IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

UNITED STATES OF AMERICA )

ex rel. PIERRE HEBRON, )

)

Petitioner, )

)

v. ) 12 C 2228

)

JOSEPH YURKOVICH, Warden of ) Judge John Z. Lee

Hill Correctional Facility, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

Pierre Hebron 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 

conviction for aggravated battery with a firearm based on ineffective assistance of his appellate

counsel and a violation of his due process rights. For the reasons set forth in this Memorandum 

Opinion and Order, the Court denies the petition. 

Factual Background1

On April 18, 2006, while standing on a sidewalk, Richard Tolbert and his mother were 

speaking to Wendy Tolbert, who is Richard’s aunt, as she sat in the driver’s seat in herstation wagon 

facing northbound on Avers Street. Although Tolbert’s aunt testified that her car was pointed

northbound on Avers, defense witness investigator Judith Lagiglio testified that Avers is a one-way 

southbound street.

1 Pursuant to 28 U.S.C. § 2254(e)(1), the state court’s recitations of fact are presumptively correct in 

habeas proceedings. Sumner v. Mata, 449 U.S. 539, 547 (1981). Because Petitioner has not rebutted 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. Hebron, No. 1-09-0337, slip op. at 1-5 (Ill. App. Ct. Nov. 24, 2010) (see

Resp’t’s Ex. D).

 
At that moment, Tolbert and his aunt saw Pierre Hebron, whom they had known from the 

neighborhood for a long time, walk up to them with a gun in his hand. Although Tolbert and 

Hebron had been friends in the past, their friendship ended when they dated the same woman. 

Tolbert then put his mother in his aunt’s car and told his aunt to drive away.

Hebron continued walking toward Tolbert and stopped when he was approximately two feet 

away. The two exchanged greetings. Then Hebron told Tolbert, “I don’t like you.” And Tolbert

replied, “I don’t like you.” Then Hebron shot Tolbert in the leg, and Tolbert fell to the ground. 

Seconds later, Tolbert was picked up and driven to the hospital by friends who happened to be 

driving by. 

Tolbert’s aunt, who had initially obeyed his instructions to drive away, put the car in reverse

when she heard the gunshot. However, she could not back down the street because the car that had 

picked up her nephew was behind her. She eventually followed that car to the hospital. 

Detectives Roberto Garcia and Roger Lara spoke to Tolbert at the hospital. Based on the 

information and description that Tolbert provided, the investigation focused on a shooter named 

“Pierre,” who had a tattoo of a “V” on his forehead. Detective Garcia compiled a photographic 

array, and Tolbert identified Hebron as the man who had shot him. Tolbert twice told the detectives 

that he was driven to the hospital by a man named Brandon Givens. At trial, however, Tolbert

denied that Givens was even in the car that drove him to the hospital.

Sheila Regan, a crime victim advocate, also spoke to Tolbert at the hospital. According to 

Regan’s notes from her interview, Tolbert told her that he was accidentally shot by an unknown 

assailant during a dice game and that the intended victim was someone else. 

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Brandon Givens testified that at the time of the shooting, he was hanging out with Tolbert

shooting dice. According to Givens, during the dice game, an unknown African-American man 

walked up to Tolbert, and the man and Tolbert exchanged a couple of words. Givens testified at trial 

that the unknown man pulled a gun out of his waistband, shot Tolbert in the leg, and then left. In 

other words, contrary to Regan’s notes, Givens stated that Tolbert was the intended, rather than an 

accidental, shooting victim. Givens testified at trial that Tolbert fell on the sidewalk where he was 

shot and that he and another person drove Tolbert to the hospital. At trial, Givens admitted that he 

did not want to see Hebron, with whom Givens had been friends since third grade, go to prison. 

Procedural Background

Hebron was charged with attempted first degree murder, aggravated battery with a firearm, 

and unlawful use of a weapon by a felon arising from the April 2006 incident. In 2008, after a bench 

trial, Hebron was convicted of aggravated battery with a firearm and unlawful use of a weapon by a 

felon, and the court sentenced Hebron to twelve years of imprisonment. (Resp’t’s Ex. I, 2/25/05 

Postconviction Hr’g Tr. at 3.) 

On direct appeal, Hebron argued that the state failed to prove him guilty beyond a reasonable 

doubt. He asserted that the following discrepancies created reasonable doubt: (1) Tolbert’s 

testimony regarding the shooting was contradicted by his own testimony and that of Givens, and 

failed to provide a motive for the shooting; and (2) Tolbert’s aunt’s testimony was contradicted by 

Givens and Lagiglio. 

The state appellate court affirmed the conviction, holding that the physical evidence, i.e., the 

blood stains and the bullet found on the street on the eastern side of Avers Street, supported Tolbert’s 

testimony as to how he was shot in the street and contradicted Givens’ testimony that Tolbert was 

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shot during a card game and immediately fell on the sidewalk. The appellate court emphasized that

the trial court found Tolbert and his aunt’s testimony credible as to the core issue, i.e., whether they 

saw Hebron approach them with a gun in his hand and whether Tolbert saw Hebron as Hebron shot 

him.

