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Krol v. Calhoun

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

October 30, 2019

Ysole Krol, Petitioner,
v.
Beatrice Calhoun, [*] Acting Warden, Logan Correctional Center Respondent.

          MEMORANDUM OPINION AND ORDER

          Manish S. Shah U.S. District Judge.

         On 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.

         I. Legal Standards

         Krol 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).

         A state 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 (2017).

         A 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.

         Alternatively, 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)).

         II. Background

         State 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)).[1] 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.

         A. The Trial

         1. The Evidence at Trial

         On 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, 11.[2] Rivera and Martinez had previously had “altercations, ” and Sanchez also did not have a “good relationship” with Martinez. [1-1] ¶ 5.

         No one 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 mother[]fucker. 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.

         After 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.

         As they 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] ¶ 12.

         Meanwhile, 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.

         The day 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.

         After 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.

         Police 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.

         A 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] ¶ 16.

         2. The Court's Verdict and Sentence

         The 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 n.1.

         The 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.

         B. State-Court Review

         1. Direct Appeal

         Krol 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.[3] The court affirmed Krol's conviction. [1-1] ¶¶ 35-36.

         As 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.

         As to 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.

         The 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 Appeal).

         2. Postconviction Petition

         Krol 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 ...


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