Wilborn v. Pfister et al

Filing 35

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 8/2/2017. Mailed notice(gel, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Joseph Wilborn, (R17937),
Petitioner,
v.
Randy Pfister, Warden,
Respondent.

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Case No. 14 C 5469
Judge John Robert Blakey

MEMORANDUM OPINION AND ORDER
Petitioner Joseph Wilborn, 1 a prisoner at the Pontiac Correctional Center,
brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging
his 2006 first-degree murder conviction in the Circuit Court of Cook County.
Petitioner was convicted of first-degree murder for the shooting death of Emmit Hill.
He was sentenced to 55 years of imprisonment. For the following reasons, the Court
denies the petition and declines to issue a certificate of appealability.
I.

Legal Standard
Federal review of state court decisions under § 2254 is limited. With respect

to a state court’s determination of an issue on the merits, habeas relief can be
granted only if the decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law,” or “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)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This Court
The state court record contains spellings of Petitioner’s last name as both Wilborn and Wilbourn.
Petitioner spells his name as Wilborn in his habeas corpus petition, so the Court adopts that spelling
throughout this opinion.
1

presumes that the state court’s account of the facts is correct, and Petitioner bears
“the burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir.
2012).
State prisoners must give the state courts “one full opportunity” to resolve any
constitutional issues by “invoking one complete round of the State’s established
appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If a
petitioner asserts a claim for relief that he did not present in the first instance to the
state courts, the claim is procedurally defaulted and “federal courts may not address
those claims unless the petitioner demonstrates cause and prejudice or a
fundamental miscarriage of justice if the claims are ignored.” Byers v. Basinger, 610
F.3d 980, 985 (7th Cir. 2010).
II.

Background and Procedural History
This Court begins by summarizing the facts and procedural posture from the

state court record [22] (attaching Exhibits A to O), including the Illinois Appellate
Court’s opinions on direct appeal, Illinois v. Wilborn, No. 1-06-2088 (Ill. App. Ct. May
22, 2008) (Exhibit D [22-4]), and post-conviction review, Illinois v. Wilborn, 962
N.E.2d 528 (Ill. App. Ct. 2012) (Exhibit L [22-12]). This Court presumes that the
state court’s factual determinations are correct for the purposes of habeas review, as
Petitioner does not point to any clear and convincing contrary evidence. 28 U.S.C. §
2254(e)(1); Brumfield v. Cain, 135 S. Ct. 2269, 2282 n.8 (2015) (citing 28 U.S.C.
2

2254(e)(1)).
The case arises out of the July 28, 2004 shooting death of Emmit Hill near
East 63rd Street and South Michigan Avenue on Chicago’s Southside. [22-4], pp.
1-2. The evening’s events began in front of an apartment building at 6253 South
Michigan, which is located at the intersection of 63rd and Michigan. Id. at 2. At
least nine men were present in the area that evening: Petitioner, the victim (Emmit
Hill), Cedrick Jenkins (who would later be tried as Petitioner’s co-defendant), an
individual known as “Chub,” and Clarence Morgan, David Parker, Keith Wright,
Samuel (“Moochie”) Richards, and Frederick Sanders.

Id. at 2-3; Wilborn, 962

N.E.2d at 532.
The victim and David Parker were associated with the Black Gangster
Disciples. [22-4], p. 3. Petitioner, Cedrick Jenkins, and Chub were members of a
rival gang, the Insane Gangster Disciples. Id. By way of background, the Black
Gangster Disciples initially claimed the apartment building at 6253 South Michigan
as drug territory, and prevented the Insane Gangster Disciples from selling drugs at
that location. Id. The Black Gangster Disciples later lost control of the building
when federal authorities arrested several of that gang’s members. Following the
arrests, the Insane Gangster Disciples attempted to take over the drug business in
the building. Id. Two weeks before his murder, the victim confronted Petitioner,
Jenkins, and Chub regarding drugs sales at the building. Id.

3

Sometime between 11:00 and 11:30 p.m. on July 28, 2004, Petitioner, Jenkins,
Chub, Clarence Morgan, David Parker, and the victim were present outside the
building. Id. Morgan and Parker both testified at trial that neither saw the victim
with a gun.

[22-4], pp. 2, 3.

Morgan and Parker saw Chub hand Jenkins a

sweatshirt, which seemed strange to them, given the hot late July weather. Id. In
response, the victim told Chub that he “‘was [] bullshit.’” Wilborn, 962 N.E.2d at
532. Morgan took this to mean that the victim was telling Chub that he was “‘up to
no good . . . .’” Id.
Following the exchange, Petitioner and Jenkins walked away from the
building into a gangway. [22-4], p. 2. The gangway, which is a small area between
two buildings, ran east/west connecting Michigan and Wabash Avenues just north of
63rd Street.

Wilborn, 962 N.E.2d at 532-33.

