Pernell v. Lashbrook
| Decision Date | 02 November 2018 |
| Docket Number | No. 1:17 C 9253,1:17 C 9253 |
| Parties | MIKEL PERNELL, Petitioner, v. JACQUELINE LASHBROOK, Warden Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Hon. Marvin E. Aspen
Presently before us is Petitioner Mikel Pernell's pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to vacate, set aside, or correct his conviction. For the reasons set forth below, we deny Petitioner's request for habeas relief.
The following facts are taken from the decision of the Illinois Appellate Court, People v. Pernell, 2016 IL App (1st) 133876-U, 2016 WL 941773 (1st Dist. Mar. 11, 2016), supplemented where appropriate by the appellate record.1 See United States ex rel. Parish v. Hodge, 73 F. Supp. 3d 895, 899 n.1 (N.D. Ill. 2014). On September 18, 2009 at 11:00 a.m., Petitioner was driving a two-tone Oldsmobile northbound on Torrence Avenue in Chicago when a red pickup truck, driven by George Cruz, pulled over from the right lane to the left lane, cutting off Petitioner's car. Id. ¶¶ 4, 6, 21. Petitioner then drove up on Cruz's right and both cars stopped at a stop sign, where Cruz intended to turn left onto 105th Street. Id. ¶¶ 5, 7. Cruz's wife testified that Petitioner yelled at Cruz, screaming "you are going to get shot." Id. ¶ 5. Cruz apologized to Petitioner and explained that he changed lanes to turn left onto 105th Street. Id. One witness testified that the occupants of the pickup truck appeared to be "gesturing apologetically." Id. ¶ 6. No eyewitness heard anyone in the pickup truck yell at Petitioner. Id. ¶¶ 5, 6. Petitioner abruptly turned left in front of Cruz's pickup, pulled over to the curb on 105th Street, and took out a gun. Id. ¶¶ 5, 7. Cruz proceeded to turn left onto 105th Street, stopped in the middle of the street, and apologized again to Petitioner for cutting him off. Id. ¶ 5. Petitioner fired a gunshot through the pickup's windshield, hitting Cruz in the eye and killing him. Id. ¶¶ 5, 7, 11, 12, 47. Cruz's pickup was between ten and twenty feet away from Petitioner's car when the shooting occurred. Id. ¶¶ 8, 10. Immediately after the shooting, Petitioner drove away. Id. ¶ 10. He was arrested about a month later. Id. ¶ 18.
At trial, four eyewitnesses to all or part of the shooting testified for the prosecution. Id. ¶¶ 4, 6, 8, 10. Two witnesses testified to seeing the entire event, including Cruz's wife, who rode in the pickup's passenger seat, and a Postal Service supervisor whose car was directly behind Cruz's pickup when the shooting occurred. Id. ¶¶ 4, 6, 7. Two other witnesses, who either lived next to or were walking by the scene, saw Petitioner's car near Cruz's and heard the gunshot. Id. ¶¶ 8, 10. Another witness, a former girlfriend, testified that Petitioner told her he had "shot a Mexican guy in the face with his wife in the car in a road rage incident on Torrence Avenue." Id. ¶¶ 22, 23. She further testified that Petitioner said the victim had "cut him off" and he "just shot him" despite the victim's attempt to apologize. Id. ¶ 23.
Petitioner testified in his own defense at trial. He admitted to shooting Cruz but claimed to have done so in self-defense. Id. ¶ 25. Petitioner testified that while he was driving northbound on Torrence Avenue on the date in question, he noticed a red pickup truck tailgating him. Id. Petitioner said the pickup's driver flashed his headlights and honked his horn at Petitioner. Id. Although Petitioner was driving the speed limit, it appeared to Petitioner that the pickup driver wanted him to drive faster. Id. Petitioner testified that the pickup bumped Petitioner's car and that the driver made gestures that Petitioner interpreted as threats. Id. ¶ 26. Petitioner said he had been driving about 40 miles per hour, but the traffic around him made it difficult to change lanes, and he feared the pickup driver would rear-end him if he slowed down to change lanes or turn. Id. When Petitioner finally did change lanes, he testified that the pickup truck continued following him. Id. Petitioner said he accelerated and that the pickup accelerated in turn, bumping Petitioner's car a second time. Id. Petitioner testified that he felt "threatened and scared," and that upon reaching 105th Street, he ran a stop sign, turned left to escape the pickup, and pulled over to a curb to calm down. Id. ¶¶ 26, 27. Petitioner testified that the pickup followed him and stopped behind his car in the middle of the street, making Petitioner feel afraid. Id. ¶ 27. When Petitioner saw the pickup driver reach down in the cab, Petitioner feared the driver was retrieving a weapon and would exit the truck to attack him. Id. In response, Petitioner got a gun from the glove compartment, aimed at the truck, and fired. Id. Petitioner testified that he intended the shot as a warning and did not intend to hurt or kill the driver. Id. After the shooting, Petitioner drove away. Id.
