Nor does this claim meet an exception to the procedural default doctrine. As stated
previously, a court may review a defaulted claim if (1) a petitioner shows cause for failing to raise
the claim at the appropriate time and actual prejudice resulting from that failure, or (2) refusal to
consider the claim would result in a miscarriage of justice due to the conviction of someone who
was probably innocent. Rodriguez, 193 F.3d at 917. The second exception “applies only in the
‘extremely rare’ and ‘extraordinary case’ where the petitioner is actually innocent of the crime for
which he is imprisoned.” Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003). Petitioner has not
made such a showing in this case. See Schlup, 513 U.S. at 329 (‘Fundamental miscarriage of
justice” requires a showing that, absent the constitutional violation, “it is more likely than not that
no reasonable juror would have convicted [the petitioner].")

As for the first exception, Petitioner has not alleged any specific “cause” for his failure to
raise this claim properly in the state courts. Petitioner has asserted a claim regarding the
ineffective assistance of counsel, which in certain circumstances may serve as sufficient cause for
such a failure. In this case, however, the ineffective assistance of counsel claim has itself been
procedurally defaulted. Though Petitioner raised the issue in his petition for post-conviction relief,
he did not include it either in his appeal from the dismissal of that petition or in his petition for leave
to appeal to the Illinois Supreme Court. Moreover, Petitioner said nothing about ineffective
assistance of counsel with respect to Mountford's testimony. See Edwards v. Carpenter, 529 U.S
446, 453 (2000) (“[AJn ineffective-assistance-of-counsel claim asserted as cause for the procedural
default of another claim can itself be procedurally defaulted .. . .”)

Even if Petitioner could establish cause for his failure to raise the hearsay argument in his
post-trial motion, he cannot show actual prejudice resulting from that failure. As the Illinois
Appellate Court noted, K.M. testified that Petitioner touched her breasts, vagina, and butt with his
mouth, hands, and penis, and R.C. testified that Petitioner engaged in oral and anal intercourse
with him. This testimony was corroborated by Dr. Flaherty's testimony that K.M. had suffered

20


cross-examination that she could receive between 6 and 30 years, which put the jury on notice that
she may have a motivation to alter her testimony in order to receive a lighter sentence. /d. at 14.
In the court's view, the State’s withholding of information regarding Edna’s plea agreement did not
deprive Petitioner of a fair trial. /d. at 16.

On January 14, 2000, Petitioner filed a petition for leave to appeal with the Illinois Supreme
Court, arguing that he was denied a fair trial when the State failed to disclose at trial all of the terms
of Edna’s plea agreement. (Petitioner's Petition for Leave to Appeal to the Illinois Supreme Court
from the Denial of his State Motion for Relief from Judgment, Exhibit J to Respondent's Answer,
at 11.) On April 5, 2000, the Illinois Supreme Court denied Petitioner’s petition for leave to appeal.
(Order of the Illinois Supreme Court Denying Petitioner's Petition for Leave to Appeal from the
Denial of his State Motion for Relief from Judgment, Exhibit K to Respondent's Answer.) See
People v. Hindson, 188 Ill. 2d 574, 729 N.E.2d 500 (Table) (2000).
F, Petition for Post-Conviction Relief

On September 13, 1999, Petitioner filed a petition for post-conviction relief arguing that he
was denied the effective assistance of counsel during his criminal trial; that he was denied the
effective assistance of appellate counsel; and that he was denied due process because the
assistant state’s attorney put improper evidence before the grand jury and because the State
improperly amended Petitioner's indictment by changing the counts for “predatory criminal sexual
assault of a child” to ones for “aggravated criminal sexual assault.” (Petitioner's Petition for Post
Conviction Relief, included as part of Exhibit L to Respondent's Answer.) The circuit court
dismissed Petitioner's petition for post-conviction relief in a November 10, 1999 order, finding that
the petition was frivolous and without merit. (People v. Hindson, No. 96 CF 953, included as part

of Exhibit L to the Respondent's Answer.)

14


concluded, and that she would be sentenced to between 6 and 30 years for her crimes, put the jury
on notice that she might have a motivation to perjure herself in an effort to receive a lighter
sentence.”' /d. at 13-14. As a result, the court found no Brady violation. id. at 14.

In reaching this conclusion, the Illinois Appellate Court first quoted its earlier decision in
People v. Torres, 305 Ill. App. 3d 679, 712 N.E.2d 835 (2d Dist. 1999) regarding the proper
standard of review:

The State's knowing use of perjured testimony to obtain a criminal conviction

constitutes a violation of due process of law. A prosecutor cannot knowingly use,

or allow to go uncorrected, perjured testimony that goes to the substance of a

witness's testimony or to facts that bear on the witness's credibility. This includes

both exculpatory evidence and impeachment evidence. Evidence of any

understanding or agreement between a witness and the prosecution as to any

future prosecution is relevant to the witness's credibility, and the jury is entitled to

know about it. To establish a due process violation, the trial prosecution need not

have known that the testimony was false; it is enough that there was knowledge by

representatives or agents of the prosecution
Id. (quoting Torres, 305 lll. App. 3d at 685, 712 N.E.2d at 839). Without citing any additional case
law, the court then distinguished Petitioner's cited case, People v. McKinney, 31 Ill. 2d 246, 201
N.E.2d 431 (1964), in which the Illinois Supreme Court reversed a denial of a post-conviction
petition because the co-defendant falsely testified on cross-examination that he expected no
leniency from the state in exchange for his testimony against the petitioner. /d, at 248, 201 N.E.2d
at 432. The co-defendant was actually offered a reduction in his sentence in exchange for his
testimony, which was not disclosed by the prosecution at trial. /d. In granting the petitioner relief,
the court stated that “any fair appraisal of the record shows that [the co-defendant’s] denials were

couched in terms that he had never been approached by the State’s Attorney's staff and that he

had never been offered leniency, and that the jury, which should have been informed of all

The court notes that Edna could have been asked on cross-examination at trial
about other charges against her, whether any had been dismissed, and what sentences those
charges carried. Petitioner does not assert an ineffective assistance of counsel claim premised
on the failure to pursue such topics, nor is there any indication that Edna refused to answer any
such questions truthfully.

24


also stated that Petitioner forced K.M. to touch R.C.’s penis with her hands, mouth and vagina. /d.
R.C. explained that he complied with his parents’ demands for sexual acts because they told him
that if he refused, they would harm him or K.M. /d.

Edna Hindson also testified on behalf of the State, acknowledging that she had pleaded
guilty to the charges against her and had agreed to testify truthfully in exchange for a prison
sentence totaling between 6 and 30 years. /d. Edna testified that she, K.M., R.C., and Petitioner
moved to Antioch in July 1995, and that it was around this time that Petitioner sexually abused the
children. Id. Specifically, Edna stated that Petitioner touched K.M.’s breasts, placed his finger in
her vagina, forced K.M. to put her mouth on his penis, made K.M. insert her finger in his anus and,
on one occasion, put his penis in K.M.’s vagina. /d. Edna also testified that Petitioner would
request that she perform sexual acts with the children. /d. For example, Petitioner told her to suck
R.C.’s penis and to put her finger up his butt, and he told R.C. to pinch Edna’s breasts, lick her
vagina, and put his penis in her vagina. /d. Petitioner also directed K.M. to put her finger in Edna's
vagina and anus, to lick her vagina, and to pinch her breasts. /d.