63rd Street runs east/west, and

Wabash and Michigan Avenues run north/south. Wabash is a one street west of
Michigan.
Morgan testified that he saw the victim follow Petitioner and Jenkins into the
gangway. [22-4], p. 2. Morgan lost sight of the group, and about a minute later, he
heard five gunshots coming from the gangway. Id. Parker testified that he also
heard seven gunshots and saw the gangway “‘lighting up with sparks.’” Id. at 4.
Morgan, Parker, Keith Wright, and Moochie Richards investigated the
shooting, walking south on Michigan to 63rd Street, west on 63rd to Wabash, and
then north to the gangway. Id. at 3-4. There, they found the victim shot dead in
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the gangway by Wabash. Id. The group did not see Petitioner, Jenkins, or anyone
else on the scene. Id. They did not find a gun at the scene or on the victim’s body.
Id. Richards searched the victim’s pockets for drugs. Id. at 4.
Sanders, who lived in the area, heard the gun shots while driving in his car.
Id. at 2. He testified that he drove over to Wabash and saw Richards standing over
the victim’s body. Id. Sanders called the police. Id. He did not see anyone in the
area with a gun and did not see Richards take a gun from the victim’s body. Id.
Sanders testified that he did not see Petitioner or Jenkins in the area. Id.
Chicago Police Department Forensic Investigator John Kaput testified that he
walked the crime scene the night of the murder and recovered five fired Wolf brand
9-millimeter Luger cartridge casings and a 9-millimeter fired bullet. Wilborn, 962
N.E.2d at 535. No gun was found at the crime scene. Id. at 543. An Assistant
Cook County Medical Examiner testified that she performed an autopsy on Hill’s
body and determined that he had seven bullet entrance wounds, and five exit
wounds; she recovered two bullets from the body and found a third bullet in the
victim’s clothing. Id. at 535.
A responding Chicago Police Department detective testified that he
interviewed witnesses at the scene, and, as a result of the on-scene investigation,
police began a search for Petitioner, Jenkins, and Chub. Id. at 534. The police
were unable to locate the three men that night. Id.

5

Stacy Daniels, a friend of Petitioner’s for more than four years, testified that
two weeks after the shooting, on August 12, 2014, Petitioner told Daniels that, “he
‘got into some problems,’ and that he was in ‘some serious shit.’”

Id.

Daniels

testified that Daniels and Petitioner then went to Daniels’ apartment, which Daniels
shared with Xavier Woolard. Id. Woolard and his girlfriend, LaKeisha, 2 were at
the apartment when Daniels and Petitioner arrived, and Jenkins was also there. Id.
Once at the apartment, Petitioner told Daniels about the shooting. Daniels
testified that Petitioner explained that the victim had followed him into the
gangway, and was “‘fittin’ to do something to him.’” Id. Petitioner “‘turned around
busting,’” which Daniels understood to mean shooting. Id. Petitioner then told
Daniels that he needed money to leave town. Id. He said he might “‘hit a lick or
something like that,’” which Daniels understood to mean that he might commit a
robbery. Id.
Daniels and Woolard left the apartment to go to a party, while Petitioner,
Jenkins, and LaKeisha stayed behind at the apartment. Id. Chicago police officers
arrested Woolard at the party for an unrelated battery offense, and, following his
arrest, Woolard told the police that there were two men in his apartment wanted on
murder charges. Id. He gave consent for the police to search the apartment. Id.
The police then conducted the search of Daniels and Woolard’s apartment.
Id. The search revealed firearms and ammunition. Id. Petitioner, Jenkins, and
The state appellate court opinion refers to the girlfriend by her first name only.
identifies her as “Laquisha Bondsby” in his habeas corpus petition. [1], p. 31.
2

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Petitioner

LaKeisha were present in the apartment during the police search, as was Daniels,
who had returned there after Woolard was arrested at the party. Id. During their
search, the police found in Woolard’s bedroom a 9-millimeter Glock brand handgun
loaded with two bullets, as well as an additional 28 rounds. Id. The police also
searched Petitioner, who had one Wolf brand Luger bullet and four “hollow point”
Luger bullets in his pocket, and Jenkins, who had a 9-millimeter High Point
handgun loaded with seven bullets. Id.
The Illinois State Police Crime Lab performed forensic testing on the weapons
and ammunition seized during the police search, to compare them to the cartridges
and bullets recovered from the crime scene and from the victim’s body. Consistent
with that testing, the parties stipulated that one of the five cartridge casings
recovered at the crime scene was fired from the Glock handgun found in Woolard’s
bedroom. Id. at 535. They further stipulated that the other four cartridge casings
were all fired from the same gun, but that neither the Glock nor the High Point
handgun recovered during the search had fired those four cartridges. Id. The fired
bullet recovered at the scene was not fired from the High Point handgun, but the
forensic testing was inconclusive as to whether the bullet was fired from the Glock
handgun found in Woolard’s bedroom.

Id.

