United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, United States District Judge
Eugene Riley is a prisoner in the custody of Respondent
Jacqueline Lashbrook, warden of Menard Correctional Center.
Petitioner was convicted of first-degree felony murder in
Illinois state court on May 9, 2011. Having exhausted his
remedies in state court, Petitioner filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. He
contends that the trial court failed to instruct the jury
about all the elements of his claim and that he was therefore
denied his Sixth Amendment right to have a jury determine his
guilt beyond a reasonable doubt. He also contends that his
counsel's failure to request the proper jury instructions
deprived Petitioner of his Sixth Amendment right to the
effective assistance of counsel. Respondent argues that
Petitioner has procedurally defaulted on his claim that the
state trial court's jury instructions were inadequate. In
the alternative, Respondent contends that the claim is not
cognizable in federal court. Respondent also argues that
Petitioner's claim of ineffective assistance of counsel
is meritless. For the reasons stated below, the court
concludes that neither of Petitioner's claims has merit
and therefore denies the petition.
court takes the following facts from the Illinois Appellate
Court's decision affirming Petitioner's conviction.
See People v. Riley, 2013 IL App (1st) 112464-U (1st
Dist. 2013). On the afternoon of September 24, 2009, a
fight broke out among high school students near a community
center in the Roseland neighborhood in Chicago. Id.
at ¶ 3. One of the students, Derrion Albert, died as a
result of injuries he suffered during the fight. Id.
at ¶ 4. Three men were charged in connection with the
homicide: Petitioner, Eric Carson, and Silvonus Shannon.
Id. at ¶ 4. Though Petitioner was initially
charged with counts of first-degree murder and mob action,
the State dropped those counts before trial, leaving only one
count for felony murder, predicated on the crime of mob
evidence at trial included the eyewitness testimony of
T-Awannda Piper, an employee of the community center, who
said she witnessed the fight from roughly twelve feet away
through a window of the community center. Id. at
¶ 6. Piper said she saw the victim fall to his knees
after a young man hit him over the head with a board.
Id. at ¶ 5. When the victim tried to get up,
Piper testified, another young man punched the victim in the
face, and a third young man began to kick the victim.
Id. Piper went outside to try and break up the fight
and eventually dragged the victim, who still had a pulse,
into the community center before an ambulance arrived and
took him away. Id. at ¶ 6. The victim died of
his injuries before detectives working on the case arrived at
the hospital. Id. at ¶ 8.
State also presented video footage of the beating at trial. The
footage showed Petitioner hitting an unidentified young man
wearing a white shirt several times. Id. at ¶
11. It also showed an unidentified man using a board to hit
both Petitioner and the victim, both of whom were wearing
black shirts. Id. The video continued, showing a
young man swinging a board at Petitioner's brother and
then throwing the board at another man wearing a white shirt.
Id. at ¶ 12. After the time when the board was
swung at his brother, Petitioner can be seen on the video
picking up the board and running after people. Id.
Two other young men are shown kicking the victim, who had
fallen to the ground after being hit in the head.
Id. at ¶ 13. After Petitioner's brother
walks away from the scene, the video shows, Petitioner runs
toward the victim, by now lying on the ground, and hits him
over the head with a board. Id. Other young men
continued to kick the victim while Petitioner struck the
victim with the board again. Id.
the students present during this episode testified at trial,
identifying the actors in a slowed-down version of the video.
He testified that Eric Carson was the young man who hit the
victim with a board, causing him to fall down; Deonte Johnson
was the person who punched the victim when he tried to get
back up; Silvonus Shannon was the young man who kicked the
victim; and Petitioner was the person who hit the victim over
the head with a board while he was on the ground.
Id. ¶ 16. The medical examiner who performed
the autopsy on the victim testified that she believed the
victim died of cerebral injuries "caused by blunt head
trauma as a result of assault." Id. ¶ 20.
During cross-examination, the medical examiner testified that
it was possible the initial blows to the victim's head
would have killed him independently of any other injury.
