Todd Saxon v. Kim Butler

Filing

Filed opinion of the court by Judge Bauer. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Diane S. Sykes, Circuit Judge. [6877464-1] [6877464] [15-3365]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 15-3365
TODD SAXON,
Petitioner-Appellant,
v.
JACQUELINE LASHBROOK, Warden,
Respondent-Appellee.

Appeal from the United States District Court for the
Central District of Illinois.
No. 2:15-cv-02072-CSB — Colin S. Bruce, Judge.

ARGUED SEPTEMBER 7, 2017 — DECIDED OCTOBER 18, 2017

Before WOOD, Chief Judge, and BAUER and SYKES, Circuit
Judges.
BAUER, Circuit Judge. In 2005, petitioner-appellant Todd
Saxon was convicted in Illinois state court of first degree
murder, arson, and concealment of homicide. The Illinois
Appellate Court affirmed his conviction. After his state court
appeals were exhausted, Saxon filed a petition for a writ of

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habeas corpus under 28 U.S.C. § 2254, raising a number of
claims, including that the evidence was insufficient to support
his conviction. The district court denied the petition. We affirm.
I. BACKGROUND
On March 30, 1995, the remains of a twelve year-old girl,
O.W., were found inside a garage that had been burned in
Kankakee, Illinois. Over the course of a long investigation, it
was determined that O.W. had been sexually assaulted and
stabbed before her remains were left inside a garage that was
set on fire. A grand jury returned an indictment on April 11,
2002, charging Saxon with first degree murder, arson, and
concealment of homicide. Saxon elected to proceed to trial, and
a jury was empaneled on February 24, 2005.
A. The Evidence at Trial
We need not recount the entirety of the evidence that was
presented at trial. We will review the facts relevant to this
appeal, and we incorporate by reference the facts set forth in
the Illinois Appellate Court’s opinion on Saxon’s direct appeal.
See People v. Saxon, 871 N.E.2d 244 (Ill. App. Ct. 2007).
The State presented its case over the course of three days.
The State’s case included testimony from fifteen witnesses, as
well as numerous stipulations and exhibits.
O.W.’s mother, Regina Collins, testified that she last saw
O.W. on the night of March 27, 1995. Collins had numerous
other individuals living in her house at the time. The individuals who slept at Collins’ house that night included: Collins’
boyfriend and Saxon’s uncle, Pierre Saxon; Pierre’s mother, Elsi
Saxon, who shared a room with O.W.; Collins’ son and O.W.’s

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brother, John; Collins’ goddaughters Contessa Kilpatrick and
Catrina Haut; Collins’ brother, Webster Collins; and finally,
Catrina Haut’s mother, Bobbie Jackson. According to Collins,
Saxon was at her house almost every day, and was there the
night of March 27, 1995. Collins testified that O.W. went to
bed around 9:00 p.m., and that she, Collins, went to bed shortly
afterward. Collins woke up around 11:30 p.m. to an argument
outside her home between Kilpatrick and Kilpatrick’s boyfriend, Dwight Phagan. After telling them to keep their voices
down, Collins returned upstairs to go back to bed; en route,
she checked on O.W. who was still asleep. Collins told the jury
that when she woke up the next morning, she instructed her
son, John, to wake up O.W. since it was a school day. John
could not find O.W. in her bedroom, and a search of the house
made it clear that O.W. was not there. There was no sign of a
break-in or forced entry.
Contessa Kilpatrick testified that she last saw O.W. after
Collins told her and Phagan to stop arguing. O.W. came out of
her bedroom and briefly spoke to Kilpatrick before returning
to bed. She also confirmed that Saxon was in the house that
night. Pierre Saxon testified that it was not unusual for his
nephew to be at Collins’ home because he was always welcome. Pierre testified that he, too, checked on O.W. after the
argument between Kilpatrick and Phagan. O.W.’s brother,
John, testified that Saxon was a part of the family, and that
Saxon would stay in his room when he spent the night. John
recalled occasions when Saxon and O.W. would wrestle and
the two of them would be locked in a bedroom. Haut also
testified about Saxon and O.W. wrestling.

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Individuals from the fire department and law enforcement
agencies testified about their investigation of the burned-down
garage where O.W.’s body was found. Around 2:40 a.m. on
March 30, 1995, members of the Kankakee Fire Department
were summoned to a “fully involved,” or out-of-control, fire at
the garage. After the fire was extinguished, O.W.’s body was
located in the smoldering garage. A dog trained to detect the
presence of accelerants indicated such presence in three distinct
areas. Both an arson investigator and a Kankakee Police
Department officer testified that they smelled gasoline within
the burned garage.
Alean Ward, Saxon’s aunt, testified that she had lived at the
residence with the attached garage for about two years prior to
the fire, and that Saxon frequently came to her house when she
lived there.
Two forensic investigators testified as to the results of
O.W.’s autopsy and the DNA evidence recovered from her
body. The autopsy revealed that O.W. had been stabbed in the
chest twice, with one wound going directly into her heart. The
autopsy further revealed that O.W. had died from the stab
wounds before the fire. A rape kit was used, and swabs were
gathered from O.W.’s vagina, cervix, anus, and mouth; the
rectal swab recovered a sperm fraction. Numerous individuals,
including Pierre Saxon and Phagan, were excluded as the
sources of DNA based on blood samples from those individuals.
The State called three Kankakee Police Department detectives and officers who had interviewed Saxon over the course
of the nearly seven-year investigation. First, Officer Jeffrey