The parties further stipulated that

forensic testing showed that the three bullets recovered from the victim’s body via
the autopsy were fired from the same gun, but not from the Glock or High Point
handguns. Id. Additionally, testing determined that the one fired bullet recovered
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by the police at the crime scene and the three bullets recovered during the autopsy
were not fired from the same gun. Id.
Although counsel suggested in his opening statement that Cedrick Jenkins
would testify for the defense, counsel ultimately elected not to present Jenkins as a
witness. Id.
The jury found Petitioner guilty of first-degree murder, and the trial court
sentenced him to 30 years, plus 25 years for personally discharging a firearm.
Petitioner appealed, raising three claims. See Exhibits A [22-1], C [22-3].
First, he argued that the state committed prejudicial error in interpreting the phrase
“hit a lick” to mean that Petitioner intended to commit a future robbery. Next,
Petitioner claimed that the state’s closing argument denied him a fair trial, because
the prosecutor told the jury that if he had acted in self-defense he would have turned
himself in to the police. Finally, Petitioner argued that the trial court erred in
imposing a 25-year firearm enhancement when the jury never actually determined
that he had personally discharged a firearm.
The Appellate Court affirmed Petitioner’s conviction and sentence.

See

Exhibit D [22-4]. Counsel then filed a petition for leave to appeal (“PLA”), raising
just this last issue regarding the applicability of the firearm enhancement, see
Exhibit E [22-5]. Petitioner then sought leave to file a pro se PLA raising the “hit a
lick” argument as well. See [22-7]. The Illinois Supreme Court granted Petitioner

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the opportunity to file his pro se PLA, see Exhibit F [22-6], but ultimately denied the
PLA, see Exhibit H [22-8].
Petitioner also filed a pro se post-conviction petition claiming ineffective
assistance of trial and appellate counsel; his petition was rejected both initially and
on appeal, see Exhibits I [22-9], L [22-12]. Petitioner then filed a PLA with the
Illinois Supreme Court, and the Supreme Court denied the PLA on March 26, 2014.
Exhibit M [22-13].
Petitioner then filed the instant habeas corpus petition [1] on July 16, 2014.
III.

Petitioner’s Claims
In his habeas petition, Petitioner asserts seven claims.

In claim one, he

alleges ineffective assistance of trial counsel for: (a) presenting a self-defense theory
that was unsupported by the evidence; (b) promising the jury eyewitness testimony,
then changing his mind mid-trial; (c) failing to call co-defendant Cedrick Jenkins at
trial; and (d) failing to call exonerating witness Randell Walton. In claim two, he
alleges that the jury received conflicting instructions concerning accountability. In
claim three, he alleges that: (a) the trial court erred in failing to strike biased jurors;
and (b) his appellate counsel was ineffective for failing to raise the biased juror issue
on appeal. In claim four, he alleges that the prosecution made improper arguments
before the jury by suggesting Petitioner was planning a robbery. In claim five, he
alleges that the prosecution improperly commented on Petitioner’s pre- and
post-arrest silence. In claim six, he alleges that the trial court erred in imposing a
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25-year sentencing enhancement. And, in claim seven, he alleges that the trial
court erred in allowing the introduction of hearsay. See [1], p. 9.
A.

Procedural Default - Claims 1(a), 1(d), 2, 3(a), 3(b), and 5

Respondent argues that claims 1(a), 1(d), 2, 3(a), 3(b) and 5 are procedurally
defaulted. Claim 1(a) alleges ineffective assistance of trial counsel for raising an
unsupported self-defense theory to the jury. Petitioner argues that a self-defense
theory was contradicted by the victim’s gunshot wounds identified by the autopsy.
[1], p. 10. The autopsy showed that the victim had seven entrance and five exit
gunshot wounds. Id. The doctor who performed the autopsy testified that four of
entrance wounds were on the victim’s back, which led her to conclude that the victim
was shot while lying down or bent over, or that he was shot from behind. Id. Given
this evidence, Petitioner argues, his lawyer was ineffective for presenting a flawed
self-defense argument that the jury rejected when finding him guilty. Claim

1(d)

alleges ineffective assistance of trial counsel for failing to call Randall Walton as a
witness at trial.

Id. at 31.

Petitioner claims that he never confessed to Stacy

Daniels, and that Daniels’ testimony to the contrary was a lie. Petitioner argues
that Walton, who was present in the apartment, could have rebutted Daniels’
testimony.

In claim 2, Petitioner alleges that the jury received conflicting

instructions regarding accountability liability.

Id. at 34.

Although Petitioner’s

trial was severed from Jenkins’ trial, the jury was instructed that it could hold
Petitioner liable for Jenkins’ conduct. In claim 3(a), Petitioner alleges that his trial
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attorney was ineffective for failing to strike biased jurors, id. at 40. Relatedly, in
claim 3(b), he argues that his appellate counsel was ineffective for failing to raise this
biased juror issue on appeal. Id. at 42. Lastly, in claim 5, Petitioner alleges that
the prosecutor improperly commented on Petitioner’s pre- and post-trial silence. Id.
at 48.
Respondent is correct that claims 1(a), 1(d), 2, 3(a), and 3(b) are procedurally
defaulted because Petitioner failed to present these claims in the state court
proceedings. In order to obtain federal habeas review, a state prisoner must first
submit his claim “through one full round of state-court review.” Johnson v. Hulett,
574 F.3d 428, 431 (7th Cir. 2009) (citing Picard v. Connor, 404 U.S. 270, 275-76
(1971)); see also 28 U.S.C. § 2254(b)(1). Petitioner must present the operative facts
and controlling law of the claim before the state courts so that they have a
meaningful opportunity to consider the claim before it is raised in federal court.
Anderson v. Benik, 471 F.3d 811, 814 (7th Cir. 2006) (citations omitted). Petitioner
must also raise the claim through all levels of the Illinois courts, including in a
petition for leave to appeal (PLA) before the Supreme Court of Illinois. Guest v.
McCann, 474 F.3d 926, 930 (7th Cir. 2007) (citing O’Sullivan v. Boerckel, 526 U.S.
838, 842-46 (1999)). As explained above, these claims were not raised to the state
courts in the first instance, and the time for raising them in the state courts has
expired. As a result, claims 1(a), 1(d), 2, 3(a) and 3(b) are procedurally defaulted.