According to Edna, Petitioner's sexual abuse did not stop there. She testified that Petitioner
instructed the children to perform sexual acts on one another, including: R.C. placing his mouth
on K.M.'s vagina; R.C. inserting his penis in K.M.’s vagina; R.C. inserting his finger in K.M.'s anus;
K.M. touching R.C.’s penis with her hand and mouth; and K.M. inserting her finger in R.C.’s anus.
Id. Edna recounted that on one occasion, she urinated in Petitioner's mouth and then Petitioner
ordered the children to do the same to each other, which they did. /d. Edna testified that she and
the children performed these sexual acts out of fear of Petitioner. id. She did not provide dates
for these events but stated that some of the sexual abuse took place starting on the night of August
26, 1995 and continued through to the morning of August 27, 1995. Id.

On cross-examination, Edna admitted that on two occasions in late July or early August
4995, she had sex with the children when Petitioner was not present. /d. at 472, 703 N.E.2d at

5


injuries to her anus that were consistent with sexual abuse, and by Edna Hindson’s testimony that
she had both witnessed and participated in the abuse. See Hindson /, 301 Ill. App. 3d at 474, 703
N.E.2d at 963. In the court's view, even if the trial court had prohibited Mountford from testifying
about her hearsay conversations with K.M. and R.C., a reasonable jury could have convicted
Petitioner based on the remaining evidence. Cf. Strickler v. Greene, 527 U.S. 263, 290 (1999)
(‘[T]he question is whether ‘the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine the confidence in the verdict.’”)

Petitioner’s claim regarding Mountford’s hearsay statements is procedurally barred and no
exception permits review by this court. To the extent Petitioner claims that the testimony of R.C.
and K.M. was false and the result of government influence, that claim also is procedurally defaulted
because Petitioner never presented it to the Illinois courts for review. '®
I. Imposition of an Excessive Sentence

Petitioner next argues that the trial court imposed an excessive sentence without examining
the seriousness of his offense.”? (Habeas Petition, at 5.) He claims that the 72 year sentence is
the equivalent of a life sentence and is excessive to the extent that a person committing a double
murder would receive a comparable term. (/d.) The Respondent argues that this claim is also
procedurally defaulted because Petitioner failed to raise it as part of his petition for leave to appeal

to the Illinois Supreme Court. The court agrees.

" Petitioner has cited Napue v. People of State of Illinois, 360 U.S. 264 (1959) in
support of his position that K.M. and R.C. gave false testimony. The petitioner in Napue sought
habeas relief because a witness for the state falsely testified at trial that he was not provided with
any consideration for his testimony, and though the Assistant State’s Attorney knew the testimony
was false, he failed to correct it. 360 U.S. at 265. The Supreme Court reversed the petitioner's
conviction, explaining that the false testimony “may have had an effect on the outcome of the trial.”
Id. at 272. Having determined that Petitioner has procedurally defaulted his false testimony claim
with respect to K.M. and R.C., the court need not analyze Napue in relation to Petitioner's case.

20 Also as a part of this claim, Petitioner maintains that he is innocent and that K.M.
and R.C. were never harmed. (Habeas Petition, at 5.)

21


on notice that she was testifying to benefit herself and that she had a possible motive to lie.
Though the additional details regarding the agreement were also relevant to Edna's credibility,
Petitioner offers no basis for this court to conclude there is a reasonable likelihood that the verdict
would have been different if the jury had known the information. Indeed, had the jury learned about
the entire plea agreement and then fully discredited Edna’s testimony as a result, the court is
satisfied that the jury would still have convicted Petitioner based on the testimony of the victims
K.M. and R.C. both gave detailed testimony regarding the abuse they suffered at the hands of
Petitioner, and Dr. Flaherty confirmed the abuse with respect to K.M. Based on that evidence, the
court finds that the additional details of the plea agreement were not material and that Petitioner
received a fair trial.
Vv. Ineffective Assistance of Counsel

Petitioner next argues that he was denied the effective assistance of counsel at trial
because his trial counsel failed to subpoena witnesses beneficial to his defense or to properly
cross-examine witnesses for the State. (Habeas Petition, at 13.) Specifically, Petitioner argues
that his trial counsel failed to subpoena witnesses who would have testified that Petitioner was out
of town on the days the abuse took place; who would have demonstrated that Edna's testimony
was perjured; and who would have testified that the children were examined by another doctor
{ooking for abuse and that this doctor was unable to find any signs of abuse. (/d.) Petitioner also
maintains that if his trial attorney had properly cross-examined certain State witnesses, the jury
would have concluded that the testimony was perjured or the result of improper suggestion. (/d.)

The Respondent argues that this claim is procedurally defaulted because Petitioner did not
properly present it to the Illinois courts for review. The court agrees. As noted earlier, Petitioner
included this claim in his petition for post-conviction relief filed with the trial court, but he did not

include the claim in his appeal from the court’s decision to dismiss the petition. Furthermore,

27


Petitioner raised the issue of Edna’s perjured testimony in his motion for relief from
judgment and in his appeal from the court’s denial of that motion. He later abandoned this claim,
however, in his petition for leave to appeal to the \llinois Supreme Court. As a result, the claim is
procedurally defaulted. For the reasons explained above, Petitioner cannot establish any
recognized exception to the procedural default doctrine. Even without Edna's testimony, K.M. and
R.C. both testified about the abuse they suffered at the hands of Petitioner, and Dr. Flaherty
corroborated that abuse with respect to K.M. See, e.g., Hindson |, 301 Ill. App. 3d at 474, 703
N.E.2d at 963. The court therefore declines to review the merits of this claim.

WV. Brady Violation

In a related argument, Petitioner claims that he was denied a fair trial because the State
failed to provide either him or the jury with all of the details of Edna’s plea agreement. He also
objects that the State failed to correct Edna when she testified falsely regarding the terms of that
agreement. (Habeas Petition, at 6.) The Respondent contends that this claim fails because the
\linois Appellate Court considered and rejected it on the merits and the holding was not
unreasonable

Edna was charged with several offenses that could have resulted in a total prison term of
120 years. At Petitioner's trial, however, he and the jury heard only that she would receive a
sentence of between 6 and 30 years. Hindson Il, at 12. In addition, they were not advised that the
sentence included “no extended term or consecutive sentences or the possibility of the application
of truth-in-sentencing provisions,” or that Edna’s children would not be required to testify at her
sentencing hearing. /d. The Illinois Appellate Court recognized that the State did not properly
provide the details of the plea agreement to the defense or the jury, but held that the jury had
sufficient information to make an informed decision regarding Edna’s credibility. /d. at 13

Specifically, Edna's testimony that her sentencing hearing was continued until Petitioner's trial

23


petitioner’s claim because the petitioner has failed to satisfy a state procedural rule, that claim is
procedurally defaulted and barred from federal habeas review.” Pisciotti v. Washington, 143 F.3d
296, 300 (7th Cir. 1998). State courts, however, “need not fear reaching the merits of a federal
claim in an alternative holding.” Harris v. Reed, 489 U.S. 255, 265 n.10 (1989). As the Harris
Court explained,

By its very definition, the adequate and independent state ground doctrine requires

the federal court to honor a state holding that is a sufficient basis for the state

court's judgment, even when the state court also relies on federal law.
Id. (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935)) (emphasis in original).

Notwithstanding the general rule that procedurally defaulted claims are barred from federal
habeas review, there are certain circumstances under which federal courts may nonetheless review
claims that were never presented to the state courts. “Federal courts may only review defaulted
claims if the petitioner shows cause for failure to raise them at the appropriate time and actual
prejudice which resulted from such failure.” Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999).
In the absence of such a showing, “a defaulted claim is reviewable only if refusal to consider it
would result in a ‘fundamental miscarriage of justice,’ that is, where a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” /d. (citations omitted). In order
for a court to find a “fundamental miscarriage of justice,” the petitioner must demonstrate “that it
is more likely than not that no reasonable juror would have convicted him.” fd. (citing Schlup v.
Delo, 513 U.S. 298, 329 (1995).

