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United States ex rel. Ojeda v. Harrington

United States District Court, N.D. Illinois, Eastern Division

June 9, 2014

RICHARD HARRINGTON, Warden, Menard Correctional Center, Respondent.



On February 17, 2005, Petitioner Ernesto Ojeda was convicted of first degree murder for shooting and killing Derrick Walton in 2000. Ojeda was sentenced to an aggregate term of sixty years. After unsuccessful appeals and post-conviction challenges to his conviction, Ojeda filed this petition for a writ of habeas corpus. His petition, as amended in January 2012, seeks relief on four grounds: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred when it excluded expert testimony about Petitioner's mental state at the time of the shooting; (3) on post-conviction review, appellate counsel was ineffective, and the appellate court denied his rights of access to the courts, due process, and equal protection; and (4) appellate counsel was ineffective on direct appeal. Respondent answered, arguing that the first three of these claims are not properly before the court, and that the state court reasonably applied the Strickland standard in dismissing Petitioner's claim of ineffective assistance of appellate counsel. For the reasons discussed below, Petitioner's habeas petition [20] is denied, and the court declines to issue a certificate of appealability.


On July 8, 2000, Ernesto Ojeda shot and killed Derrick Walton. Ojeda was tried in the Circuit Court of Cook County, and convicted of first degree murder on February 17, 2005. (Trial Tr., Feb. 17, 2005, Ex. E to Answer [17], hereinafter "Trial Tr. 3, " at 223:23-224:4; Order in People v. Ojeda, No. 1-05-1652, 371 Ill.App.3d 1205, 936 N.E.2d 1228 (tbl.) (1st Dist. 2007), Ex. B to Answer, hereinafter "App. Ct. Order, " at 1.) Judge Dennis Porter sentenced him to thirty-five years for first-degree murder, and to twenty-five years for personal discharge of a firearm causing Derrick Walton's death, resulting in a total sentence of sixty years. (Order of Commitment and Sentence to Illinois Dep't of Corrections, Ex. A to Answer, at 1.)

I. Trial

At trial, Petitioner admitted to the murder, but argued that at the time of the shooting he held the unreasonable belief that he needed to act in self-defense. As a result, the only issue at trial was whether Petitioner was guilty of first or second degree murder. (Trial Tr., Feb. 15, 2005, Ex. C to Answer, hereinafter "Trial Tr. 1, " at 4:13-18, 5:1-18; App. Ct. Order at 3.)

The prosecution presented the testimony of several eyewitnesses, including the victim's brother, Dwayne Walton; the victim's girlfriend, Yvette Smothers; and Drujuan Young. Dwayne Walton testified that on the evening of July 8, 2000, he was outside his home at 927 North Mozart Street with friends, including Derrick, eating pizza and drinking, when he saw Petitioner ride his bicycle north on the sidewalk past his home. (Trial Tr. 1 at 52:22-53:24; 56:2-5.) Dwayne Walton observed Ojeda turn around at the corner and ride his bicycle south on the sidewalk, again, past the Walton home. ( Id. at 58:2-21.) Ojeda turned around a second time, Dwayne Walton testified, and this time rode his bicycle north on Mozart Street, stopped, and approached the group of people outside the Walton residence to ask whether they were "GDs, " a reference to the Gangster Disciples street gang. ( Id. at 59:1-3, 59:17-60:7.) Dwayne Walton responded "we're not on that, " and Ojeda walked southwest across Mozart Street with his bicycle. ( Id. at 63:20-64:15.) At this time, Dwayne Walton testified, Dwayne's brother Derrick Walton was across the street in front of Derrick's girlfriend's house. ( Id. at 63:15-19.) As Ojeda walked his bicycle south down Mozart, Derrick Walton followed, walking behind Ojeda. ( Id. at 64:8-18; 65:1-12.) When Ojeda and Derrick were about two feet apart, Dwayne Walton saw Ojeda lay his bicycle down on the ground and turn around with a gun in his hand. According to Dwayne Walton, after seeing the gun, Derrick turned and tried to run northeast between two parked cars, but Ojeda fired the gun and Derrick fell to the ground. ( Id. at 66:18-67:20; 68:16-22; 69:3-70:13; 71:1-6; 76:4-10.) Then, Dwayne Walton testified, Ojeda walked from the sidewalk where he was standing on the west side of Mozart Street, to the curb between two parked cars and began to fire his gun at the group of people near the Walton residence. ( Id. at 71:10-72:6.) Dwayne Walton did not see a gun or other weapon in the possession of Derrick or anyone else, nor did he hear any conversation between Ojeda and Derrick or observe Derrick make any threatening gestures towards Ojeda. ( Id. at 74:18-76:3.)

