John Ashburn v. Jeff Korte , 761 F.3d 741 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3365
JOHN ASHBURN,
Petitioner-Appellant,
v.
JEFF KORTE, Warden*,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 09-CV-0373 — David R. Herndon, Chief Judge.
ARGUED JANUARY 22, 2014 — DECIDED AUGUST 1, 2014
Before WOOD, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
MANION, Circuit Judge. John Ashburn was convicted in
Illinois state court of the first degree murder of Rick
*
We substitute Jeff Korte, the current warden of Western Illinois Correc-
tional Center, as the Respondent-Appellee in this action. See Fed. R. App.
P. 43(c)(2).
2 No. 12-3365
Muckenstrum. After appealing his conviction and filing a
collateral challenge in Illinois state court, Ashburn filed a
habeas corpus petition in federal district court. The district
court denied Ashburn’s petition for habeas relief but certified
six issues for appeal. Ashburn now appeals, presenting four of
those issues: whether Ashburn’s constitutional right to
effective assistance of counsel was violated because his state
appellate counsel did not raise a speedy trial claim; whether
Ashburn was denied due process because of the admission of
a knife unrelated to the murder; whether Ashburn was denied
due process because of the state’s purported use of perjured
testimony; and whether Ashburn was denied due process by
the giving of an accountability instruction to the jury. We
affirm.
I.
An Illinois state jury convicted John Ashburn of the first
degree murder of Rick Muckenstrum. The jury which con-
victed Ashburn heard the following testimony 1 .
Muckenstrum’s live-in girlfriend of nine years, Melanie
Collins, testified that in late June or early July 1990,
Muckenstrum, Ashburn, and several other people went on a
camping trip to Missouri. Ashburn had loaned Muckenstrum
the money for the trip, $37, but once at the campsite, and after
everyone had been drinking for a while, Ashburn began to
argue with Muckenstrum. Collins and Muckenstrum decided
1
We take these facts from the Illinois appellate court decision affirming
Ashburn’s conviction, which are presumed to be correct. Harris v. Thompson,
698 F.3d 609, 613 (7th Cir. 2012).
No. 12-3365 3
to leave, and after the couple got into her car, Ashburn yelled
at Muckenstrum to get out of the car or he would kill him. He
also broke the passenger-side window where Muckenstrum
was sitting.
Collins further testified that, a few days after the camping
trip, Ashburn came to their apartment looking for
Muckenstrum. Ashburn kicked in the front door and told
Collins he wanted her “old man” and that he was going to kill
Muckenstrum.
Collins last saw Muckenstrum on July 10, 1990, when he left
to go drinking with Bobbie Johnston, Pete Parker, and Dave
Clark. Muckenstrum’s dead body was found the next day, July
11, 1990, at about 3 p.m., lying in the grass next to a gravel
road. Dr. Harry Parks, a forensic pathologist, performed an
autopsy on Muckenstrum on July 12, 1990. During the autopsy,
Dr. Parks removed a bullet from Muckenstrum’s head. Dr.
Parks testified that the bullet wound was above
Muckenstrum’s right eye and that there was blackening
around the gunshot wound, indicating that the bullet had been
fired at close range. Dr. Parks noted that he found very little
blood and that this lack of blood indicated that Muckenstrum
did not live long after the gunshot wound to the brain. In
addition to the gunshot wound, there was a half-inch stab
wound on the right side of his neck, and a 5.5 inch slash
wound in the upper portion of his abdomen, which allowed his
colon to protrude. Dr. Parks testified that although the imme-
diate cause of death was the gunshot wound, he was unable to
determine with medical certainty whether Muckenstrum had
been shot or stabbed first. Finally, Dr. Parks testified that
Muckenstrum had no defensive wounds and that a toxicology
4 No. 12-3365
report concluded that Muckenstrum’s blood-alcohol level was
.4366 at the time of his death.
Dee Heil, a crime scene technician for the Illinois State
Police, also testified concerning the crime scene. He arrived at
the scene at about 3:30 p.m. on July 11, 1990. Heil found a red
plastic identification holder on the ground by Muckstrum’s
dead body. Inside the identification holder were two union
cards, two fishing licenses (for 1989 and 1990), and a 1989
hunting license, all of which bore Ashburn’s name. (There
were also two business cards in the identification holder.) Heil
also attended Muckstrum’s autopsy and took custody of the
bullet removed from Muckenstrum’s head. He took the bullet
to the Illinois State Police Crime Lab, where James Hall, a
forensic scientist, examined the bullet. Hall determined that the
bullet was a .32-caliber bullet which had been fired from a
Davis Industries Derringer or pistol.
Hall also served a search warrant on Ashburn’s home and
during the search recovered a knife and a knife box for a new
knife which had a sales receipt dated July 14, 1990. These items
were admitted into evidence at Ashburn’s trial. Two other
investigating officers also testified: Clarence Banks, an investi-
gator for the Illinois State Police, corroborated the earlier
testimony concerning the recovery of the identification holder
found by Muckenstrum’s body. Illinois State Police Officer
Robin Blaha testified that he, Banks, and Donald Leach,
another State Police officer, went to Ashburn’s home on July
12, 1990. When Ashburn answered the door, Blaha told them
they needed to talk to him about an investigation involving
Muckenstrum. Blaha asked Ashburn when he last saw
Muckenstrum, and Ashburn said it was two weeks earlier on
No. 12-3365 5
a camping trip. After Blaha told Ashburn that he had been seen
with Muckenstrum a couple of nights earlier, Ashburn said
that he had been drinking with Muckenstrum but had forgot-
ten.
