IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES MITCHELL, )

)

Petitioner, ) 12-cv-1592

)

v. ) Judge John Z. Lee

)

TARRY WILLIAMS, Warden, )

Stateville Correctional Center,1 )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner James Mitchell (“Mitchell”) has filed a petition for writ of habeas 

corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective 

Death Penalty Act of 1996 (“AEDPA”), challenging his state criminal convictions for 

first degree murder and home invasion. Mitchell advances several grounds for

habeas relief: insufficient evidence for conviction; failure to give appropriate jury 

instructions; misapplication of a firearm sentencing enhancement; ineffective 

assistance of trial counsel; and actual innocence. Tarry Williams (“Respondent”), 

Warden of the Stateville Correctional Center, argues that Petitioner’s claims are 

meritless, non-cognizable, or procedurally defaulted. For the reasons set forth 

herein, the Court denies the petition.

1 The Court substitutes Tarry Williams for the original named Defendant, Marcus 

Hardy. Rule 2(a) of the rules governing Section 2254 habeas cases provides that the proper 

party respondent brought by a incarcerated petitioner is the state officer having custody of 

the petitioner. See Bridges v. Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005). Tarry 

Williams replaced Marcus Hardy as Warden of Stateville Correctional Center. Accordingly, 

the Court substitutes him as Respondent pursuant to Federal Rule of Civil Procedure 25(d). 

 
Factual Background2

A jury convicted Mitchell of home invasion and the first degree murder of 

Brian Campbell on an accountability theory. See People v. Mitchell, No. 1-05-1114, 

slip. op. 1–2 (Ill. App. Ct. 2007). The facts underlying the convictions are as follows.

Campbell and his fiancée, Ninner Powers, lived in a two-flat apartment on 

the second story. See id. 2. At 8:30 p.m. on the evening of May 8, 2002, Powers was 

talking to a friend on the porch of her home. See id. Campbell was upstairs in the 

apartment. See id. Powers’ friend left, and Powers went inside and attempted to 

close the door, when Mitchell and two other people, Marcel White and Christopher 

Peoples, forced their way into the home. See id. 

Mitchell, White, and Peoples informed Powers that they had learned she and 

Campbell were selling drugs for a rival gang and that they wanted the drugs and 

the money from the sales. See id. Powers denied these accusations, but White 

persisted, saying he was going to go get the money himself. See id. 2–3. White 

pushed Powers aside and proceeded up the stairs, followed by Peoples. See id. 3. 

Powers followed the two men, and in turn Mitchell followed Powers. See id. 

Powers tried to prove to the men, by showing them a bond slip, that she had 

been in jail the night before and had only been released that morning. See id. 

Mitchell asked if Powers was willing to “face” the person who had accused her of the 

2 Pursuant to 28 U.S.C. § 2254(e)(1), the state courts’ recitations of fact are 

presumptively correct in habeas proceedings. See Sumner v. Mata, 449 U.S. 539, 547 

(1981). Because Mitchell has not attempted to rebut the presumption with clear and 

convincing evidence, see 28 U.S.C. § 2254(e)(1), the Court adopts the factual account as 

provided in People v. Mitchell, No. 1-05-1114, slip. op at 1–5 (Ill. App. Ct. 2007)

2

 
drug sales. See id. White stated that Powers was “probably lying,” and Mitchell 

retorted that he did not think Campbell was involved in drug sales. See id. 

Nevertheless, Mitchell told Peoples to shoot Powers to show the other gang that 

they “meant business.” See id. 

Peoples took a pistol from his coat and pointed it at Powers. See id. At that 

moment, Campbell approached the group, and Peoples shot Campbell three or four 

times. See id. Peoples then aimed the pistol at Powers’ head and pulled the trigger,

but the gun did not discharge. See id. Powers, in turn, picked up a revolver and 

tried to shoot the men. See id. Mitchell, Peoples, and White ran out of the 

apartment and down the street. See id. 

Officer William Harnedy of the Chicago Police Department interviewed 

Powers at her apartment after the shooting. See id. Powers indicated she did not 

know which direction the men had ran and did not tell Officer Harnedy about the 

conversation in the hallway where the men had threatened to shoot her before 

shooting Campbell. See id. Powers did identify Mitchell and White in police 

photographs and later identified Peoples as the gunman. See id.

