United States District Court, N.D. Illinois, Eastern Division
UNITED STATES OF AMERICA ex rel. MARVIN GREER, Petitioner,
KEVIN L. WINTERS, Respondent.
The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Following a bench trial in the Circuit Court of Cook County,
Marvin Greer was found guilty of first degree murder, possession
of a stolen motor vehicle, burglary, and escape. He was sentenced
to 25 years imprisonment for murder and to concurrent terms of
seven years on each of the other charges. This matter is before
the Court on Greer's petition for a writ of habeas corpus under
28 U.S.C. § 2254. For the reasons set forth below, the Court
denies Greer's petition.
The Court takes the following account from the decision of the
Illinois Appellate Court People v. Greer, No. 1-99-2505 (Ill.
App. Dec. 4, 2000). The Court presumes the facts set forth by the
Appellate Court to be correct for purposes of habeas corpus
review. Sumner v. Mata, 449 U.S. 539, 547 (1981);
28 U.S.C. § 2254(e)(1).
On December 23, 1996, Arthur Frierson was killed when Greer,
who was driving a stolen pickup truck and being pursued by
police, hit Frierson's car at the intersection of Hamlin and
Madison on the west side of Chicago. Greer was charged with first
degree murder, two counts of felony murder, aggravated possession of a stolen motor vehicle,
possession of a stolen motor vehicle, burglary, aggravated
fleeing or attempt to elude a police officer, and escape.
At trial, the state introduced evidence showing that shortly
after 1 a.m. on the date in question, Chicago Police officers
Jeffrey Pawlak and William Bartkowicz were on routine patrol,
driving a marked vehicle westbound in the 3800 to 3900 block of
West Washington Street, where they saw Greer driving a pickup
truck headed eastbound directly toward them, even though they
were in the westbound lanes. The officers swerved to avoid being
hit by Greer, and as Greer passed them, Officer Pawlak saw the
brake lights go on. Then, as Pawlak made a u-turn to pull Greer
over, the brake lights went off and Greer accelerated. The
officers activated the rotating blue lights and flashing
headlights on their vehicle and pursued Greer.
Greer drove through a red light at the intersection of Hamlin
and Washington, turning southbound on Hamlin. The officers sped
up, and when they reached the same intersection, they saw Greer
go through the red light at Madison and hit a small car, driven
by Frierson, that was already in the intersection. Greer made no
attempt to slow down, stop, or avoid the car, and Pawlak never
saw the brake lights of the truck go on again. Greer's vehicle
continued forward after the crash. Greer rolled out of the
passenger side door and ran westbound near Monroe. Pawlak and his
partner chased Greer to a vacant lot and surrounded him. Greer
ignored their order to get down on the ground, and a struggle
ensued. The officers managed to place one handcuff on Greer
before he upended Pawlak and ran away. The officers radioed for
help and began a yard-to-yard search for Greer, but they were
unable to find him.
The officers returned to the scene of the crash, where they
observed that the opera window behind the driver's side of the
truck Greer was driving had been broken out and taped. The steering column had also been broken, and the driver's side
door lock had been removed. The officers also noticed that the
driver's side door of Frierson's car had been completely smashed
in. The driver's side seat was also completely broken, and
Frierson was still inside.
Chicago police officer Dimitrios Lamperis testified that around
3:20 a.m., he responded to a dispatch reporting a suspicious
person on the roof of a building at 3841 West Monroe Street; he
requested that the fire department offer assistance. Lamperis
used the fire department's ladder to climb to the roof of the
building, where he observed that the handle on the roof hatch had
been broken, and the hatch had been completely removed. Through
the opening, he saw Greer with a handcuff on his left wrist. When
Lamperis and his partner went through the opening, Greer ran
downstairs. After a floor-to-floor search of the building, the
officers found Greer in the basement. Greer resisted the
officers' attempts to restrain him. With the help of several
officers, Lamperis subdued Greer and put him in a squad car.
Pawlak and his partner identified Greer as the person who had
fled the crash scene earlier that morning. Lamperis testified
that the owner of the building did not give Greer permission to
Pawlak testified that he completed a case report and an alcohol
incident report. He observed that Greer was frightened, unable to
turn around, and had bloodshot eyes. Greer admitted to Pawlak
that he had been using cocaine continuously for four days prior
to the car crash. Pawlak acknowledged that he had issued Greer a
number of traffic citations as a result of the incident, but that
none of them were for fleeing or eluding police.