The state presented numerous other witnesses. One
witness, Deanne Hinchcliffe, testified concerning the camping
trip and corroborated Collins’s testimony about the argument
between Ashburn and Muckenstrum. She also testified that
during that argument, Ashburn had pulled a knife on
Muckenstrum. Brian Smith, who had also been on the camping
trip, likewise corroborated the testimony about the altercation
between Ashburn and Muckenstrum. Additionally, Smith
testified that on July 10, 1990, he drove Ashburn to Missouri
where Ashburn purchased some .32-caliber bullets. Smith also
saw a gun in Ashburn’s glove compartment that day.
Other witnesses helped fill in the blanks between when
Collins last saw Muckenstrum on July 10, and the recovery of
Muckenstrum’s body. Parker, who had left Collins’s apartment
with Muckenstrum sometime between 9 and 10 a.m., testified
that after having some beers at Collins’s, they went to several
bars, ending up at Jimmy’s Tavern. At Jimmy’s Tavern, they
ran into Ashburn, who was drinking there. Ashburn and
Muckenstrum began arguing over the money that
Muckenstrum owed Ashburn, and Parker told them to go
outside and settle the argument “like men.” Parker testified
that, as he and Muckenstrum were walking by the back of the
bar, Ashburn came running around the corner with a .32-
caliber Derringer in his hand. Parker explained that he stood
between the two, at which time Ashburn fired the weapon
between Parker’s legs. Clark then came up behind Ashburn,
6 No. 12-3365
took the gun, unloaded it and gave it back to Ashburn.
Ashburn then said that was okay because he had more bullets.
Some shoving and pushing then transpired before everyone
went back inside. About 4:30 p.m., Muckenstrum left Jimmy’s
Tavern with Ashburn and Clark in Ashburn’s truck. That was
the last time Parker saw Muckenstrum alive. Another witness,
Michael Hendrix, corroborated Parker’s testimony concerning
the events at Jimmy’s Tavern.
Richard Aulabaugh, who owned a bar called The Bar,
testified that on July 10, 1990, he noticed Ashburn, Clark, and
Muckenstrum in the bar arguing. Aulabaugh testified that he
heard Ashburn and Muckenstrum discussing money and
Ashburn told Muckenstrum that he had a full tank of gas and
they were going to drive around until Muckenstrum got him
his money. Sharon Russell, who worked at The Bar, testified as
well, stating that Ashburn was arguing with Muckenstrum
about $37 that Muckenstrum owed Ashburn. Because of
complaints from other customers, Russell asked them to quiet
down and then after ten to fifteen minutes, told them to leave.
After they left, Russell saw Muckenstrum sitting in the middle
of a truck which Ashburn was driving; Clark was in the
passenger seat. Aulabaugh also testified that he saw the three
men leave the bar and enter the truck, with Muckenstrum
getting in the middle and Clark sitting on the passenger side,
whereupon Ashburn closed the passenger door and then got
in the driver’s seat. Aulabaugh said that Ashburn continued to
argue with Muckenstrum and was shaking his finger at him in
the truck. It was about 4:30–5:00 p.m. when they left The Bar.
At trial, Russell also viewed a photograph of
Muckenstrum’s body. She testified that when she saw
No. 12-3365 7
Muckenstrum at The Bar, he was wearing a yellow tank top
and a pair of jeans. After looking at the photograph of
Muckenstrum’s body, she stated that the clothing he had on at
the time of his death was the same as he had had on earlier at
The Bar.
Janice Walker was another state’s witness. Walker testified
that she had rented Clark a room two weeks before Mucken-
strum’s death. A day or two after the murder, Clark and
Ashburn came to her home in Ashburn’s pickup truck to get
Clark’s clothing. Walker noticed that Ashburn’s truck was wet,
both inside and outside, which indicated to her that the truck
had recently been washed. Smith, who had testified about
other events surrounding the murder, also testified that he had
never seen Ashburn clean his truck, from the time he had
bought it until July 10, 1990.
Finally, Earl Patrick Kelly testified that Ashburn told him
that he had killed Muckenstrum. Kelly testified that Ashburn
told him that he had argued with Muckenstrum over money
and that after they left a bar, they were riding around. Kelly
said that Ashburn told him that “the other guy stabbed him in
the stomach, and then they took him to Brooklyn and dropped
him off in a field and Clark told Ashburn to shoot him so he
couldn’t tell on him.” (Brooklyn, Illinois was where
Muckenstrum’s body was found.) Kelly further testified that
Ashburn told him that he shot Muckenstrum “in the eye” and
that he had lost his fishing license when they disposed of the
body. During cross-examination, Kelly admitted that he knew
Muckenstrum and that he had been convicted of burglary.
Kelly also admitted that he did not tell authorities about
8 No. 12-3365
Ashburn’s confession until a few months before he was to be
sentenced in federal court.
A state court jury convicted Ashburn and he was sentenced
to seventy-five years in prison.2 Ashburn appealed his convic-
tion, arguing to the state appellate court that he was denied a
fair trial when evidence of the knife, knife box, and receipt
recovered from his home were admitted at his trial. The state
appellate court affirmed and the Illinois Supreme Court denied
his petition for leave to appeal. Ashburn then filed a state post-
conviction petition, alleging that his appellate attorney was
ineffective for not raising a speedy trial claim. He also argued
that he was denied due process because Dr. Parks falsely
testified at his trial, and that he was denied due process
because the jury was instructed that it could convict him based
on a theory of accountability. The state trial court denied the
petition and the appellate court affirmed the denial of post-
conviction relief.
Ashburn then filed a habeas corpus petition pursuant to 28
U.S.C. § 2254. His petition raised seven claims. The district
court denied him habeas relief and granted a certificate of
appealability on six of the seven claims. This court then
granted Ashburn’s motion to amend the certificate of
appealability to remove two of the six certified claims, leaving
the four claims for habeas relief Ashburn now presents to this
court. Specifically, Ashburn argues that he was denied: 1)
effective assistance of appellate counsel by his attorney’s
2
In a separate jury trial, Clark was also convicted of Muckenstrum’s
murder.
