United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. Shah U.S. District Judge.
December 18, 2009, Ysole Krol reached into the glove
compartment of her car from the passenger seat and handed a
loaded firearm to her boyfriend, Sergio Martinez. Martinez
used that gun to shoot Christopher Rivera once in the head,
killing him. Krol was convicted in Illinois state court of
first-degree murder under an accountability theory and
sentenced to 35 years in state custody. She petitions for a
writ of habeas corpus under 28 U.S.C. § 2254. As
discussed below, Krol's claims are either procedurally
defaulted or resolved by the state courts through a
reasonable application of federal law, and Krol does not fall
within any exception permitting federal habeas review in
those circumstances. The petition is denied, but a
certificate of appealability shall issue in limited part.
challenged her conviction through the state courts but was
unsuccessful. Federal review of these state-court decisions
is limited. With respect to a state court's determination
of an issue on the merits, a federal court may grant habeas
relief 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
(2011). An application of federal law is unreasonable if the
state court identifies the correct legal rule but
unreasonably applies it to the facts, unreasonably extends
the legal rule to a new context, or unreasonably refuses to
extend the rule to a new context where it should apply.
Perez-Gonzalez v. Lashbrook, 904 F.3d 557, 562 (7th
Cir. 2018). Federal courts must presume that the facts
related by the last state court to pass on the merits are
correct, subject to clear and convincing evidence rebutting
that presumption. Coleman v. Hardy, 690 F.3d 811,
815 (7th Cir. 2012).
prisoner must assert her federal claim through “one
complete round of state court review, ” either on
direct appeal or through a postconviction proceeding.
McGhee v. Watson, 900 F.3d 849, 854 (7th Cir. 2018)
(quoting Bolton v. Akpore, 730 F.3d 685, 694 (7th
Cir. 2013)). If a petitioner asserts a claim for relief that
she did not present to the state courts, the claim is
procedurally defaulted. Id.; Byers v.
Basinger, 610 F.3d 980, 985 (7th Cir. 2010). And if a
state court denies a petitioner's claim based on her
failure to comply with a state procedural rule, that is an
adequate and independent state ground. In that situation, the
claim is procedurally defaulted and a federal court may not
review it. Davila v. Davis, 137 S.Ct. 2058, 2064
petitioner may nevertheless obtain federal review of
procedurally defaulted claims if she can show
“cause” to excuse the failure and “actual
prejudice resulting from the alleged constitutional
violation.” Id. at 2064-65 (quoting
Wainwright v. Sykes, 433 U.S. 72, 84 (1977));
Jones v. Calloway, 842 F.3d 454, 461 (7th Cir.
2016); Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th
Cir. 2010). To establish cause, the petitioner must show that
“some objective factor external to the defense impeded
counsel's efforts to comply with the State's
procedural rule.” Davila, 137 S.Ct. at 2065
(quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)). For example, “attorney error is an objective
external factor providing cause for excusing a procedural
default” if that error “amounted to a deprivation
of the constitutional right to counsel.” Id.
a habeas petitioner may circumvent a procedural bar by
showing that the federal court's failure to address her
claim would result in a “fundamental miscarriage of
justice.” Jones, 842 F.3d at 461; Blackmon
v. Williams, 823 F.3d 1088, 1099 (7th Cir. 2016);
Kaczmarek, 627 F.3d at 591. That exception applies
only in the “rare case” in which a petitioner can
“prove that [s]he is actually innocent.”
Blackmon, 823 F.3d at 1099 (quoting McDowell v.
Lemke, 737 F.3d 476, 483 (7th Cir. 2013)). To do so, she
must present “new reliable evidence” that was not
presented at trial and establish that it is “more
likely than not that no reasonable juror would have convicted
h[er]” in light of that new evidence. Jones,
842 F.3d at 461 (quoting Schlup v. Delo, 513 U.S.
298, 324, 327 (1995)).
authorities charged petitioner Ysole Krol and her
co-defendant Sergio Martinez with two counts of first-degree
murder for the death of Christopher Rivera. [1-1] ¶ 4
(People v. Krol, 2013 IL App (1st) 1-11-2514 (Exh.
A, March 4, 2013 Ord. Affirming Conviction on Direct
Appeal)). One count alleged that they
“knowingly or intentionally” killed Rivera while
armed with a firearm; the other count alleged that they
killed him with a firearm “knowing that such act
created a strong probability of death or great bodily
harm.” [1-1] ¶ 4. Krol and Martinez had a joint
trial; Krol opted for a bench trial, while Martinez was tried
by a jury. [1-1] at 2 n.1.
The Evidence at Trial
December 18, 2009, petitioner Ysole Krol, her boyfriend,
Sergio Martinez, his brother Jose Martinez, and their friend
Joshua Bzdusek planned to go to the mall to buy presents.