On May 17, 2003, Mitchell was arrested pursuant to a warrant and was 

questioned by Detective Daniel McNally, Mitchell initially denied any knowledge of 

Campbell’s murder. See id. 3–4. After Mitchell was told that White and Peoples 

had also been arrested, however, he said he knew what Detective McNally was 

talking about. See id. 4. He indicated that it involved Powers’ husband, but 

3
Mitchell denied participating in the shooting, claiming he was at his grandfather’s 

house the night of the shooting. See id.

Officer John Halloran questioned Mitchell after McNally. See id. At first, 

Mitchell maintained his noninvolvement. He claimed that he had met White and 

Peoples on Powers’ porch that night, but insisted he left before shots were fired, 

went to his grandfather’s house, and took a bus to Minnesota the next day. See id. 

When Officer Halloran told Mitchell that White and Peoples had implicated him, 

Mitchell altered his story. See id. Mitchell then claimed that on the night in 

question he ran into White and a man named Harper, who told him that Powers 

sold drugs from her apartment for a rival gang. See id. White told Mitchell that 

Powers owed him money, and Mitchell agreed to help him get the money. See id. 

White told Mitchell he was going to “f*** Powers up” if she did not have his money. 

See id. 

Mitchell then told Officer Halloran that he went with White and Peoples to 

Powers’ apartment and Powers let them in because she did not want the police to 

see her loitering on her front porch with multiple people. See id. Mitchell 

maintained that only Peoples went upstairs and, after shots were fired, he fled with 

White and Peoples. See id. Officer Halloran then told Mitchell he knew Mitchell 

belonged to a gang that was a rival to Powers’ gang. See id. 4–5. 

At trial, Powers and the police officers testified to the above facts. The 

defendant presented no testimony. See id. 5. The court instructed the jury on the 

legal theory of accountability. See id. The jury then convicted Mitchell of both first 

4
degree murder and home invasion. See id. Mitchell was sentenced to a term of 

forty-five years for the first degree murder, to which fifteen years was added under 

an sentencing enhancement for firearms crimes. See id. 1. Mitchell was also 

sentenced to a consecutive term of ten years for home invasion. See id.

Direct Appeal

On direct appeal, Mitchell raised three claims: (1) the State had failed to 

prove him guilty beyond a reasonable doubt; (2) the trial court failed to afford him a 

fair trial when it failed to define the term “dwelling place” as an element of the 

crime of home invasion; and (3) the trial court erred when it applied the firearm 

enhancement in sentencing. See Resp’t’s Answer, Ex. B, Opening Brief for 

Defendant Appellant, People v. Mitchell, No. 03 CR 12481(03), i–ii (Ill. App. Ct. 

2006). The Illinois appellate court affirmed Mitchell’s conviction and sentence. See 

generally id., Ex. A, People v. Mitchell, No. 1-05-1114 (Ill. App. Ct. 2007). Mitchell

then filed a petition for leave to appeal (“PLA”) with the Illinois Supreme Court 

raising these same three claims. See Resp’t’s Answer, Ex. E, Defendant-Appellant’s 

Direct Appeal PLA, 12–18. The Illinois Supreme Court denied the PLA on January 

30, 2008. See id., Ex. F, Order Denying PLA, People v. Mitchell, No. 105676 (Ill. 

2008).

Post-Conviction Proceedings

On July 23, 2008, Mitchell, proceeding pro se, filed a post-conviction petition 

in state trial court. See generally Resp’t’s Answer, Ex. G, Pro Se Post-conviction 

Petition, People v. Mitchell, Case No. 03-CR-12481 (03). Mitchell raised three 

5
claims: (1) his trial counsel rendered ineffective assistance by failing to file a motion 

to suppress statements Mitchell had made to Halloran and McNally in violation of 

his rights against self-incrimination; (2) his trial counsel rendered ineffective 

assistance by failing to preserve error that Mitchell was not proven guilty beyond a 

reasonable doubt; and (3) Mitchell was actually innocent. See id. at 2. The state 

trial court found his claims frivolous and without merit. See id., Ex. I, Order, People 

v. Mitchell, No. 03 CR 12481 (Cir. Ct. Cook Cty.)

The only claim Mitchell raised on appeal to the Illinois appellate court was 

his actual innocence claim. See id., Ex. K, Petitioner’s Postconviction Petition, 

People v. Mitchell, No. 03 CR 12481 (Cir. Ct. Cook County). Mitchell argued that he 

was actually innocent based on an affidavit submitted by Powers recanting her 

testimony that Mitchell had told Peoples to shoot Powers. The Illinois appellate 

court rejected this argument. See id., Ex. J, Order, People v. Mitchell, No. 1-09-

1053, 7–10 (Ill. App. Ct. 2011). In his subsequent PLA to the Illinois Supreme 

Court, Mitchell presented all three claims he raised in the trial court. See id., Ex. 