Hebron petitioned for leave to appeal the appellate court’s order affirming his conviction to 

the Illinois Supreme Court. See Resp’t’s Ex. E, People v. Hebron, No. 111648. The Illinois 

Supreme Court, however, denied the petition for leave to appeal. See Resp’t’s Ex. F, People v. 

Hebron, No. 111648 (Ill. 2011). Hebron did not file a post-conviction petition. See Pet. Writ Habeas

Corpus 3.

Here, Hebron asserts the following grounds for habeas relief:

(1) ineffective assistance of appellate counsel on direct appeal because appellate 

counsel did not challenge trial counsel’s (a) failure to cross-examine Tolbert’s 

mother, Rose Franklin, and (b) refusal to allow Hebron to testify at trial; 

(2) the government failed to prove him guilty beyond a reasonable doubt because 

Tolbert’s testimony that Hebron shot him was contradicted by Regan’s notes and 

Givens’ testimony;

(3) the government failed to prove him guilty beyond a reasonable doubt because 

Tolbert’s aunt, Wendy Tolbert, incorrectly stated that she was traveling 

northbound on Avers when Avers is a one-way southbound street.

Discussion

Before considering the merits of a habeas petition, the Court must ensure as a threshold issue 

whether the petitioner has exhausted all available remedies in state court and avoided procedural

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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 fairly 

present his constitutional claims at each level of state court review. Lewis v. Sternes, 390 F.3d 1019, 

1025 (7th Cir. 2004); Momient-El v. DeTella, 118 F.3d 535, 538 (7th Cir. 1997). “In determining 

whether an issue has been fairly presented to a state court, th[e] court has looked to whether the 

petitioner’s argument ‘(1) rel[ied] on pertinent federal cases; (2) rel[ied] on state cases applying 

constitutional analysis to a similar factual situation; (3) assert[ed] the claim in terms so particular as 

to call to mind a specific constitutional right; or (4) allege[d] a pattern of facts that is well within the 

mainstream of constitutional litigation.’” Momient-El, 118 F.3d at 538 (quoting Verdin v. O’Leary, 

972 F.2d 1467, 1473-74 (7th Cir. 1992)). “[T]he presence of any one of these factors . . . does not 

automatically avoid a waiver; the court must consider the facts of each case.” Verdin, 972 F.2d at 

1474. If a claim is procedurally defaulted, a petitioner must then 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). 

Hebron argues that his counsel on direct appeal provided ineffective assistance because he

did not challenge trial counsel’s failure to call the victim’s mother as a witness and refusal to allow 

Hebron to testify at trial. Respondent counters that this habeas claim is procedurally defaulted 

because the issue of ineffective assistance of appellate counsel was never raised before the Illinois

courts. Respondent is correct. 

During his direct appeal, Hebron [?] did not raise this issue in his petition for leave to appeal 

to the Illinois Supreme Court even though he was represented by different counsel. Furthermore, 

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Hebron [?] never sought post-conviction relief, and thus he did not raise this issue during any postconviction proceeding. See Farrell v. Lane, 939 F.2d 409, 411 (7th Cir. 1991) (holding that 

petitioner’s failure to raise an ineffective assistance of appellate counsel claim on direct review or at 

any step in the post-conviction proceeding bars habeas review of the claim). Because Hebron has not 

even attempted to establish that there is good cause for the default, that actual prejudice resulted

from the default, or that the default causes a fundamental miscarriage of justice, the Court denies the

habeas petition based on a claim of ineffective assistance of counsel. 

With regard to Hebron’sremaining habeas arguments Respondent concedes that they are not 

procedurally defaulted and that Hebron has exhausted all available remedies. The Court thus 

proceeds to the merits of Hebron’s argument that, for various reasons, the government failed to prove 

him guilty beyond a reasonable doubt. 

Under AEDPA, a federal court “deferentially review[s] the decision of the last state court to 

address [petitioner’s] 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). 

In Jackson v. Virginia, the Supreme Court held that a federal district court may review a 

habeas claim that the evidence presented at a state trial was insufficient to convict beyond a 

reasonable doubt. 443 U.S. 307, 318-19 (1979); see Herrera v. Collins, 506 U.S. 390, 401 (1993). 

However, “this inquiry does not require a court to ask itself whether it believes that the evidence at 

the trial established guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 318-19 (quotation 

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omitted). Rather, “the relevant question is 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.” Id. at 319. The conviction will stand unless “the record contains 

no evidence, regardless of how it is weighed, upon which a rational trier of fact could find guilt 

beyond a reasonable doubt.” United States v. Starks, 309 F.3d 1017, 1021 (7th Cir. 2002).