[1-1] ¶ 8. Sergio Martinez was driving Krol's car,
Krol was in the passenger seat, and Jose and Bzdusek sat in
the back. [1-1] ¶¶ 8, 11. Krol's group had been
friends with Christopher Rivera and his brothers, Jonathan
Rivera and Isaac Sanchez, but Martinez had had a fight with
Rivera and his brothers about a year earlier, and the two
groups stopped hanging out. [1-1] ¶¶ 7-8,
Rivera and Martinez had previously had “altercations,
” and Sanchez also did not have a “good
relationship” with Martinez. [1-1] ¶ 5.
in the car was talking about Rivera or his brothers. [1-1]
¶¶ 8, 11. While they were driving, Bzdusek saw
Rivera's brothers, but not Rivera. [1-1] ¶ 11.
Martinez then stopped at a gas station to put air in the
tires, and, while there, Jose saw Rivera walking in the
direction of his house. [1-1] ¶¶ 8, 11. Bzdusek
heard Martinez point Rivera out to Krol and refer to him by
what the state court termed a “vulgar insult”;
Martinez said, “[t]hat's the motherfucker.
That's Chris.” [1-1] ¶ 13; [31-1] at 166 (Exh.
A, Trial Transcript). As Martinez pulled out of the gas
station, he called Rivera on the phone and reminded him that
he owed Martinez money; Martinez said he wanted to
“come get [his] money.” [1-1] ¶¶ 5,
7-8, 11, 20. According to Bzdusek, the implication of the
call was that Rivera did not have “the guts to come out
and fight.” [1-1] ¶ 13. Jose and Bzdusek thought
Martinez's tone was “firm” but
“normal.” [1-1] ¶¶ 8, 11. Sanchez,
Rivera's brother, overheard the call and thought it
sounded like an argument. [1-1] ¶ 5.
the call at the gas station, Martinez drove to Rivera's
house nearby. [1-1] ¶ 9. Rivera told his brothers that
Martinez was outside, and the three of them left the house
and ran toward Krol's car. [1-1] ¶¶ 5, 7, 9,
12. One of the brothers threw something heavy at the car, and
the occupants heard a “thud” [1-1] ¶¶
9-10, 12. Rivera held up his arm and pointed something that
appeared to be a gun at the car. [1-1] ¶¶ 9, 12.
The group in the car heard popping noises, although Jose did
not hear bullets hitting the car. [1-1] ¶¶ 8,
12-13. Bzdusek and Krol told Martinez to “get the hell
out of here, ” but another car was blocking them in.
[1-1] ¶¶ 9, 12. Both Jose and Bzdusek heard
Martinez tell Krol to give him a gun, but neither one of them
saw her hand it to him; Jose was ducking down, and Bzdusek
had closed his eyes. [1-1] ¶¶ 9, 12. Martinez fired
one gunshot through the car's open window, and Rivera
fell to the ground. [1-1] ¶¶ 6-7, 9, 12. His
brothers approached Rivera and saw that he had been shot in
the head. [1-1] ¶ 6. Martinez drove away. [1-1]
¶¶ 6-7, 9, 12.
drove away, Bzdusek and Jose heard Martinez say he thought
Rivera's gun had been fake. [1-1] ¶¶ 9, 13.
Jose thought that Krol and Martinez were angry because the
car had been damaged. [1-1] ¶ 10. On their way to
Krol's house, Krol told Martinez where to drive, then
took over driving. [1-1] ¶¶ 12-13. Krol drove to
her house and parked the car in her garage. [1-1]
¶¶ 9, 12. Martinez took the gun and left. [1-1]
at the scene of the shooting, police officers recovered a
wrench, a BB gun, a piece of the handgrip of a BB gun, and a
spent shell casing from a 9-millimeter Luger. [1-1]
¶¶ 17-18. Police Officer Richard Novotny received
information that the shooter had been driving a black sedan
with a license plate beginning with “A.” [1-1]
¶ 18. His information led him to the home of Rosa Krol,
where he saw a car matching that description in an open
garage. [1-1] ¶ 18. Novotny noticed that the car was
clean, as if it had been wiped down. [1-1] ¶ 18. Rosa
Krol was the owner of the black Mitsubishi Lancer. [1-1]
¶ 19. She consented to a search of the car, and it was
towed to the police station. [1-1] ¶ 18.
after the shooting, officers interviewed petitioner Krol at
the police station. Krol waived her Miranda rights
and detectives recorded their interview on video. [1-1]
¶ 14. Krol said that Rivera and Sanchez had been sending
harassing phone calls and text messages to her and Martinez
at all hours of the day. [1-1] ¶ 15. When the group
arrived at Rivera's house, she saw three people running
after the car and heard popping noises like gunshots and the
sound of something hitting the car. [1-1] ¶ 15. Krol had
never heard gunshots before. [1-1] ¶ 15. She initially
told the detectives that Martinez had the gun on his person,
but later admitted that he had asked her to open the glove
compartment and hand it to him, so she did. [1-1] ¶ 15.