Chicago Police Detective Dennis Walsh, who investigated the
crash, testified that he saw no skid marks at or near the
intersection where the crash occurred. He also testified to his
familiarity with the area and estimated that it would have taken
Greer approximately 15 to 20 seconds to drive down Hamlin from Washington to Madison if he
were traveling at the posted speed limit of 30 miles per hour.
The parties stipulated to the report of the Cook County medical
examiner which concluded that Frierson's death was caused by
multiple injuries resulting from the crash.
The trial court granted Greer's motion for a directed finding
of not guilty as to count two, felony murder based on burglary,
and count seven, aggravated fleeing or attempting to elude a
police officer. At the conclusion of argument, the trial court
reviewed the evidence and found Greer guilty of first degree
murder, possession of a stolen motor vehicle, burglary, and
escape. The trial court determined that the prosecution had not
proven Greer guilty of the second count of felony murder based on
aggravated possession of a stolen motor vehicle or the count
alleging that underlying aggravated possession offense.
On direct appeal, Greer argued only the sufficiency of the
evidence to sustain his conviction of first degree murder. He
argued that there was insufficient proof that he was fleeing from
the police and thus he should have been convicted only of the
lesser offense of vehicular homicide.
1. Ineffective assistance of counsel
Greer argues that his trial and appellate counsel rendered
constitutionally ineffective assistance in several respects. He
claims that he was denied effective assistance of counsel at the
trial level, when his lawyer failed to raise an intoxication
defense. He also claims that his appellate counsel was
ineffective for failing to attack the trial counsel's failure to
pursue that defense. Greer further contends that he was denied
effective assistance of appellate counsel when his lawyer failed to raise the issue of the
disproportionality of his sentence when compared to the sentences
of similarly situated defendants, as well as the issue of whether
the offense of aggravated possession of a stolen vehicle can
serve as the predicate felony for purposes of the Illinois felony
Respondent argues that Greer has procedurally defaulted any
ineffective assistance claims. The Court agrees. Respondent
appears to concede that Greer raised these issues at the trial
and appellate levels and on collateral attack of his conviction.
But it is undisputed that Greer failed to raise these claims in
his petition for leave to appeal to the Illinois Supreme Court.
This is a procedural default barring review of these claims in
federal court absent a showing of cause and prejudice. See White
v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999) (failure to
pursue discretionary appeal to highest court of the state
constitutes procedural default). Greer has not shown cause for
the default, and thus this Court is barred from reviewing Greer's
ineffective assistance claims on the merits.
2. Whether aggravated possession of a stolen vehicle can be
the predicate felony for purposes of the felony murder doctrine
Greer next argues that the trial court erroneously convicted
him of first degree murder under the felony murder doctrine,
because aggravated possession of a stolen vehicle is not a
"forcible felony" as enumerated under 720 ILCS 5/2-8 and
therefore cannot serve as the predicate felony for a charge of
felony murder. In support of this claim, Greer cites People v.
Belk, 203 Ill.2d 187, 784 N.E.2d 825 (2003), in which, several
years after Greer's conviction, the Illinois Supreme Court held
that this particular offense cannot support a felony murder
conviction. Belk, however, has nothing to do with Greer's case,
as he was not convicted of felony murder based on some underlying offense, but rather was
convicted of first degree murder via evidence that he had
performed acts the high speed chase knowing there was a
strong possibility death or great bodily harm could result. Thus,
Greer's claim is a non-starter. In any event, as Greer has framed
this claim, it is an issue of state law and is therefore
noncognizable on federal habeas review. See Bobo v. Kolb,
969 F.2d 391, 399 (7th Cir. 1992).
3. Claim that trial court erroneously dismissed his
In his third claim, Greer asserts that the trial court erred in
dismissing his post-conviction petition at its initial stage when
it failed to accept the facts contained in the petition and the
accompanying affidavits and medical records as true. This claim
is not cognizable on habeas review. Greer has no federal
constitutional right to post-conviction relief, Pennsylvania v.
Finley, 481 U.S. 551, 557 (1987), so alleging procedural errors
in state post-conviction proceedings fails to present a claim for
which Greer is entitled to relief in this Court. See also
Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir.), cert.
denied, 522 U.S. 955 (1997).