Yvette Smothers, Derrick Walton's girlfriend, testified that on the evening of July 8, Derrick Walton had been at her house at 928 North Mozart Street, but had crossed the street to talk to the group outside his home at 927 North Mozart Street. Derrick was returning to her home when Ojeda rode past Derrick on his bicycle. (Trial Tr. 1 at 129:8-14, 129:24-130:11, 131:4-22.) After he passed Derrick, Smothers testified, Ojeda got off his bike and laid it on the ground. ( Id. at 131:18-22, 132:2-6.) Both Ojeda and Derrick were on the west side of Mozart Street, facing south, according to Smothers, when Ojeda, who was just a few steps in front of Derrick, reached for something and turned around. ( Id. at 131:23-132:1, 132:7-10, 133:4-9.) Smothers called out to Derrick, and Ojeda fired the gun. ( Id. at 133:4-13.) Smothers testified, as Dwayne Walton did, that Derrick tried to run, but slipped, and that after shooting Derrick, Ojeda began to fire northeast at the group of people across the street. ( Id. at 134:3-11, 135:5-136:5.) Smothers testified that Derrick was unarmed, and that she did not hear any conversation between Derrick and Ojeda before the shooting. ( Id. at 136:20-137:8.)

Drujuan Young provided testimony similar to that of Dwayne Walton and Yvette Smothers. Young added the information that "a minute or two minutes" before Ojeda first rode by the group outside the Walton residence on his bicycle, Young observed a dark-colored car slowly drive past the house, with Ojeda seated in the back. ( Id. at 100:23-103:24.) Like both Dwayne Walton and Smothers, Young testified that Derrick was unarmed. ( Id. at 111:7-16.)

The prosecutor called Cook County Deputy Medical Examiner, Dr. Aldo Fusaro, who testified that Derrick Walton was killed by "a complex single gunshot wound to the back of the right shoulder." (Trial Tr., Feb. 16, 2005, Ex. D to Answer, hereinafter "Trial Tr. 2, " at 4:16-18; 10:11-14.) Based on the wound's angulation, Dr. Fusaro concluded that Derrick Walton was likely bent over when he was shot. ( Id. at 21:15-22:12.) Chicago Police Department Forensic Investigator James Shader testified that in the early morning of July 9 he "recovered nine 9-millimeter cartridge cases that were on the street and on the parkway and on the sidewalk in front of 914 North Mozart." ( Id. at 59:12-18; 61:22-62:20; 65:4-12.)