On cross-examination, Petitioner acknowledged that he never attempted to turn off Torrence Avenue before 105th Street or to slow down to allow the pickup truck to pass him, nor did he stop to report the pickup had bumped his car. Id. ¶ 28. Petitioner denied making the statements about the shooting that his former girlfriend had testified to in the state's case. Id. As part of his self-defense claim, Petitioner's counsel also presented three witnesses who testified that the victim, Cruz, had a propensity for violence. Id. ¶ 29. These witnesses all described incidents that occurred at least 15 years before Cruz's death. Id. ¶¶ 29, 30, 31.
During closing arguments, Petitioner's counsel made the following statements:
(Direct Appeal Br., St. Ct. R., Ex. B (Dkt. No. 14-2) at PageID #:207.)
The judge, in a bench trial, rejected Petitioner's self-defense claim and found him guilty of first-degree murder. Pernell, 2016 IL App (1st) 133876-U at ¶ 32.
Petitioner appealed his conviction to the Illinois Appellate Court on the grounds that defense counsel at trial was ineffective for misapprehending the legal standard for self-defense in closing statements and for not arguing for a second-degree murder conviction in the alternative. Id. ¶ 2. Petitioner also claimed the trial judge deprived him of a fair trial by repeating the erroneous self-defense standard in rejecting his self-defense claim. Id.2 The appellate court rejected all of Petitioner's claims and affirmed his conviction on March 11, 2016. Id. ¶ 57. Petitioner renewed these claims in his Petition for Leave to Appeal ("PLA"), which the Illinois Supreme Court summarily denied on September 28, 2016. (Direct Appeal PLA, St. Ct. R., Ex. E (Dkt. No. 14-5) at PageID #:293; Summ. Denial, St. Ct. R., Ex. F (Dkt. No. 14-6).)
Petitioner filed the present pro se habeas petition on December 22, 2017. .) In it, he again asserts that (1) the trial court deprived him of a fair trial in applying an erroneous self-defense standard; (2) trial counsel provided ineffective assistance for misstating the self-defense standard in closing argument; and (3) trial counsel was ineffective for failing to argue for second-degree murder as an alternative lesser conviction. (Id. at 5.) Petitioner represents that he has exhausted the claims raised in his habeas petition.3
By pursuing the same claims in state court that he now presents in his habeas petition, Petitioner has properly exhausted his state remedies, and there is no dispute that his petition is timely filed. See Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010); Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir. 2004) ().
We are empowered to grant a writ of habeas corpus only if Petitioner is imprisoned "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 480 (1991). For a claim that was adjudicated on the merits in a state-court proceeding, we grant the writ only if the adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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). The state court's findings of fact are presumed correct unless Petitioner meets his burden of "rebutting the presumption of correctness by clear and convincing evidence." Id. § 2254(e)(1).
A decision is "contrary to" clearly established federal law if the state court contradicts the Supreme Court on a question of law or reaches a result opposite to Supreme Court precedent on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519 (2000); Hall v. Zenk, 692 F.3d 793, 798 (7th Cir. 2012). A decision involves an "unreasonable application" of clearly established law if the state court "identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case," Williams, 529 U.S. at 408-09, 120 S. Ct. at 1520, or "unreasonably extended a rule to a context where it should not have applied or unreasonably refused to extend a rule to a context where it should have...
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