder. Defendant was not sentenced on the convic-

tion for home invasion. On appeal, defendant argues that

(1) the trial court’s instruction on attempted murder was

erroneous in that it allowed the jury to find defendant

guilty without finding that he acted with the specific

intent to kill; (2) the trial court improperly excluded

evidence of the complaining witness’ alleged drug addic-

tion; (3) the trial court erroneously denied defendant's

motion to suppress his pre-trial statement; (4) the State

was improperly permitted to bolster the complainant's

testimony; (5) the trial court abused its discretion in

sentencing defendant to a term of natural life imprison-

ment and (6) defendant was improperly convicted and

sentenced on both murder and conspiracy to commit

murder. We affirm in part and reverse in part.

The testimony introduced by the State at trial estab-

lishes that on February 28, 1984, Mona Chavez and her

A-35

uncle, Dennis Leonard, were at home watching television.

Chavez heard a knock on the door. When Leonard

opened the door, defendant and two other men were

Standing in the doorway. Two of the men grabbed

Leonard and threw him to the floor. Defendant then

walked to Chavez and said, “You gonna die bitch.”

Defendant told Leonard that he was going to die, pulled

out a gun and fired two shots into the back of Leonard’s

head. Chavez pleaded for her life with defendant but he

told her that if he could not have her then nobody would.

Defendant then grabbed her hair, pulled her head to the

side and shot her.

Chavez stumbled down the apartment stairs and

cried for help. When the police arrived, Chavez informed

them that defendant had shot her. Chavez knew defen-

dant from the neighborhood because he had asked her

several times to be “his lady.” Chavez had also seen

defendant four days prior to the shooting because he

kicked her back door in to her apartment and took some

of her personal possessions.

Assistant State’s Attorney Kim Kardas, who inter-

viewed defendant subsequent to defendant's arrest, also

testified. Kardas testified that prior to his questions

directed to defendant, he informed defendant that he was

an assistant State’s Attorney. Kardas read defendant his

rights and defendant indicated that he understood.

According to Kardas, defendant stated that he knew what

an assistant State’s Attorney was and also knew that

Kardas was not his lawyer.

According to defendant’s statement, on the evening

of the shooting, defendant was informed by someone

A-36

named Billy Ray that there was a contract out on Chavez.

Billy Ray wanted defendant to take him to Chavez's

apartment. Defendant, Billy Ray and another man,

“Speedy,” went to Chavez’s place. Leonard opened the

door and told Billy Ray that he thought Chavez's debt of

$1500 had been settled. Billy Ray and Speedy took out

their guns and told Leonard to lie down on the floor. In

response to Chavez’s request for help, defendant

informed her that it was out of his hands. Billy Ray and

Speedy told defendant to leave the apartment. As defen-

dant left the apartment, he heard the shots that were

fired.

After Kardas took defendant’s statement and defen-

dant began to read it to make any corrections or changes,

defendant stopped on the second page when he saw the

words “Assistant State’s Attorney.” Defendant then told

Kardas, “I thought you were my lawyer.” Kardas testified

that defendant then claimed that Kardas stated that he

was defendant’s lawyer.

Prior to trial, defendant made a motion to suppress

this statement. At the hearing, the defense presented

witnesses who testified as to defendant's intellectual

capabilities. Leonard Unterberger, a psychologist, stated

that defendant has a below average I.Q. of 64. He further

stated that defendant possesses limited reading abilities.

Unterberger’s conclusions were based upon diagnostic

work performed by the psychological examiners under

Unterberger’s supervision.

The trial court denied defendant’s motion to sup-

press. Following trial, defendant was found guilty by a

jury and sentenced to natural life imprisonment for the

A-37

murder, thirty years for attempted murder and seven

years for conspiracy. No sentence was imposed for home

invasion and the conviction for this charge is not a con-

tention in this appeal.

Defendant first argues that the trial court's instruc-

tion on attempted murder was erroneous in that it

allowed the jury to find defendant guilty of murder with-

out finding that he acted with the specific intent to kill.

The jury was instructed as follows:

A person commits the offense of murder when

he kills an individual, if, in performing the acts

which cause the death, he intends to kill or do

great bodily harm to that individual; or he

knows that such acts would cause death to that

individual; or he knows that such acts create a

strong probability of death or great bodily harm

to that individual; or he is committing the

offense of home invasion.

= * *

A person commits the offense of attempt murder

when he, with intent to commit the offense of

murder, does any act which constitutes a sub-

stantial step toward the commission of the

offense of murder.