No. 12-3365 9
failure to raise a speedy trial claim; 2) his right to due process
by the introduction at his trial of the knife, knife box, and
receipt recovered from his home; 3) his right to due process by
the admission of the purportedly perjured testimony given by
pathologist Dr. Parks; and 4) his right to due process by the
giving of a jury instruction on accountability.
II.
A. Speedy Trial Claim
On appeal, Ashburn first argues that he is entitled to habeas
relief because his appellate counsel was ineffective for not
arguing on direct appeal that his federal constitutional right to
a speedy trial was violated. To understand this claim, some
additional facts are needed:
On June 18, 1993, a grand jury returned an indictment
charging Ashburn with first degree murder “in that he,
without lawful justification and with the intent to kill or do
great bodily harm to [Muckenstrum], shot … Muckenstrum
with a firearm and stabbed him with a knife, thereby causing
[his] death.”3 At the time the indictment was returned,
Ashburn was a prisoner at the Graham Correctional Center in
3
The nearly three-year delay between the murder and the indictment is not
explained, although Ashburn’s attorney notes that on October 26, 1990, a
grand jury found “no true bill” against Ashburn on a charge of first degree
murder and the charge was dismissed. A newspaper article published at the
time of the underlying trial indicated the delay was caused because
Ashburn had threatened witnesses. Ashburn had sought a mistrial based
on the publication of that newspaper article (which contained other
derogatory information), but the motion was denied and Ashburn does not
present that issue in his habeas petition.
10 No. 12-3365
Hillsboro, Illinois, serving a thirteen-year sentence for a 1991
state conviction for unlawful possession of a weapon. On June
22, 1993, Ashburn was served with an arrest warrant for
Muckenstrum’s murder. On December 3, 1993, Ashburn was
arraigned and counsel was appointed to represent him.
At his arraignment, Ashburn stated that his statutory
speedy trial rights had been violated because more than 120
days had elapsed since his arrest. The state court told Ashburn
to address that issue with his counsel. On February 23, 1994,
Ashburn’s attorney filed a petition seeking discharge under
Illinois statute 725 ILCS 5/103-5(a) (1994) because more than
120 days had passed since his arrest. On March 8, 1994,
following a hearing at which the state announced it was ready
for trial, the trial court denied Ashburn’s petition because
Ashburn had not demanded a speedy trial, as mandated by 725
ILCS 5/103-5(b) and 730 ILCS 5/3-8-10. Those sections govern
the speedy trial rights of individuals incarcerated in the
Department of Corrections on unrelated charges and grants a
right to a trial within 160 days of a written demand for a
speedy trial (which includes specific information).
Ashburn then moved to continue the trial and the court
granted that motion, continuing trial until April 5, 1994.
Ashburn requested a further continuance, which moved the
trial date to May 3, 1994. Then on May 3, 1994, on Ashburn’s
motion, trial was again continued until June 13, 1994. The state
then requested its only continuance, moving the trial date from
June 13 to July 5.
During these delays, Ashburn sent a letter dated April 20,
1994, to the trial court. That letter stated that he had informed
No. 12-3365 11
his trial counsel of his “extreme objections to the manner in
which the case [was] being (actually, not being) pursued,” and
had complained of a “humongous dearth of communication”
and an “inability to detect any tangible performance or
preparation on his part for trial.” Ashburn’s letter concluded:
“This preliminary ineffective assistance of counsel cannot be
permitted to perdure [sic].” Ashburn sent a second letter to the
state court on June 7, 1994, complaining that his attorney had
not communicated with him and asking the court for a status
update on his case. A week later, Ashburn filed a third letter
with the court, claiming his attorney had not responded to his
letters nor evidenced any preparation for his case. Ashburn
requested that the trial court ask his attorney “if he wishes to
remain on the case,” and to consult with him “to prepare a
competent defense” and “to amicably resolve this situation or
ask to be relieved.”
On July 5, 1994, the scheduled trial date, a new attorney
appeared on Ashburn’s behalf and moved for a continuance
until after September 1, 1994. But at the same time, the second
attorney filed a speedy trial demand. Ashburn’s second
attorney then filed several additional requests for continu-
ances, which were granted until, finally, a jury trial began on
February 14, 1995.
Ashburn asserts that he is entitled to habeas relief because
his appellate counsel was ineffective for not arguing on direct
appeal that the delay between his June 18, 1993, indictment and
the commencement of his February 14, 1995, trial violated his
federal constitutional right to a speedy trial. The government
responds that Ashburn procedurally defaulted and forfeited
this claim because, before the state court and in his habeas
12 No. 12-3365
petition, Ashburn had only argued ineffective assistance
premised on his appellate attorney’s failure to argue a state
statutory speedy trial claim. We need not resolve this close
question because, as discussed shortly, an ineffective assistance
claim premised on the failure of Ashburn’s appellate attorney
to argue a federal constitutional speedy trial violation lacks
merit. See Bland v. Hardy, 672 F.3d 445, 451 (7th Cir. 2012)
(concluding that this court “need not decide whether [the
defendant] has committed a procedural default, because his
argument fails on the merits”); 28 U.S.C. § 2254(b)(2).
First, though, is the question of our standard of review.
When a habeas petitioner seeks relief from a state conviction,
great deference is afforded to the state court’s analysis of
Strickland’s cause and prejudice prongs. Brady v. Pfister, 711
F.3d 818, 823–25 (7th Cir. 2013) (citing Strickland v. Washington,
466 U.S. 668 (1984)). Such deference is granted even where the
state court denies relief, “without an accompanying statement
of reasons.” Id. at 825 (quoting Harrington v. Richter, 131 S. Ct.
