Jenkins v. Nelson

• Citation: 157 F.3d 485
• Decision Date: 22 October 1998
• Docket Number: No. 97-1890,97-1890
• Parties: Allison JENKINS, Petitioner-Appellee, v. Keith NELSON, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 485

157 F.3d 485

Allison JENKINS, Petitioner-Appellee, v. Keith NELSON, Respondent-Appellant.

No. 97-1890.

United States Court of Appeals Seventh Circuit.

Argued Feb. 25, 1998.

Decided Sept. 10, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct.

22, 1998. ^*

Henry L. Mason, III, Kathleen Mary Mulligan (argued), Sidley & Austin, Chicago, IL, for Petitioner-Appellee.

Michael M. Glick (argued), Office of Attorney General, Chicago, IL, for Respondent-Appellant.

Before POSNER, Chief Judge, and WOOD, JR., and DIANE P. WOOD, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Chicago Police Officers Fred Hattenberger and Jay Brunkella were assigned surveillance duty in conjunction with an ongoing drug investigation. During the stakeout, the officers encountered the petitioner, Allison Jenkins. The officers approached Jenkins, and a struggle occurred between Jenkins and Officer Hattenberger. Officer Hattenberger's gun discharged. The bullet struck Officer Brunkella, who was standing nearby, in the chest. Brunkella died from the gunshot wound. Jenkins was charged in state court with the aggravated battery of Officer Hattenberger and the felony murder of Officer Brunkella. Following a jury trial, Jenkins was convicted of both charges. After exhausting his state post-conviction review opportunities, Jenkins filed a petition for habeas corpus relief under 28 U.S.C. § 2254 in federal district court. The district court granted Jenkins' petition, and Respondent appeals.

I. BACKGROUND

On September 26, 1986, four Chicago police officers were conducting a surveillance of drug dealing in front of the Gale Elementary School. Officers Brunkella and Hattenberger were stationed inside of the school. At trial, Officer Hattenberger testified that, as the two officers watched the area in front of the school, they saw a man whom Officer Brunkella identified as Allison Jenkins. Jenkins approached an occupied vehicle parked near the school and leaned inside. The officers observed hand movements between Jenkins and the car's driver, but could not see what the movements were. The car departed, and Jenkins crossed the street carrying a potato chip bag. Officer Hattenberger testified that Jenkins placed the bag under a fence in front of the school. Based on his law enforcement experience, Hattenberger surmised that Jenkins was stashing drugs in the potato chip bag. Hattenberger testified that his suspicions were proven correct when he later retrieved the potato chip bag and found that it contained marijuana.

The officers continued to watch Jenkins, who approached another man standing near the school, Michael Jones. The parties' versions of exactly what transpired next differ. Hattenberger related the following scenario at trial. According to Hattenberger, the two officers decided to approach Jones and Jenkins. As Hattenberger approached Jenkins, Jenkins, seeing the officers, denied having anything on him. Hattenberger spoke to Jenkins, saying "Come here. Take it easy. I just want to talk to you." At that point, Jenkins took two or three steps toward Hattenberger. Hattenberger testified that Jenkins began making hand movements near his waist. Jenkins then turned and ran out into the street. Hattenberger chased Jenkins, yelling for him to stop.

Officer Hattenberger testified that prior to the surveillance he had heard from unidentified sources that Jenkins carried a weapon; however, Hattenberger stated that he did not see a weapon during his confrontation with Jenkins. Nevertheless, given Jenkins' hand motions, together with the information from the unidentified sources, Hattenberger believed that Jenkins was armed. When Jenkins failed to stop, Hattenberger drew his gun and chambered a bullet. The officer continued to chase Jenkins until Jenkins stopped abruptly and turned to face Hattenberger. The men were approximately fifteen feet apart.

Officer Hattenberger began to approach Jenkins, who was again making hand motions near his waist. When Hattenberger was close enough, he grabbed Jenkins' right arm with his left hand. Jenkins relaxed. When Hattenberger also relaxed, Jenkins began to swing his arms in an attempt to free himself from Hattenberger's grasp. In the struggle, Jenkins struck Hattenberger in the chest with his left elbow. Despite the elbowing, Hattenberger was able to maintain his grip on Jenkins' right arm. Jenkins tried to run, but instead ran right into Officer Hattenberger's left arm which was stretched across the front of Jenkins' body. Hattenberger tightened his grip on Jenkins and pulled Jenkins toward him in an attempt to get a more secure hold. Hattenberger wrapped his right arm around behind Jenkins. Hattenberger was still holding his gun in his right hand. The two men continued to struggle and fell to the ground with Hattenberger landing on top of Jenkins. As the men fell, Hattenberger tensed, causing his gun to discharge. The shot hit Officer Brunkella, who later died from the wound.