N, Postconviction Appeal PLA, People v. Mitchell, No. 1-09-1053. The Illinois 

Supreme Court denied Mitchell’s post-conviction PLA on September 28, 2011. See 

id., Ex. O, Order Denying Postconvicition Appeal PLA, People v. Mitchell, No. 

112212 (Ill. 2011).

Federal Habeas Claims

After reviewing the habeas petition, the Court finds that Mitchell has 

presented the following claims:

6
Claim One: The State did not present sufficient evidence to convict Mitchell 

beyond a reasonable doubt because the evidence did not support Mitchell’s 

guilt under an accountability theory.

Claim Two: The trial court denied Mitchell his right to a fair and impartial

jury trial when it gave the jury a definition of “dwelling place” for purposes of 

the home invasion charge that was not the definition contained in Illinois 

Pattern Jury instructions, thereby improperly deciding a fact which should 

have been left to the jury.

Claim Three:3 The trial court erred in applying a Illinois firearms 

sentencing enhancement, 730 Ill. Comp. Stat. 5/5-8-1(a)(1)(d)(i), to add fifteen 

years to Mitchell’s sentence, because the jury found him guilty under an 

accountability theory and therefore did not actually find that he was armed.

Claim Four:4 Trial counsel rendered ineffective assistance by failing to: (a)

file a motion to suppress the statements Mitchell made to Officer Halloran 

and Detective McNally in violation of his Miranda rights; and (b) preserve 

the issue at trial of the State’s failure to prove Mitchell’s guilt beyond a 

reasonable doubt.

Claim Five: Mitchell is actually innocent based on a new affidavit submitted 

by trial court witness Ninner Powers recanting her testimony in part.

See generally Pet’r’s Pet. 5–7, 9–17. 

Analysis

A. Claim One

Mitchell’s first claim is that the State did not present evidence sufficient to 

convict him beyond a reasonable doubt. Under AEDPA, a federal court 

“deferentially review[s] the decision of the last state court to address [petitioner’s] 

3 The Court has collapsed Mitchell’s original Grounds Three and Grounds Four

because they both challenge the trial court’s application of a firearms sentencing 

enhancement under Illinois law to increase Mitchell’s sentence by fifteen years. Compare

Pet’r’s Pet. 6 (Grounds Three); id. (Grounds Four). 

4 For simplicity, the Court has collapsed Mitchell’s two ineffective assistance of trial 

counsel subclaims into one claim here. Compare Pet’r’s Pet. 14 (Claim Five); Pet’r’s Pet. 14 

(Claim Six).

7

 
claims on the merits.” Harris v. Hardy, 680 F.3d 942, 948 (7th Cir. 2012). A federal 

court may not grant habeas relief unless the state court’s adjudication of a claim 

“was contrary to, or involved an unreasonable application of clearly established 

Federal law as determined by the Supreme Court of the United States,” or “was 

based on an unreasonable determination of the facts in light of the evidence 

presented.” 28 U.S.C. § 2254(d). 

 As an initial matter, Mitchell rests a portion of his argument on an affidavit 

of Ninner Powers that was obtained after his trial and direct appeal. See Pet’r’s 

Pet., Ex. A, Powers Affidavit. But Powers’ affidavit was not in the record on direct 

appeal where Mitchell made his sufficiency of the evidence arguments and 

consequently cannot be considered by this Court on review. See Cullen v. 

Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding “review under § 2254(d)(1) is 

limited to the record that was before the state court that adjudicated the claim on 

the merits.”).5 

This leaves the remaining portion of Mitchell’s claim that the State did not 

have sufficient evidence to convict him. Mitchell argues that the State did not 

present sufficient evidence to find that he went inside Powers’ apartment or that he 

participated in the murder to extent required for conviction under an accountability 

theory. See Pet’r’s Pet. 9. “Under the Due Process Clause, a defendant cannot be 

convicted unless the state proves all the elements of the crime beyond a reasonable 

doubt.” United States ex rel. Navarro v. Atchison, --- F. Supp. 3d -----, No. 13 C 427, 

5 Though Mitchell introduced Powers’ affidavit in post-conviction hearings, he did so 

under an entirely different claim, adjudicated under different standards: actual innocence. 