770, 780 (2011)). In other words, when “the state court does not
articulate the rationale for its decision, our review is no less
deferential than it is when we review a detailed state court
analysis of a petitioner’s claim.” Hartman v. Lee, 283 F.3d 190,
194 (4th Cir. 2002). In that case, though, “the procedure differs
slightly: We must conduct an independent review of the record
and the applicable law to determine whether the result reached
by the state court ‘contravenes or unreasonably applies clearly
established federal law.’” Id. (citing Bell v. Jarvis, 236 F.3d 149,
158, 163 (4th Cir. 2000) (en banc)). However, deference is only
afforded to cases “adjudicated on the merits in State court
proceedings.” Harris, 698 F.3d at 623. “Where the state courts
No. 12-3365 13
did not reach a federal constitutional issue, ‘the claim is
reviewed de novo.’” Id. (quoting Cone v. Bell, 556 U.S. 449, 472
(2009)).
The difficulty, then, is determining whether a state court
adjudicated a federal constitutional claim on the merits when
it did not discuss that claim. The Supreme Court has held that
“[w]hen a federal claim has been presented to a state court and
the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the
contrary.” Richter, 131 S. Ct. at 784–85. But this “presumption
may be overcome when there is reason to think some other
explanation for the state court’s decision is more likely.” Id. at
785.
Following Richter, the Supreme Court in Johnson v. Williams,
133 S. Ct. 1088 (2013), “suggested several ways in which a
petitioner might rebut the presumption: if the state court relies
exclusively on state law, and the state standard is less protec-
tive than the federal one, rebuttal could occur; or the governing
federal standard might simply have been ‘mentioned in
passing in a footnote or [been] buried in a string cite.’” Brady,
711 F.3d at 825 (quoting Williams, 133 S. Ct. at 1096).
Additionally, “[i]f a federal claim is rejected as a result of sheer
inadvertence, it has not been evaluated based on the intrinsic
right or wrong of the matter,” Id. (quoting Williams, 133 S. Ct.
at 1097), and thus that claim has not be evaluated on the
merits. In such cases, “either the petitioner might rebut the
presumption and show that the federal court should review
the claim de novo, or the state might rebut the presumption and
show that the federal claim was procedurally defaulted.” Id.14 No. 12-3365
This case seems to fit one the scenario in which the pre-
sumption is overcome because the state court, in rejecting
Ashburn’s ineffective assistance of counsel claim, relied solely
on the Illinois Speedy Trial Act and made no mention of the
federal constitutional right to a speedy trial. It could have been
inadvertence, in which case the state court’s decision was not
on the merits “and thus does not satisfy the requirements of
Section 2254(d),” making our review de novo. Brady, 711 F.3d at
825. Or it might be the state court did not address the merits of
an ineffective assistance of counsel claim premised on a federal
constitutional right to a speedy trial because Ashburn did not
present this claim to the state court, and thus he procedurally
defaulted the claim. But again, we need not decide whether
Ashburn procedurally defaulted his claim because even under
de novo review, Ashburn cannot prevail. Accordingly, we turn
to the merits of Ashburn’s ineffective assistance of counsel
claim premised on his appellate attorney failing to argue a
violation of his federal constitutional right to a speedy trial.4
We will address this question de novo, applying pre-AEDPA
standards. Id. at 827. “If the record as a whole supports the
state court’s outcome, then even under de novo review the
correct result would be to deny the petition for a writ of habeas
corpus.” Id.
To prevail on his ineffective assistance of appellate counsel
claim, Ashburn must demonstrate that his appellate attorney
4
Ashburn does not argue on appeal that his appellate counsel was
ineffective for failing to argue a statutory speedy trial claim. Therefore, we
focus solely on the question of whether his appellate counsel was ineffective
for failing to argue a federal constitutional speedy trial claim.
No. 12-3365 15
provided deficient assistance and that prejudice resulted.
Strickland, 466 U.S. at 687. Without a meritorious speedy trial
claim, Ashburn cannot possibly demonstrate that he was
prejudiced by his appellate counsel’s failure to argue such a
claim. “As the Court noted in Strickland, ‘[i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that
course should be followed.’” Morgan v. Hardy, 662 F.3d 790, 802
(7th Cir. 2011) (quoting Strickland, 466 U.S. at 697).
The Supreme Court in Barker v. Wingo, 407 U.S. 514, 530
(1972), set forth the now well-established standard governing
Sixth Amendment speedy trial challenges. That four-part test
considers: “whether delay before trial was uncommonly long,
whether the government or the criminal defendant is more to
blame for that delay, whether, in due course, the defendant
asserted his right to a speedy trial, and whether he suffered
prejudice as the delay’s result.” United States v. White, 443 F.3d
582, 589 (7th Cir. 2006) (quoting Doggett v. United States, 505
U.S. 647, 651–52 (1992)).
“The first factor, the length of delay, acts as a triggering
mechanism; unless a presumptively prejudicial amount of time
elapsed in the district court, it is unnecessary to conduct a
searching analysis of all the factors. ” United States v. Oriedo,
498 F.3d 593, 597 (7th Cir. 2007). In this case, Ashburn was
indicted on June 18, 1993, but trial did not begin until February
14, 1995. “We have considered delays that approach one year
presumptively prejudicial.” Id.; see also Doggett, 505 U.S. at 652
n.1. Because more than one year passed from Ashburn’s
indictment to trial, a full review of the Barker factors is appro-
priate. “In determining the weight to give the length of the
16 No. 12-3365
delay, we must look to the extent to which it exceeds the
minimum necessary to trigger the analysis.” Oriedo, 498 F.3d at
597. Here the total delay of 20 months exceeded a year, but not
extraordinarily so, so this factor only weighs moderately in
Ashburn’s favor.