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Furthermore, even though Petitioner did raise an ineffective assistance claim
in his state court appeal, he failed to raise the underlying factual theories for the
claim that he asserts here. Although ineffective assistance of counsel is a single
claim, Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009) (citing Peoples v. United
States, 403 F.3d 844, 848 (7th Cir. 2005)), Petitioner must raise the particular factual
basis for each aspect of the alleged ineffective assistance of counsel to preserve the
respective argument. Pole, 570 F.3d at 935 (citing Stevens v. McBride, 489 F.3d 883,
894 (7th Cir. 2007)). “A bare mention of ineffective assistance of counsel is not
sufficient to avoid a procedural default; [Petitioner] must have ‘identified the specific
acts or omissions of counsel that form the basis for [his] claim of ineffective
assistance.’”

Johnson v. Hulett, 574 F.3d 428, 432 (7th Cir. 2009) (quoting

Momient-El v. DeTella, 118 F.3d 535, 541 (7th Cir. 1997)). “Petitioner cannot argue
one theory [of ineffective assistance of counsel] to the state courts and another
theory, based on different facts, to the federal court.” Johnson, 574 F.3d at 432
(citing Everett v. Barnett, 162 F.3d 498, 502 (7th Cir. 1998)). Petitioner did not
present the factual basis for claims 1(a) or 1(d) to the Illinois courts, and those claims
are therefore defaulted.
Respondent is also correct that claim 5 is procedurally defaulted because it
was dismissed on an adequate and independent state law ground.

The Illinois

appellate court held that Petitioner waived this issue on appeal because he failed to
raise a proper objection at trial, and failed to renew the issue in a post-trial motion,
12

as required by Illinois law. [22-4], p. 11. As a result, this claim is also procedurally
defaulted here, even though the appellate court considered the merits in the
alternative under a plain error review. See Kaczmarek v. Rednour, 627 F.3d 586,
592-93 (7th Cir. 2010) (“when a state court refuses to reach the merits of a
petitioner's federal claims because they were not raised in accord with the state's
procedural rules (i.e., because the petitioner failed to contemporaneously object), that
decision rests on independent and adequate state procedural grounds”; where the
state court “reviews a federal constitutional claim for plain error because of a state
procedural bar (here, the doctrine of waiver), that limited review does not constitute
a decision on the merits.”).
Certainly, a federal court in a § 2254 case can review a procedurally defaulted
claim upon showing: (1) that there was cause for the default and prejudice; or (2) that
a fundamental miscarriage of justice would result if the claim is not reviewed.
Petitioner here, however, demonstrates neither.

Cause is an “‘objective factor,

external to [Petitioner] that impeded his efforts to raise the claim in an earlier
proceeding.’” Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013) (quoting
Smith v. McKee, 596 F.3d 374, 382 (7th Cir. 2010)). Examples of cause include: (1)
interference by officials making compliance impractical; (2) the factual or legal basis
was not reasonably available to counsel; or, (3) ineffective assistance of counsel.
Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007) (citing McCleskey v. Zant, 499
U.S. 467 (1991)). Only the third example is relevant here: Petitioner faults his
13

counsel at trial, on direct appeal, and in his post-conviction proceedings for failing to
properly preserve his defaulted claims.

For counsel’s ineffective assistance to

amount to “cause” excusing the default of an underlying issue, however, the
ineffective assistance of counsel that resulted in the failure to preserve the claim
must itself be properly preserved in the state courts. Edwards v. Carpenter, 529
U.S. 446, 453 (2000); Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009). Petitioner
failed to preserve such ineffective assistance of counsel arguments in state court as
well; and therefore, Petitioner cannot demonstrate cause and prejudice to excuse his
procedural defaults.
This leaves Petitioner with only the fundamental miscarriage of justice (actual
innocence) gateway to excuse his default. Proving actual innocence in this context
requires Petitioner to demonstrate that “‘in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.’”
McQuiggins v. Perkins, 133 S. Ct. 1924, 1928 (2013) (quoting Schlup v. Delo, 513 U.S.
298, 329 (1995)). This is a “demanding” and “seldom met” standard. McQuiggins,
133 S. Ct. at 1928 (citing House v. Bell, 547 U.S. 518, 538 (2006)). To make a
credible claim of actual innocence, Petitioner must present new, reliable evidence
that was not presented at trial − such as exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence. House, 547 U.S. at 537 (citing
Schlup, 513 U.S. at 324); see McDonald v. Lemke, 737 F.3d 476, 483-84 (7th Cir.
2013) (“[A]dequate evidence is ‘documentary, biological (DNA), or other powerful
14

evidence: perhaps some non-relative who places him out of the city, with credit card
slips, photographs, and phone logs to back up the claim.”) (internal quotation
omitted).