As noted, Petitioner has raised seven claims in his habeas petition, which the Respondent
argues are either procedurally defaulted or do not otherwise support habeas relief in this case. The

court addresses each argument in turn.

18


improperly allowed hearsay evidence —i.e., the statements made by the victims to Mountford —
without the necessary safeguards of reliability. (Petitioner's Brief on Direct Appeal to the Illinois
Appellate Court, Exhibit A to Respondent's Answer, at 24.) Petitioner also argued that his sentence
was excessive for his crimes, constituted an abuse of the trial court's discretion, and violated
Petitioner's rights under the Eighth Amendment (id. at 48, 54.) Finally, Petitioner argued that the
trial court erred in applying the lilinois “truth-in-sentencing” statute to his sentence because the
statute violated the Illinois Constitution."* (/d. at 61.)

The State opposed Petitioner's appeal'* and on December 4, 4998, the Illinois Appellate
Court denied the appeal with respect to alll of Petitioner's claims except the one pertaining to the
constitutionality of the “truth-in-sentencing” statute. Hindson 1, 301 Ill. App. 3d at 473-81, 703
N.E.2d at 962-67; (State's Brief on Direct Appeal, Exhibit B to Respondent's Answer.) On that
claim, the court found that the statute was unconstitutional and barred its application to Petitioner's
sentence. /d. at 481, 703 N.E.2d at 968. The court ordered that the sentencing order “be redacted
to delete the language that the defendant's sentence . . . is subject to the truth-in-sentencing
provisions,” explaining that Petitioner would then “receive whatever good conduct credit he would
have been eligible to receive prior to the enactment of the truth-in-sentencing provisions.” /d., 703
N.E.2d at 967-68.

On January 5, 1999, Petitioner filed a petition for leave to appeal with the Illinois Supreme
Court, arguing that the trial court had improperly admitted Mountford's hearsay testimony at the
trial. (Petitioner's Petition for Leave to Appeal to the Illinois Supreme Court on Direct Appeal,

Exhibit D to the Respondent's Answer, at 11.) On April 22, 1999, the Illinois Supreme Court denied

B The Illinois “truth-in-sentencing” statute required Petitioner to serve 85 percent of

his sentence before being released. /d. at 480 (citing 730 ILCS 5/3-6-3(a)(2)(i)).
" The record does not reflect the date the State's appellate brief was filed.

10


courts may amend an indictment with respect to matters of form. United States v. Field, 875 F.2d
430, 133 (7th Cir. 1989). “In general, amendments to an indictment will be allowed to stand if they
do not ‘change an essential or material element of the indictment so as to cause prejudice to the
defendant.” /d. (citations and internal quotations omitted). In Petitioner's case, the amendment
did not alter an essential or material element; to the contrary, the amendment resulted in a new
charge with identical elements. Thus, Petitioner did not suffer any prejudice as a result of the
amendment and there has been no violation of his constitutional rights.

Even if the trial court erred in allowing the amendment, moreover, the error was harmless
In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court stated that an error is harmless unless
it “had substantial and injurious effect or influence in determining the jury's verdict.” /d. at 622
(citations omitted). In this case, the amended charge did not impact Petitioner's defense in any
material manner because as noted, the relevant language of the two statutes is identical. Petitioner
was not unfairly surprised by the new charge, nor was his defense impaired as a result. Thus, the
court cannot say that the amended charge had a substantial or injurious effect or influence on the
jury's verdict. Petitioner's petition for relief on this basis is denied.
Vil. Apprendi Violation

Petitioner's final claim is that the trial court improperly sentenced him to consecutive
sentences. He specifically objects that the jury did not receive appropriate notice of the sentencing
criteria, and that the court did not require proof beyond a reasonable doubt in accordance with the
Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Court
struck down a New Jersey “hate crime” statute as unconstitutional where it allowed a trial judge to
increase the range of imprisonment for possession of a firearm for an unlawful purpose if the judge
found, by a preponderance of the evidence, that the offense was committed for the purpose of

intimidating an individual or a group because of that individual's or group's race, color, gender,

30


Pamela Rollins, a DCFS investigator, testified that she separately interviewed bothR.C. and
K.M. on February 28, 1996. K.M. told Rollins that the last instance of sexual abuse took place in
May when K.M. was nine and lived in Aurora, Illinois. (Id.) K.M. also told Rollins that Petitioner
never tried to put his “private part’ inside her. (id. at 18-19.) Rollins testified that when she
interviewed R.C., he stated that he never watched pornographic films and that his mother stopped
sexually abusing him when he was in the second grade. (/d. at 19.)

Defense witness Detective Douglas Hess testified that he interviewed both victims, the
date(s) of the interviews does not appear in Petitioner’s brief or the record. Detective Hess testified
that during his 90-minute interview with K.M., she initially told him that Petitioner never inserted
anything in her butt.” Detective Hess acknowledged, however, that later in the interview K.M
retracted that statement, telling him that Petitioner did insert things in her butt. (/d.) Detective
Hess further testified that R.C. informed him that Petitioner had movies with “men and women
doing all kinds of gross stuff in it.” (/d.)

Jeannie Garnes, Petitioner's sister, testified that RC. and K.M. lived with her family from
February to May 1995, and that during this time, K.M. accused Garnes’s husband of
“misappropriately” touching her while she sat on his lap. (/d.) Petitioner also noted testimony from
Mountford that she took R.C. and K.M. to see Dr. Toussaint, a pediatrician, on September 25 or
26, and that the doctor found only one injury, which was a burn mark on K.M.'s arm.® (/d.)

The last witness for the defense, DCFS investigator Marianne Zimmer, testified that on
September 3, 1995, she interviewed Edna Hindson and K.M. in their home in Antioch, Illinois. (/d.

at 20.) During this interview, Zimmer asked why “the father reportedly could not be living within the

Neither Petitioner's brief nor the record reflects the police department that employed
Detective Hess.

8

took place.

The record does not reflect Dr. Toussaint’s first name, or the year his examination


961. She also testified that the acts of abuse perpetrated by her and Petitioner took place only
over the course of one month, and that she failed to notify the police of the abuse until she was
arrested in April 1996. /d.

When Mountford testified at the trial, she at times provided greater detail regarding certain
conversations with R.C. and K.M. than she had related at the pre-trial hearing. /d. For example,
she provided additional information regarding a September 1995 conversation with K.M., testifying
for the first time that in that conversation, K.M. had informed her that Petitioner “would touch her
all over in places where he shouldn't and made her fee! uncomfortable.” /d. Mountford also
provided further details regarding a conversation she had with K.M. in January or February 1996.
Id. Specifically, Mountford added at trial that K.M. had told her that Petitioner and Edna instructed
both K.M. and R.C. to sleep in the same bed, to take baths together, and to touch each other,
explaining that it was okay because “everybody touched everybody.” /d.