But the second Barker factor—the reason for the delay—not
only weighs against Ashburn; it rebuts the presumption of
prejudice flowing from the total 20-month delay. That is
because, while the total time from Ashburn’s indictment until
his trial was 20 months, at most the government was responsi-
ble for not quite nine months of that delay. The government
was clearly responsible for the initial five-and-a-half month
delay from Ashburn’s June 18, 1993, indictment until his
arraignment on December 3, 1993. But on March 8, 1994, the
state declared itself ready for trial. It is unclear the entire
reason for the three-month delay between December and
March 8, but a half-month of that time was due to Ashburn
filing on February 23, 1994, a motion to dismiss the indictment
under the Illinois Speedy Trial Act. That motion was denied
because Ashburn had failed to file a written demand for trial,
as required by the Illinois statutes. The delay related to
Ashburn’s unsuccessful motion is not attributable to the state.
United States ex rel. Mitchell v. Fairman, 750 F.2d 806, 808–09 (7th
Cir. 1984). The state also requested one short continuance
which delayed trial from June 13 until July 5. Together, these
delays attributable to the state totaled not even nine months.
Conversely, Ashburn’s defense attorneys requested at least
six continuances. After his motion for discharge was denied on
March, 8, 1994, Ashburn’s first attorney moved to continue the
trial, and trial was continued until April 5, 1994. Ashburn’s
No. 12-3365 17
attorney later requested a second continuance, which moved
the trial date to May 3, 1994. Then on May 3, 1994, on motion
by Ashburn’s attorney, trial was again continued until June 13,
1994. As noted above, the government then requested a
continuance, which moved the trial date to July 5, 1994. On the
July 5, 1994, trial date, James E. Wallis appeared on Ashburn’s
behalf as a retained counsel. Wallis moved to continue trial to
a date after September 1, 1994. Trial was continued until
August 2, 1994. Wallis then filed additional requests to
continue the trial, until the jury trial began on February 14,
1995. The continuances requested by Ashburn’s attorneys thus
delayed trial by approximately ten to eleven months, making
Ashburn more responsible than the state for the twenty-month
delay.
Ashburn argues in response that the continuances re-
quested by his first attorney—from March 8, 1994 until June 13,
1994—should be not attributable to him because his first
attorney did not communicate with him during that time.
However, because “the attorney is the [defendant’s] agent
when acting, or failing to act, in furtherance of the litigation,”
delay caused by the defendant’s counsel is also charged against
the defendant. Vermont v. Brillon, 556 U.S. 81, 90–91 (2009).
Ashburn suggests that this general rule should not apply
under the circumstances of his case—where his attorney failed
to communicate with him concerning continuances. But even
were we to hold that this time was not attributable to
Ashburn—something we do not do—the delay cannot be
attributable to the government. “An assigned counsel’s failure
‘to move the case forward’ does not warrant attribution of
delay to the State.” Id. at 92. Thus, as explained above, the
18 No. 12-3365
delay attributable to the state totaled less than nine months. A
nine-month delay would not even trigger the Barker analysis in
the first place, and thus, that the government was only respon-
sible for that length of the total twenty-month delay, weighs in
the state’s favor.
The third Barker factor considers whether the defendant
asserted his right to a speedy trial. Ashburn clearly requested
a speedy trial at his arraignment and in later motions to
dismiss. But at the same time, Ashburn requested numerous
continuances which further delayed trial. In Oriedo, 498 F.3d
593, this court considered a similar situation. There, the
defendant stated in April 2004 that he opposed all continu-
ances, and six months later he indicated that he wished to
proceed to trial. Id. at 600. However, the defendant later sought
numerous continuances. Id. This court held that “[g]iven this
sequence of events, we cannot say that this factor weighs in
favor of Mr. Oriedo.” Id. Similarly, in this case, given the
numerous continuances requested by Ashburn, the third Barker
factor does not weigh in his favor.
The fourth and final Barker factor considers the prejudice to
the defendant. Here we must consider the “circumstances of
this case in light of the interests the right is intended to protect:
‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize
anxiety and concern of the accused; and (iii) to limit the
possibility that defense will be impaired.’” Id. (citing Barker,
407 U.S. at 532) (internal quotation marks omitted). “Actual
prejudice to the defense is the ‘most serious’ concern raised by
a delay because it may ‘skew[ ] the fairness of the entire
system.’” Oriedo, 498 F.3d at 600 (quoting Doggett, 505 U.S. at
654).
No. 12-3365 19
In this case, the delay did not cause Ashburn any pretrial
incarceration because Ashburn was already in prison for
another offense. Thus, while Ashburn argues on appeal that
“[w]here a defendant is incarcerated during delay, like Mr.
Ashburn, ‘he is hindered in his ability to gather evidence,
contact witnesses, or otherwise prepare his defense,’” it was
not the delay which caused this prejudice. Ashburn also does
not claim any actual prejudice to his defense. In fact, the
government claims that the delay, if anything, harmed its case
because one of the witnesses (an individual who had found the
body), died prior to trial. Ashburn, though, can validly claim
anxiety and concern over the pending charges. But that is not
enough to find a constitutional speedy trial violation. Rather,
if there is no actual prejudice, the presumed prejudice flowing
from a long delay is “insufficient to carry a speedy trial claim
absent a strong showing on the other Barker factors.” Oriedo,
498 F.3d at 600. This case does not present even a weak
showing on the other Barker factors: Ashburn was as much, if
not more, responsible for the pretrial delay; while Ashburn
asserted his speedy trial rights, he also continued to request
continuances; and the delay did not cause any pretrial incarcer-
ation and did not impair his defense. Under these circum-
stances, Ashburn was not denied his Sixth Amendment right
to a speedy trial. See Oriedo, 498 F.3d at 601 (holding the
defendant did not demonstrate a denial of his Sixth Amend-
ment right to a speedy trial, where, even though the delay was
substantial and the defendant was detained pretrial for three
years, the fault for the delay was shared and the defendant
continued to request continuances following his assertion for
the right to a speedy trial); Loera v. United States, 714 F.3d 1025,
20 No. 12-3365
1032 (7th Cir. 2013) (holding that a 19-month delay between
indictment and trial did not violate the constitutional right to
a speedy trial). Because Ashburn was not denied his Sixth
Amendment right to a speedy trial, he cannot show any
prejudice from his state appellate attorney’s failure to argue
such a claim. Accordingly, his ineffective assistance of counsel
claim premised on that omission fails.