The State also offered the testimony of Chicago Police Detective Michael Hammond, and Assistant State's Attorney Diedre Cato, each of whom took a statement from Ojeda when he was arrested on November 2, 2000. Detective Hammond testified that in his post-arrest statement, Ojeda "acknowledged that he shot the victim." (Trial Tr. 2 at 96:24-97:23, 100:13-17.) Ojeda told Detective Hammond that when Ojeda asked the group of people whether they were "GDs, " Derrick had responded "no, we're Vice Lords" and told Ojeda to "[g]et the fuck off our corner, bitch." ( Id. at 101:14-24.) Ojeda told Detective Hammond that he "exchang[ed] words" with Derrick, warned Derrick that he would be back, and began to walk across Mozart street with his bike. ( Id. at 101:24-102:1.) Ojeda told Detective Hammond that though he repeatedly warned Derrick not to follow him, Derrick persisted, and that is when Ojeda pulled out his gun and shot Derrick. ( Id. at 102:2-13.) Ojeda admitted to Detective Hammond that after shooting Derrick, he fired his gun at the group of people on Mozart Street until he ran out of bullets. ( Id. at 102:9-13.) Ojeda also gave a videotaped statement, which was shown to the jury. In that statement, which is consistent with the account repeated by Detective Hammond, Ojeda claimed that after Derrick told him to leave, he felt both "scared" and "mad" because the victim had "disrespected [him] in front of a lot of people outside." ( Id. at 131.) After Ojeda left the group of people, Ojeda recounted, Derrick followed him, telling him that "this ain't over" and challenging Ojeda to a fight "one on one." ( Id. at 132.) Though Derrick alone followed him, Ojeda said that he told Derrick he did not want to fight in the presence of others because "I can get all beat up by everybody, you know." ( Id. at 132-33.) Ojeda admitted that he saw nothing in Derrick's hands at the time, that Derrick tried to run away, and that he intentionally fired the gun at Derrick. ( Id. at 135-36.) He also admitted that after shooting Derrick he continued to fire the gun "[u]ntil the gun stopped. Until the gun had no more bullets." ( Id. at 137.)

Petitioner Ojeda took the stand at trial and gave testimony similar to the statements he made to Detective Hammond and Assistant State's Attorney Cato. Ojeda denied riding in a car past the Mozart residence earlier in the day (Trial Tr. 3 at 12:17-13:1), but admitted to approaching the group on his bicycle and asking whether they were "GDs." ( Id. at 15:6-14.) After Derrick told him to leave, Ojeda testified that he felt "[r]eal scared and nervous." ( Id. at 16:10-11.) When Derrick then followed him across Mozart Street and challenged Ojeda to fight "one on one, " Ojeda testified that he was afraid that Derrick and his friends would "jump[]" and kill him." ( Id. at 16:15-20, 16:24-17:20.) Ojeda repeated that he "felt real scared, " and that when he asked Derrick to stop following him, Derrick repeated that they should fight "one on one." ( Id. at 17:21-22, 18:5-10.) At this point, Ojeda testified, he pulled the gun out, turned around, aimed and fired at Derrick. ( Id. at 18:11-13, 19:6-8.) Ojeda admitted that, at the time he shot Derrick, Derrick tried to run away. ( Id. at 34:16-24.) He also acknowleged that he was a member of the "Dragons" gang at the time of the shooting. ( Id. at 14:22-15:5.)

When asked why he fired, Ojeda responded that "[a]t first, I tried to scare him away, but I noticed the gun had went off. It wasn't on safety." ( Id. at 19:9-11.) During his testimony, Ojeda stated that he had never fired a gun before, and repeated at least twice more that he did not think that the gun would fire because he thought the safety was on. ( See id. at 18:14-19:4; 26:15-23; 32:13-17.) He explained that he carried the gun with him because of the number of gangs in his neighborhood, and because, he testified, "I have a problem leaving my house.... Because I have a problem with anxiety and nervousness. The gun made me feel safe." ( Id. at 13:21-14:2; 14:12-17.) And, when asked what happened after he fired and why he fired the gun so many times, Ojeda testified repeatedly that "[i]t happened so fast." ( Id. at 19:21, 20:2.) He thought he had a panic attack, Ojeda testified, when he fired the gun. ( Id. at 20:6-9.) Ojeda admitted, however, that Derrick was unarmed, and that the biggest threat he faced was Derrick's invitation to finish the disagreement "one on one." ( Id. at 28:20-29:1.) Nor did he see anyone in the group of people on Mozart Street with a weapon. ( Id. at 23:16-24:13.)

