Herndon v. Dorethy

Filing 17

MEMORANDUM Opinion and Order: The Court denies petitioner's petition for a writ of habeas corpus 1 and declines to certify any issues for appeal. See 28 U.S.C. §§ 2253(c)(2), 2254(d)(1). Civil case terminated. Signed by the Honorable Sharon Johnson Coleman on 2/18/2020. Mailed notice. (ym, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES HERNDON, (B31788),
Petitioner,
v.
STEPHANIE DORETHY, Warden, Hill
Correctional Center,
Respondent.

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Case No. 17 C 4356
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Before the Court is pro se petitioner James Herndon’s petition for a writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Herndon’s
petition and further declines to certify any issues for appeal under 28 U.S.C. § 2253(c)(2).
Background
When considering habeas petitions, federal courts presume that the factual findings made by
the last state court to decide the case on the merits are correct unless the habeas petitioner rebuts
those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Sims v. Hyatte, 914 F.3d
1078, 1095 (7th Cir. 2019). Where Herndon has not provided clear and convincing evidence to
rebut this presumption, the following factual background is based on the Illinois Appellate Court’s
decisions on direct and post-conviction appeal.
In February 2009, Herndon was charged with two counts of delivery of a controlled
substance based on his selling less than one gram of cocaine to an undercover officer within 1,000
feet of a school. At his first appearance in the Circuit Court of Cook County, an assistance public
defender represented Herndon. The same assistant public defender represented Herndon at his
motion to suppress his identification. The court denied the motion to suppress, after which
Herndon informed the court that he wished to represent himself. Twice, the trial court admonished