B. Knife Evidence
Ashburn next argues that he is entitled to habeas relief
because the state trial court’s admission of irrelevant evidence
(a knife, an empty knife box, and a receipt for the purchase of
a knife) was so prejudicial that it denied him his Fourteenth
Amendment right to due process. The Illinois appellate court
found this evidence irrelevant and prejudicial, but concluded
that any error was harmless because of the overwhelming
evidence against Ashburn.
Once again, the state and Ashburn wrangle over whether
Ashburn procedurally defaulted and forfeited this claim. The
state maintains that Ashburn procedurally defaulted this claim
because he merely presented an evidentiary challenge to the
state court, not a federal due process claim. The state also
claims he forfeited the claim because he did not specify the due
process violation in his federal habeas petition. However, as
before, there is no need to wade into this dispute because, on
the merits, Ashburn’s due process claim fails as any error from
the admission of this evidence was harmless.
“The harmless error question has some difficulties of its
own. The first is the standard of federal review.” Johnson v.
Acevedo, 572 F.3d 398, 403 (7th Cir. 2009). Generally, “when a
No. 12-3365 21
state court has found a constitutional error harmless beyond a
reasonable doubt, the federal court’s initial question is whether
that decision represents an ‘unreasonable application of clearly
established Federal law.’” Id. at 403–04 (quoting Mitchell v.
Esparza, 540 U.S. 12, 18 (2003)).
It is unclear, though, whether the state court in this case
applied the federal constitutional standard for harmless error.
The Supreme Court established the federal constitutional
harmless error standard in Chapman v. California, 386 U.S. 18,
24 (1967). “Under Chapman, ‘before a federal constitutional
error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.’”
Kamlager v. Pollard, 715 F.3d 1010, 1016 (7th Cir. 2013) (quoting
Chapman, 386 U.S. at 24). In other words: “Is it clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error?” Neder v. United States, 527
U.S. 1, 18 (1999).
However, in holding the knife evidence inadmissible and
the error harmless, the Illinois Appellate Court merely said:
“[T]he court abused its discretion in admitting this evidence.
However, because the evidence against defendant was
overwhelming, we find the error harmless and reversal is not
mandated.” From this discussion, it appears the state court was
merely analyzing the question from the perspective of state
evidentiary principles—not federal due process principles.
Which again triggers the question of whether the state appel-
late court did not address a federal due process claim because
Ashburn never presented one (and thus procedurally de-
faulted), or because of inadvertence or otherwise, such that the
state court never ruled on the merits of Ashburn’s federal due
22 No. 12-3365
process claim. If the state court never conducted the Chapman
harmless error analysis, a “federal court must make an
independent decision, just as if the state court had never
addressed the subject at all.” Johnson, 572 F.3d at 404. In that
case, “a federal court must apply the Brecht standard to
determine whether the error was harmless.” Id. Under Brecht’s
harmless error analysis, the question is whether the evidence
“had a substantial and injurious effect or influence in deter-
mining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,
623 (1993). Because, as discussed below, Ashburn loses under
either standard, we assume the state court never addressed the
merits of a properly presented due process claim and consider
whether the knife evidence was harmless under Brecht. See
Jones v. Basinger, 635 F.3d 1030, 1052 n.8 (7th Cir. 2011) (ex-
plaining that the Brecht analysis subsumes the Chapman
analysis).
Ashburn argues that the knife evidence had a substantial
and injurious effect on the jury’s verdict because the govern-
ment focused on the knife wounds in opening argument,
promising the jury “[y]ou’re going to see photographs of that
where it is consistent with a knife, the knife was dragged
across his chest and his chest is opened up.” Ashburn also
points to the government’s closing argument, wherein it stated:
“when you … take a knife and you basically degut this person,
you intend to do two things, either to kill him or do greatly
[sic] harm to him. This defendant is guilty.” The State later
added: “We know he’s got knives. … Did he have knives in his
house? Well, we found one. Where did you find it? In his
house. Is that the murder weapon? Who knows for sure. It can
be argued that it is.” Ashburn argues that in light of these
No. 12-3365 23
comments, which obfuscated the fact that the knife admitted
into evidence was not the murder weapon, the knife evidence
was so prejudicial that it had a substantial and injurious effect
on the jury’s verdict.
We cannot agree. While the prosecutor noted that “it can be
argued that it is” the knife, it never actually made that argu-
ment. Nor did the prosecutor focus on the knife recovered
from his house in presenting the case against Ashburn; rather,
the prosecutor made the one reference quoted above in the
context of a closing statement which highlighted the substan-
tial evidence of guilt. The empty knife box and receipt also did
not have a substantial and injurious effect on the jury’s verdict.
Here, the prosecutor asserted in closing argument: “But there’s
something else in that house? Something else that’s very, very
strange. There’s a buck knife, cost about $39.00, and with that
is a receipt for the total price of forty-two fifty-nine, and the
date on it is July 14th. July 14th. Well, wait a minute, that’s not
the knife, that’s after the murder. That’s after the body is
found. Well, isn’t it another strange thing that the last person
who [the victim] was seen with just so happens three days after
the body is found goes out and buys a new knife. Why would
he do that? Possibly he lost a knife somewhere per chance.”5
5
According to Ashburn, the knife admitted into evidence was an older
knife and thus could not have been the one which went with the empty
knife box. Ashburn argues that this distinction was noted in discussions
with the judge concerning the admissibility of the knife evidence, outside
of the jury’s presence. Given that this distinction was not made to the jury,
the jury might well have believed that the knife admitted into evidence was
the one purchased after the crime, further negating any substantial and
(continued...)
