United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY, UNITED STATES DISTRICT JUDGE
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.
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.
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).
FACTUAL BACKGROUND & PROCEDURAL HISTORY
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.
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.
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.
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.
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.
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.
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
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.
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.
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
[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
[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.
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.