8

 
2014 WL 7476218, at *4 (N.D. Ill. Sept. 24, 2014) (citing Jackson v. Virginia, 443 

U.S. 307, 316 (1979)). The Court considers “whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 

U.S. at 319. But “[t]he Court’s role in reviewing such a claim is limited, and it may 

not reweigh the evidence or substitute its own judgment for that of the trier of fact.” 

Navarro, --- F. Supp. 3d at ---, 2014 WL 7476218, at *4 (citing Ford v. Ahitow, 104 F.3d 

926, 939 (7th Cir. 1997)). 

First, the Illinois appellate court’s adjudication of Mitchell’s sufficiency claim

was not contrary to federal law. “A state court’s decision is ‘contrary to’ federal law 

if it applies the wrong standard or ‘decides a case differently than [the Supreme 

Court has] done on a set of materially indistinguishable facts.’” Morgan v. 

Calderone, 355 Fed. App’x 53, 55 (7th Cir. 2009) (quoting Bell v. Cone, 535 U.S. 685, 

694 (2002)). Mitchell does not contend the state appellate court applied the wrong 

standard, nor does Mitchell point to any Supreme Court cases with materially 

indistinguishable facts that were decided differently. Accordingly, Mitchell has not 

established that the Illinois appellate court’s ruling was contrary to federal law. 

Nor was the Illinois appellate court’s ruling an unreasonable application of 

Jackson. “Under the ‘unreasonable application’ of law clause, ‘a federal habeas 

court may grant the writ if the state court identifies the correct governing legal 

principle from [the Supreme] Court’s decisions but unreasonably applies that 

principle to the facts of the prisoner’s case.’” Harris, 680 F.3d at 948 (quoting 

9
Williams v. Taylor, 529 U.S. 362, 413 (2000)). “This means that the state court’s 

application of law must have been objectively unreasonable.” Id. (quotation 

omitted). 

Mitchell raised his sufficiency of the evidence claim on direct appeal to the 

Illinois appellate court. In reviewing the Illinois appellate court’s adjudication of 

this claim, the Court finds it comports with the due process requirements of 

Jackson. First, the Illinois appellate court correctly identified the guiding 

principles from Jackson and correctly cited Jackson and its standard. See Resp’t’s

Answer, Ex. A, 5 (citing Jackson, 443 U.S. at 318–19). The court also outlined the 

elements necessary to establish liability on an accountability theory for murder 

under Illinois law. See id., Ex. A, 6 (citing 720 Ill. Comp. Stat. 5/5-2(c) and People v. 

Baugh, 832 N.E.2d 903, 911 (Ill. App. 2005)). The Illinois appellate court then 

proceeded to review the evidence the State marshaled at trial against the elements

of accountability for first degree murder.

The Illinois appellate court found that the evidence at trial could reasonably 

establish more than just Mitchell’s mere presence at the scene of the crime. See

Resp’t’s Answer, Ex. A, 6–8. In particular, the court found that there was sufficient 

evidence based on Mitchell’s statements that he went with Peoples and White to 

Powers’ apartment with a common purpose — to confront her about drug sales for a 

rival gang. See id., Ex. A, 7. The court also pointed to Powers testimony that 

Mitchell told Campbell he should “pop her” to send a message to a rival gang. See 

id., Ex. A, 7–8. The court found that there was evidence that Mitchell knew Peoples 

10
had a gun. See id., Ex. A, 8. Lastly, the court noted the evidence that Mitchell fled 

from the crime scene, a factor that can be indicative of guilt under Illinois law. See 

id. (citing Smith, 749 N.E. 2d 986, 989 (Ill. App. Ct. 2001)). Ultimately, based on 

the record before it, the Illinois appellate court reasonably applied Jackson to find

that the evidence offered by the State was sufficient to establish Mitchell’s 

accountability for Campbell’s murder and that the conviction therefore did not 

violate Mitchell’s due process rights. See id. 

In addition to his general concern over the sufficiency of the State’s 

evidentiary proffer, Mitchell argues that Ninner Powers gave inconsistent and 

conflicting testimony on examination and cross-examination. See Pet’r’s Pet. 9. “A 

sufficiency of the evidence claim premised on witness credibility is particularly 

difficult to prove.” Navarro, --- F. Supp. 3d at ---, 2014 WL 7476218, at *5 (citing 

McFowler v. Jaimet, 349 F.3d 436, 456 (7th Cir. 2003)). “To find in favor of the 

petitioner on such a claim, the Court must determine not only that the witness was 

unreliable as a matter of law, ‘but that no court could reasonably think otherwise.’” 