Martinez told Krol that he was only going to
“scare” Rivera and his brothers, and Krol did not
know the gun was loaded. [1-1] ¶ 15.
the shooting, Martinez drove a few miles, then suggested Krol
drive the rest of the way; they switched seats, and Krol
drove the rest of the way to her house. [1-1] ¶ 15.
Martinez left with the gun. [1-1] ¶ 15. Either Martinez
or someone else suggested cleaning the car, and, according to
Krol, she, Jose, and Bzdusek wiped it down. [1-1] ¶ 15.
officers saw that the car had a small dent and a small scuff
mark between the driver's side window and the rear left
window. [1-1] ¶ 18. A forensic scientist tested the
steering wheel cover for gunshot reside and concluded that
the cover had been in “close proximity” to the
discharge of a firearm. [1-1] ¶ 19. He found no trace
evidence on the wrench or the BB gun. [1-1] ¶ 19.
medical examiner conducted an autopsy and determined that
Rivera died of a single gunshot wound to the forehead that
had been fired from more than three inches away. [1-1] ¶
The Court's Verdict and Sentence
trial court convicted Krol of both counts of first-degree
murder under an accountability theory. [1-1] ¶¶ 3,
23; [31-4] at 152 (Exh. D, Trial Transcript). The judge found
that Krol took the gun from the glove compartment and gave it
to Martinez, then put the gun back in the glove compartment
after the shooting, switched seats with Martinez, drove her
car home, and cleaned off the car. [1-1] ¶ 23. She
“facilitated [his] escape, ” the court found, and
did not report the crime to the police. [1-1] ¶ 23.
Regarding intent, the judge observed that, while there was no
evidence of a plan to shoot and kill Rivera, when Krol handed
the gun to Martinez, she “knew or should have
known” that he “intended to shoot” Rivera,
and “that such conduct created a strong possibility of
death or great bodily harm.” [1-1] ¶ 23. The jury
also convicted Martinez of first-degree murder. [1-1] at 2
court sentenced Krol to 35 years in prison, concurrent on
both counts. [1-1] ¶ 3. The sentence included a 15-year
enhancement for committing the offense while armed with a
firearm. [1-1] ¶¶ 3, 24.
appealed her conviction to the Illinois Appellate Court. She
raised two claims: first, that the state presented
insufficient evidence to sustain her conviction, and second,
that the firearm enhancement to her sentence was improper
based on lack of notice. [1-1] ¶¶ 3, 25. The court
affirmed Krol's conviction. [1-1] ¶¶ 35-36.
relevant here, the court rejected Krol's
legal-sufficiency claim. It noted that Krol handed Martinez
the gun he used to kill Rivera, and thus “participated
in the crime.” [1-1] ¶ 30. And Jose and Bzdusek
corroborated Krol's statement in which she admitted she
had handed Martinez the gun. [1-1] ¶ 30.
Krol's intent, the appellate court found it undisputed
that Krol and Martinez felt hostility toward Rivera and his
brothers. [1-1] ¶ 30. And it was reasonable to infer
that Krol and Martinez were angry with Rivera on the night of
the shooting either because Rivera owed Martinez money, or
because Rivera and his brothers were attacking the car. [1-1]
¶ 30. The court also pointed out that Martinez and Krol
knew that Rivera was only firing a BB gun, based on the
popping sounds and lack of bullet strikes. [1-1] ¶ 30.
The court also observed that Jose and Bzdusek did not
corroborate Krol's assertion that Martinez said he only
intended to scare Rivera. [1-1] ¶ 30. Thus, the court
determined that a reasonable trier of fact could infer that,
under the circumstances, Krol knew that she and Martinez were
creating a strong probability of death or great bodily harm
when she handed him the weapon. Finally, the court found that
Krol's actions after the shooting-namely, driving the car
home and washing it-reinforced her “active role in the
incident” and corroborated her consciousness of guilt.
[1-1] ¶ 30.
appellate court denied Krol's motion for a rehearing.
[1-1] at 15. Her request to appeal to the Illinois Supreme
Court was denied. [31-11] (Exh. K, Pet. for Leave to Appeal);
[31-12] (Exh. L, Sept. 25, 2013 Ord. Denying Leave to
moved for state postconviction review, alleging, as relevant
here, that her lawyer committed two errors amounting to
ineffective assistance of counsel: (1) resting the defense
case before Martinez testified in his own defense, precluding
the trial court from considering Martinez's testimony in
Krol's case; and (2) failing to move to suppress her
statement. [31-13] at 16-22 (Exh. M, Pet. for Postconviction
Relief). The trial court summarily denied her petition as
frivolous and patently without merit. [1-2] at 10 (Exh. B,
trial court's oral denial of postconviction petition).
Krol appealed the denial of her