Vernard Crockett v. Kim Butler , 807 F.3d 160 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2320
VERNARD CROCKETT,
Petitioner-Appellant.
v.
KIM BUTLER,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cv-09231—Amy St. Eve, Judge.
____________________
ARGUED OCTOBER 2, 2015 — DECIDED NOVEMBER 17, 2015
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. In 2004, sixteen-year-old
Jazmine Robinson was shot and killed in her Chicago home.
Her boyfriend, petitioner Vernard Crockett, was convicted of
first-degree murder and attempted armed robbery for his
role in her death. He appealed, asserting that the evidence
did not support his attempted armed robbery conviction and
that his rights under the Confrontation Clause of the Sixth
Amendment had been violated. He prevailed on the first ar-
gument. The Illinois Appellate Court reversed his attempted
2 No. 14-2320
armed robbery conviction and ordered re-sentencing on the
murder conviction.
After re-sentencing, Crockett filed a second appeal—this
time challenging his first-degree murder conviction. He ar-
gued that without the conviction for attempted armed rob-
bery, there was insufficient evidence to convict him of mur-
der. He also renewed his Confrontation Clause claim. The
Illinois Appellate Court affirmed Crockett’s murder convic-
tion. After the Supreme Court of Illinois denied further re-
view, Crockett filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The district court denied relief,
finding that Crockett had procedurally defaulted both of his
claims. Crockett v. Harrington, No. 13 C 9231, 2014 WL
2535116 (N.D. Ill. June 5, 2014). We agree, so we affirm deni-
al of his petition.
I. Background
A. Crockett’s Trial
On January 20, 2004, sixteen-year-old Jazmine Robinson
was shot and killed in the basement of her home in Chicago.
An anonymous call led investigators to Crockett and his ac-
quaintance Ronald Lamar. Lamar ultimately pled guilty but
refused to testify against Crockett, who went to trial on
charges of first-degree murder and attempted armed rob-
bery.
The prosecution relied heavily on evidence of conversa-
tions Crockett had with the police soon after Robinson’s
murder. According to Detective Brian Johnson, Crockett of-
fered police an alibi when they first interviewed him, on
January 23, 2004. He claimed he had been at home playing
video games on the afternoon of the murder. The police then
No. 14-2320 3
released Crockett from custody. Soon afterward, though, De-
tective Johnson spoke with Lamar, and that led him to order
that Crockett be arrested. Crockett bases his Confrontation
Clause claim on Detective Johnson’s testimony about his
next conversation with Crockett after bringing him in the
second time:
Q And during that conversation tell us
what you said to the Defendant and
what he said to you.
A At that point I told the Defendant that,
you know, after speaking with Mr. La-
mar that we believe that he had been
present and actually killed [Jazmine]
Robinson on the date in question.
Crockett again denied involvement, but this time he pro-
vided a different alibi: he had been with his friends Tristan
Campbell and Nicholas Brown when Robinson was mur-
dered. As false alibis go, this was surely one of the worst ev-
er. Detective Johnson quickly learned that both Campbell
and Brown had actually been in police custody on the after-
noon in question.
Assistant State’s Attorney Tim Carter also testified at tri-
al. Carter interviewed Crockett on the evening of January 23,
2004 and confronted him with his alibi statements. Crockett
responded that he wanted “to be truthful” and then admit-
ted he had been involved in the events leading up to Robin-
son’s death. According to Carter, Crockett said that Lamar
had approached him the Sunday before the murder express-
ing his desire to “hit a lick”—that is, to rob someone. Crock-
ett told Lamar that he knew Robinson was “holding money
4 No. 14-2320
for some guys” and offered to “set it up.” Crockett also said
that he knew Robinson “wouldn’t go along with the robbery
if she wasn’t threatened with a gun.” He knew Lamar would
have one, though he said he did not want Lamar to shoot
Robinson.