Dr. Emalee Flaherty, a pediatrician, testified regarding her examination of K.M. and R.C.,
which took place on April 11, 1996. /d. She stated that she was unable to find indications of sexual
abuse in the genital area of K.M., but that K.M.’s anus was dilated 15 millimeters, which Dr:
Flaherty explained was a “significant” amount and a sign of sexual abuse. /d. Dr. Flaherty
provided no opinion regarding the abuse to R.C., but testified that he had injuries that might be
caused by sexual abuse. /d., 703 N.E.2d at 962

The Illinois Appellate Court opinions omit any reference to the defense witnesses called at
trial. For purposes of this opinion, the court therefore will refer to Petitioner's brief on direct appeal
regarding the evidence he introduced in his defense. The first witness, Dr. Mark Penn, testified that
he examined both K.M. and R.C. on September 3, 1995 at the request of a Department of Children
and Family Services (‘DCFS”) employee who suspected abuse had taken place. Dr. Penn,
however, failed to discover any signs of abuse. (Petitioner's Brief on Direct Appeal to the Illinois
Appellate Court, Exhibit A to Respondent's Answer, at 18.)

6


I Admission of Hearsay Testimony at Trial

Petitioner first argues that the trial court erred by allowing Kathy Mountford's hearsay
testimony to be admitted at trial because the statements lacked sufficient safeguards of reliability.
(Habeas Petition, at 13.) Petitioner objects that the trial court allowed Mountford to provide
testimony at his trial that was “radically different” from the statements she made at the pretrial
hearing. (/d. at 13.) In addition, Petitioner claims that the victims’ statements to Mountford resulted
from frequent meetings with the State's attorneys and other agents of the state, and not from their
own memories and experiences. (/d. at 5, 13.)

The Respondent argues that Petitioner has procedurally defaulted these claims by failing
to raise them in his post-trial motion. Indeed, the Illinois Appellate Court concluded as much in
Hindson I, explaining that to preserve an issue for appeal, “both an objection at trial and a written
posttrial motion raising the issue are required.” 301 Ill. App. 3d at 473, 703 N.E.2d at 962 (citing
People v. Enoch, 122 lll. 2d 176, 522 N.E.2d 1124 (1988)). The court recognized that Petitioner
properly objected to this issue at his trial, but deemed the argument waived because he failed to
include the issue in his post-trial motion. /d. The court went on to determine that the admission
of Mountford’s conversations with K.M. and R.C. was not so prejudicial that it amounted to plain
error sufficient to allow appellate review. /d. (‘When a defendant has not properly preserved his
claim of error, appellate review is limited to the determination of whether the statement was so
prejudicial as to amount to plain error under Illinois Supreme Court Rule 615(a).”) This discussion,
however, does not open Petitioner's otherwise defaulted claim to a consideration of the merits. See
Neal v. Gramley, 99 F.3d 841, 844 (7th Cir. 1996) (‘Illinois like many states provides a safety valve
for situations in which enforcing a procedural default would mask a plain error... . To decide
whether an error is plain requires consideration of the merits — but only so far as may be required

to determine that issue.”)

19


Gerald Blaine, associate director of the Community Youth Network, who stated that Petitioner “was
in the highest risk category to engage in future sexually deviant behavior’ and was, in Blaine’s
opinion, one of the ten most dangerous sexual offenders he had ever evaluated."’ /d.

Before announcing Petitioner's sentence, the trial judge discussed the mitigating and
aggravating factors related to Petitioner and his crime. /d. {n the judge's view, the mitigating
factors were that Petitioner had attained his GED, was employed, had some college education, and
served in the military. fd. at 473, 703 N.E.2d at 962. The aggravating factors included that
Petitioner was on probation at the time of his crime and that he held a position of trust over his
victims. /d. In addition, the court determined that Petitioner had little potential for rehabilitation,
as indicated in the presentence report, because of the severity and repetitiveness of his crimes.
Id. The court found that consecutive sentences were appropriate and necessary to protect the
public, and sentenced Petitioner to a term of 72 years imprisonment 12 Id.

D. Direct Appeal
On March 20, 1998, Petitioner filed a direct appeal from his conviction for criminal sexual

abuse with the Illinois Appellate Court, arguing that he was denied a fair trial because the trial court

n Blaine testified that he had experience evaluating hundreds of sex offenders. /d.

Petitioner's sentence on each count was as follows:

Count 3 - 6 years, to be served consecutively.
Count 5 - 6 years, to be served consecutively.
Count 7 - 6 years, to be served consecutively.
Count 9 - 6 years, to be served consecutively.
Count 11-6 years, to be served consecutively
Count 19 - 6 years, to be served consecutively.
Count 21 - 6 years, to be served consecutively.
Count 25 — 30 years, to be served concurrently.
Count 27 - 30 years, to be served concurrently.
Count 45 - 7 years, to be served concurrently.
Count 51 - 30 years.

(Petitioner’s Brief on Direct Appeal to the Illinois Appellate Court, Exhibit A to Respondent's
Answer, at 23.)


circumstances affecting the credibility of the witness, was left to believe that such was the case.”
Id. at 250, 201 N.E.2d at 433. The Hindson if court found Petitioner's case distinguishable from
McKinney because Petitioner's jury was notified that Edna had entered into a deal with the
prosecution, whereas the Mckinney jury was wrongly told no agreement existed.”

Petitioner must meet a difficult burden to obtain habeas relief on this claim because the
merits were addressed and rejected by the Illinois courts. Pursuant to AEDPA, this court will not
grant relief unless the state court's decision was contrary to federal law, an unreasonable
application of federal law, or unreasonable given the evidence admitted at trial. 28 U.S.C. §
2254(d)(1) & (2). The Illinois Appellate Court did not apply any federal law in concluding that
Petitioner failed to establish a Brady violation regarding Edna's plea agreement. Thus, the court
first considers whether the state court's decision is contrary to federal law.

The prosecution has a duty under the Constitution to disclose favorable evidence to the
defense, including both exculpatory and impeachment evidence, if it is “material either to guilt or
to punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150
(1972). A prosecutor violates this Brady rule, which is a component of due process, only if the
information suppressed denied the petitioner a fair trial. United States v. Bagley, 473 U.S. 667,675
(1985) (citations omitted). Courts do not reflexively demand a new trial every time undisclosed
evidence, favorable to the defense, is discovered after trial. Giglio, 405 U.S, at 154. Instead, a
court must first determine that the undisclosed evidence was material. Id.

There are two separate tests for determining whether undisclosed information is material.
First, evidence is material “if there is a reasonable probability that had the evidence been disclosed

to the defense, the result of the proceedings would have been different.” United States v. Bagley,

The court notes that McKinney is also distinguishable because the witness in that
case affirmatively lied about his plea deal, whereas Edna told the truth but failed to disclose all of
the terms of her agreement.

25


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, ex rel.
GEORGE HINDSON,

Petitioner,
v. No. 02 C 3784

JONATHAN WALLS, Judge Rebecca R. Pallmeyer

Respondent.
MEMORANDUM OPINION AND ORDER

On October 9, 1996, Petitioner George Hindson was convicted of ten counts of aggravated
criminal sexual assault and one count of aggravated criminal sexual abuse. The conviction was
affirmed on appeal, except with respect to application of the Illinois truth-in-sentencing statute, 730
ILCS 5/3-6-3(a)(2), which the court found unconstitutional and ordered redacted from Petitioner's
sentence. The Illinois Supreme Court subsequently denied Petitioner's petition for leave to appeal.
While this direct appeal was pending, Petitioner filed a pro se motion for relief from judgment under
735 ILCS 5/2-1401. The trial court denied the motion, the Illinois Appellate Court affirmed, and the
Wlinois Supreme Court denied Petitioner's petition for leave to appeal.