Ojeda also offered the testimony of Dr. Diane Goldstein as an expert in psychology and neuropsychology. ( Id. at 91:20-23.) Dr. Goldstein testified that she performed psychological and neuropsychological (or cognitive) tests on Ojeda over the course of four half-day meetings, and reviewed Ojeda's school and psychiatric treatment records as well as records related to this case. ( Id. at 92:21-93:21; 94:1-15.) Based on this data, Dr. Goldstein concluded that Ojeda suffered from generalized anxiety disorder and social phobia as well as substance abuse problems. ( Id. at 107:5-23.) Dr. Goldstein explained that generalized anxiety disorder is characterized by "excessive chronic worry, " and that social phobia is more specific, and "ha[s] to do with persistent fears in a social performance situation, or in a social interaction situation." ( Id. at 108:1-6; 110:10-17.) People with social phobia, Dr. Goldstein continued, also suffer from "very poor social skills." ( Id. at 111:10-16.) Dr. Goldstein explained that a person with such an anxiety disorder would misperceive a threat, because "[b]y definition, people who have anxiety disorders see a bear there when there isn't one. They... either create a threat where there is none or misperceive the amount of threat. So... it's always a flight or fight response when there need not be." ( Id. at 112:1-6; 113:17-23.) Based on her review of Ojeda's records, Dr. Goldstein testified that Ojeda likely suffered from anxiety disorders before July 2000. ( Id. at 113:24-114:8.) Ojeda's attorney sought to introduce Dr. Goldstein's opinion concerning Ojeda's state of mind at the time of the shooting, as well. Citing Illinois case law, [1] however, the trial court excluded that testimony. (Trial Tr. 1 at 3:12-5:4; App. Ct. Order at 2-3.) The jury found Ojeda guilty of first degree murder. (Trial Tr. 3 at 223:23-224:4.)

II. Direct Appeal

On direct appeal, represented by Kerry Goettsch from the Office of the State Appellate Defender, Petitioner raised three issues: (1) the state failed to rebut evidence that Petitioner acted in self-defense, and therefore, did not prove him guilty of first degree murder beyond a reasonable doubt; (2) the trial court erred when it excluded Dr. Goldstein's testimony concerning Petitioner's mental state at the time of the shooting; and (3) the sentence imposed was excessive. (Br. & Argument for the Def.-Appellant in People v. Ojeda, No. 1-05-1652, Ex. F to Answer, hereinafter "Pet'r's App. Br., " at i-ii, 1.) The Illinois Appellate Court affirmed Petitioner's conviction and sentence on March 29, 2007. (App. Ct. Order at 2.)

First, the court reasoned that reversal of a conviction was appropriate only where evidence was "so improbable or unsatisfactory that there is reasonable doubt as to the defendant's guilt." (App. Ct. Order at 11) (citing People v. Williams, 193 Ill.2d 306, 338, 739 N.E.2d 455, 472 (2000).) To prove that the defendant was "justified" in the use of force for self-defense, the court observed, the defendant must provide "some evidence" of each of the following six elements: "(1) force was threatened against defendant; (2) defendant was not the aggressor; (3) the danger of harm was imminent; (4) the threatened force was unlawful; (5) defendant actually and subjectively believed a danger existed that required the use of force applied; and (6) defendant's beliefs were reasonable." ( Id. at 12) (citing People v. Morgan, 187 Ill.2d 500, 533, 719 N.E.2d 681, 700 (1999).) Only after the defendant provides evidence of each of the six elements does the burden of proof shift to the State to prove that the defendant did not act in self-defense. ( Id. ) But, citing People v. Jeffries, 164 Ill.2d 104, 128, 646 N.E.2d 587, 598 (1995), the Illinois Appellate Court reasoned that the State could defeat a self-defense claim by negating any one of the six factors. ( Id. )

