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Cobbs v. Calloway

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

October 23, 2017

TERRELL COBBS, R24492, Petitioner,
v.
VICTOR CALLOWAY, Warden, Danville Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN ROBERT BLAKEY, UNITED STATES DISTRICT JUDGE

         This case comes before this Court on the petition for a writ of habeas corpus filed by pro se Petitioner Terrell Cobbs pursuant to 28 U.S.C. § 2254. Petitioner was charged with and found guilty of second-degree murder following a bench trial before Judge James B. Linn in the Circuit Court of Cook County. Judge Linn sentenced Petitioner to a term of imprisonment of twenty-eight years, and he is currently incarcerated at Danville Correctional Center in Danville, Illinois, in the custody of the warden of that facility, Respondent Victor Calloway. Petitioner now challenges both his conviction and his sentence. For the reasons explained below, the Court denies the petition and declines to issue a certificate of appealability.

         I. LEGAL STANDARD

         Federal review of state court decisions under § 2254 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(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). 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(e)(1); see Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012).

         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, 845 (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, 610 F.3d 980, 985 (7th Cir. 2010).

         II. FACTUAL BACKGROUND & PROCEDURAL HISTORY

         This Court begins by summarizing the facts and procedural posture from the state court record. This summary is drawn from the state court record. This Court presumes that the state court's factual determinations are correct for the purposes of habeas review as Petitioner has failed to present any clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).

         A. Trial

         On the evening of November 24, 2009, Terrell Cobbs (Petitioner) shot and killed Greg Hampton (Victim) in the stairwell of a three-flat apartment complex at 3428 West Douglas in Chicago, Illinois. The Petitioner, his girlfriend Lichelle Hassell, and her children shared the second-floor apartment; the Victim, his girlfriend Jeanace Evans, and their children shared the third-floor apartment. Record [13-14] at 73-74. Prior to the shooting that same evening, Evans had knocked on the back door of the second-floor apartment to alert Petitioner and Hassell to a small fire on the back porch. Evans testified at trial that she had seen the fire as she was taking out her garbage. Id. at 75. According to both Evans and Petitioner, an argument ensued and Evans left the porch. A second altercation occurred at the Petitioner's front door later that same evening. Petitioner and Hassell testified that Evans knocked on the front door, began to argue with the Petitioner and hit the Petitioner, who then hit Evans in response. Record [13-14] at 95-97; [13-15] at 34. Evans testified that Petitioner came out of his second-floor apartment as she was walking to the third floor, began arguing with her, and struck her in the face. Record [13-14] at 74-79. According to their respective testimony, both Hassell and Evans, independent of each other, called the police after the incident. Id. [13-14] at 79; [13-15] at 33. Evans also claimed to have called her mother and the Victim, and then waited in front of the building with her children. Id. [13-14] at 79-80.

         After the police arrived and began taking Evans' statement, the Victim arrived and, upon seeing Evans' physical condition, went to the Petitioner's second-floor apartment. Hassell testified that the Victim proceeded to kick in the second-floor apartment door and threaten to “get” the Petitioner, Hassell, and her children, at which point Hassell called the police. Record [13-15] at 35-36. Defense counsel published Hassell's second 911 call; and the recording contained background noise consistent with a door being hit. Id. at 36-37. Hassell and Evans also testified that Hassell yelled out her window to the police while they were still interviewing Evans. The Victim then ran out of the apartment as the police ran in. Id. at 39, 75-76. Petitioner testified that he was hiding in the back-bedroom closet of the second-floor apartment during this incident. Id. at 101. The responding officer later testified that the door was off its hinges and would not stay closed, requiring Petitioner and Hassel to push a table against the door to keep it shut. Id. at 76.

         Evans' brother Lacy Moore and his girlfriend Ashley Smith testified that the Victim, after leaving the apartment, came to pick them up, along with Evans' mother. Record [13-14] at 116-17, 148-49. The testimony of the witnesses, however, differs regarding what happened after the Victim and Evans' family returned to 3428 West Douglas. Moore and Smith testified that when they arrived, Evans' mother went into the apartment while they waited for the Victim to turn off his truck. Id. at 118, 151-52. After he did so, the Victim then entered the apartment, with Moore and Smith following. Id. When the three arrived at the second floor, the Victim knocked on the door of the second-floor apartment. When Hassell answered the door, the Victim pushed the door slightly open with his shoulder. Id. at 120, 153. He then asked whether Petitioner was in the apartment. When Hassell told him that Petitioner was not in, the Victim turned around and began walking up to the third floor. Moore and Smith testified that Petitioner then sprang out of the front door of the apartment, firing a handgun at the Victim who was by then running up the stairs. Id. at 123, 173.