Petitioner also filed a motion for post-conviction relief, which the trial court dismissed as
frivolous and lacking in merit. The Illinois Appellate Court reversed Petitioner's conviction and
vacated the sentence on one of the counts in the indictment relating to sexual penetration due to
insufficient evidence, but otherwise affirmed the dismissal. The Illinois Supreme Court
subsequently denied Petitioner's petition for leave to appeal

Petitioner has now exhausted his claims in the Illinois state courts and has filed a petition

for habeas corpus relief. For the reasons set forth below, the petition is denied.


assertions and not the actual events. (/d.; Hindson //, at 3.) In Edna’s view, the children fabricated
their stories of abuse while they were in the custody of DCFS because they were concerned that
Petitioner was abusing her. (/d.) She described her statements to police as “exaggerations,” and
claimed that when she later attempted to withdraw them, her appointed counsel told her that it was
too late. (/d. at 21-22; Hindson II, at 3.)

In regards to her plea agreement, Edna testified that the prosecutor led her to believe that
she would receive a relatively short term of imprisonment, stating: “I'm sure you will get more than
three [years]... but | don’t think you will get the maximum.” (Id. at 22; Hindson Ii, at 3-4.) Edna
stated that her attorney told her that the prosecution would recommend the minimum sentence of
six years, and that it was her understanding that she would be sentenced to six years. (/d.) On
cross-examination, however, she acknowledged that the prosecutor did not lie to her about the
terms of the plea agreement."® (/d.; Hindson I, at 4.)

The court denied Petitioner's motion for relief from judgment on April 1, 1998, without
explanation. (Court Order in People v. Hindson, No. 96 CF 953, Denying Petitioner's Motion for
Relief from Judgment, included in Exhibit F to Respondent's Answer.) On January 20, 1999,
Petitioner appealed that decision, arguing again that he was denied a fair trial because the state
presented unreliable testimony and failed to fully disclose the details of Edna's plea agreement.
(Brief on Appeal from Denial of Motion for Relief from Judgment, at 5.) The Illinois Appeliate court
denied the appeal on both claims on January 6, 2000. (Hindson I.) See also People v. Hindson,
308 Ill. App. 3d 1098, 764 N.E.2d 192 (Table) (2d Dist. 2000). The court disagreed that Edna's
inconsistent accounts and recantation of her trial testimony demonstrated her unreliability as a
witness. The court noted, for example, that police Detective Len Brezinski testified that Edna had

received only general information about the children’s allegations and that she herself provided the

is Edna was later sentenced to 27 years in prison. (Hindson II, at 3.)

12


Petitioner's petition for leave to appeal. (Order of the Illinois Supreme Court which Denied Leave
to Appeal in Petitioner’s Direct Appeal, Exhibit E to Respondent's Answer.)
E. Motion for Relief from Judgment

On July 24, 1997, while his direct appeal was still pending, Petitioner filed a pro se motion
for relief from judgment, arguing that his wife Edna Hindson had perjured herself at his trial, and
that he was thus convicted based on false evidence."® (Pro-Se Motion for Relief from Judgment,
included as part of Exhibit F to Respondent's Answer.) Petitioner's counsel later amended the
motion to add a claim that the state denied Petitioner a fair trial by failing to provide either him or
the jury with the exact details of Edna’s plea agreement. (Amended Petition for Relief from
Judgment, included as part of Exhibit F to Respondent's Answer, 1-3.)

Both claims raised by Petitioner in this motion relate to the testimony of his wife Edna
(Petitioner's Brief in the Illinois Appellate Court on Appeal from the Denial of his State Motion for
Relief from Judgment, included as part of Exhibit F to the Respondent's Answer, at 5.) The court
held an evidentiary hearing on March 30, 1998, at which Edna testified that Petitioner did not
sexually abuse R.C. and K.M. while the family lived in Antioch, Illinois. (/d. at 20-21; People v.
Hindson, No. 2-98-0429, at 11, 16 (2d Dist. 2000) (hereinafter "Hindson II"), Exhibit | to
Respondent's Answer, at 2.) Edna stated that because Petitioner had a prior conviction for the
sexual abuse of K.M., she never left Petitioner alone with either of the children during that time.
(id. at 21; Hindson Ii, at 2.) Edna admitted that Petitioner abused her when he was drinking
alcohol, but stated that Petitioner never drank alcohol while the family was living in Antioch. (/d.;
Hindson II, at 2-3.) She further testified that detectives informed her of the children’s statements

before she gave her own statement to police, and that she based her statement on the children’s

15

This motion was filed pursuant to 735 ILCS 5/2-1401. (Petitioner's Brief in the
Illinois Appellate Court on Appeal from the Denial of his State Motion for Relief from Judgment,
included as part of Exhibit F to Respondent's Answer, at 5.)

11


for appeal have been exhausted, including the period for filing a petition for certiorari with the
United States Supreme Court). Thus, the June 26, 2000 Apprendi decision does not apply in
assessing the validity of Petitioner's sentence. See Lambert v. McBride, 365 F.3d 557, 562 (7th
Cir, 2004) (explaining that Apprendi is not applicable on collateral review).
CONCLUSION
For the reasons stated above, the petition for writ of habeas corpus is denied.

ENTER:

Dated: Bl 2005 Rruse TA edi
Mae. Ri CA RORALCMF YER

United States Dist

32


handicap, religion, sexual orientation, or ethnicity. 530 U.S. at 490. The Court held that “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” /d.

At Petitioner's sentencing hearing, the trial court ordered him to serve consecutive
sentences on eight of his aggravated criminal sexual abuse convictions in accordance with the
Illinois consecutive sentencing statute, 730 ILCS 5/5-8-4(b).”° Hindson I/!, 319 Ill. App. 3d at 10,
747 N.E.2d at 915. The appellate court reviewed the trial court's grounds for imposing consecutive
sentences and determined that the primary reason was Petitioner's 1995 conviction for a similar
offense. /d. at 11-12, 747 N.E.2d at 916. The court found that pursuant to Apprendi, the prior
conviction was not only an appropriate fact for the court to consider in imposing a sentence above
the maximum, but also sufficient in and of itself to merit consecutive sentences. /d. at 12, 747
N.E.2d at 916-17.

This court declines to address the merits of this claim because Apprendi “does not disturb
sentences that became final before June 26, 2000, the date of its release.” Curtis v. United States,
294 F.3d 841, 844 (7th Cir. 2002). See also Dellinger v. Bowen, 301 F.3d 758, 765 (7th Cir. 2002)
(rejecting petition for habeas relief based on Apprendi where the petitioner's sentence became final
prior to Apprendis effective date). Petitioner's sentence became final on April 22, 1999 when the
Illinois Supreme Court denied his petition for leave to appeal. See Teague v. Lane, 489 U.S. 288,

295 (1989) (a conviction becomes final after the judgment has been rendered and the opportunities

26

The consecutive sentencing statute states in pertinent part:
Except in cases where consecutive sentences are mandated, the court shall impose
concurrent sentences unless, having regard to the nature and circumstances of the offense
and the history and character of the defendant, it is of the opinion that consecutive
sentences are required to protect the public from further criminal conduct by the defendant,
the basis for which the court shall set forth in the record.

730 ILCS 5/5-8-4(b).

31


residence” and, according to Zimmer, Edna answered that “the last time this happened was Illinois,
not sure if it [the sexual abuse] happened up here where we live now.” (/d.) Zimmer said that she
understood Edna’s answer to be in reference to the family's home in Antioch.® (/d.)