Id. (quoting McFowler, 349 F.3d at 456). 

Mitchell did not present this specific argument on direct appeal. In his 

petition to this Court, Mitchell cites to various sections of the trial transcript. See 

Pet’r’s Pet. 9 (citing trial transcript.). Some of these portions of the transcript 

contain Powers’ statements on cross-examination concerning when she noticed the 

three men at her door and the fact that Mitchell went up the stairs behind her and 

asked her if she was “willing to face” whoever had said Powers was selling drugs for 

11
another gang. See Resp’t’s Answer, Ex. Q, S-89, S-94. Another portion of the trial 

transcript identified by Mitchell contains the statements on direct examination of 

Officer Harnedy, namely, that he responded to a call of a man shot and spoke to a 

visibly shaken Powers at the scene of the crime. See id., Ex. Q, S.139–S.141. The 

last portion of the transcript identified by Mitchell is Officer Harnedy’s statements 

on cross-examination, notably that Powers told him none of the men ever 

threatened to shoot her. See id., Ex. Q, S.155. 

But reviewing this record, there is nothing that establishes that Powers gave 

inconsistent statements or that there was something “inherently implausible” about 

her account. Navarro, 2014 WL 7476218, at *7. Indeed, this testimony goes to 

Powers’ credibility, demeanor, and her interpretation of Mitchell’s statements and 

actions in the moment. And this Court is mindful that a “jury’s credibility 

determination ‘commands great deference.’” Id. at *7 (quoting and citing McFowler, 

349 F.3d at 456 (“The finder of fact is uniquely situated to observe how well a 

witness’s demeanor withstands the rigors of cross-examination and the exposure of 

inaccuracies and inconsistencies in her story.”). Even if the Illinois appellate court 

had heard and addressed this argument, the testimony identified by Mitchell does 

not convince the Court that no reasonable jury could give credit to Powers based on 

the inconsistencies he identifies. Accordingly, Claim One does not constitute

grounds for granting the writ.

12
B. Claim Two

Mitchell claims that the trial court erred by giving the jury instruction on the 

meaning of “dwelling place” for a home invasion charge that did not come from the 

Illinois Pattern Jury Instructions. Before considering the merits of a habeas 

petition, however, the Court must ensure that the petitioner has exhausted all 

available remedies in state court and avoided procedural default during the state 

court proceedings. 28 U.S.C. § 2254(b)(1)(A); see Bocian v. Godinez, 101 F.3d 465, 

468 (7th Cir. 1996). A claim is procedurally defaulted if a habeas petitioner failed to 

assert his federal claim at each level of state court review. Lewis v. Sternes, 390 

F.3d 1019, 1025 (7th Cir. 2004). A claim is also procedurally defaulted based on the 

independent and adequate state ground doctrine “when a state court [has] declined 

to address a prisoner’s federal claims because the prisoner [has] failed to meet a 

state procedural requirement.” Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002). 

Claim Two is procedurally defaulted because the Illinois appellate court on 

direct review resolved the claim on an independent and adequate state law ground: 

forfeiture. As noted, “a federal court may not review a claim which was presented 

to the state courts but which was rejected on an independent and adequate state 

ground.” Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). “A state law ground 

that provides the basis for a state court decision is independent when the court 

actually relied on the procedural bar as an independent basis for its disposition of 

the case.” Id. “A state law ground is adequate when it is a firmly established and 

regularly followed state practice at the time it is applied.” Id.

13
The Illinois appellate court, citing People v. Curtis, 820 N.E.2d 1116, 1126 

(Ill. App. 2004), found that Mitchell had forfeited his argument on the “dwelling 

place” instruction because Mitchell’s contention on appeal — that the trial court 

incorrectly answered a question of fact for the jury — conflicted with his defense 

counsel’s argument at trial — that supplying the jury with the definition of dwelling 

place would be answering a question of law. See Resp’t’s Answer, Ex. A, 12 

(“[D]efendant is technically barred from now asserting that the jury inquiry 

presented a question of fact.”). The trial court relied on Curtis for the state law 

proposition that a party forfeits an argument on appeal by not presenting it at trial. 

See Curtis, 820 N.E.2d at 1126 (citing People v. Thompson, 787 N.E.2d 858, 865 

(2003) (noting a party “waived [their] argument by failing to raise it in the trial 

court”). Consequently, the Illinois appellate court’s determination rested on an 

independent and adequate state ground.

