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Wilborn v. Pfister

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

August 2, 2017

Joseph Wilborn, (R17937), Petitioner,
Randy Pfister, Warden, Respondent.


          John Robert Blakey United States District Judge.

         Petitioner Joseph Wilborn, [1');">1');">1');">1" name="FN1');">1');">1');">1" id= "FN1');">1');">1');">1">1');">1');">1');">1] a prisoner at the Pontiac Correctional Center, brings this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254');">4');">4');">4, 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');">4');">4');">4 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');">4');">4');">4(d)(1');">1');">1');">1)-(2); Harrington v. Richter, 562 U.S. 86, 1');">1');">1');">100 (201');">1');">1');">11');">1');">1');">1). This Court 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');">4');">4');">4(e)(1');">1');">1');">1); see Coleman v. Hardy, 1');">1');">1');">11');">1');">1');">1');">690 F.3d 81');">1');">1');">11');">1');">1');">1, 81');">1');">1');">15 (7th Cir. 201');">1');">1');">12).

         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, 84');">4');">4');">45 (1');">1');">1');">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, 1');">1');">1');">10 F.3d 980');">61');">1');">1');">10 F.3d 980, 985 (7th Cir. 201');">1');">1');">10).

         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');">1');">1');">1-06-2088 (Ill.App.Ct. May 22, 2008) (Exhibit D [22-4');">4');">4');">4]), and post-conviction review, Illinois v. Wilborn, 962 N.E.2d 528 (Ill.App.Ct. 201');">1');">1');">12) (Exhibit L [22-1');">1');">1');">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');">4');">4');">4(e)(1');">1');">1');">1); Brumfield v. Cain, 1');">1');">1');">135 S.Ct. 2269, 2282 n.8 (201');">1');">1');">15) (citing 28 U.S.C. 2254');">4');">4');">4(e)(1');">1');">1');">1)).

         The case arises out of the July 28, 2004');">4');">4');">4 shooting death of Emmit Hill near East 63rd Street and South Michigan Avenue on Chicago's Southside. [22-4');">4');">4');">4], pp. 1');">1');">1');">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');">4');">4');">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.

         Sometime between 1');">1');">1');">11');">1');">1');">1:00 and 1');">1');">1');">11');">1');">1');">1:30 p.m. on July 28, 2004');">4');">4');">4, 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');">4');">4');">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');">4');">4');">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');">4');">4');">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');">4');">4');">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');">4');">4');">4. There, they found the victim shot dead in 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');">4');">4');">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 54');">4');">4');">43. 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');">4');">4');">4. The police were unable to locate the three men that night. Id.

         Stacy Daniels, a friend of Petitioner's for more than four years, testified that two weeks after the shooting, on August 1');">1');">1');">12, 201');">1');">1');">14');">4');">4');">4, 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 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 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');">1');">1');">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');">4');">4');">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 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 [22-1');">1');">1');">12]. Petitioner then filed a PLA with the Illinois Supreme Court, and the Supreme Court denied the PLA on March 26, 201');">1');">1');">14');">4');">4');">4. Exhibit M [22-1');">1');">1');">13].

         Petitioner then filed the instant habeas corpus petition [1');">1');">1');">1] on July 1');">1');">1');">16, 201');">1');">1');">14');">4');">4');">4.

         III. ...

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