Petitioner has no such evidence.

Instead, he argues that the state’s

witnesses lied, and he ignores the fact that several eyewitnesses placed him in the
gangway immediately before the shooting. Such evidence does not demonstrate
actual innocence. McQuiggins, 133 S. Ct. 1928.
For all of these reasons, claims 1(a), 1(d), 2, 3(a), 3(b), and 5 are denied because
they are procedurally defaulted.
B.

Merits Review – Claims 1(b), 1(c), 4, 6, and 7)

Petitioner’s remaining claims – claims 1(b), 1(c), 4, 6, and 7 − are denied on the
merits. A writ of habeas corpus cannot issue unless Petitioner demonstrates that he
is in custody in violation of the Constitution, laws, or treaties of the United States.
28 U.S.C. § 2254(a). Because the state courts adjudicated Petitioner’s claims on the
merits, the Court’s review of the present habeas corpus petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Under the

AEDPA, the Court may not grant habeas relief unless the state court’s decision on
the merits was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States, or
unless the state court decision was based upon an unreasonable determination of
facts. 28 U.S.C. § 2254(d).

15

A federal habeas court “may issue the writ under the ‘contrary to’ clause if the
state court applies a rule different from the governing law set forth in [the Supreme
Court’s] cases, or if it decides a case differently than [the Supreme Court has] done on
a set of materially indistinguishable facts.” Premo v. Moore, 562 U.S. 115, 128 (2011)
(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). “An ‘unreasonable application’
occurs when a state court ‘identifies the correct legal principle from [the Supreme
Court’s] decisions but unreasonably applies that principle to the facts of Petitioner’s
case.’” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting Williams v. Taylor, 529
U.S. 362, 413 (2000)).
Clearly established federal law refers to the “‘holdings, as opposed to the dicta,
of [the Supreme Court’s] decisions as of the time of the relevant state-court decision.’”
Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). The
state court is not required to cite to, or even be aware of, the controlling Supreme
Court standard, as long as the state court does not contradict that standard. Early
v. Packer, 537 U.S. 3, 8 (2002). The Court begins with a presumption that state
courts both know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(citations omitted). This presumption is especially strong when the state court is
considering well established legal principles that have been routinely applied in
criminal cases for many years. Burt v. Titlow, 134 S. Ct. 10, 15 (2013).
Finally, the Court’s analysis is “backward looking.” Cullen v. Pinholster, 563
U.S. 170, 182 (2011).

The Court is limited to reviewing the record before the state
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court at the time that court made its decision. Id. Thus, the Court is limited in
considering the Supreme Court’s “precedents as of ‘the time the state court renders
its decision.’” Greene v. Fisher, 132 S. Ct. 38, 44 (2011) (quoting Cullen, 562 U.S. at
182; Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).
The AEDPA’s standard is “intentionally ‘difficult for Petitioner to meet.’”
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting White v.
Woodall, 134 S. Ct. 1702 (2014)); Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013)).
As a condition for obtaining habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on the claim being presented in federal court was
“so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair minded disagreement.”
Harrington v. Richter, 562 U.S. 86, 103 (2011). This “‘highly deferential standard”
demands that state-court decisions be “given the benefit of the doubt.’” Cullen, 563
U.S. at 181 (quoting Woodford, 537 U.S. at 24).
1.

Claims 1(b) and (c)

In claims 1(b) and 1(c), Petitioner alleges that his trial counsel was ineffective
for promising the jury during opening statements that they would hear from
co-Defendant Cedrick Jenkins, but later failing to call Jenkins to testify. Petitioner
argues that Jenkins’ testimony would have exonerated him.
Petitioner and Jenkins were indicted together for Hill’s first degree murder.
Wilborn, 962 N.E.2d at 531. Petitioner moved to sever his jury trial from Jenkins’
17

jury trial, and that motion was granted. Id. In moving to sever, Petitioner argued
that Jenkins had made statements implicating Petitioner, and that, at trial, Jenkins
would be presenting a defense that conflicted with Petitioner’s defense. Id. at 544.
During opening statements, Petitioner’s attorney told the jury that “you’ll see
and hear from Jenkins.” 3

Id. at 531.

Counsel explained that the victim had

“problems” with Petitioner and Jenkins. Id. He told the jury they would hear that
the victim approached Petitioner and Jenkins on the day of the shooting, and accused
Jenkins of “being out and looking for him with a gun.” Id. The victim also told
Jenkins that “I’ll have this neighborhood flooded and you won’t get out.”

Id.

Defense counsel promised the jury that Jenkins would testify about what happened
inside the gangway.

Id.

He argued that this evidence would show that: (1)

Petitioner and Jenkins reasonably feared the victim; (2) the victim followed them
into the gangway; and, (3) Petitioner was reasonable in his actions in the gangway to
protect himself and Jenkins from the victim. [22-16], p. 326.
Despite defense counsel’s opening statement, neither Jenkins nor Petitioner
testified.

