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Cole v. Pfister

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

March 27, 2018

CORZELL COLE, Petitioner,
v.
RANDY PFISTER, Warden, Stateville Correctional Center, [1] Respondent.

          OPINION AND ORDER

          SARA L. ELLIS, UNITED STATES DISTRICT JUDGE.

         Petitioner Corzell Cole, currently incarcerated at Stateville Correctional Center, is serving a thirty-five year sentence for first degree murder and a consecutive term of fifteen years for attempted first degree murder. Cole has petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. Because Cole's claims that the evidence was insufficient to convict and that his sentence is unconstitutionally disproportionate are procedurally defaulted, his state-law based claims are not cognizable in this Court. Additionally, his free-standing actual innocence claim is not recognized in this Circuit. Thus, the Court denies his petition for a writ of habeas corpus.

         BACKGROUND

         The Court will presume that the state courts' factual determinations are correct for the purposes of habeas review, as Cole has not pointed to clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The Court thus adopts the state courts' recitation of the facts and begins by summarizing the facts relevant to the petition.

         I. Cole's Trial, Conviction, and Sentencing

         On November 7, 2003, following a jury trial, a judge sentenced Cole to thirty-five years' imprisonment for first degree murder and fifteen years' imprisonment for attempted first degree murder, to be served consecutively. The jury found Cole guilty of the November 1, 2002 murder of David L. Woods, Sr. (“Woods”) and the attempted murder of Sheena Woods (“Sheena”), his daughter, on an accountability theory. On that day, Cole was driving a car in Joliet, Illinois, and his passenger, Travaris Guy (“Guy”), fired four shots into a van driven by Woods.

         The evidence at trial showed that Cole pulled the car next to the van when it stopped at a traffic light. Cole positioned the car with its front bumper just behind the front driver's side window of the van. Woods was driving the van, with his daughter Sheena in the backseat, Sheena's cousin David in the front seat, and David's girlfriend Constance in the backseat as well. Sheena recognized Cole and Guy as the driver and passenger of the car. She testified that her father opened his door and looked out to see who was in the car. Sheena stated that as soon as the occupants of the van noticed the car, Guy began shooting. Sheena saw that her father had been shot and was bleeding from the mouth. She tried to get onto the van floor with him and was shot herself. Cole then made a left turn through the intersection. Cousin David took the steering wheel of the van and drove the van toward the hospital. When the van ran out of gas, an ambulance took the passengers to the hospital. Woods was dead on arrival.

         Cole had been driving a rental car loaned to him by Ronald Guy, Guy's cousin. The afternoon following the shooting, Ronald Guy parked the vehicle in a McDonald's parking lot. Cole's fingerprints were found in the car.

         About one week after the shooting, police arrested Cole in Colorado for marijuana possession. When arrested, Cole gave a false name and birth date. However, when Cole overheard that the police planned to send his fingerprints to the FBI, he gave the police his real identity and told them that the police in Joliet were looking for him.

         Cole presented no evidence in defense. The jury found Cole guilty of first degree and attempted first degree murder on an accountability theory.

         At sentencing, the trial judge stated that he considered the aggravating and mitigating factors in the case, including Cole's age, the fact that he was not the shooter, and Cole's criminal history, which included a prior felony conviction. The judge found that the shooting would not have occurred without Cole's participation. The judge sentenced Cole to thirty-five years in custody for the murder of Woods and fifteen years for the attempted murder of Sheena, to be served consecutively. The judge subsequently denied Cole's motion for reconsideration of the sentence.

         Guy was a fugitive during Cole's trial. He was later caught and tried. Guy argued that he shot at the van in self-defense. Guy was convicted of the second degree murder of Woods and the attempted murder of Sheena. A judge sentenced him to consecutive prison terms of thirty years for each crime.

         II. Direct Appeal

         Cole raised the following claims on direct appeal:

(1) the state failed to prove beyond a reasonable doubt that Cole had the intent to promote or facilitate the offenses;
(2) the trial court abused its discretion and deprived Cole of a fair trial by requiring him to wear a stun belt;
(3) the trial court failed to admonish Cole pursuant to Illinois Supreme Court Rule 605(a); and
(4) the trial court abused its discretion by imposing consecutive sentences of thirty-five and fifteen years that failed to take into account Cole's youth and conviction on an accountability theory.

         Addressing only the stun belt issue, the Illinois Appellate Court remanded. However, before the case was retried, the Illinois Supreme Court issued a supervisory order vacating the appellate court's decision and instructing it to reconsider in light of new precedent on the stun belt issue. In its second opinion dated December 14, 2006, the Appellate Court affirmed Cole's conviction and sentence, determining that the trial court properly examined the facts in favor of accountability, which meant the evidence was not closely balanced and plain error review did not apply to the stun belt issue.

         Cole filed a petition for leave to appeal (“PLA”) with the Illinois Supreme Court, arguing that (1) the Appellate Court overlooked evidence in finding the case was not a close call such that plain error review of the stun belt issue was warranted; and (2) the Supreme Court should remand for the proper post-sentencing admonishments because Cole had a significant sentencing issue on reconsideration: that the actual shooter was convicted of second degree murder and will serve less time (considering good time) than Cole. The Illinois Supreme Court denied the PLA on March 28, 2007.

         III. State Post-Conviction Proceedings

         Cole filed a pro se post-conviction petition in the Circuit Court of Cook County pursuant to 725 Ill. Comp. Stat. 5/122-1 in September 2007. Cole argued that he was actually innocent, based on Guys' newly discovered affidavit, in which he asserted self-defense. Guy's testimony was, in essence, that Woods pointed a gun at him and so he fired back. The trial court dismissed Cole's petition on the grounds that it was frivolous and patently without merit. Cole appealed that dismissal, arguing that the petition did allege the gist of a due process claim under the Illinois constitution. The Illinois Appellate Court reversed and remanded for second stage proceedings on Cole's post-conviction petition, finding that the Guy affidavit created the gist of a claim of actual innocence.

         Cole filed an amended post-conviction petition on remand, adding ineffective assistance of counsel and witness perjury claims. The trial court dismissed Cole's petition after second-stage review, finding the Guy affidavit was not of such a convincing nature that it would have changed the outcome of the trial and was submitted when Guy “had nothing to lose.” Doc. 23, Ex. E ¶ 13. The Illinois Appellate Court affirmed, finding that it was not error to dismiss at the second stage when the new evidence was not of such a conclusive nature that it would probably change the result at trial. The court also noted that Cole abandoned all claims except actual innocence in his appeal. One justice dissented and would have remanded for a third-stage evidentiary hearing on the theory that Guy's affidavit did create a fact issue on Cole's intent. Cole filed a PLA arguing that the Appellate Court's decision was in conflict with well-established Illinois precedent on the standards for second-stage post-conviction review and ...


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