Carter further testified that Crockett admitted going to
Robinson’s house with Lamar on January 20, 2004 on the
pretense of looking at the results of her pregnancy test. Rob-
inson let them in, brought them to the basement, and offered
Crockett a glass of rum, which he left atop a freezer. Crockett
asked Robinson to bring down a CD to play some music. He
then signaled Lamar to go ahead with the robbery.
Once Robinson turned the music up, Lamar pulled out
his gun and demanded money. Robinson showed no signs of
complying. Lamar shot her in the back. Crockett admitted
fleeing when he heard the first shot. He said that he heard
several more shots as he ran.
That was the substance of Crockett’s first confession, ac-
cording to prosecutor Carter. Carter also testified that he in-
terviewed Crockett again later the same night, accompanied
by other detectives. Crockett “basically told me the same
thing” but “went into somewhat more detail about the plan-
ning of it and what happened and said some things a little
bit differently.” Finally, Carter testified that the next day,
January 24, 2004, he interviewed Crockett again and that he
related “basically the same facts.”
Crockett testified in his own defense and told a very dif-
ferent story. According to Crockett, on January 20, 2004, he
had planned to visit Robinson alone to see the results of her
pregnancy test. He met Lamar on the way and asked him to
No. 14-2320 5
come too. Crockett confirmed that Robinson had given him
the glass of rum and played music, but he testified that La-
mar had pulled out a gun unexpectedly. Crockett testified
that both he and Robinson had asked Lamar to put the gun
away, and that he and Lamar had argued heatedly about the
weapon. According to Crockett, Robinson then pushed La-
mar from behind, and Lamar then shoved Robinson to the
ground and shot her. Crockett admitted fleeing at that point.
He admitted he did not report the shooting to the police,
claiming he was afraid for his and his loved ones’ safety.
Crockett also denied making the statements prosecutor
Carter described, testifying that he had told Carter “the story
that I just told you all.”
The jury found Crockett guilty of both first-degree mur-
der and attempted armed robbery. He was sentenced to for-
ty-two years for the murder and a consecutive term of ten
years for attempted armed robbery.
B. First Appeal
On direct appeal, Crockett argued that the State had
failed to establish the corpus delicti of attempted armed rob-
bery. Under the corpus delicti doctrine, the state must prove
with evidence other than the defendant’s confession that the
crime was actually committed. People v. Lara, 983 N.E.2d 959,
964 (Ill. 2012). Crockett argued that his conviction ran afoul
of the corpus delicti rule because the only evidence of an at-
tempted armed robbery was his own confession. As a corol-
lary, he argued that the invalid robbery conviction had af-
fected his sentence on the murder conviction, and he re-
quested re-sentencing. Finally, he argued that Detective
Johnson’s testimony about his conversation with Lamar that
6 No. 14-2320
led the police back to Crockett violated the Confrontation
Clause.
The Illinois Appellate Court agreed with the first argu-
ment, holding that no independent evidence corroborated
Crockett’s confession that an attempted armed robbery had
occurred. Because the court could not be certain that the at-
tempted armed robbery conviction had not influenced the
murder sentence, it also ordered re-sentencing on the mur-
der conviction, as Crockett had requested. The court rejected
the Confrontation Clause claim, however, holding that De-
tective Johnson’s testimony had simply described police in-
vestigatory procedure and was not testimonial in nature.
Crockett did not file a petition for leave to appeal the Illinois
Appellate Court’s decision to the Supreme Court of Illinois.
C. Second Appeal
Crockett again received a forty-two-year sentence for the
first-degree murder conviction and again appealed. He re-
newed the Confrontation Clause claim from his first appeal,
but he also raised an entirely new issue: that the earlier deci-
sion setting aside his attempted armed robbery conviction
also meant there was insufficient evidence to sustain his
first-degree murder conviction.
To explain, a defendant commits first-degree murder un-
der Illinois law if he kills an individual without lawful justi-
fication and: (1) “intends to kill or do great bodily
harm . . . or knows that such acts will cause death”; (2)
“knows that such acts create a strong probability of death or
great bodily harm”; or (3) “is attempting or committing a
forcible felony other than second degree murder.” 720 Ill.