The Illinois appellate court’s alternative discussion of the claim on the merits 

does not ameliorate the procedural default. The Seventh Circuit has rejected the 

argument that “the presence of any discussion of the merits indicates that the state 

court did not base its ruling on independent state law grounds.” Smith, 598 F.3d at 

386 (noting “that is not the law”). “Only when the state court’s analysis of state law 

and federal law grounds are interwoven, to such an extent that we cannot clearly 

determine whether the state court opinion relies on state law grounds, do we set 

aside the state law grounds and address the issue.” Id. While the appellate court 

went on to discuss the merits of Mitchell’s arguments, it did so “despite defendant’s 

14
forfeiture.” See Resp’t’s Answer, Ex. A, 13. And the Illinois appellate court came to 

a clear holding on forfeiture, concluding after its analysis under Curtis that 

“[t]herefore, defendant is technically barred from now asserting that the jury 

inquiry presented a question of fact.” See id., Ex. A., 12. Consequently, it is clear 

that the Illinois appellate court decision on the “dwelling place” instruction 

argument rested on the independent and adequate state law ground of forfeiture,

and Claim Two is procedurally barred. 

C. Claim Three

Mitchell also claims that the trial court erred by applying a firearm 

enhancement in sentencing. The crux of his argument is that, because he was only 

convicted on an accountability theory of murder, the jury could not have found the 

facts necessary for the sentencing enhancement to apply. See Pet’r’s Pet. 11–12 

(Grounds Three and Four). Claim Three is not cognizable here because it does not 

present a federal constitutional claim. “[E]rrors of state law in and of themselves 

are not cognizable on habeas review.” Perruquet v. Briley, 390 F.3d 505, 511 (7th 

Cir. 2004). Mitchell’s petition only argues that the trial court misapplied 730 Ill. 

Comp. Stat. 5/5-8-1(a)(1)(d)(i), a state sentencing statute, when it sentenced 

Mitchell. See Pet’r’s Pet. 6. This constitutes an argument under state law because

“an error in the interpretation of . . . the application of state sentencing rules does 

not present a cognizable claim for federal habeas relief.” Dellinger v. Bowen, 301 

F.3d 758, 764 (7th Cir. 2002); see also U.S. ex rel. Keller v. McCann, 553 F. Supp. 2d 

15
1002, 1012 (N.D. Ill. 2008) (claims challenging the application of Illinois’ firearm 

sentencing enhancement under state law not cognizable).

This, of course, is not the end of the matter because “a state defendant does 

have a Fourteenth Amendment due process right to a fundamentally fair trial.” 

Perruquet, 390 F.3d at 511. However, even when Mitchell’s petition is construed

liberally, see Lieberman v. Thomas, 505 F.3d 665, 671 (7th Cir. 2007) (habeas 

petitioner’s pro se filings were entitled to liberal construction), it cannot be said to 

present a federal constitutional argument because it does not explain in any detail 

how the sentencing enhancement violated his federal constitutional rights to a fair 

trial. 

Although Mitchell’s petition mentions that the alleged misapplication of the

state sentencing enhancement was “fundamentally unfair,” see Pet’r’s Pet. 11, this 

is not enough to recast this issue as a due process claim under federal law. See 

Perruquet, 390 F.3d at (to make out a due process claim, “the basic rationale of 

[Petitioner’s] due process argument [must be] readily discernible”). Likewise, 

simply titling the claim in his petition as a due process violation under the 

Fourteenth Amendment, without further discussion, see Pet’r’s Pet. 6, does not 

properly invoke due process. See Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 

1995) (“‘Due process’ is such a ductile concept that phrase-dropping is the 

equivalent of no argument at all.”). And “unlike the petitioner in Perruquet, 

[Petitioner] does not ‘cite his constitutional right to a fair trial.’” United States ex 

rel. White v. Atchison, No. 12 C 7347, 2013 WL 6355476, at *6 (N.D. Ill. Dec. 4, 

16
2013). Claim Three therefore presents only an argument about State law and is not 

cognizable on federal habeas review.

Lastly, for completeness, even if the Court could construe Mitchell’s passing 

references to due process as impliedly raising a due process claim based on 

Apprendi v. New Jersey, 530 U.S. 466 (2000), this claim is unpersuasive. First, 

although Mitchell raised Apprendi before the state courts, he does not invoke 

Apprendi here. In any event, Apprendi would not apply. After applying the 

enhancement, the state trial court gave Mitchell a total sentence of sixty years. See 

People v. Mitchell, No. 1-05-1114, 1 (Ill. App. Ct. 2007). The fifteen-year 

enhancement did not increase his sentence beyond the sixty-year statutory 

maximum for first degree murder applicable at the time. See 730 Ill. Comp. Stat. 