Id. ¶ 21.
jury also viewed a videotape of an interview police conducted
with Petitioner three days after the fight. During the
interview, Petitioner recounted that he and his brother went
to pick up their cousin Silvonus from school on the day of
the fight. Id. ¶ 9. He told the police there
had been "talk" that Silvonus was going to be
"jumped" after school, and after Petitioner and his
brother picked Silvonus up, they saw "some dudes"
make gestures at their car. Id. When the young men
approached Petitioner's brother and Silvonus, who had
exited the car, Petitioner explained that he got out of the
car and "ran towards them and we just started fighting,
whatever." Id. Though Petitioner initially
denied hitting anyone, police confronted him with the video
footage of the beating, which appeared to show Petitioner
striking the victim with a board. Id. at ¶ 10.
Petitioner explained that he was not trying to hit the victim
and was just trying to defend himself and his brother.
also testified at trial. He admitted that he when he got out
of his car, he started swinging at a young man who had pinned
his brother to the ground. Id. ¶ 27. He also
admitted that after someone hit him with a stick and threw
the stick at his brother, Petitioner hit the victim.
Id. Petitioner explained that he did so because he
was afraid and did not know what was going on. Id.
Petitioner also acknowledged that while the victim was
unarmed on the ground with his arms up, Silvonus kicked him,
and Petitioner struck the victim over the head twice with a
board. Id. ¶ 28.
close of evidence, the trial court denied defense
counsel's request to instruct the jury on counts of
involuntary manslaughter and second-degree murder.
Petitioner's counsel also requested instructions for mob
action and aggravated battery as lesser included offenses,
but the trial court denied that request as well. The jury
found Petitioner guilty of felony murder, and on July 19,
2011, the trial court sentenced him to a 32-year term of
imprisonment. Petitioner filed a timely appeal in state
court, arguing that his conviction should be reversed because
(1) mob action, the predicate felony for his felony murder
conviction, was inherent in the murder and thus could not be
a predicate act to support a felony murder charge; (2) the
trial court failed to instruct the jury that the predicate
act in a felony murder charge must have a felonious purpose
independent of the murder; (3) defense counsel's failure
to request an instruction regarding independent felonious
purpose constituted ineffective assistance of counsel; and
(4) the trial court failed to ask potential jurors whether
they understood and accepted all four Zehr
principles as required by Illinois Supreme Court Rule
Decision of the Illinois Appellate Court
state appellate court rejected Petitioner's arguments and
upheld his conviction. The court acknowledged that under
Illinois law, "where the acts constituting forcible
felonies arise from and are inherent in the act of murder
itself, those acts cannot serve as predicate felonies for a
charge of felony murder." People v. Davison,
236 Ill.2d 232, 240, 923 N.E.2d 781, 786 (2010). But the
court disagreed with Petitioner's assertion that the
State's only evidence of mob action was the same evidence
the State presented for the murder charge: namely, that
Petitioner hit the victim over the head with a board.
Riley, 2013 IL App (1st) 112464-U, at ¶ 37.
Rather, the court explained, the evidence showed that
Petitioner acted with others to use force or violence to
disturb the public peace by engaging in a fight with people
other than the victim, such that he had completed the
predicate felony of mob action even before hitting the victim
with a board. Id. ¶ 43. Although Petitioner
asserted that all of his actions leading up to hitting the
victim with the board were part of an attempt to defend his
brother, the court noted that the jury was under no
obligation to believe that testimony, which was in apparent
conflict with the other evidence. Id. Thus, the
court concluded, the evidence at trial established that
Petitioner "was acting with others to use force or
violence to disturb the public peace, and thus acted with the
felonious purpose to commit mob action, " and that the
conduct constituting the mob action was not inherent in the
murder itself. Id. at ¶¶ 47-48.
court also rejected Petitioner's argument that the trial
court committed plain error by failing to instruct the jury
that the predicate felony of the felony-murder charge must
have a felonious purpose independent of that for the murder.
Petitioner forfeited this argument, the court concluded,
because defense counsel never asked for an instruction
regarding "felonious purpose." Id. at
¶ 51. Petitioner argued on appeal that, whether or not
his counsel requested an instruction, the trial court should
have given an instruction regarding independent felonious
purpose sua sponte because the existence of such a
purpose is an element of the crime of felony murder. See
People v. Turner, 128 Ill.2d 540, 562-63, 539 N.E.2d
1196, 1205 (1989) ("Generally, the only situations where
a fair trial requires the court to sua sponte offer
an instruction include seeing that the jury is instructed on
the elements of the crime charged . . . .")
(emphasis added) (internal quotation marks omitted). The
court disagreed that an independent felonious purpose is an