Comp. Stat. 5/9-1(a). Crockett argued that without the at-
No. 14-2320 7
tempted armed robbery conviction, a conviction of felony
murder under 720 Ill. Comp. Stat. 5/9-1(a)(3) could no longer
stand. He also argued that the evidence at trial was not suffi-
cient to sustain a conviction on either of the other two theo-
ries.
In the second appeal, the Illinois Appellate Court held
that Crockett had waived any challenge to the sufficiency of
the evidence supporting his first-degree murder conviction
by failing to raise it during his first appeal. In Illinois, waiver
“will be found where a defendant fails to raise an issue in his
initial appeal and attempts to raise it for the first time in his
second appeal.” People v. Crockett, No. 1-10-3685, 2012 WL
6953467, at *4 (Ill. App. Sept. 28, 2012), citing People v. Young,
504 N.E.2d 115, 118 (Ill. App. 1987). The state court found
that Crockett’s sufficiency of the evidence challenge “was a
logical corollary to his challenge to the attempted armed
robbery conviction,” making it “practicable and logical” to
raise the two together. Id.
The court held further that Crockett’s sufficiency chal-
lenge failed on the merits because the evidence supported a
finding of guilt by accountability. In Illinois, accountability
“is established where the State proves beyond a reasonable
doubt that the defendant either shared the criminal intent of
the principal or there was a common criminal design.”
Crockett, 2012 WL 6953467, at *6, citing People v. Perez, 725
N.E.2d 1258, 1264–65 (Ill. 2000). According to the Illinois
Appellate Court, the “evidence need only prove that the de-
fendant had the specific intent to promote or facilitate a
crime, which need not be the actual crime for which he was
charged.” Id. at *7 (emphasis in original), citing People v.
Miscichowski, 493 N.E.2d 135, 141 (Ill. App. 1986). Applying
8 No. 14-2320
that standard and viewing the evidence in the light most fa-
vorable to the prosecution, the state court held that the evi-
dence showed that Crockett intended to promote or facilitate
armed robbery when he knowingly aided Lamar in planning
and committing the robbery, making him “accountable un-
der the common design rule for the victim’s murder.” Id. at
*8.
As for the Confrontation Clause claim, the Illinois Appel-
late Court noted that it had rejected the same claim in the
first appeal, so the trial court had lacked the authority to
consider it on remand. Id. at *8. The appellate court then re-
jected the claim based on the law of the case. Id. In the sec-
ond appeal, Crockett petitioned for leave to appeal to the
Supreme Court of Illinois, but that court denied his petition.
D. Habeas Corpus Proceedings
Crockett then filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The district court denied relief,
concluding that Crockett had procedurally defaulted both
claims and that he had not shown that actual innocence ex-
cused the default. We granted a certificate of appealability
on the merits of both claims, as well as the preliminary ques-
tions of procedural default. See 28 U.S.C. § 2253(c).
II. Analysis
We review de novo a district court’s denial of a petition for
a writ of habeas corpus. Peterson v. Douma, 751 F.3d 524, 529
(7th Cir. 2014). Because Crockett is in state custody, the case
is governed by 28 U.S.C. § 2254, as amended by the Antiter-
rorism and Effective Death Penalty Act of 1996 (AEDPA).
Under AEDPA, we review deferentially the decision of the
last state court to address Crockett’s claims on the merits.
No. 14-2320 9
Harris v. Hardy, 680 F.3d 942, 948 (7th Cir. 2012). A federal
court may grant habeas corpus relief on a claim only if the
state court’s adjudication on the merits of the claim was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su-
preme Court of the United States,” or “was based on an un-
reasonable determination of the facts in light of the evidence
presented.” 28 U.S.C. § 2254(d).
The district court rejected both of Crockett’s claims on
procedural grounds, however, so before we might turn to
their merits, we must resolve the threshold questions,
whether procedural defaults bar us from reaching those
claims at all. “Whether a party has procedurally defaulted
his claim is a question of law that we review de novo.”
Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008).