24 No. 12-3365
This argument, even if improper, did not have a substantial
and injurious effect on Ashburn’s trial because the government
did not rest its case—or even base its case—on the knife
evidence. Rather, the government presented overwhelming
evidence of Ashburn’s guilt: Several witnesses testified to the
initial argument at the campground. The jury also heard from
Muckenstrum’s girlfriend that Ashburn had kicked in the door
to their home and threatened to kill Muckenstrum. The
evening Muckenstrum disappeared, he was last seen with
Ashburn, arguing with Ashburn, and Ashburn had shot his
gun in the direction of Muckenstrum before leaving with him.
Ashburn owned a gun of the same caliber as the murder
weapon and had recently purchased bullets for the gun.
Several identification cards bearing Ashburn’s name were
found next to the dead body. Ashburn also washed his truck
shortly after the murder and when questioned by officers
shortly after the murder, told them he had not seen Mucken-
strum for a couple of weeks. And a government witness
testified that Ashburn admitted to the crime, and told him
several details that corresponded to the crime—such as that
Clark had stabbed Muckenstrum and that he had shot him in
the eye and that he had lost his identification cards when they
disposed of the body in Brooklyn. In light of this overwhelm-
ing evidence, the knife evidence could not possibly have had
a substantial and injurious effect on the jury’s verdict. Accord-
5
(...continued)
injurious effect from the admission of the knife. Our above analysis,
however, assumes that the knife admitted into evidence was another knife
(i.e., not the one matching the knife box and receipt) recovered from
Ashburn’s home.
No. 12-3365 25
ingly, the district court properly rejected Ashburn’s due
process claim premised on the admission of the knife evidence.
C. Dr. Harry Parks’s Testimony
Ashburn next argues that he is entitled to habeas relief
because the state violated his due process rights by presenting
the knowingly perjured testimony of Dr. Harry Parks. As
noted above, Dr. Parks performed the autopsy on
Muckenstrum. In addition to the details summarized above, at
Ashburn’s trial Dr. Parks also testified on cross-examination as
follows:
Q. Doctor, did you make any conclusions or do any work
with regard to estimating a time of death concerning
this particular individual?
A: I did not.
Q: [A]s a result of your examination of the deceased, were
you able to draw any conclusions as to the time of
death of this particular individual?
A: No.
* **
Q: Did you actually make any observations or measure-
ments with regard to the state of rigor mortis, the
stiffening at the time you did your observation?
A: No.
* **
26 No. 12-3365
Q: Can you tell us from referring to your report or from
your recollection what the time was when you per-
formed your autopsy?
A: No. I’m sorry, it’s not on the report.
Previously at Clark’s trial—again on cross-examination—
Dr. Parks was asked the following questions, and he re-
sponded as follows:
Q: Was there any way that you could determine the time
of death?
A: Well, he showed advanced rigor mortis of his upper
arms and legs, which reaches a peak somewhere
around twelve hours after death, in a range of twelve to
fifteen hours, and then it begins to slowly go away. So,
you know, I could estimate that he might have died
sixteen or eighteen hours prior to the autopsy.
Q: Okay, and the autopsy was the day after the body was
found?
A: Right.
Q: And what time of day was the autopsy?
A: It was around noon, if I recall.
Q: And the body was found—
A: Found about 4 p.m.
Ashburn argues that this exchange demonstrates that Dr.
Parks’s testimony at his trial was false and that the state
violated his due process rights by not correcting that know-
ingly false testimony. A prosecutor’s knowing use of false
No. 12-3365 27
testimony violates a defendant’s right to due process. Napue v.
Illinois, 360 U.S. 264, 269–70 (1959). Under Napue, a petitioner
must show that: “1) the prosecution’s case included perjured
testimony; 2) the prosecution knew, or should have known, of
the perjury; and 3) there is any likelihood that the false
testimony could have affected the judgment of the jury.”
United States v. Adcox, 19 F.3d 290, 295 (7th Cir. 1994).
The state court concluded that the differences in Dr. Parks’s
testimony were mere inconsistencies. That conclusion was not
unreasonable based on the facts of the case. First, we note that
there is truly only one inconsistency—concerning the question
of rigor mortis. At Clark’s trial, Dr. Parks testified that
Muckenstrum showed “advanced rigor mortis.” But at
Ashburn’s trial, Dr. Parks stated that he had made no observa-
tions regarding rigor mortis. The question of rigor mortis by
itself, though, is not the thrust of Ashburn’s complaint. He
complains that Dr. Parks estimated a time of death and lied to
the jury about that fact, preventing him from establishing an
alibi. But Dr. Parks’s testimony at Clark’s trial was consistent
with his testimony at Ashburn’s. At Clark’s trial, Dr. Parks said
he performed the autopsy “around noon, if I recall.” That is
entirely consistent with his later statement at Ashburn’s trial
that he did not recall the time of death and it was not noted on
the autopsy report. It is also not accurate to say that Dr. Parks’s
testimony at Clark’s trial showed that he had reached any
conclusions or done any work concerning a time of death.
Rather, at Clark’s trial, Dr. Parks merely said that Muckenstr-
um “might have died sixteen or eighteen hours prior to the
autopsy.” This response came amidst a series of questions
posed during the cross-examination of Dr. Parks at Clark’s
28 No. 12-3365
trial. The questions asked of Dr. Parks at Clark’s trial differed
from those asked at Ashburn’s trial, and that context easily
explains any seeming inconsistencies in his testimony. Further,
“[m]ere inconsistencies in testimony by government witnesses
do not establish the government’s knowing use of false
testimony.” United States v. Verser, 916 F.2d 1268, 1271 (7th Cir.
