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Ashburn v. Korte

United States Court of Appeals, Seventh Circuit

August 1, 2014

JOHN ASHBURN, Petitioner-Appellant,
JEFF KORTE, Warden [*], Respondent-Appellee

Argued January 22, 2014

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Appeal from the United States District Court for the Southern District of Illinois. No. 09-CV-0373 -- David R. Herndon, Chief Judge.

For John Ashburn, Petitioner - Appellant: Lauren Fraid, Attorney, Winston & Strawn Llp, New York, NY.

For JEFF KORTE, Warden, Respondent - Appellee: Gopi Kashyap, Attorney, Office of The Attorney General, Chicago, IL.

Before WOOD, Chief Judge, and MANION and WILLIAMS, Circuit Judges.


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Manion, Circuit Judge.

John Ashburn was convicted in Illinois state court of the first degree murder of Rick 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.


An Illinois state jury convicted John Ashburn of the first degree murder of Rick Muckenstrum. The jury which convicted 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

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Muckenstrum decided 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 immediate 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 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 investigator 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 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 forgotten.

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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, 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 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

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Clark a room two weeks before Muckenstrum'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 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 conviction, 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 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.


A. Speedy Trial Claim

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