A. Confrontation Clause
The district court rejected Crockett’s Confrontation
Clause claim because he failed to present it for one full
round of state court review. Before seeking federal habeas
relief, state prisoners must “give the state courts one full op-
portunity to resolve any constitutional issues by invoking
one complete round of the State’s established appellate re-
view process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999);
see also Lewis v. Sternes, 390 F.3d 1019, 1025–26 (7th Cir. 2004)
(petitioner “must raise the issue at each and every level in
the state court system, including levels at which review is
discretionary rather than mandatory”).
During his first appeal, Crockett presented his Confron-
tation Clause claim to the Illinois Appellate Court but did
not seek review by the Supreme Court of Illinois. Under
10 No. 14-2320
O’Sullivan, that means Crockett has procedurally defaulted
this claim. He also has not shown “cause and prejudice” or
actual innocence to excuse his default. See Spreitzer v.
Schomig, 219 F.3d 639, 647–48 (7th Cir. 2000) (discussing ex-
ceptions to procedural default). 1
Crockett’s second appeal could not cure his earlier de-
fault, even though he petitioned for leave to appeal to the
Supreme Court of Illinois in the second appeal. When faced
with the same Confrontation Clause claim a second time, the
Illinois Appellate Court rejected it based not on the merits
but on the law of the case doctrine: a previous decision on
the merits by an appellate court is final and conclusive in a
second appeal in the same case. People v. McNair, 486 N.E.2d
941, 943 (Ill. App. 1985). Accordingly, the Supreme Court of
Illinois never had the chance to address the Confrontation
Clause claim on the merits. The district court correctly found
procedural default, and we also cannot reach the merits of
this claim.
B. Sufficiency of the Evidence
Crockett’s other claim is that there was insufficient evi-
dence to sustain his murder conviction. He argues that the
Illinois Appellate Court unreasonably applied Jackson v. Vir-
ginia, 443 U.S. 307, 324 (1979), which teaches that an appli-
cant can win habeas corpus relief under § 2254 if “upon the
record evidence adduced at the trial no rational trier of fact
could have found proof of guilt beyond a reasonable doubt.”
1
In the district court, Crockett argued that he was actually innocent,
but he has not pressed that argument here.
No. 14-2320 11
Again, Crockett faces a procedural hurdle. The Illinois
Appellate Court found that he had waived his sufficiency-of-
the-evidence challenge to his murder conviction by failing to
raise it in his first appeal. In federal habeas cases under
§ 2254, federal courts may not address the merits of a claim
that the state court resolved on “a state law ground that is
both independent of the federal question and adequate to
support the judgment.” Kaczmarek v. Rednour, 627 F.3d 586,
591 (7th Cir. 2010). This doctrine stems from equitable con-
siderations of federalism and comity, and it protects the
states’ interests in correcting their own courts’ mistakes.
Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014). Crockett
challenges only the adequacy of the asserted state law
ground in this case. Whether a state procedural ruling is
“adequate” is a question of federal law. Lee v. Kemna, 534
U.S. 362, 375 (2002), quoting Douglas v. Alabama, 380 U.S. 415,
422 (1965).
In assessing the adequacy of a state procedural ruling,
federal courts do not review the merits of the state court’s
application of its own procedural rules. See Lee v. Foster, 750
F.3d 687, 694 (7th Cir. 2014). Instead, we ask whether the rule
invoked was “firmly established and regularly followed.”
Beard v. Kindler, 558 U.S. 53, 60 (2009), quoting Lee v. Kemna,
534 U.S. at 376. If so, federal review is barred, absent a show-
ing of either cause and prejudice or actual innocence, and
neither has been shown here. If a rule has been applied “in-
frequently, unexpectedly, or freakishly,” however, it may not
be adequate, for “the lack of notice and consistency may
show that the state is discriminating against the federal
rights asserted.” Prihoda v. McCaughtry, 910 F.2d 1379, 1383
(7th Cir. 1990).