* * aa

The offense attempted need not have been com-

mitted. To sustain the charge of attempt, the

State must prove the following propositions:

* First, that the defendant, or one for whose

conduct he is legally responsible, performed

an act which constituted a substantial step

toward the commission of the offense of

A-38

murder; and second, that the offender, or

one for whose conduct he is legally respon-

sible, did so with intent to commit the

offense of murder.

The instruction as given makes specific reference to

the “intent to commit the offense of murder.” However,

relying on People v. Kraft (1985), 133 Ill.App.3d 294, 88

Ill.Dec. 546, 478 N.E.2d 1154, defendant argues that this

instruction allowed the jury to convict him if they found

that he possessed less than the specific intent to commit

murder. We disagree.

In Kraft, the court held that because attempted mur-

der requires the mental state of intent to kill, the instruc-

tion given which “permitted a conviction upon a finding

that a defendant acted with knowledge that his action

created a strong probability of death even if the jury

believed defendant did not intend to kill anyone” was

defective. 133 Ill.App.3d 294, 302, 88 Ill.Dec. 546, 552, 478

N.E.2d 1154, 1160.

Kraft however is distinguishable from the case at bar.

In Kraft, the defendant was charged only with attempted

murder. In the instant case however, defendant was

charged with both attempted murder and murder. It

would be illogical to say that the court could not give an

instruction on murder containing alternate states of mind

when defendant was in fact charged with murder and

was entitled to an instruction thereon. We therefore find

defendant’s argument unpersuasive and conclude that

the instructions as given did not allow the jury to find

defendant guilty of attempted murder without finding

that he had the specific intent to kill. Accordingly, the

A-39

trial court did not err in giving the instructions to the

jury.

Defendant next argues that the trial court improperly

excluded evidence of the complaining witness’ alleged

drug addiction. Defendant asserts that evidence of habit-

ual drug use is a significant fact in evaluating the cred-

ibility of a witness. While we agree that a witness’ drug

addiction at the time that an offense or event occurred is

a proper area for cross-examination, the trial court is

vested with discretion to determine the admissibility of

evidence. Thus, the trial court’s determination will not be

disturbed on review absent an abuse of that discretion.

People v. Rogers (1985), 135 Ill.Apv.3d 608, 624, 90 IIl.Dec.

660, 671, 482 N.E.2d 639, 650.

Here, defendant attempted to establish that the vic-

tim had been observed using drugs “on numerous occa-

sions” prior to the night of the crime. On cross-

examination, the victim was questioned about her rela-

tionship with a defense witness who the defense asserted

would testify about the victim’s alleged drug use. The

victim denied any involvement with this defense witness

as well as any drug use. Defendant did not question the

victim any further regarding this matter. However, defen-

dant later attempted to introduce evidence of the victim’s

alleged drug use. Following defendant's offer of proof,

the trial court excluded this evidence finding that “the

only reason [you're] doing it is to dirty up the witness.”

Defendant made no reference or qualification as to

when the victim allegedly used drugs or the extent of

impairment from the use of any drugs. Thus, we are

inclined to agree with the trial court that such evidence

A-40

would not shed light on the victim’s ability to adequately

perceive the events as they occurred on the night of the

offense. To the contrary, this evidence would simply

“dirty up” the witness in the eyes of the jury. Accord-

ingly, we find that the trial court properly excluded any

evidence of the victim’s alleged drug addiction.

Defendant also argues that the trial court erred in

denying defendant’s motion to suppress his pre-trial

statement. Defendant presented testimony evincing his

impaired intellectual capabilities and his below average

I.Q. Based upon this evidence, defendant argues that his

statement was not made voluntarily and that he did not

knowingly waive his right to counsel.

We initially note that evidence of limited intellectual

capacity alone does not indicate that a defendant is inca-

pable of waiving his constitutional rights and making a

voluntary confession. People v. Ellison (1984), 126

Ill.App.3d 985, 992, 81 Ill.Dec. 222, 226, 466 N.E.2d 1024,

1028. To the contrary, it is only one of the issues to be

considered in reviewing the totality of the circumstances

under which a confession is made. Moreover, the police

are not required to conduct a mental examination of the

accused with a view to ascertaining his ability to compre-

hend his rights as a prerequisite to accepting the

accused’s voluntary waiver. People v. Cooper (1975), 30

Ill.App.3d 326, 332, 332 N.E.2d 453, 458. The particular

facts and circumstances of each case as well as the experi-

ence, conduct and background of the accused must be

considered in determining whether a waiver is know-

ingly and intelligently made.

A-41

In reviewing the totality of circumstances surround-

ing defendant's statement, we find that a preponderance

of the evidence demonstrates that the defendant under-

stood and knowingly waived his constitutional rights.