5/5-8-1(a)(1)(a) (“a term shall be not less than 20 years and not more than 60 years”)

(effective January 1, 2006 to May 31, 2009); see also U.S. ex rel. Bivens v. Sigler, No. 

06 C 0584, 2006 WL 1308619, at *5 (N.D. Ill. May 10, 2006) (finding procedurally 

defaulted Apprendi argument nonetheless meritless) (citing Apprendi, 530 U.S. at 

490 (“any fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury and proven beyond a reasonable doubt”)). 

D. Claim Four

Mitchell’s fourth claim is procedurally defaulted because it was not subjected 

to one full round of state court review. Mitchell never argued that his trial counsel 

was ineffective for failing to move to suppress his own statements to officers in 

violation of his Miranda rights or to preserve a sufficiency of evidence claim for 

17
appeal on direct appeal. He did raise these claims in the first round of his postconviction proceedings, but did not pursue them subsequently in the state appellate 

court. Consequently, Claim Four is procedurally defaulted. See O’Sullivan v. 

Boerckel, 526 U.S. 838, 845 (1999) (habeas claim must be raised in one complete 

round of state court review, including the state appellate court). 

E. Claim Five

Lastly, Mitchell claims he is actually innocent. “Claims of actual innocence 

based on newly discovered evidence have never been held to state a ground for 

federal habeas relief absent an independent constitutional violation occurring in the 

underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993); 

see also Milone v. Camp, 22 F.3d 693, 699–700 (7th Cir. 1994) (unless a prisoner is 

facing a sentence of death, “actual innocence” is not a cognizable claim). “This rule 

is grounded in the principle that federal habeas courts sit to ensure that individuals 

are not imprisoned in violation of the Constitution — not to correct errors of fact.”

Herrera, 506 U.S. at 400. Consequently, Claim Five is noncognizable as a basis to 

grant the writ.6 See, e.g., U.S. ex rel. Williams v. Hulick, No. 07 C 0056, 2010 WL 

1292450, at *5 (N.D. Ill. Mar. 25, 2010). Notwithstanding this, the Court will 

6 Some courts have noted a tension between the Supreme Court’s rulings in Herrera 

and a subsequent case, In Re Davis, 557 U.S. 952 (2011), in which “the Supreme Court 

remanded a habeas petition to the Southern District of Georgia for a hearing to determine 

‘whether evidence that could not have been obtained at the time of trial clearly establishes 

petitioner’s innocence.’” Mulero v. Thompson, 751 F. Supp. 2d 1009, 1027 (N.D. Ill. 2010), 

aff’d, 668 F.3d 529 (7th Cir. 2012) (quoting In Re Davis, 557 U.S. at 952). Even if the Court 

were to hold that In Re Davis impliedly altered the holding in Herrera, the standard for a 

free-standing claim of actual innocence would remain “extraordinarily high,” see Mulero, 

751 F. Supp. 2d at 1027, and Mitchell would not meet it based on Powers’ recantation, as 

explained below.

18

 
consider Mitchell’s claim of actual innocence below as a potential cause to excuse 

Mitchell’s procedural default.

Cause To Excuse Procedural Defaults

As noted above, Claims Two and Four are procedurally defaulted. But 

Mitchell could still proceed if he establishes cause and prejudice to excuse his 

procedural defaults. If a claim is procedurally defaulted, a petitioner must establish 

that: (1) good cause exists for the default and actual prejudice was suffered as a 

result or (2) the default would lead to a “fundamental miscarriage of justice.” 

Morales v. Johnson, 659 F.3d 588, 604 (7th Cir. 2011); see Bousley v. United States, 

523 U.S. 614, 620 (1998).7 

Mitchell does not offer or argue that any cause excuses his default. 

Therefore, Mitchell offers no argument under the “cause and prejudice” exception.