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Powell interviewed Saxon on April 25, 1995. Saxon told Powell
that he was present in Collins’ home the night of March 27,
1995, and had last seen O.W. between 8:00 p.m. and 9:00 p.m.
Saxon stated that he was present for the argument between
Kilpatrick and Phagan and left the house sometime between
11:40 p.m. and 12:00 a.m. to go home. The next day, Collins
came to Saxon’s home and told him O.W. was missing. During
the interview, Officer Powell asked Saxon to give a blood
sample, but Saxon declined and asked to come back the
following day to provide a sample; Saxon did not show up at
the Kankakee Police Department on April 26, 1995.
Detective Larry Osenga testified that he interviewed Saxon
on September 1, 1995. Saxon confirmed that he was present at
Collins’ home the night of March 27, 1995. Osenga interviewed
Saxon again the next day, and asked Saxon during that
interview to provide a blood sample. Saxon declined, but
arranged with Osenga to come to the police department to
provide a sample on September 4, 1995. Once again, Saxon did
not show up to offer a sample.
Finally, Detective Jay Etzel testified that he obtained a
search warrant for a sample of Saxon’s blood in February of
2000. At that time, Saxon was serving a ten-year prison
sentence following a conviction for the sexual assault of his
nephew. Saxon’s blood sample showed that his DNA matched
the DNA profile found on the sperm fraction. The investigator
opined that it was less likely to obtain a DNA profile from the
sperm fraction more than 72 hours after intercourse.
Etzel interviewed Saxon on February 16, 2001. Saxon told
Etzel that he had told the police all he knew about O.W.’s

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death back in 1995, and that he did not know who had killed
O.W. Etzel read Saxon his Miranda rights, and Saxon signed a
Miranda-waiver form. Etzel then confronted Saxon with the
DNA evidence. Saxon contended that it could not be his DNA,
and that he had never touched O.W. Saxon also initially denied
being present in Collins’ home on March 27, 1995, but then told
Etzel that he was there for less than a minute around 10:00 p.m.
Eventually, Saxon admitted to Etzel that he had sex with
O.W. in her brother’s bedroom two days prior to her disappearance. Saxon said that O.W. was having sex with many
other men during this time, including an individual named
Marvin Landfair. Finally, Saxon stated that he knew Landfair
had killed O.W. because he spotted Landfair with a bloody
coat four days after O.W.’s disappearance.
After the State rested, Saxon moved for a directed verdict,
which was denied. Saxon elected not to testify in his own
defense, and the defense rested. After closing arguments and
jury instructions on March 1, 2005, Saxon was convicted on all
the charges.
B. Post-Conviction Procedural History
Saxon appealed his conviction on the grounds that there
was insufficient evidence to sustain a finding of guilt beyond
a reasonable doubt. On June 26, 2007, the Illinois Appellate
Court affirmed his conviction in a 2-1 decision. Saxon, 871
N.E.2d at 252. The Supreme Court of Illinois denied the
petition for leave to appeal on November 29, 2007.
On April 6, 2015, after exhausting his post-conviction
remedies in the state court, Saxon filed a pro se petition for a

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writ of habeas corpus under 28 U.S.C. § 2254, raising six claims,
including that the evidence at trial was insufficient to support
his conviction. The district court denied the petition on
September 8, 2015. In evaluating the sufficiency of the evidence, the district court denied the claim on the merits, finding
that there was sufficient evidence for a rational trier of fact to
convict Saxon beyond a reasonable doubt. The district court
also found that the claim was barred by 28 U.S.C. § 2254(d),
since it did not involve an unreasonable application of clearly
established federal law or an unreasonable determination of
the facts.
On September 1, 2016, this Court construed Saxon’s notice
of appeal as an application for a certificate of appealability, and
granted a certificate, finding that Saxon had made a substantial
showing that he was denied his rights to due process of law.
II. DISCUSSION
A. Timeliness of the Notice of Appeal
As an initial matter, we must decide whether we have
jurisdiction over Saxon’s appeal as the State contends Saxon’s
notice of appeal was untimely. The district court denied
Saxon’s habeas petition on September 8, 2015, giving him thirty
days, or until October 8, 2015, to file a timely notice of appeal.
See Fed. R. App. P. 4(a)(1)(A). On September 25, 2015, Saxon
placed his notice of appeal in the prison mailing system.
However, Saxon made the common mistake of addressing his
notice to this Court, rather than the district court. This Court
received the notice on October 13, 2015, and sent it to the
district court clerk pursuant to Federal Rule of Appellate
Procedure 4(d).