The Appellate Court found "no evidence" to support Petitioner's argument "that he subjectively believed that he was acting in self-defense." (App. Ct. Order at 13.) As to the first element-a threat of force against Petitioner-Petitioner testified that the biggest threat was Derrick's statement to him that they should finish their disagreement "one on one." ( Id. ) Petitioner's post-arrest statements and his testimony confirmed that he understood Derrick to be challenging him to a fist fight, and that he knew that Derrick was unarmed. ( Id. ) Nor did Petitioner offer evidence that he was not the aggressor; rather, the court found it "significant[]" that "all of the eyewitnesses, including [Petitioner], testified that Derrick turned and attempted to run away from [Petitioner] when [Petitioner] shot him in the back." ( Id. ) The court noted, further, that Petitioner admittedly "continued shooting until his gun was empty, firing several shots at the crowd across the street." ( Id. at 14.) Additionally, while Petitioner testified that he was afraid of the group of people across the street, he acknowledged that the group was not near him when he shot Derrick. ( Id. at 13.)

Far from supporting Petitioner's claim of self-defense, the court concluded the evidence established the opposite-"that [Petitioner] was the aggressor, that Derrick never threatened [Petitioner], and that Derrick retreated and did not have a weapon so there was no danger of immediate harm to the defendant." (App. Ct. Order at 14.) Finally, the court observed that Petitioner's testimony that he drew the gun only to "scare" Derrick, and thought that the safety was on when he pulled the trigger, further undermines a claim of self-defense as it "implies that the shooting was an accident, not that [Petitioner] acted in self-defense." ( Id. )

The court also rejected Petitioner's challenge to the trial court's refusal to permit Dr. Goldstein to testify about Petitioner's state of mind at the time of the shooting. The court reasoned that admission of testimony is within the discretion of the trial court, and the trial court's decision is reversible only where the error was material to the trial or prejudicial to the defendant. (App. Ct. Order at 14-15.) As a defendant's state of mind at the time of the offense is a question of fact for the jury, a court may permit an expert to testify about this issue only where it may assist the jury. ( Id. at 15.) In this case, the court concluded, the jury was capable of determining whether Petitioner believed that he needed to act in self-defense-Petitioner and all three eyewitnesses testified about Petitioner's conduct and the circumstances surrounding the shooting, "[Petitioner's] testimony did not vary substantially from that of the State's eyewitnesses, " and Petitioner testified specifically about his state of mind at the time of the shooting. It was not an abuse of discretion, the court concluded, to exclude Dr. Goldstein's testimony on this issue. ( Id. )

Finally, the court affirmed Petitioner's sentence, rejecting Petitioner's argument that the trial court improperly focused only on retribution and did not consider the relevant mitigating factors. (App. Ct. Order at 15-17.) The court noted that the "most important factor" at sentencing is the "seriousness of the offense"-in this case, the fact that the "defendant pulled a gun on an unarmed person and just shot him down, which is a matter of significant concern to the Court." ( Id. at 16-17) (quoting sentencing court.) The record showed that the sentencing court did consider the mitigating evidence presented but concluded that the seriousness of the offense warranted a stiff sentence. ( Id. ) The Appellate Court found no abuse of discretion in Petitioner's sentence of thirty-five years for murder (where the statutory range was 20 to 60 years) and twenty-five years for personal discharge of a firearm causing the death of another (the bottom of the range of 25 years to natural life). ( Id. )

Petitioner appealed to the Illinois Supreme Court pro se, raising the same three issues. (Pet. for Leave to Appeal in People v. Ojeda, No. 11888, Ex. I to Answer, hereinafter "Pet'r's PLA.") The Illinois Supreme Court denied leave to appeal on November 29, 2007.[2] People v. Ojeda, 226 Ill.2d 601, 879 N.E.2d 936 (tbl.) (2007). Petitioner then filed a petition for certiorari, which was denied by the ...

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