4. Sufficiency of the evidence
Respondent concedes that Greer has properly preserved for
federal review his contention that the prosecution did not
present sufficient evidence at trial that Greer was fleeing from
the police when he crashed into the victim. Relief is available
on this claim only if the Illinois courts' adjudication of it
"resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law as
determined by the United States Supreme Court."
28 U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362 (2000), the
Supreme Court held that a state court decision is contrary to the
Court's precedent if it "applies a rule that contradicts the
governing law set forth in our cases," id. at 405, or if it
"confronts a set of facts that are materially indistinguishable from a decision of
this Court and nevertheless arrives at a result different from
our precedent." Id. at 406. A state court unreasonably applies
clearly established law if the state court "correctly identifies
the governing legal rule but applies it unreasonably to the facts
of a particular prisoner's case." Id. at 406-08.
Unreasonableness is determined by an objective standard. Id. at
Greer argues that the prosecution's failure to prove that he
was fleeing police at the time of the crash amounted to an
absence of proof that he possessed the requisite mental state for
murder. The constitutional standard for sufficiency of the
evidence is whether "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). In reviewing
Greer's conviction, the appellate court noted that the requisite
mental state for first degree murder could be inferred from the
evidence, and all that the prosecution had to show was that Greer
voluntarily and willfully committed an act the natural tendency
of which was to end another person's life. App. Op. at 6,
citing 720 ILCS 5/9(a)(2). The appellate court applied the
proper legal standard to Greer's claim. The court further noted
that knowledge that the manner in which he operated the stolen
vehicle created a strong probability of death was sufficient to
support Greer's conviction for first degree murder. Id. at 7-8.
Greer argues that he was under the severe influence of
narcotics and therefore unable to form the requisite mental state
for murder. The appellate court noted that under Illinois law,
for Greer's voluntary intoxication to constitute a defense to his
murder charge, it must have been so extreme that it suspended the
power of reason or rendered him incapable of forming the
requisite intent to commit the offense. App. Op at. 8, citing
720 ILCS 5/6-3(a); People v. Mocaby, 194 Ill. App. 3d 441, 448 (1990); People v. Martin,
233 Ill. App. 3d 466, 468 (1992). After reviewing the evidence,
the court found that in Greer's case, the evidence as a whole
demonstrated that he acted with purpose and rationality. Id. The
court cited Greer's purposeful activity to avoid capture, including
his avoidance of the police while driving the stolen vehicle, and his
dexterity in getting out of the truck after the crash, escaping
the police while partially handcuffed, and fleeing to the roof of
a building. Id. at 9. The court also found compelling the fact
that Greer had the presence of mind to clothe himself with a
shirt taken from the residence he illegally entered. Id. In
assessing the sufficiency of the evidence, the appellate court
used the proper standard, id. at 5-6, and it applied that
standard reasonably. Although Greer may have been under the
influence of narcotics, we cannot say that no reasonable juror
could have found that his actions were voluntary and willful.
The appellate court also rejected Greer's contention that the
prosecution failed to prove beyond a reasonable doubt that he was
fleeing from police during the short drive police observed prior
to the crash. The court said that it could infer from the
evidence that Greer was indeed attempting to flee just prior to
the crash. App. Op. at 10. In disposing of this claim, the court
addressed Greer's contentions, namely, that the officers failed
to issue him a ticket for fleeing and eluding, and that the trial
court found that he was not proved guilty of the charge of
aggravated fleeing. Id. at 9-10. Greer, however, does not
advance these same arguments in his habeas petition. Thus, the
Court need only address Greer's contention that the evidence
demonstrates that he did not know police were pursuing him and
that his erratic driving was a result of his narcotics
intoxication, not an attempt to elude police. Greer presented
these arguments to the state courts. Those courts analyzed the
facts and applied the proper legal standard, that is, whether a rational trier of fact could
reasonably conclude that he was fleeing. On habeas review, we are
required to give deference to the trier of fact, and are not
permitted to substitute our judgment or reweigh the evidence.
Ford v. Ahitow, 104 F.3d 926, 935 (7th Cir. 1997). The
evidence, viewed in the light most favorable to the prosecution,
supported the trial and appellate courts' findings, and thus
Greer is not entitled to federal habeas corpus relief.
For the reasons stated above, the Court denies Greer's petition
for habeas relief. Greer's motion for reconsideration of the
denial of appointment of counsel [docket # 14] is denied. The
Clerk is directed to enter judgment in favor of respondent.
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