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United States ex rel Marshall v. Chandler

January 13, 2010

UNITED STATES OF AMERICA EX REL. JERRY MARSHALL, PETITIONER,
v.
NEDRA CHANDLER, RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

In 1996, Petitioner Jerry Marshall was convicted by a Cook County jury of first-degree murder. He was sentenced to a term of 40 years imprisonment. Marshall has now filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons set forth herein, Marshall's petition for habeas corpus relief [11] is denied.

BACKGROUND

I. Petitioner's Trial and Sentencing

When a Petitioner fails to present clear and convincing evidence challenging the statement of facts set forth by a state court on appeal, a federal court presumes those facts to be correct for the purpose of its habeas review. 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Here, Petitioner does not dispute the key facts. Accordingly, the court adopts the factual account of the crime set forth by the Illinois Appellate Court on direct appeal. People v. Marshall, No. 1-97-0345 (1st Dist. Ill. App. 1998)(Order, Ex. C to Resp.'s Ans.) The court also adopts the factual findings made by the Appellate Court on post-conviction review following an evidentiary hearing in this case. People v. Marshall, No. 1-05-0730 (1st Dist. Ill. App. 2007)(Rule 23 Order, Ex. K to Resp.'s Ans.)

Petitioner, who was 16 years old at the time of the incident, admits that he killed 18-year-old Carlos Chambers by shooting Chambers twice-once through the back of the head and once through the left cheek-on the afternoon of November 28, 1995. (Order, Ex. C to Resp.'s Ans. at 1.) In November 1995, both boys were students at Jones Commercial High School, located near the intersection of Harrison and State Streets in Chicago, Illinois.*fn1 On November 22, Petitioner and Chambers, who were affiliated with rival street gangs, became involved in a gang-related fist fight outside of the school. (Id. at 1, 2; Trial Tr. D 132-33, D 173:16-20.) In the days following the scuffle, in which both Petitioner and Chambers were bloodied, the two had several angry verbal exchanges in and around the school. Petitioner purchased a .25 caliber handgun from an associate on November 27. (Trial Tr. E 55-57.) After school on November 28, Chambers was walking with a group of other students near the intersection of State and Jackson Streets when Petitioner ran up, grabbed Chambers from behind, and shot him in the back of the head. (Ex. C to Resp.'s Ans. at 2.)

Judge Themis Karnezis of the Circuit Court of Cook County presided over Petitioner's jury trial. The prosecution called Ebony Battles, a Jones student who witnessed the shooting, as a witness. (Trial Tr. D 126.) Battles testified that Petitioner was lying in wait for Chambers moments before the shooting. From Battles's position across Jackson Street to the south of Chambers, she viewed Petitioner peeking around the corner of a building at Chambers before ultimately pursuing and shooting him. (Id. at 140-41.) Knowing the bad blood between the boys, Battles called out to Chambers to warn him of Petitioner's presence. (Id. at D 141.) Chambers's back remained turned, however, as Petitioner ran up from behind and fired on Chambers. (Id. at D 142:2-5.) The state also called Crystal Williams and Cornelius Patton, eyewitnesses to the shooting, whose testimony substantially corroborated Battles. The witnesses did not see a weapon in Chambers's possession.

Chambers's cousin and fellow gang member, Germane Sykes, also took the stand, and testified that on the day before the shooting, Petitioner had warned that he was planning to "shoot on State Street." (Id. at D 175:17-24.) Clayton Wade, a friend and fellow gang member of Chambers, similarly testified that on the morning of the shooting, Petitioner had told him, "After school your boy is going to be chasing me, I am going to have someone come up behind him and blast him." (Id. at D 206:4-7.)

Sykes stated that on the day of the murder, he, Chambers, and some other students followed Petitioner into a subway station near the school and confronted him. (Id. at D 180-81; Ex. C to Resp.'s Ans. at 2). Sykes acknowledged that Petitioner was accompanied only by his girlfriend, Kimberly Kidd, and by another girl, Rashidah Fahim. (Trial Tr. D 180-81.) Chambers and Petitioner again argued, and, according to Sykes, Chambers withdrew a small knife from his pocket and held it in his hand. (Id. at D 182-83.) Patrolling police officers soon arrived to break up the argument and dispersed the crowd of students. Chambers and Sykes exited the station from one stairway, and Petitioner and Fahim exited from another. (Id. at D 183-84.)

Petitioner testified in his own defense at trial. According to Petitioner, Chambers had been consistently harassing and threatening him since their fist fight on November 22. Petitioner claimed that he had approached Chambers in an attempt to quash the animosity between them, but that Chambers rejected the overture and told Petitioner that the matter was not settled. (Id. at E 33-34.) Petitioner admitted that, anticipating an escalation, he purchased a handgun on November 27 and brought it to school with him the following day. (Id. at E 55:3-21.) According to Petitioner, he unsuccessfully attempted to call his mother in an effort to leave school early that day to avoid any trouble with Chambers. (Id. at E 36:4-12.) When he could not reach his mother, however, Petitioner waited until the end of the school day and hurried to the nearest subway station with Kimberly Kidd and Rashidah Fahim. (Id. at E 39-40.) According to Petitioner, Chambers and Sykes chased him into the subway. After entering the subway, Sykes called Petitioner a "coward ass pussy" and then, according to Petitioner, Chambers pulled a silver handgun partially out of his pocket and flashed it at Petitioner. (Id. at E 42-44.) Petitioner testified that he was scared and, when police officers arrived to disperse the crowd in the subway station, he fled with Fahim up the stairway and out of the station. (Id. at E 45-46.)

Donald Giddens, another student, testified that Chambers also exited the subway and walked north on State Street away from the scene. (Id. at E 97-101.) Petitioner claims, however, that he and Fahim fled to a nearby Burger King restaurant to escape from Chambers, but Chambers and his fellow gang members followed him to the Burger King and waited outside the restaurant smoking cigarettes. (Id. at E 47:5-17.) Petitioner testified that after a short time, he and Fahim exited the restaurant through an emergency door in the rear to evade Chambers, and then split up. (Id. at E 47-48.) Petitioner testified that he was headed toward a different subway station and had stopped at a newspaper stand at the corner of Jackson and State, when he next saw Chambers, crossing the street with some female friends. (Id. at E 80-82.) Chambers walked right past Petitioner, neither noticing nor acknowledging him. (Id. at E 5-19.) Petitioner testified that he was startled when he heard someone shouting to Chambers, so he drew his gun and ran up behind Chambers, firing into the back of Chambers's head. (Id. at E 82:2-21.)

Petitioner admits that Chambers's back was turned and that Chambers was not threatening him at the time of the shooting. Petitioner's testimony also shows that, while Petitioner was afraid of Chambers, he did not apprehend an imminent risk of harm at the time of the shooting:

Q: Jerry, why did you shoot Carlos Chambers?

A: Because I thought he was going to try ...


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