Mitchell does, however, advance the claim that he is actually innocent, a claim that 

the Court construes to be an argument under the “fundamental miscarriage of 

justice” exception. “The fundamental miscarriage of justice exception requires the 

habeas petitioner to show that a constitutional violation has probably resulted in 

the conviction of one who is actually innocent.” Smith, 598 F.3d at 387 (internal 

7 “[T]he assertion of ineffective assistance as a cause to excuse procedural default in a 

§ 2254 petition, is, itself, a constitutional claim that must have been raised before the state 

court or be procedurally defaulted.” Lee v. Davis, 328 F.3d 896, 901 (7th Cir. 2003). Thus, 

“a claim of attorney ineffectiveness which is defaulted in state court cannot be the basis for 

cause, unless the petitioner can establish cause and prejudice for the ineffectiveness claim 

as well.” Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010). “The result is a tangled 

web of defaults excused by causes that may themselves be defaulted and require a showing 

of cause and prejudice—a result that has an ‘attractive power for those who like difficult 

puzzles.’” Lee, 328 F.3d at 901 (quoting Edwards v. Carpenter, 529 U.S. 446, 458 (2000)) 

(Breyer, J., concurring).

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quotations omitted). “To establish the requisite probability, the petitioner must 

show that it is more likely than not that no reasonable juror would have convicted 

him in the light of the new evidence.” Id. at 387–88 (quoting Schlup, 513 U.S. at 

327). 

To establish his actual innocence, Mitchell relies on an affidavit of Ninner 

Powers in which she recants portion of her prior testimony. But the affidavit is not 

enough to “show that it is more likely that not that but for the alleged constitutional 

error, no reasonable fact finder would have found him guilty[.]” Lesure v. Atchison, 

891 F. Supp. 2d 920, 926 (N.D. Ill. 2012). In her affidavit, Powers recants her 

testimony that Mitchell used force to enter the hallway of her apartment complex, 

avers that she does not hold Mitchell responsible for the death of her husband, and 

believes that Mitchell’s presence alone should not be enough for a finding of guilt. 

See Resp’t’s Answer, Ex. H, Powers Aff. Additionally, she believes he showed no 

action to encourage or incite the shooting. See id. Powers does not recant her 

testimony that Mitchell was there or that he fled the scene. And her affidavit does 

not undermine the other evidence establishing that Mitchell knew Peoples was 

armed, that he went to the apartment to recover drug money, and that he believed

Powers and Campbell were working for a rival gang. 

Mitchell’s evidence shows, at best, that “it would be possible for a juror to 

find him not guilty, not that it would be impossible for any reasonable juror to find 

him guilty, so we cannot excuse his procedural default on fundamental miscarriage 

of justice grounds.” U.S. ex rel. Lucas v. Welborn, 89 F. Supp. 2d 976, 983 (N.D. Ill. 

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1999) (examining recantation affidavits). Consequently, Powers’ affidavit is not 

enough to meet the high burden to establish a “fundamental miscarriage of justice” 

that would excuse Mitchell’s procedural defaults. 

Certificate of Appealability

Under Rule 11 of the Rules Governing § 2254 Cases, this Court must consider 

whether it should issue a Certificate of Appealability when entering a final order 

adverse to a petitioner. Issuing a certificate is appropriate only if “the applicant has 

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). The standard for making a “substantial showing” is whether “reasonable 

jurists would find the district court’s assessment of the constitutional claims 

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). If a court denies 

a petition on procedural grounds, a petitioner must show that both the procedural 

ruling and the underlying constitutional claim are debatable. Id. at 484. 

Here Mitchell’s Claim One is plainly meritless. The Illinois appellate court 

correctly identified the controlling legal principles from Jackson, correctly applied 

them, and Mitchell makes no argument that the court did so contrary to a factually 

similar Supreme Court case. It is beyond debate that Claims Two and Four are 

procedurally defaulted. No reasonable jurist would find that forfeiture was not an 

independent and adequate state ground to address Mitchell’s jury instruction 

argument. And no reasonable jurist would debate that Mitchell failed to present his 

ineffective assistance of counsel claims through one full round of state court review 

given that he abandoned these claims in the Illinois appellate court. Lastly, Claims 

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Three and Five are plainly deficient. Claim Three invokes only state law grounds,

and Claim Five is not a free-standing habeas claim. Finally, as described above, no 

reasonable jurist would find that Powers’ affidavit establishes Mitchell’s innocence 

so that the fundamental miscarriage of justice exception to procedural default 

would apply. Consequently, the Court declines to issue a Certificate of 

Appealability.

Conclusion

For the reasons provided in this Memorandum Opinion and Order, the Court 

denies Mitchell’s petition for writ of habeas corpus [6] and declines to issue a 

Certificate of Appealability. Civil case terminated.

SO ORDERED ENTERED 9/29/15

____________________________________

John Z. Lee

United States District Judge

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