Jenkins' trial testimony painted a very different picture. Jenkins testified that Hattenberger's gun was drawn from the time he initially approached Jenkins. According to Jenkins, as Hattenberger approached him, the officer pointed the gun at him and told him to run so he could shoot him. Jenkins backed away from the approaching officer until he backed into Officer Brunkella who had approached him from behind. Brunkella restrained Jenkins and told Hattenberger to put away his gun, but Hattenberger did not. Instead, Hattenberger continued to approach Jenkins and then slapped Jenkins on the back with the gun. According to Jenkins, the gun discharged during the slap, striking Brunkella. Brunkella fell to the ground. Hattenberger tossed his gun away and pushed Jenkins to the ground, where they remained until other officers arrived.

Jenkins specifically denied elbowing Hattenberger. Additionally, Jenkins denied ever striking, struggling against, or pushing Officer Hattenberger. Hattenberger testified to photographs taken two days after the encounter which were admitted into evidence. The photographs showed a bruise on Hattenberger's torso consistent with Hattenberger's claim that Jenkins elbowed him in the chest. On cross-examination, Hattenberger admitted that it was possible that he sustained the bruise when he fell to the ground on top of Jenkins. However, Hattenberger testified that he "felt pain when [Jenkins] was swinging his arms and made contact with that area" when the two men were still standing and that he did not feel pain when he fell on top of Jenkins.

Hattenberger's gun was a Colt .45. This was his "secondary duty weapon." Hattenberger carried the Colt .45 holstered, with the safety off, but, as a safety measure, Hattenberger carried the gun without a chambered bullet. Therefore, in order to make the gun operational, Hattenberger would pull the slide back, causing the gun to automatically chamber a bullet from the magazine. The gun would then be ready to fire. At trial, a firearms expert testified that he had conducted tests on Hattenberger's Colt .45 and had determined that it had a lighter than normal pull on the trigger to cause it to fire.

Jenkins was indicted for aggravated battery for causing bodily harm to Officer Hattenberger and for the felony murder of Officer Brunkella. At the close of evidence, the court gave the jury its instructions. The court gave two instructions with respect to the aggravated battery claim. The prosecution had submitted instructions on battery and aggravated battery. Jenkins' trial counsel did not object to the battery instruction, but after discussion it was agreed that the submitted aggravated battery instruction was not sufficiently clear. Jenkins' counsel requested a substitute instruction on aggravated battery. The court agreed to the substitution and used the substitute aggravated battery instruction in its charge to the jury. Both the battery and the aggravated battery instructions referenced not only the bodily harm type of battery for which Jenkins was indicted but also the second type of battery under Illinois law which consists of "physical contact of an insulting or provoking nature."

The prosecution submitted two jury instructions on felony murder which differed from the Illinois Pattern Instructions for felony murder, Illinois Pattern Instructions Criminal Nos. 7.01, 7.02. Jenkins' trial counsel did not object to the non-Pattern instructions, and they were included in the court's charge to the jury.

After some deliberation, the jury informed the judge that they had reached a verdict on one of the charges but were deadlocked on the other. The judge ordered further deliberation, and, approximately two hours later, the jury returned its verdict. Jenkins was convicted on both counts and was sentenced to five years for the aggravated battery and twenty years for the felony murder with the sentences to run concurrently.

Jenkins raised numerous issues on direct appeal. People v. Jenkins, 190 Ill.App.3d 115, 137 Ill.Dec. 225, 545 N.E.2d 986 (1989). Among other things, Jenkins argued that his conviction was an unwarranted extension of the felony murder doctrine, that the felony murder instructions and the two battery instructions were erroneous, and that he was denied the effective assistance of counsel when his trial attorney failed to object to the erroneous instructions. The state appellate court rejected all of Jenkins' arguments and affirmed his convictions. Id., 545 N.E.2d at 1005. Jenkins then petitioned the Illinois Supreme Court for leave to appeal. His request was denied. Jenkins filed a petition for post-conviction relief in Illinois state court, which was denied in May 1995. Jenkins then filed this Petition for Writ of Habeas Corpus.

In his habeas petition, Jenkins argues, among other things, that the felony murder instructions violated his right to due process by expanding the scope of felony murder without warning. He also asserts...