Wilborn, 962 N.E.2d at 535. Following the close of the state’s case,

defense counsel communicated to the trial court that he had concluded, based upon
an interview of Jenkins, that it was best to not call Jenkins as a witness. Id. The
trial court confirmed on the record with Petitioner that Petitioner had spoken to his

3

Defense counsel’s opening statement appears in the record at [22-16], pp. 323-26.

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attorney about this issue, and that Petitioner agreed that it was best to not call
Jenkins. 4 Id.
The defense’s case consisted of calling a Chicago police officer who responded
to the murder scene. Id. The officer explained that he went to the scene after being
flagged down by two men. Id. At the scene, he observed other men kneeling next to
the victim, and approximately 60 other people in the area near the victim. Id. He
asked several people, including Richards, to stay to speak to detectives.

Id.

Richards nevertheless left the area before the detectives arrived. Id.
Defense counsel pressed the theory that the victim was after Petitioner and
Jenkins because they were in a dispute over drug territory, and argued that the
victim had pursued them, not the other way around. Defense counsel claimed that
Petitioner was not guilty because “he tried to walk away.”

[22-16], p. 267.

Although neither Petitioner nor Jenkins testified, defense counsel was able to rely
upon testimony from the State’s witnesses to suggest that this was a dispute between
rival gang members, and that the victim pursued Petitioner and Jenkins into the
gangway. Id. at 254-55.
Additionally, defense counsel pursued alternative arguments suggesting that
the prosecution had presented insufficient evidence to support a guilty finding as to
Petitioner. Id. at 249. Counsel elicited testimony and evidence demonstrating that
Petitioner was not armed with a handgun when the police searched Woolard and
Daniels’ apartment, and that only one gun recovered in the search could be
4

The trial court’s colloquy with Petitioner appears in the record at [22-16], pp. 195-97.

19

conclusively linked to a shell casing recovered from the crime scene, and that gun
was found in Woolard’s bedroom. Id. Counsel relied upon the testimony of the
State’s witnesses to show that there was animosity between Petitioner and the
victim, and that the victim followed Petitioner into the gangway.

Id. at 251.

Defense counsel also pointed out that Richards was seen standing over the victim’s
body and then chose to flee the scene, instead of speaking to detectives as requested.
Id. at 260.
Petitioner submitted an affidavit from Jenkins in support of the ineffective
assistance of counsel arguments he raised in his post-conviction petition. Wilborn,
962 N.E.2d at 536. In that affidavit, Jenkins claimed that he had been willing to
testify at Petitioner’s trial that the victim followed him and Petitioner into the
gangway with his hands in his pockets and said, “G.K.D. yall some bitches.”
Jenkins claims he told the victim to “go about his business,” and then turned to catch
up with Petitioner. Id. The victim continued to pursue Petitioner and Jenkins
while “talking crazy with his hand in his pocket.” Id.
Jenkins explained that he turned around a second time, again telling the
victim “to go about his business.”

Id.

At that time, Jenkins believed that the

victim was about to pull out a gun. Id. Jenkins then drew a handgun and shot the
victim once. Id. Jenkins explained that Petitioner did not know he was armed and
fled when he heard the shot. Id. Jenkins stated he shot the victim two more times
before the gun jammed. Id. He then pulled out a second gun and shot the victim
20

four more times.

Id.

Jenkins said that he was arrested with one of the two

handguns used in the shooting and disposed of the second gun. Id. He also claims
he told the police that he alone shot the victim. Id.
The state appellate court on post-conviction review (the last court to consider
Petitioner’s claims on the merits) concluded that Petitioner could not demonstrate
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984). Id. at 542-47. The state court identified Strickland’s familiar two-prong
standard of deficient performance and prejudice. Id. at 542. Considering the first
prong, the court concluded that Petitioner could not demonstrate that counsel’s
performance fell below an objective standard of reasonableness.

Id.

The state

court concluded that it was proper for defense counsel to change strategy once he
determined that Jenkins was adversarial to Petitioner.

Id. at 544.

Counsel

discussed the issue with Petitioner and made a record of the issue in open court,
where Petitioner agreed with the decision.

Id.

The court further noted that

defense counsel provided a competent defense at trial. Id. at 544.
The Court cannot conclude that the state court ruling on these issues was
either contrary to, or an unreasonable application of, Strickland. Both Strickland
and the AEDPA are deferential standards, so the Court must apply a doubly
deferential standard when evaluating these issues.

Knowles v. Mirzayance, 556

U.S. 111, 123 (2009). Because the state court considered Strickland’s performance
prong and did not need to address the question of prejudice, the Court applies
21

AEDPA deference to the state court’s performance ruling and reviews the prejudice
prong de novo. Campbell v. Reardon, 780 F.3d 752, 769 (7th Cir. 2015).
Regarding the performance prong, the Court’s analysis is highly deferential
because there is presumption that the challenged action might be considered sound
trial strategy. Bell v. Cone, 535 U.S. 685, 698 (2002) (internal quotation marks and
citations omitted). Here, the state court concluded that counsel’s change of course
during trial was a matter of sound trial strategy. An attorney may reasonably
change a previously announced trial strategy when “unexpected developments”
require it. United States ex rel. Hampton v. Leibach, 347 F.3d 219, 257 (7th Cir.
2003).