2. The Verdict

On October 9, 1996, a jury convicted Petitioner of ten counts of aggravated criminal sexual
assault and one count of aggravated criminal sexual abuse." People v. Hindson, 301 Ill. App. 3d
466, 703 N.E.2d 956 (2d Dist. 1998); (Petitioner's Petition for Leave to Appeal to the Illinois
Supreme Court on Direct Appeal, Respondent's Exhibit D, at 2.)
Cc. Sentencing Hearing

Following the verdict and the denial of Petitioner's post-trial motion, the trial court held a
sentencing hearing to determine Petitioner's sentence Hindson |, 301 Ill. App. 3d at 472, 703
N.E.2d at 962. The presentence report, reviewed by the court for sentencing purposes, revealed
that at the time of Petitioner's offenses, he was on probation for a 4995 conviction for criminal

sexual abuse of his stepdaughter K.M. /d. The report also included an evaluation of Petitioner by

9

The record does not provide any further information regarding Zimmer's testimony,
and it is not clear to the court how it supports Petitioner's innocence.

"0 Petitioner was convicted on the following counts:

Count 3 - Placed his tongue in K.M.'s vagina.
Count 5 — Placed his penis in K.M.’s mouth.
Count 7 - Placed his penis in K.M.'s vagina.
Count 9 — Placed his finger in K.M.’s vagina.
Count 11 — Placed K.M.'s hand in his anus
Count 19 - Placed his penis in R.C.’s mouth.
Count 21 — Placed his penis in R.C.’s anus.
Count 25 — Placed R.C.’s finger in his anus.
Count 27 ~ Placed R.C.’s penis in his anus.
Count 45 — Abuse, act unspecified.

Count 51 — Placed his penis in K.M.’s mouth on August 27, 1995.

(Petitioner's Brief on Direct Appeal to the lilinois Appellate Court, Exhibit A to Respondent's
Answer, at 23.)


As noted, to properly raise a claim in a habeas petition, a petitioner must first provide the
Illinois courts with a full and fair opportunity to decide the issue. As part of this full and fair
opportunity, a petitioner must present an issue to the Illinois Supreme Court, even if the Illinois
Supreme Court ultimately declines to review it. See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (state prisoners have “no right to review in the Illinois Supreme Court,” but they do have “a
‘right . . . to raise’ [their] claims before that court.”) (emphasis in original). Petitioner failed to
include his excessive sentence claim in his petition for leave to appeal, and it has been procedurally
defaulted. As explained in discussing the hearsay testimony claim, Petitioner does not meet any
exception to the procedural default doctrine. The court notes in that regard that a trial court has
great discretion in imposing a sentence, and that the Illinois Appellate Court expressly concluded
that the trial court in this case considered all applicable mitigating and aggravating factors,
including Petitioner's education, employment, military service, position of trust over the children,
probation for a prior similar crime, and high risk to “reoffend.” Id. at 473, 476, 703 N.E.2d at 962,
964. The court finds no prejudice to Petitioner from the failure to preserve his excessive sentence
claim in the state courts and will not examine the merits of that claim here.
Ui. Conviction Based on Perjured Testimony

Petitioner claims that the State obtained his conviction for criminal sexual assault based in
large part upon the testimony of his wife, Edna Hindson, who now admits that her testimony was
false. (Habeas Petition, at 6, 13.) Petitioner cites to statements Edna made in numerous letters,
ina notarized statement, and at the March 1998 evidentiary hearing to the effect that she lied about
Petitioner’s abuse of the two children. (/d.) The Respondent argues that this claim is procedurally
defaulted because Petitioner failed to present it to the Illinois Supreme Court in his petition for leave

to appeal. Again, the court agrees.

22


Petitioner did not raise the claim in his petition for leave to appeal to the Illinois Supreme Court.
As discussed above, Petitioner does not meet any of the exceptions to the procedural default
doctrine, and the court therefore declines to address the merits of this claim. The court again notes
that in light of the detailed testimony of abuse from K.M. and R.C., as well as the statements from
Dr. Flaherty, a reasonable jury could have convicted Petitioner even if he had called additional
witnesses or conducted more thorough cross-examinations. See Strickler, 527 U.S. at 290 (‘[T]he
question is whether ‘the favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine the confidence in the verdict.””)
Vi. Void Indictment

Petitioner contends that the trial court erred when it allowed the prosecution to alter the
charges against him without requiring a new indictment. (Habeas Petition, at 13.) Prior to the start
of Petitioner's trial, the State filed a motion with the court to amend the “predatory criminal
assault"** charges to ones for “aggravated criminal sexual assault."** See Hindson I/I, 319 Ill. App.
3d at 3, 747 N.E.2d at 909. The State sought this change because Petitioner's criminal behavior
took place prior to the enactment of the statute that included the offense of “predatory criminal
sexual assault.” (/d.)

The Illinois Appellate Court examined this claim on its merits and rejected it. Hindson iil,

lll. App. 3d at 7, 747 N.E.2d at 913. In his appeal, Petitioner claimed that the amendment to his

“8 The statute provides in pertinent part:
(a) The accused commits predatory criminal sexual assault of a child if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration
with a victim who was under 13 years of age when the act was committed[.]"
720 ILCS 5/12-14.1(a)(1).
a The statute provides in pertinent part:
(c) The accused commits aggravated criminal sexual abuse if:
(1) the accused was 17 years of age or over and (i) commits an act of sexual conduct
with a victim who was under 13 years of age when the act was committed[.]”

720 ILCS 5/12-16(c)(1){i).
28


B. Petitioner's Trial

1. The Testimony

At Petitioner's trial, K.M. testified about the abuse inflicted upon her by Edna and Petitioner
during the summer of 1995 when she and the family lived in Antioch, Illinois. /d. K.M. stated that
during this period, Petitioner touched her in ways she did not want to be touched, including
touching her breasts, vagina, and butt. /d. K.M. reported that Petitioner put his mouth on her
vagina and at times inserted his penis, a dildo, a knife, or his fingers into her vagina. /d. She
further testified that Petitioner placed his hands and mouth on her breast, inserted his fingers into
her butt, required her to bite his chest and touch his penis with her hands, and placed his penis in
her mouth. /d.

According to K.M., Petitioner also forced her to perform sexual acts with members of her
family. For example, she was forced to touch her brother's penis with her mouth and hands, and
R.C. was in turn forced to touch her breasts and vagina. /d. K.M. was also forced to touch her
mother's vagina and breasts, and Edna would do the same to her. /d. K.M. stated that she
performed these sexual acts because she feared Petitioner and he threatened that “something
would happen to [her] mom or [her] brother’ if she failed to do what Petitioner requested. /d., 703
N.E.2d at 961.

R.C. provided additional details regarding the sexual abuse perpetrated by Petitioner during
the summer of 1995, at which time he was eight years old. /d. at 471, 703 N.E.2d at 961. RC.
testified that during this period, Petitioner touched his penis with his hands and his butt, and made
him touch Petitioner's penis with his mouth, hands, and butt. /d. Petitioner also inserted his penis
up R.C.'s butt and required R.C. to do the same to him. /d. R.C. testified that Edna engaged in
sexual acts with him by forcing him to touch her breasts, vagina, and butt; forcing him to place his

mouth on her vagina and breasts; and forcing him to put his penis in her vagina and butt. /d. R.C.