12 No. 14-2320
The Illinois Appellate Court held that Crockett had
waived his Jackson challenge to the sufficiency of the murder
evidence because he could have presented it in his first ap-
peal but did not. The state calls this the “First Appeal Rule.”
See, e.g., Village of Ringwood v. Foster, 986 N.E.2d 662, 671 (Ill.
App. 2013); People v. Young, 504 N.E.2d 115, 118 (Ill. App.
1987).
Crockett acknowledges that the First Appeal Rule is
“firmly established and regularly followed in Illinois.” He
argues, however, that its application in his case was inap-
propriate and unexpected because he could not have raised
his Jackson challenge in his first appeal. Cf. Village of Ring-
wood, 986 N.E.2d at 671 (where “a question was open to con-
sideration in a prior appeal and it could have been presented
but was not, the question will be deemed to be waived”) (em-
phasis added), quoting Turner v. Commonwealth Edison Co.,
380 N.E.2d 477, 481 (Ill. App. 1978). This is so, Crockett ar-
gues, because his Jackson challenge depended on his first ob-
taining a reversal of his attempted armed robbery convic-
tion.
Reversal of the attempted armed robbery conviction was
a needed foundation for the Jackson challenge to the murder
conviction, but the Illinois court did not act unfairly by find-
ing that Crockett still could have raised both challenges in
the same appeal. Parties frequently raise contingent argu-
ments simultaneously. In fact, Crockett actually raised a dif-
ferent argument in his first appeal that, like his new Jackson
challenge, hinged on a favorable outcome to his corpus delicti
challenge to his attempted armed robbery conviction. He ar-
gued—successfully—that if the appellate court reversed his
attempted armed robbery conviction, it should also remand
No. 14-2320 13
the case for re-sentencing on the remaining murder convic-
tion to ensure the improper robbery conviction did not in-
fluence the original sentence. There is no reason he could not
have done the same with the contingent Jackson challenge he
raised in the second appeal. The Illinois Appellate Court’s
application of the First Appeal Rule to his case therefore was
not “unexpected” or “freakish.” As an adequate and inde-
pendent state law ground for the court’s decision, it bars
federal review of the merits of Crockett’s Jackson challenge.
Even if Crockett could somehow overcome that bar, his
sufficiency-of-the-evidence claim would still fail on the mer-
its. Federal habeas corpus relief is not available to correct
perceived errors of state law. Bates v. McCaughtry, 934 F.2d
99, 102 (7th Cir. 1991), quoting Pulley v. Harris, 465 U.S. 37, 41
(1984). A claim that the state court “misunderstood the sub-
stantive requirements of state law,” for example, does not
present a true Jackson challenge and is not cognizable under
§ 2254. Bates, 934 F.2d at 102; see also Curtis v. Montgomery,
552 F.3d 578, 582 (7th Cir. 2009) (rejecting Jackson challenge
where petitioner was “impermissibly attempting to use a pe-
tition for a writ of habeas corpus to press his preferred inter-
pretation of Illinois law”).
Though Crockett argues otherwise, his Jackson challenge
is really a claim that the Illinois court misinterpreted state
law. In his view, the Illinois accountability statute, 720 Ill.
Comp. Stat. 5/5-2, requires the State to prove that he and
Lamar shared a common design to commit a murder if he is
to be held accountable for the murder. The Illinois Appellate
Court rejected that claim as a matter of state law, holding
that the theory of accountability requires only that the evi-
dence prove the defendant had the specific intent to promote
14 No. 14-2320
or facilitate “a crime, which need not be the actual crime for
which he was charged.” Crockett, 2012 WL 6953467, at *7
(emphasis in original). Whether the Illinois Appellate Court
is correct or not in its interpretation of 720 Ill. Comp. Stat.
5/5-2, is “beyond the reach of a federal court on collateral at-
tack.” Bates, 934 F.2d at 103.
Accordingly, the district court correctly found that
Crockett procedurally defaulted his claims. Crockett’s Jackson
claim also fails on the merits because at its core it challenges
the state court’s interpretation of Illinois law, which is not
cognizable under § 2254.
AFFIRMED.