When the failure to provide promised testimony cannot, however, be

“chalked up to unforeseen events, the attorney’s broken promise may be
unreasonable, for little is more damaging than to fail to produce important evidence
that had been promised in an opening.” Id. (internal quotation marks and citations
omitted).
Here, the record shows that Jenkins shifted his position regarding Petitioner
at various times during these proceedings. Petitioner sought to sever his trial from
Jenkins’ trial because Jenkins made statements to the police implicating Petitioner
and was expected to be a hostile witness if called by Petitioner to testify.
Additionally, it appears that, before trial, defense counsel spoke with Jenkins and
determined that Jenkins would testify that Petitioner was not involved with Hill’s
murder. Before counsel could present him, however, Jenkins reverted to his prior
22

story and was again expected to testify against Petitioner’s interest. Counsel raised
the issue with the trial judge, who then asked Petitioner about the issue on the
record:
THE COURT: Mr. Wilbourn, your attorney informed me that he
has your co-defendant, Mr. Cedric Jenkins, present. And he is
available. He has been interviewed. Based on that interview, your
attorney has decided that he thinks it is to your best interest not to call
this witness. He also explained to me he discussed that with you. Is
that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Do you agree with that?
THE DEFENDANT: Yes, sir.
THE COURT: Also, he’s informed me that you have decided that
you do not wish to testify in your own behalf. Is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Anyone threatened you or force you not to testify?
THE DEFENDANT: No, sir.
THE COURT: Anybody promise you anything to get you not to
testify?
THE DEFENDANT: No, sir.
well?

THE COURT: You have discussed this with your attorney as
THE DEFENDANT: Yes, sir.

THE COURT: Do you understand even though based on his
knowledge, expertise and experience he may make a recommendation to
you as to how he suggests you proceed, but the decision to testify or not
to testify is your decision and not his. Do you understand that?
23

THE DEFENDANT: Yes, sir.
[22-16], pp. 195-196.
Trial counsel cannot be faulted for the shifting nature of Jenkins’ position.
Counsel properly investigated the issue and made strategic choices based on the
information he gathered. Strickland, 466 U.S. at 690-91 (instructing that strategic
choices made after thorough investigation of the law and facts are virtually
unchallengeable).

It was Jenkins, not the defense attorney, who turned on

Petitioner. The record provides no evidence to suggest that defense counsel should
have anticipated Jenkins’ story change. Additionally, counsel pursued arguments
that were plausible without Jenkins’ testimony by asserting the same self-defense
theory and arguing that the state presented insufficient evidence to convict
Petitioner. The state court’s ruling that defense counsel did not provide deficient
performance is neither contrary to, nor an unreasonable application of, Strickland.
Nor can Petitioner demonstrate prejudice from counsel’s change in strategy or
his failure to call Jenkins as a witness. To demonstrate prejudice, Petitioner must
show that there was “‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’” Buck v. Davis, 137
S. Ct. 759, 776 (2017) (citing Strickland, 466 U.S. at 694). This Petitioner cannot do.
Several eyewitnesses placed Petitioner in the gangway with Jenkins and the victim
immediately before the shooting. Petitioner implicated himself to Daniels, and, at

24

the time of his arrest, he possessed the same type of ammunition that was found at
the crime scene.
Failing to undermine such compelling evidence, Jenkins’ contrary story in
support of Petitioner’s post-conviction petition suffers from a fatal lack of credibility.
Even though Jenkins now claims in his affidavit that he was the sole shooter, and
that Petitioner was merely an innocent bystander, the record shows that Jenkins’
version of events has turned and twisted, like leaves in an autumn wind, running the
gamut from one extreme (implicating Petitioner) to the other (now allegedly
exonerating him). Beyond such material inconsistencies, Jenkins’ most recent story
appears contrived to fit the forensic testing showing that the victim was shot with
bullets from two different guns. Only after such testing came to light, Jenkins
claims, conveniently, that he first shot the victim with one gun, and then used a
second gun when the first gun jammed. He further claims now that he got rid of one
gun, but was arrested with the second gun. That Jenkins would make the effort to
dispose of one murder weapon but hold on to the second used in the same offense
defies common sense. Far from demonstrating prejudice, Jenkins’ affidavit lacks
credibility and raises as many questions as it answers.
Moreover, the undisputed facts confirm that Petitioner and Jenkins were
fellow gang members in the midst of an ongoing fight with the victim’s gang over
drug territory. Consistent with the jury’s verdict convicting the Petitioner, a fair

25

reading of the record indicates that the murder Petitioner committed resulted from a
simple, but tragic, turf war over drug territory.
In short, Petitioner has failed to demonstrate constitutional error, and so the
state court ruling is neither contrary to, nor an unreasonable application of,
Stickland. Claims 1(b) and 1(c) are denied on the merits.
2.