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We find Saxon timely filed his notice of appeal. Federal
Rule of Appellate Procedure 4(c)(1) applies the “mailbox rule”
to incarcerated pro se petitioners for the timeliness of a notice.
Accordingly, the relevant date for a prisoner’s notice of appeal
is the date the notice is deposited into the prisoner mail system,
not when it is received by the clerk of the court. Also, Rule
4(d), the “mistaken filing rule,” states: “If a notice of appeal …
is mistakenly filed in the court of appeals, the clerk … must
note on the notice the date when it was received and send it to
the district clerk. The notice is then considered filed in the
district court on the date so noted.”
Nothing in either of these rules precludes a pro se prisoner
from invoking both of them for the timeliness of his notice of
appeal. Saxon’s notice of appeal was timely because he placed
it in the prison mail system on September 25, 2015, well before
the thirty-day deadline. Since Saxon addressed the notice of
appeal to this Court, Saxon’s timely notice of appeal was
forwarded to the district court clerk pursuant to Rule 4(d).
Applying both Rule 4(c)(1) and Rule 4(d) together, the date of
receipt of Saxon’s notice of appeal in the district court was
September 25, 2015, not October 13, 2015. Since the receipt date
of Saxon’s notice of appeal is September 25, 2015, the date
Saxon placed the notice in the prison mail system, his appeal
is timely and we have jurisdiction to decide his appeal.
B. Sufficiency of the Evidence under 28 U.S.C.
§ 2254(d)(1)
We review a district court’s denial of a habeas petition
de novo. Makiel v. Butler, 782 F.3d 882, 896 (7th Cir. 2015). The
Antiterrorism and Effective Death Penalty Act (AEDPA)

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provides that a federal court may only grant habeas relief if the
adjudication of a prisoner’s claim by a state court “resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States;” or if the adjudication “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2). The
standard under § 2254(d) is “difficult to meet” and “highly
deferential.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(citations and quotation marks omitted). We apply this
standard to the Illinois Appellate Court’s decision on direct
appeal, as that was the last state court to adjudicate Saxon’s
sufficiency of the evidence claim. Makiel, 782 F.3d at 896.
Saxon challenges the Illinois Appellate Court’s sufficiency
of the evidence analysis under both § 2254(d)(1) and (2). Saxon
does not challenge any particular factual determination by the
Illinois Appellate Court; the Illinois Appellate Court did not
make any factual findings. Rather, it applied a legal standard
and reached a legal conclusion in evaluating the sufficiency of
the evidence. Generally, we review habeas challenges to the
sufficiency of the evidence only under § 2254(d)(1). See, e.g.,
Jones v. Butler, 778 F.3d 575, 581-82 (7th Cir. 2015). Thus, we
will review Saxon’s claim under § 2254(d)(1).
Under § 2254(d)(1), a federal court may not issue a writ
because it believes the state court applied federal law incorrectly. Renico v. Lett, 559 U.S. 766, 773 (2010). Rather, the
application of federal law must be “objectively unreasonable.”
Id. (citation and quotation marks omitted). “In other words, it

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must be ‘something like lying well outside the boundaries of
permissible differences of opinion.’” Rodriguez v. Gossett, 842
F.3d 531, 538 (7th Cir. 2016) (quoting Jackson v. Frank, 348 F.3d
658, 662 (7th Cir. 2003)).
The applicable Supreme Court precedent regarding the
sufficiency of the evidence is well established: “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Thus, habeas reviews of
Jackson claims are subject to two levels of judicial deference
creating a high bar: first, the state appellate court determines
whether any rational trier of fact could have found the evidence sufficient; second, a federal court may only overturn the
appellate court’s finding of sufficient evidence if it was
objectively unreasonable. Coleman v. Johnson, 566 U.S. 650, 651
(2012) (per curiam).
The Illinois Appellate Court identified the correct legal
standard under Jackson for a sufficiency of the evidence
challenge, and then proceeded to review the evidence in the
light most favorable to the State. Saxon, 871 N.E. at 250–52. It
concluded that a rational trier of fact could have found that
Saxon had the “motive, opportunity and access” to murder
O.W. and conceal her death. Id. at 252.
The court found that when viewed as a whole, the evidence
could lead a jury to conclude that Saxon murdered O.W. in
order to cover up his sexual assault of a twelve-year-old girl.
Id. A rational trier of fact certainly could have found Saxon
possessed the motive to murder O.W. in light of Saxon’s

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admission that he had sex with her days before her disappearance, coupled with the conclusive DNA match. The court also
noted Saxon’s presence on the night of her disappearance, his
familiarity with O.W.’s home which showed no signs of forced
entry, and his familiarity with the garage where her body was
found. Id. A rational trier of fact could have viewed the
evidence as a whole, and concluded that Saxon had the access
and opportunity to murder O.W. and conceal her death. Thus,
the Illinois Appellate Court’s application of Jackson and
conclusion that the evidence was sufficient to find Saxon guilty
beyond a reasonable doubt of the crimes charged was not
objectively unreasonable.
III. CONCLUSION
The Illinois Appellate Court’s decision was consistent with,
and did not involve an unreasonable application of the
relevant Supreme Court precedent. Therefore, we AFFIRM the
district court’s judgment.