Where as here the record supports a finding that defen-

dant’s subpar mentality did not interfere with his ability

to comprehend the meaning of a voluntarily made state-

ment or a right to counsel, his statement will not be

suppressed.

Defendant next argues that the State was improperly

permitted to bolster the victim’s in-court testimony with

Prior consistent out-of-court statements. Defendant

objects to the victim’s testimony of an identification she

made to the police the morning following the incident.

Defendant also objects to an investigating police officer’s

testimony of the identification the victim made at the

scene.

In People v. Rogers (1980), 81 Ill.2d 971, 44 Ill.Dec. 254,

411 N.E.2d 223, our Supreme court recognized that

although a witness may not testify as to out-of-court

statements made for the purpose of corroborating his in-

court testimony, that rule does not apply to statements of

identification. 81 Ill.2d, 571, 578, 44 Ill.Dec. 254, 258, 411

N.E.2d 223, 227. The court noted that evidence of out-of-

court identifications by both the identifying witness and

a third person who saw or heard the identification is

admissible for the limited purpose of corroborating the

in-court identification. The court stated that such corrob-

oration is justified to rebut the notion that “by the time of

trial, the witness’ mind has become so conditioned that

there is little likelihood that he would not identify the

A-42

person in court.” 81 Ill.2d 571, 578, 44 Ill.Dec. 254, 258,

411 N.E.2d 223, 227.

Thus, based upon the holding in Rogers, we find that

the trial court properly permitted the victim as well as

the police officer to testify as to the victim’s prior identi-

fication of defendant.

Defendant next argues that the trial court abused its

discretion in sentencing defendant to a term of natural

life imprisonment. We disagree.

The imposition of a sentence is a matter of judicial

discretion, and absent an abuse of that discretion, the trial

court’s determination will not be disturbed on appeal.

People v. Lipa (1982), 109 Ill.App.3d 610, 614, 65 Ill.Dec.

207, 210, 440 N.E.2d 1062, 1065. Moreover, a trial court’s

determination of a sentence is entitled to great deference

and weight on appeal, because it is in a better position

than a reviewing court to determine the proper sentence.

The trial court has the opportunity to consider the subjec-

tive circumstances in each particular case such as the

defendant’s (1) demeanor and character; (2) mentality; (3)

abnormal or subnormal tendencies and (4) natural incli-

nation or aversion to commit crime. People v. Reese (1984),

121 Ill.App.3d 977, 989, 77 Ill.Dec. 390, 398, 460 N.E.2d

446, 454.

In the case at bar, the State, in aggravation, presented

evidence that defendant had been adjudicated a delin-

quent three years prior for attempted murder and aggra-

vated battery. The State also introduced evidence that

defendant was on probation for burglary at the time of

this offense. In light of the nature of this crime and

A-43

defendant’s backsround, we find that the trial court did

not abuse its discretion in sentencing defendant.

Defendant next argues that he was improperly con-

victed and sentenced on both murder and conspiracy to

commit murder because there is a statutory prohibition

against convictions for both the inchoate and the princi-

pal offense. The State concedes that under Section 8-5 of

the Criminal Code “no person shall be convicted of both

the inchoate and the principal offense.” Ill.Rev.Stat.1985,

ch. 38, par. 8-5. Accordingly, we vacate defendant’s con-

viction for conspiracy to commit murder, and affirm

defendant’s conviction and sentence for attempted mur-

der and murder.

AFFIRMED IN PART; VACATED IN PART.

McNAMARA and FREEMAN, JJ., concur.

A-44

STATE CUSTODY

§ 2254. State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application for

a writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the

ground that he is in custody in violation of the Constitu-

tion or laws or treaties of the United States.

(b) An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment of

a State court shall not be granted unless it appears that

the applicant has exhausted the remedies available in the

courts of the State, or that there is either an absence of

available State corrective process or the existence of cir-

cumstances rendering such process ineffective to protect

the rights of the prisoner.

(c) An applicant shall not be deemed to have

exhausted the remedies available in the courts of the

State, within the meaning of this section, if he has the

right under the law of the State to raise, by any available

procedure, the question presented.