Claim Four

Petitioner argues in claim four that the prosecutor made improper comments
in closing arguments by suggesting that Petitioner’s statement that he might “hit a
lick” demonstrated his intent to commit a robbery. A prosecutor’s comments violate
due process only if: (1) the comments are improper; and (2) the improper comments
violated the prisoner’s right to a fair trial in context of the record as a whole.
Darden v. Wainwright, 477 U.S. 168, 181 (1986); Ellison v. Acevedo, 593 F.3d 625,
635-36 (7th Cir. 2010). On direct appeal, the state appellate court rejected this
claim, explaining that the prosecutor’s argument was supported by Daniels’
testimony. [22-4]. True enough: Daniels testified that he took “hit a lick” to mean
that Petitioner might try to commit a robbery to get money quickly. Thus, the
comment was supported by the trial record.

[22-17], p. 11. As a result, the

challenged comment is not improper, see United States v. Tucker, 820 F.2d 234, 237
(7th Cir. 1987) (instructing that a prosecutor may make comments at closing
argument that are supported by the evidence at trial), and there is no constitutional
error. Claim four is denied on the merits.
26

3.

Claim Six

Claim six is premised upon Apprendi v. New Jersey, 530 U.S. 466 (2000).
Apprendi holds that any fact, other than the fact of a prior conviction, that must be
proved in order to increase the prisoner’s sentence above what would otherwise be
the statutory maximum, must be found by a jury beyond a reasonable doubt. 530
U.S. at 490. Petitioner claims that the trial court’s sentence violated Apprendi
because it included a 25-year enhancement for personally discharging the gun that
caused the victim’s death, even though the jury did not find beyond a reasonable
doubt that petitioner personally discharged the gun that caused Hill’s death.
As explained above, the trial court sentenced Petitioner to a term of
imprisonment of 55 years; that term included 30 years for the first degree murder,
plus the 25-year enhancement mentioned.

Yet, in total, Petitioner’s 55-year

sentence was less than the 60-year statutory maximum sentence he faced for his
murder conviction. See 730 ILCS 5/5-8-1(a)(1)(a) (establishing sentencing range for
murder without any sentencing enhancements at not less than 20 years and not more
than 60 years). As a result, there was no Apprendi violation. See, e.g., United
States v. Knox, 301 F.3d 616, 620 (7th Cir. 2002) (term of imprisonment that does not
exceed the statutory maximum prison sentenced does not violate Apprendi); United
States v. Martinez, 301 F.3d 860, 864 (7th Cir. 2002) (Apprendi does not apply where
sentence imposed by the court falls within the statutory range). Claim six is denied
on the merits.
27

4.

Claim Seven

Petitioner argues in claim seven that the trial court erred in allowing the
introduction of hearsay evidence. In this case, the challenge to the introduction of
hearsay raises a non-cognizable state law issue. Estell v. McGuire, 502 U.S. 62, 72
(1991). Accordingly, claim seven is denied.
IV.

Certificate of Appealabilty
The Court declines to issue a certificate of appealability under Rule 11 of the

Rules Governing Section 2254 Cases in the United States District Courts.
Petitioner cannot make a substantial showing of the denial of a constitutional right,
nor can he show that reasonable jurists would debate (much less disagree), with this
Court’s resolution of this case. Resendez v. Knight, 653 F.3d 445, 446-47 (7th Cir.
2011) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000); Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983)).
Petitioner is advised that this is a final decision ending his case in this Court.
If Petitioner wishes to appeal, he must file a notice of appeal with this Court within
thirty days of the entry of judgment. See Fed. R. App. P. 4(a)(1). Petitioner need
not bring a motion to reconsider this Court’s ruling to preserve his appellate rights,
but if he wishes to do so, he may file a motion under Federal Rule of Civil Procedure
59(e) or 60(b). Any Rule 59(e) motion must be filed within 28 days of the entry of
this judgment. See Fed. R. Civ. P. 59(e). The time to file a motion pursuant to Rule
59(e) cannot be extended. See Fed. R. Civ. P. 6(b)(2). A timely Rule 59(e) motion
28

suspends the deadline for filing an appeal until the Rule 59(e) motion is ruled upon.
See Fed. R. App. P. 4(a)(4)(A)(iv). Any Rule 60(b) motion must be filed within a
reasonable time and, if seeking relief under Rule 60(b)(1), (2), or (3), must be filed no
more than one year after entry of the judgment or order. See Fed. R. Civ. P. 60(c)(1).
The time to file a Rule 60(b) motion cannot be extended. See Fed. R. Civ. P. 6(b)(2).
A Rule 60(b) motion suspends the deadline for filing an appeal until the Rule 60(b)
motion is ruled upon, but only if the motion is filed within 28 days of the entry of
judgment. See Fed. R. App. P. 4(a)(4)(A)(vi).
V.

Conclusion
Petitioner’s habeas corpus petition [1] is denied on the merits. Any pending

motions are denied as moot.

The Court declines to issue a certificate of

appealability. The Clerk is instructed to enter a judgment in favor of Respondent
and against Petitioner. On the Court’s own motion, Respondent Randy Pfister is
terminated, and Michael Melvin, the current Warden of Pontiac Correctional Center,
is added as Respondent. The Clerk shall alter the case caption to Wilborn v. Melvin.
Civil case terminated.

Dated: August 2, 2017
ENTERED:
____________________________
John Robert Blakey
United States District Judge
29