United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L. ELLIS, UNITED STATES DISTRICT JUDGE.
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.
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
Cole's Trial, Conviction, and Sentencing
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
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
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.
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.
presented no evidence in defense. The jury found Cole guilty
of first degree and attempted first degree murder on an
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.
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.
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.
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.
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.
State Post-Conviction Proceedings
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.
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