On May 31, 2000, Petitioner appealed the dismissal of his petition seeking post-conviction
relief, arguing that the trial court erred by allowing the State to amend Petitioner's indictment by
changing the counts for “predatory criminal sexual assault of a child” to ones for “aggravated
criminal sexual assault.” (Petitioner's Brief on Appeal from the Dismissal of Petition for Post
Conviction Relief, Exhibit L to Respondent's Answer at 6.) Petitioner also argued that he was
denied due process when he was found guilty of the count in the indictment alleging that Petitioner
caused R.C. to place his finger in Petitioner's anus, because there was no evidence admitted at
trial showing that Petitioner performed such an act. (/d. at 10.) Petitioner acknowledged that this
issue was not properly preserved for appeal, but claimed that waiver did not apply because he was
denied the effective assistance of appellate counsel. (id. at 11.) Finally, Petitioner argued ina
supplemental brief that he was denied due process of law because the trial court’s imposition of
consecutive sentences was unconstitutional in light of the Supreme Court's ruling in Apprendi v.
New Jersey, 530 U.S. 466 U.S. 466 (2000). People v. Hindson, 319 Ill. App. 3d 1, 8, 747 N.E.2d
908, 914 (2d Dist. 2001) (hereinafter, “Hindson II!").’® On March 2, 2001, the Illinois Appellate
Court reversed Petitioner's conviction on the disputed sexual penetration count, finding that no
supporting evidence had been introduced at trial. fd. The court reversed and vacated the 30-year
sentence resulting from that count. /d. The court affirmed, however, the lower court's dismissal
of the remaining claims raised by Petitioner. /d. at 7, 12, 747 N.E.2d at 913, 917.

On April 11, 2001, Petitioner filed a petition for leave to appeal with the Illinois Supreme
Court, arguing again that under the Court's ruling in Apprendi, he was unconstitutionally sentenced
to consecutive instead of concurrent terms of imprisonment. (Petitioner's Petition for Leave to
Appeal to the Illinois Supreme Court from the Dismissal of his Petition for Post Conviction Relief,

Exhibit Q to Respondent's Answer, at 2.) Petitioner also argued that the amendment to his

8 The Illinois Appellate Court discussed this issue in its opinion but the court is unable

to locate this “supplemental brief” in the record.

15


DISCUSSION

Section 2254 of the Anti-Terrorism and Effective Death Penalty Act (‘AEDPA’) entitles a
prisoner to a writ of habeas corpus if he is being held pursuant to a state court judgment obtained
in violation of the Constitution. 28 U.S.C. § 2254. For claims that were adjudicated on the merits
by a state court, a federal court will not grant a writ of habeas corpus unless that state decision (1)
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
proceedings. 28 U.S.C. § 2254(d)(1) & (2).

Before an individual may seek habeas relief in the federal courts, the petitioner is required
to “(1) exhaust all remedies available in state courts .. . and (2) fairly present any federal claims
in state court first, or risk procedural default.” Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.
1996) (citations omitted). A petitioner for habeas relief must submit “both the operative facts and
the controlling legal principles of a constitutional claim” before properly seeking habeas review in
the federal courts. /d. at 469.

A petitioner's failure to make use of existing state procedures may serve as a bar to habeas
relief if the petitioner forfeited the claim by violating a procedural rule of the state. Boerckel v.
O'Sullivan, 135 F.3d 1194, 1197 (7th Cir. 1998) (reversed on other grounds) Procedural default
occurs in the case of a petitioner who has waived an issue by failing to follow a state procedural
rule, In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court stated that the “Court will
not review a question of federal law decided by a state court if the decision of that court rests on
a state law ground that is independent of the federal question and adequate to support the
judgment.” /d. at 729. The rule set out by the Court in Coleman is applicable to both substantive

and procedural state law grounds. Id. \n the event that a state court “declines to review a

17


During the same conversation, K.M. told Mountford that Petitioner also called her ‘little princess”
and touched her when he was drunk. /d.

Mountford further testified that in the fall of 1995, K.M. told her that she was afraid of heavy-
set bald men because Petitioner had those same characteristics. K.M. also told Mountford that
Petitioner would “come in and do things and touch [her]."* /d. According to Mountford, K.M.
informed her in January or February of 1996 that Edna and Petitioner had touched her and had
asked K.M. to touch them “in their private areas.” /d. In addition, on June 3, 1996, K.M. told
Mountford that Edna and Petitioner had told her that “if [they] kept doing this, [they] could get [K.M.]
pregnant.” /d. Finally, on June 9, 1996, K.M. told Mountford about “other specific sexual acts"
performed on her by Petitioner.® /d.

Mountford also testified to similar statements of abuse from R.C. On April 8, 1996, for
example, R.C. informed Mountford that he and his sister were forced to watch pornographic films,
after which Edna and Petitioner would perform the same acts portrayed in the movie on R.C. and
K.M. /d. In describing the movies to Mountford, R.C. stated that “the woman would put her mouth
on the man's d*** and the man would put his d*** in the girl's private parts.” /d. at 470, 703 N.E.2d
at 960.

At the conclusion of the hearing, the trial court allowed the majority of these statements into
evidence, but declined to admit K.M.'s June 1996 statements, which the court found too unreliable

given that they were made far into the investigation of Petitioner.® /d.

‘ The court’s opinion does not reconcile Mountford’s testimony that she first learned

of the sexual abuse in April 1996 but that she had a discussion on the topic with K.M. in the fall of
1995.

5 The appellate court opinion does not provide details regarding these “other specific
sexual acts.”

6

The record does not indicate when this investigation of Petitioner began

3


473 U.S. 667, 682 (1985). According to the Supreme Court, “[a] ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” /d. The standard is different,
however, if the prosecutor relied on testimony knowing that it was false. In such cases, the
evidence is material “if there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976).

In Braun v. Powell, 227 F.3d 908 (7th Cir. 2000), an appeal from denial of habeas, the
Seventh Circuit applied both standards of materiality and found that the petitioner was not denied
a fair trial even though the state failed to disclose all of the details regarding a plea agreement.
fd. at 920. The petitioner in Braun was on trial for the murder of William Weber. The prosecution's
primary witness, Earl Jeffrey Seymour, was also arrested in connection with Weber's murder. /d.
at 910. Before the petitioner's trial, the prosecution told Seymour, but not the defense, that after
Seymour testified, the prosecution would reevaluate its sentencing recommendation for him. /d.
at 920. The court found that the prosecution should have disclosed this information to the defense
because it could have been used to impeach the witness. Nevertheless, the court did not believe
the evidence was material, noting Seymour's own testimony that his sentencing recommendation
was going to be determined at a later date, as well as his nearly week-long cross-examination. /d.
at 921. In the court's view, the jury had sufficient evidence regarding Seymour's lack of credibility
such that the prosecution’s conduct did not have a “substantial and injurious effect or influence in
determining the jury's verdict.” /d.

Like the plea agreement evidence in Braun, the plea agreement evidence withheld in this
case should have been disclosed to the defense and to the jury, but it was not material in any
event. It is not clear from the record whether the prosecution acted purposefully or inadvertently
in this regard, but even under the lower standard of materiality applied to purposeful prosecutorial
omissions, the additional plea agreement details are not material. Edna testified at trial that she
had entered into a plea agreement with the State in exchange for her testimony, which put the jury

26


BACKGROUND’

On May 1, 1996, Petitioner and his wife Edna were charged with performing a variety of sex
acts with two minors — Edna's ten-year-old daughter, “K.M.,” and the couple's eight-year-old son,
“R.C.". People v. Hindson, 301 Ill. App. 3d 466, 469, 703 N.E.2d 956, 959 (2d Dist. 1998)
(hereinafter, “Hindson I"). Specifically, Petitioner and Edna were indicted on 43 counts of predatory
criminal sexual assault of a child, two counts of aggravated criminal sexual abuse, and one count
of aggravated battery. /d. The charges against Petitioner related to predatory criminal sexual
assault were amended at some point before trial to aggravated criminal sexual assault.” /d.