Herndon regarding the challenges of proceeding pro se and the sentence Herndon faced if convicted
in light of his extensive criminal history. The trial judge also asked questions about Herndon’s
education, background, and voluntariness of his decision. The court then allowed Herndon to
proceed pro se.
In June 2011, the matter was set for trial. Prior to trial, the court appointed Herndon
counsel and the State dropped the count charging Herndon with delivery of a controlled substance
within 1,000 feet of a school. At trial, a police officer testified that when he was undercover, he
purchased two rocks of crack cocaine from Herndon and two rocks of crack cocaine from another
individual. Afterwards, the undercover officer radioed his partners about the narcotics transaction
and gave a description of Herndon. The undercover officer observed his partners talking to
Herndon, but the officers did not arrest Herndon at the scene. Rather, the undercover officer
identified Herndon from a photo array later that day. Herndon was subsequently arrested. A jury
convicted Herndon of delivery of a controlled substance. At sentencing, Herndon represented
himself and the trial judge sentenced him to a term of 10 years in prison, based in part on Herndon’s
extensive criminal history.
On direct appeal to the Illinois Appellate Court, Herndon, by counsel, argued: (1) the trial
court violated Illinois Supreme Court Rule 401(a) by insufficiently admonishing him before allowing
him to proceed pro se; (2) the prosecutor erred in both opening statements and closing arguments;
and (3) ineffective assistance of trial counsel for failing to object to the prosecutor’s opening and
closing statements. In July 2015, the Illinois Appellate Court affirmed Herndon’s conviction and
sentence after which he filed a pro se petition for rehearing arguing: (1) the Illinois Rules of
Evidence were violated due to an insufficient chain of custody in regard to the drug evidence; (2) his
arrest was the result of a warrantless search in violation of the Fourth Amendment; and (3) the
Illinois Appellate Court misinterpreted trial evidence. The Illinois Appellate Court denied the
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petition for rehearing.
In August 2015, Herndon filed a pro se petition for leave to appeal (“PLA”) with the Illinois
Supreme Court, in which he argued: (1) his arrest was the result of a warrantless search in violation
of the Fourth Amendment; (2) there was an insufficient chain of custody for the drug evidence due
to an improper commingling of the evidence; (3) the trial court failed to comply with Illinois
Supreme Court Rule 401(a) before allowing him to proceed pro se; (4) prosecutorial error in opening
and closing arguments; and (5) ineffective assistance of trial counsel for failure to (i) challenge the
commingling of drug evidence, (ii) object to the prosecution’s opening and closing arguments, and
(iii) preserve his Rule 401(a) challenge for appellate review. The Illinois Supreme Court denied
Herndon’s PLA on November 25, 2015 and his motion for reconsideration on March 7, 2016.
In the meantime, Herndon had filed a pro se post-conviction petition pursuant to the Illinois
Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. In his petition, Herndon asserted: (1) the
trial court’s failure to comply with Illinois Supreme Court Rule 401(a) prior to accepting his waiver
of counsel violated his Fourteenth Amendment due process rights; (2) the trial court failed to inform
him that he was subject to mandatory Class X sentencing based on his extensive criminal history in
violation of Illinois Supreme Court Rules 401 and 402; (3) a police officer proffered perjured
testimony to secure his indictment; (4) the drug evidence was improperly commingled creating an
insufficient chain of custody; and (5) ineffective assistance of trial counsel for failing to (i) preserve
for appellate review the trial court’s noncompliance with Illinois Supreme Court Rules 401 and 402,
(ii) challenge the officer’s testimony as perjurious, and (iii) challenge the commingling of drug
evidence. The post-conviction trial court dismissed the petition as frivolous and patently without
merit. See 725 ILCS 5/122-2.1(a)(2).
On post-conviction appeal, Herndon’s counsel moved to withdraw under Pennsylvania v.
Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), asserting any appeal lacked arguable
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merit. The Illinois Appellate Court granted counsel’s motion to withdraw and affirmed. Herndon
did not file a post-conviction PLA.
Legal Standards
“Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court cannot
issue a writ of habeas corpus on a claim rejected on the merits in state court unless the petitioner
surmounts high obstacles.” Janusiak v. Cooper, 937 F.3d 880, 888 (7th Cir. 2019). Specifically, the
Court cannot grant habeas relief unless the state court’s decision was contrary to, or an unreasonable
application of federal law clearly established by the Supreme Court. Williams v. Taylor, 529 U.S. 362,
402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Felton v. Bartow, 926 F.3d 451, 464 (7th Cir. 2019).
The Supreme Court has explained that a state court’s decision is “contrary to” clearly established
Supreme Court law “if the state court arrives at a conclusion opposite to that reached by this Court
on a question of law” or “if the state court confronts facts that are materially indistinguishable from
a relevant Supreme Court precedent and arrives at a result opposite to ours.” Williams, 529 U.S. at
405. Under the “unreasonable application” prong of the AEDPA standard, a habeas petitioner must
demonstrate that although the state court identified the correct legal rule, it unreasonably applied the
controlling law to the facts of the case. Id. at 407; see also Kimbrough v. Neal, 941 F.3d 879, 882 (7th
Cir. 2019) (to obtain federal habeas relief, “the state court’s decision must be an unreasonable
application of federal law—not a state court’s resolution of a state law issue.”).
“Inherent in the habeas petitioner’s obligation to exhaust his state court remedies before
seeking relief in habeas corpus, is the duty to fairly present his federal claims to the state courts.”
King v. Pfister, 834 F.3d 808, 815 (7th Cir. 2016) (citation omitted). “A federal court will not hear a
state prisoner’s habeas claim unless the prisoner has first exhausted his state remedies by presenting
the claim to the state courts for one full round of review.” Crutchfield v. Dennison, 910 F.3d 968, 972
(7th Cir. 2018).
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Habeas Petition
Herndon filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254(d)(1).
Construing his pro se petition liberally, see Lund v. United States, 913 F.3d 665, 669 (7th Cir. 2019),
Herndon brings the following claims: (1) his trial counsel was constitutionally ineffective based on