         Hassell testified that she and Petitioner watched from the front bedroom window as the Victim and the others got out of two vehicles in front of 3428 West Douglas. Record [13-15] at 41. She testified that her children were in the bedroom with her when the Victim came to their front door and, without knocking, again kicked in the apartment door and entered the apartment. Id. at 41. She then shut the door to the front bedroom and called the police, while the Petitioner hid in the back bedroom closet. Id. at 44. Hassel testified that she was behind the front bedroom door and did not see the shooting. Id. at 41. On cross examination, however, she testified that she at no time saw the Victim holding a gun. Id. at 60. She also admitted that she had given police a statement that she had seen the Petitioner running toward the front door with a gun after the Victim had already turned to leave the apartment. Id. at 65.

         Petitioner testified to seeing the Victim and others exit two vehicles in front of 3428 West Douglas. He testified that he was afraid, so he hid in the closet of the back bedroom and told Hassell to hide with the children. Id. at 109. He also testified to hearing the Victim enter the apartment and threaten Hassell and her children. Id. at 110. Petitioner claimed to have heard Hassell scream and run toward the back of the apartment, at which time he grabbed a gun kept in Hassell's purse, exited the closet, and then stood by the front door. Id. at 110-11. The Victim turned toward the Petitioner, and with his right hand hidden in his front hoodie pocket, threatened Petitioner and began advancing toward him. Petitioner testified that he believed the Victim may have had a gun or a weapon, and so began firing at the Victim. Petitioner testified that he closed his eyes until he heard a “click” from the gun, suggesting he was out of ammunition. Id. at 113-14. Petitioner then opened his eyes and saw the Victim running up the stairs. Id.

         Petitioner then fled from the apartment complex to his mother's house at 2950 Harrison, where he found his brother and a woman, Rashida Green. The parties stipulated that, if called, Rashida Green would testify that she was with Petitioner's brother in bed when Petitioner barged into the room and that she saw Petitioner place a handgun, wrapped in a towel, in a bathroom light fixture. Id. at 16. The Petitioner was later arrested at that location and the gun was recovered from the light fixture. Id. at 11-12, 15-16.

         At trial, Petitioner's attorneys stipulated as to the testimony of the Cook County Medical Examiner (“ME”) concerning his examination of the Victim, and they did not object to the state's admission of the ME's report into evidence. Id. at 28-29. The stipulation and report indicated that the Victim had been shot six times, with bullets entering the right side of his back, the lateral right side of his chest, the lateral right of his abdomen, his anterolateral right forearm, his anterolateral right thigh, and his lateral right thigh. Record [13-16] at 72-75. The bullet that hit the Victim in the right side of the back moved back to front, while the other five bullets traveled either from right to left; right to left and back to front; or right to left, back to front, and upward. Id. Petitioner's attorneys did not call the medical examiner as a witness at trial and argued in closing argument that the locations of the gunshot wounds remained consistent with Petitioner's testimony. Record [13-15] at 160-61.

         Also at trial, the State called Chicago Police Forensic Investigator Peter Larcher. Larcher testified that he observed and examined the scene at 3482 West Douglas the night of the incident and found “a fired bullet” “on the second-floor landing.” Record [13-14] at 181. During her rebuttal closing argument, the prosecutor summarized the physical evidence supporting the state's theory, and, in doing so, stated that the forensic investigators had found a “bullet casing on the first step up from the second floor landing” and a bullet hole in the wall. Record [13-15] at 166-67.

         At trial, Petitioner raised the affirmative defense of “defense of domicile.” The trial judge rejected this defense and found him guilty of second-degree murder. Specifically, the court accepted the testimony of Evans, Smith, and Moore while noting the contradictions between Petitioner's testimony, Hassel's testimony, and the physical evidence. In finding Petitioner guilty, Judge Linn stated:

[Petitioner's] version about the self-defense and how it happened, where it happened, it's not exactly consistent with the evidence in this case, particularly from other witnesses and from the coroner about where the gunshots were fired, and I didn't believe everything [Petitioner] was saying.

         Record [13-15] at 181. The Judge noted that this was “a close case, close insofar as whether it's first degree murder or second degree murder.” Id.; [13-15], p. 192-93. But he also noted that there “is not a prayer in the world that this is in any way justifiable or commendable by Mr. Cobbs.” Id. Accordingly, Judge Linn found that the State had met its burden of proof as to the offense of second degree murder, and he found Cobbs guilty of that. Id. at 182.

         At Petitioner's sentencing hearing, the court recognized that because of his five prior felony convictions, which included two Class One felony convictions, Petitioner was Class X mandatory. See Record [13-15] at 188-89; [13-16] at 125, 130. The court sentenced Petitioner to 28-years imprisonment, toward the higher end of the six-to-thirty year range. Record [13-15] at 188, 191, 194.

         B. D ...


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