A. Pre-Trial Hearing

On July 12, 1996, before the trial began, the trial court held a hearing to determine the
admissibility of certain hearsay statements made by K.M. and R.C. to Kathy Mountford, who
became the children’s foster parent as of September 11, 1995.° /d., 703 N.E.2d at 960. During
the hearing, Mountford testified that both K.M. and R.C. recounted to her numerous acts of sexual
abuse inflicted upon them by Petitioner and Edna. /d. Mountford testified that she first learned of
the abuse sometime in April 1996 when she referred to one of her other children as “my dear,” and

K.M. informed Mountford that she did not like that name because Petitioner called her that. /d.

' A federal court reviewing a petition for writ of habeas corpus under 28U.S.C. § 2254

presumes the state court's factual findings are correct. 28 U.S.C. § 2254(e)(1); see also Sumner
v. Mata, 449 U.S. 539, 547 (1981). A petitioner has the burden of establishing by convincing
evidence that a state court's factual determinations are erroneous. See U.S. ex rel. Green v.
Greer, 667 F.2d 585, 589 n.6 (7th Cir. 1981). Hindson does not challenge the lilinois Appellate
Court's factual findings in his petition. The court therefore adopts the facts set forth in the Illinois
Appellate Court’s Orders of December 4, 1998, January 6, 2000, and March 2, 2001, attached to
Respondent's Answer as Exhibits C, |, and O, respectively.

In addition, on August 21, 1996, Petitioner was charged with six more counts of
aggravated criminal sexual assault against R.C. and K.M. id.

3 This hearing was held pursuant to the Illinois Code of Criminal Procedure, 725 ILCS

5/115-10. Hindson I, 301 lil. App. 3d at 469, 703 N.E.2d at 959.
2


indictment constituted a substantive change that voided the original indictment Id. at 4, 747
N.E.2d at 911. The court noted that amendments to indictments are permitted when a defect is
merely formal —i.e., it “does not alter the nature and elements of the charged offense.” /d. at 5,
747 N.E.2d at 911 (citing People v. Griggs, 152 Ill. 2d 1, 32, 604 N.E.2d 257, 271 (1992); People
v. Patterson, 267 Ill. App. 3d 933, 938, 642 N.E.2d 866, 869 (1st Dist. 1994)). Under such
circumstances, the charging instrument is not void. /d. (citing People v. Williams, 161 Ill. App. 3d
613, 619, 515 N.E.2d 266, 270 (1987)).

The Appellate Court determined that 725 ILCS 5/111-5,° the Illinois statute addressing
formal defects to an indictment, did not provide an exclusive list of such defects. /d. The court
found that to the extent the elements of the original and amended charges in this case were
identical, Petitioner received proper notice of the charges against him. Id. at 6, 747 N.E.2d at 912.
In addition, the amended charge did not stray from what the grand jury intended to charge, which
was the “sexual penetration by one 17 years of age or over with a victim under 13 years of age
when the act was committed.” /d. The court reviewed the elements of the original and amended
charges and held that the amendment was merely formal in nature and, thus, permissible. /d.

In this court's view, the Illinois Appellate Court’s decision is not contrary to federal law. As

a general rule, a criminal indictment can only be materially amended by a grand jury, except that

25

The statute states in pertinent part:
An indictment, information or complaint which charges the commission of an offense .
may be amended on motion by the State’s Attorney or defendant at any time because of
formal defects, including:
(a) Any miswriting, misspelling or grammatical error,
(b) Any misjoinder of the parties defendant;
(c) Any misjoinder of the offense charged;
(d) The presence of any unnecessary allegation;
(e) The failure to negative any exception, any excuse or proviso contained inthe statute
defining the offense; or
(f) The use of alternative or disjunctive allegations as to the acts, means, intents or
results charged.
725 ILCS 5/111-5.

29


specific details contained in her statements to police: Hindson Il, at 4, 8. With respect to Edna’s
sentence, her attorney Joy Palmer testified that the State never gave Edna any reason to think she
would receive the minimum sentence but, instead, indicated that she would be sentenced at the
high end of the sentencing range. /d. at 9.

The court was also not persuaded by Petitioner's submission in his motion for relief from
judgment of letters Edna wrote to him after they were both sentenced and incarcerated stating that
she had lied about the abuse. In the court’s view, Petitioner did not “put forth any reasons why the
substance of these letters would be any more believable to the trial court than [Edna's] testimony
at the hearing.” /d. at 10-11. The court also noted that Joy Palmer and Investigator Mark Pleasant
both testified at the March 30, 1998 hearing that Edna told them she recanted her statements to
police in a letter to her sister only out of fear of losing the sister's support.” /d. at 8. In the court's
view, Edna's dissatisfaction with her sentence and equivocal testimony at the hearing supported
the trial court’s determination that Edna's recantation of her trial testimony was not credible. /d.
at 11.

As for the terms of Edna's plea agreement, Petitioner argued that the jury never heard that
Edna pleaded guilty to “two Class X offenses with a sentencing cap of 30 years, with no extended
term or consecutive sentences or the possibility of the application of truth-in-sentencing provisions,”
despite originally being charged with a number of offenses which could have resulted in a sentence
of 120 years. /d. at 12. He also objected that the jury never heard about Edna's agreement that
the children did not have to testify at her sentencing hearing. /d. The court stated that it did not
condone the State’s failure to apprize Petitioner and the jury of all of the terms of Edna’s plea
agreement, but held that the jury had sufficient information regarding that agreement to make an

informed decision regarding her credibility. /d. at 43, 16. The court noted that Edna admitted on

" The letter to Edna's sister was introduced at Petitioner's trial. (State’s Brief on

Appeal from Denial of Motion for Relief from Judgment, Exhibit G to Respondent's Answer, at 12.)

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indictment was improper and, thus, rendered the indictment void. (/d. at 3.) On June 29, 2001, the
Illinois Supreme Court denied Petitioner's petition for leave to appeal. (Order of the Illinois
Supreme Court Denying Leave to Appeal from the Dismissal of Petitioner's Petition for Post
Conviction Relief, Exhibit R to Respondent's Answer.) See People v. Hindson, 195 Ill. 2d 587, 755
N.E.2d 480 (Table) (2001)

G. Petition for Habeas Corpus Relief

Petitioner has exhausted his claims in the Illinois courts and now seeks habeas relief from
this court. There is no dispute that further review in the Illinois courts is not available at this time.
Under Illinois law, no additional proceedings regarding post-conviction relief may be held more than
six months after the denial for leave to appeal or three years from the date of conviction, whichever
is sooner, and barring extraordinary circumstances. 725 ILCS 5/122-1(c). Petitioner filed his
petition for habeas relief on June 4, 2002, after this time period expired, and thus, he may no longer
raise any claims in state court.

Petitioner raises seven claims in his habeas petition: (1) the trial judge erred by improperly
admitting Mountford's hearsay testimony, (2) the sentence imposed on Petitioner was excessive,
(3) Petitioner was convicted through the use of perjured testimony, (4) the State failed to disclose
all of the details related to Edna Hindson’s plea agreement, (5) Petitioner was denied the effective
assistance of counsel at trial, (6) the trial court improperly allowed the state to amend the
indictment, and (7) Petitioner was sentenced to consecutive sentences rather than concurrent
sentences without notice to the jury or proof beyond a reasonable doubt in violation of the Supreme
Court's ruling in Apprendi. (Petitioner's Petition for Writ of Habeas Corpus (hereinafter “Habeas
Petition”), at 5-6, 12-14.) The Respondent argues that Petitioner is not entitled to habeas relief
because he has procedurally defaulted a number of his claims, and because he fails to meet the

standard necessary for a grant of habeas relief on the remaining claims.

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