several grounds; (2) the drug evidence lacked a sufficient chain of custody in violation of his
Fourteenth Amendment due process rights; and (3) his waiver of pretrial counsel was invalid
because the trial court did not properly admonish him.
Discussion
Ineffective Assistance of Counsel Claims
Herndon asserts that his trial counsel was constitutionally ineffective under the Sixth
Amendment because counsel did not argue that a police officer proffered perjured testimony to
secure the indictment against Herndon, counsel failed to challenge Herndon’s arrest on Fourth
Amendment grounds, counsel did not preserve the pretrial waiver of counsel issue for appeal, and
counsel did not challenge the commingling of drug evidence.
Herndon has procedurally defaulted all of his ineffective assistance of counsel claims
because he failed to present them through one complete round of state court review before filing his
habeas petition. See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848, 119 S. Ct. 1728, 144 L.Ed.2d 1
(1999). Specifically, in his post-conviction petition, Herndon asserted that counsel was ineffective
for failing to argue that a police officer proffered perjured testimony, but he did not exhaust this
claim because he failed to file a post-conviction PLA. Also, Herndon failed to present his
ineffective assistance claim based on his arrest to any state court. Last, although Herndon presented
his arguments that counsel did not preserve the pretrial waiver of counsel issue for appeal and did
not challenge the commingling of drug evidence in his post-conviction petition, he did not file a
post-conviction PLA as required by Boerckel. He further failed to bring these claims on direct appeal.
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After reviewing the filings, the record, and the parties’ legal memoranda, Herndon has not
established an exception to his procedural default by pointing to cause, prejudice, or a miscarriage of
justice. Schmidt v. Foster, 911 F.3d 469, 487 (7th Cir. 2018) (en banc). Because Herndon has
procedurally defaulted his ineffective assistance of counsel claims, the Court cannot reach the merits
of his arguments. See Crutchfield, 910 F.3d at 972.
Chain of Custody Claim
Turning to Herndon’s chain of custody claim, when presenting this claim to the Illinois
Appellate Court on direct appeal and in his PLA to the Illinois Supreme Court, he based his
arguments on Illinois’ evidentiary rules, and it is well-settled that “[f]ederal habeas corpus relief is
not available to correct perceived errors of state law.” Crockett v. Butler, 807 F.3d 160, 168 (7th Cir.
2015). Put differently, when conducting habeas review, federal courts are “limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States,” therefore,
federal habeas relief is not warranted because Herndon based his chain of custody arguments on
state evidentiary law. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
Nevertheless, along with challenging Illinois evidentiary standards, Herndon mentioned the
Fourteenth Amendment in his PLA to the Illinois Supreme Court in connection with his chain of
custody claim. To exhaust his claim, however, Herndon was required to fully present his due
process claim by alerting the state courts to the federal constitutional nature of his claim, including
engaging in some sort of constitutional analysis. Schmidt, 911 F.3d at 486; Whatley v. Zatecky, 833
F.3d 762, 771 (7th Cir. 2016). Although Herndon mentions the Fourteenth Amendment, he did not
engage in any constitutional analysis when presenting this claim in his PLA. Also, Herndon’s
citations in support of this claim only discuss Illinois’ evidentiary rules, not Fourteenth Amendment
due process concerns. See, e.g., People v. Cowans, 782 N.E.2d 779, 784, 270 Ill.Dec. 220, 225, 336
Ill.App.3d 173, 177 (1st Dist. 2002); People v. Terry, 570 N.E.2d 786, 788, 156 Ill.Dec. 310, 312, 211
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Ill.App.3d 968, 972 (1st Dist. 1991). Herndon has therefore procedurally defaulted his due process
claim.
Even though Herndon does not argue that there is cause and prejudice or that the
miscarriage of justice exception applies, ineffective assistance of counsel claims may excuse
procedural default. Davila v. Davis, 137 S.Ct. 2058, 2065, 198 L.Ed.2d 603 (2017). To set aside
procedural default, however, a petitioner’s ineffective assistance claims “must themselves be
preserved,” which is not the case here. Richardson v. Lemke, 745 F.3d 258, 272 (7th Cir. 2014). As
such, Herndon has not established an exception to his procedural default.
Waiver of Counsel
In his habeas petition, Herndon argues that his waiver of pretrial counsel was invalid because
the trial court did not properly admonish him. Herndon now frames this argument as a Sixth
Amendment and Fourteenth Amendment claim, but when he presented this argument to the state
courts, he based it on the trial court’s failure to comply with Illinois Supreme Court Rule 401(a). As
discussed, errors of state law are not cognizable on habeas review because they do not implicate
constitutional concerns. Crockett, 807 F.3d at 168; 28 U.S.C. § 2254(a). Thus, the Court cannot
review this last claim under § 2254(d)(1).
Certificate of Appealability
A habeas petitioner does not have the absolute right to appeal a district court’s denial of his
habeas petition, rather, he must first request a certificate of appealability. Miller-El v. Cockrell, 537
U.S. 322, 335, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A petitioner is entitled to a certificate
of appealability only if he can make a substantial showing of the denial of a constitutional right. Id.
at 336; 28 U.S.C. § 2253(c)(2). Under this standard, Herndon must demonstrate that “reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve encouragement to
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proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)
(citation and quotation marks omitted).
Here, Herndon has not established reasonable jurists would debate that his claims
challenging state evidentiary and procedural law were not cognizable on habeas review. Also, a
reasonable jurist would not debate that the Court erred in its procedural default determinations. See
Slack, 529 U.S. at 484 (“Where a plain procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner should be allowed to proceed further.”). The
Court therefore declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
Conclusion
For these reasons, the Court denies petitioner’s petition for a writ of habeas corpus [1] and
declines to certify any issues for appeal. See 28 U.S.C. §§ 2253(c)(2), 2254(d)(1). Civil case
terminated.
SO ORDERED.
_________________________
Sharon Johnson Coleman
United States District Judge
DATED: 2/18/2020

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