(d) In any proceeding instituted in a Federal court

by an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court, a

determination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction in a

proceeding to which the applicant for the writ and the

State or an officer or agent thereof were parties, evi-

denced by a written finding, written opinion, or other

reliable and adequate written indicia, shall be presumed

A-45

to be correct, unless the applicant shall establish or it

shall otherwise appear, or the respondent shall admit -

(1) that the merits of the factual dispute

were not resolved in the State court hearing;

(2) that the factfinding procedure

empioyed by the State court was not adequate to

afford a full and fair hearing;

(3) that the material facts were not ade-

quately developed at the State court hearing;

(4) that the State court lacked jurisdiction

of the subject matter or over the person of the

applicant in the State court proceeding;

(5) that the applicant was an indigent and

the State court, in deprivation of his constitu-

tional right, failed to appoint counsel to repre-

sent him in the State court proceeding;

(6) that the applicant did not receive a full,

fair, and adequate hearing in the State court

proceeding; or

(7) that the applicant was otherwise

denied due process of law in the State court

proceeding;

(8) or unless that part of the record of the

State court proceeding in which the determina-

tion of such factual issue was made, pertinent to

a determination of the sufficiency of the evi-

dence to support such factual determination, is

produced as provided for hereinafter, and the

Federal court on a consideration of such part of

the record as a whole concludes that such fac-

tual determination is not fairly supported by the

record:

A-46

And in an evidentiary hearing in the proceeding in the

Federal court, when due proof of such factual determina-

tion has been made, unless the existence of one or more

of the circumstances respectively set forth in paragraphs

numbered (1) to (7), inclusive, is shown by the applicant,

otherwise appears, or is admitted by the respondent, or

unless the court concludes pursuant to the provisions of

paragraph numbered (8) that the record in the State court

proceeding, considered as a whole, does not fairly sup-

port such factual determination, the burden shall rest

upon the applicant to establish by convincing evidence

that the factual determination by the State court was

erroneous.

(e) If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to sup-

port the State court’s determination of a factual issue

made therein, the applicant, if able, shall produce that

part of the record pertinent to a determination of the

sufficiency of the evidence to support such determina-

tion. If the applicant, because of indigency or other rea-

son is unable to produce such part of the record, then the

State shall produce such part of the record and the Fed-

eral court shall direct the State to do so by order directed

to an appropriate State official. If the State cannot provide

such pertinent part of the record, then the court shall

determine under the existing facts and circumstances

what weight shall be given to the State court’s factual

determination.

(f) A copy of the official records of the State court,

duly certified by the clerk of such court to be a true and

correct copy of a finding, judicial opinion, or other reli-

able written indicia showing such a factual determination

A-47

by the State court shall be admissible in the Federal court

proceeding.

ANTITERRORISM ACT OF 1996

P.L. 104-132 Sec. 104

SEC. 104. SECTION 2254 AMENDMENTS.

Section 2254 of title 28, United States Code, is

amended -

(1) by amending subsection (b) to read as

follows:

“(b)(1) An application for a writ of habeas corpus

on behalf of a person in custody pursuant to the judg-

ment of a State court shall not be granted unless it

appears that -

“(A) the applicant has exhausted the

remedies available in the courts of the State; or

“(B)(i) there is an absence of available

State corrective process; or

“(ii) circumstances exist that render such

Process ineffective to protect the rights of the

applicant.

“(2) An application for a writ of habeas corpus may

be denied on the merits, notwithstanding the failure of

the applicant to exhaust the remedies available in the

courts of the State.

A-48

“(3) A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance

upon the requirement unless the State, through counsel,

expressly waives the requirement.”;

(2) by redesignating subsections (d), (e), and (f)

as subsections (e), (f), and (g), respectively;

(3) by inserting after subsection (c) the follow-

ing new subsection:

“(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of

a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim -

“(1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court

of the United States; or

“(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”;

(4) by amending subsection (e), as redesignated

by paragraph (2), to read as follows:

“(e)(1)_ In a proceeding instituted by an application

for a writ of habeas corpus by a person in custody pur-

suant to the judgment of a State court, a determination of

a factual issue made by a State court shall be presumed to

A-49

be correct. The applicant shall have the burden of rebut-

ting the presumption of correctness by clear and convinc-

ing evidence.

“(2) If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court shall

not hold an evidentiary hearing on the claim unless the

applicant shows that -

“(A) the claim relies on —

“(i) a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable; or

“(ii) a factual predicate that could not have

been previously discovered through the exercise of due

diligence; and

“(B) the facts underlying the claim would be

sufficient to establish by clear and convincing evidence

that but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying

offense.”; and

(5) by adding at the end the following new

subsections:

“(h) Except as provided in section 408 of the Con-

trolled Substances Act, in all proceedings brought under

this section, and any subsequent proceedings on review,

the court may appoint counsel for an applicant who is or

becomes financially unable to afford counsel, except as

provided by a rule promulgated by the Supreme Court

pursuant to statutory authority. Appointment of counsel

under this section shall be governed by section 3006A of

title 18.

A-50

“(i) The ineffectiveness or incompetence of counsel

during Federal or State collateral post-conviction pro-

ceedings shall not be a ground for relief in a proceeding

arising under section 2254.”.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.