1990).
Moreover, even if Ashburn could show that the prosecution
knowing used false testimony by Dr. Parks—that he had lied
about not having determined the time of death—Ashburn
cannot show any likelihood that the false testimony could have
affected the jury’s verdict. “[T]he alleged perjured testimony
must bear a direct relationship to the defendant’s guilt or
innocence.” Adcox, 19 F.3d at 295.
The estimate Dr. Parks gave at Clark’s trial was clearly
wrong since it would have placed Muckenstrum’s time of
death several hours after Muckenstrum’s body was recovered.
(The autopsy was performed at about noon the day after the
body was found and eighteen hours earlier would have made
the time of death about 6:00 p.m., but the body was found
around 3:00 p.m.) Thus, that testimony would not help Ash-
burn establish an alibi and it did not “bear a direct relationship
to the defendant’s guilt or innocence.” Id. In fact, Ashburn did
not attempt to establish an alibi for any time frame between the
last sighting of Muckenstrum and the recovery of his body.
Further, as already discussed, the evidence against Ashburn
was overwhelming (which explains why Ashburn didn’t
present an alibi, because his alibi was Clark, his accomplice.)
Ashburn cannot succeed on a due process claim based on the
purported use of perjured testimony.
No. 12-3365 29
D. Jury Instruction
Finally, Ashburn argues that he is entitled to habeas relief
because his due process rights were violated when the state
trial court instructed the jury that he could be convicted of
murder based on an accountability theory. The thrust of
Ashburn’s argument is that because the indictment did not
charge him based on an accountability theory, it violated his
due process rights to instruct the jury on accountability. But
the United States Constitution does not require States to charge
a defendant by indictment. Bae v. Peters, 950 F.2d 469, 477 (7th
Cir. 1991) (citing Hurtado v. California, 110 U.S. 516 (1884)).
Accordingly, in considering the validity of an indictment,
general due process standards govern. Bae, 950 F.2d at 478.
The question thus is whether Ashburn had sufficient
“notice of the specific charge, and a chance to be heard in a
trial of the issues raised by that charge.” Id at 478 (citation
omitted). “So long as the defendant has received adequate
notice of the charges against him so that he has a fair opportu-
nity to defend himself, the constitutional requirement is met.”
Id.Ashburn had more than adequate notice of the charges
against him. The indictment charged him with shooting and
stabbing Muckenstrum. Under well-established Illinois law, “a
person charged as a principal can be convicted upon evidence
showing that he was in fact only an aider or abetter.” People v.
Doss, 426 N.E.2d 324, 327 (Ill. App. Ct. 1981). That is “because
accountability is not a separate offense but merely an alterna-
tive manner of proving a defendant guilty of the substantive
offense.” Id. Accordingly, Ashburn was on notice that he could
30 No. 12-3365
be convicted of murder either as a principal or based on an
accountability theory and his due process rights were not
violated.
Alternatively, Ashburn argues that his due process rights
were violated because the evidence did not support an
accountability instruction. Putting aside again the question of
forfeiture, this argument cannot succeed because the evidence
was more than sufficient to support an accountability jury
instruction. “Under Illinois law, an individual is legally
accountable for the criminal conduct of another when he
deliberately assists in planning or committing the crime.”
Hennon v. Cooper, 109 F.3d 330, 331 (7th Cir. 1997) (citing 720
ILCS 5/5-2(c)).
In this case, if Ashburn were not the actual shooter—as he
confessed he was to Kelly—the evidence more than justified an
accountability instruction. Specifically, the evidence estab-
lished that Muckenstrum was last seen alive with Clark in a
truck driven by Ashburn; that identification cards bearing
Ashburn’s name were found near to Muckenstrum’s dead
body; and that Ashburn possessed a gun of the same caliber as
the murder weapon. This evidence supported the giving of an
accountability instruction to the jury because, from that
evidence, a jury could reasonably conclude that Ashburn
deliberately assisted in the commission of the crime by
providing transportation, supplying the weapon, or, because
his identification was found near the body, by somehow
otherwise helping in the actual murder. Accordingly,
Ashburn’s due process rights were not violated by the giving
of this instruction.
No. 12-3365 31
III.
The district court properly denied Ashburn’s petition for
habeas relief. First, his claim of ineffective assistance of
appellate counsel cannot succeed because there was no
underlying violation of Ashburn’s constitutional right to a
speedy trial. While there was a twenty-month delay between
Ashburn’s indictment for murder and his trial, the state caused
only a portion of that delay and there was no prejudice to
Ashburn—who was already incarcerated on another offense.
Second, any error in admitting the knife evidence was harm-
less because the evidence presented at Ashburn’s state trial for
murder was overwhelming: he had recently threatened to kill
the victim; the victim was last seen with Ashburn; Ashburn
had shot a gun toward the victim shortly before the murder;
several identification cards bearing Ashburn’s name were
found by the victim’s dead body; and Ashburn confessed to
the murder. For the same reason, even if Ashburn had shown
that Dr. Parks testified falsely at his trial—which he has
not—there is no chance that that purportedly false testimony
could have altered the outcome of his trial. Finally, Ashburn
was not denied his due process rights when the judge gave the
jury an accountability instruction. Because Illinois law clearly
established that Ashburn could be found liable either as a
principal, or on an accountability theory, Ashburn was on
notice of that possibility. The evidence also more than sup-
ported the accountability instruction given that Ashburn was
seen with Clark and Muckenstrum before the murder, pos-
sessed a gun of the same caliber as used in the murder, and his
identification cards were found by the dead body. For these
and the foregoing reasons, we AFFIRM.