Habeas claims made pursuant to Jackson present mixed questions of law and fact. See 

Gomez v. Acevedo, 106 F.3d 192, 198 (7th Cir. 1997), vacated on other grounds sub nom. Gomez v. 

DeTella, 522 U.S. 801 (1997). Under the AEDPA, “a writ of habeas corpus may be issued for 

evidence insufficiency only if the state courts have unreasonably applied the Jackson standard.” Id.

at 199. To grant the writ, “the state court’s application of law must have been objectively 

unreasonable.” Harris, 680 F.3d at 948 (quotation omitted). This analysis “turns on whether the 

state court provided fair process and engaged in reasoned, good-faith decisionmaking when applying 

Jackson’s ‘no rational trier of fact’ test.” Id. Lastly, “we presume that the courts’ factual 

determinations are correct unless [the petitioner] rebuts the presumption by clear and convincing 

evidence.” Newman v. Harrington, 726 F.3d 921, 928 (7th Cir. 2013).

The Illinois Appellate Court unanimously ruled that the evidence was sufficient to convict 

Hebron of aggravated battery with a firearm beyond a reasonable doubt. It first outlined the elements 

necessary for conviction under the Illinois statute. See Resp’t’s Ex. D, People v. Hebron, No. 1-09-

00337, at 5–9 (Ill. App. Ct. Nov. 24, 2010). The court noted that, under Illinois law, a conviction for 

aggravated battery with a firearm requires the State to prove that the defendant committed “a battery, 

knowingly or intentionally by means of the discharging of a firearm . . . caus[ing] any injury to 

another person.” 720 Ill. Comp. Stat. 5/12-4.2(a)(1) (West 2006). A conviction for battery requires 

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the State to prove that the defendant “intentionally or knowingly without legal justification . . . 

caus[ing] bodily harm to an individual.” 720 Ill. Comp. Stat. 5/12-3 (West 2006). The court then 

reviewed the trial record and held that a rational factfinder could conclude that the essential elements 

of aggravated battery with a firearm were proven because Tolbert unequivocally testified that Hebron 

shot him in the leg at close range. See Resp’t’s Ex. D, People v. Hebron, No. 1-09-00337, at 8 (Ill. 

App. Ct. Nov. 24, 2010). In so doing, the appellate court reasonably applied the “any rational trier of 

fact” test espoused in Jackson when it affirmed Hebron’s conviction. 

The appellate court also properly applied the Jackson test when it held that it was up to the 

trial court as the trier of fact to determine the credibility of the witnesses. The trial court questioned 

Givens’ credibility because he was a multiple convicted felon and a friend of Hebron who did not 

want to see his friend go to jail. The trial court also questioned Givens’ credibility because the 

physical evidence corroborated Tolbert’s testimony that he was shot in the street, rather than Givens’ 

testimony that he was shot during a dice game on the sidewalk. In contrast, the trial court found that 

Tolbert and his aunt testified credibly about seeing Hebron, whom the victim and his Aunt had 

known for a long time, approach them with a gun. The trial court found that Tolbert also testified 

credibly that Hebron was the person who had shot him. In finding Tolbert credible, the trial court 

necessarily resolved any discrepancy between Regan’s testimony regarding an unknown assailant in 

favor of Tolbert. The appellate court reasonably held that any other discrepanciesin Tolbert and his 

aunt’s testimony did not necessarily raise an inference that their testimony regarding Hebron was 

made of whole cloth. Id. at 9 (“After reviewing the record in the light most favorable to the State, 

this court cannot say that the only inference to be drawn from the flaws in the testimony is disbelief 

of the whole. A defendant’s conviction is reversed only when the evidence at trial was so 

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unreasonable or improbable that reasonable doubt remains as to a defendant’s guilt; this is not one of 

those cases.”) (citations omitted). 

In its analysis, the appellate court clearly identified the appropriate Jackson standard and 

carefully relied on evidence in the record to support its ultimate conclusion. The appellate court’s 

application of the Jackson standard is well within the bounds of reasonableness. See Gomez, 106 

F.3d at 201 (stating that if the state court’s application of the Jackson standard is reasonable, “it must 

be respected–not because it is right, or because federal courts must abandon their independent 

decision-making, but because the grave remedy of upsetting a judgment entered by another judicial 

system after full litigation is reserved for grave occasions” (quotation omitted)).

In sum, the Court holds that one of Hebron’s grounds for habeas relief, ineffective assistance 

of counsel, is procedurally defaulted and that Hebron has failed to establish cause for the default or 

that prejudice or a fundamental miscarriage of justice results from the default. As for Hebron’s 

remaining grounds, the Court holds that the Illinois appellate court reasonably applied the Jackson

standard. Therefore, the Court denies Hebron’s petition for writ of habeas corpus.

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 

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constitutional claim are debatable. Id. at 484. 

That Hebron’s habeas claim based on ineffective assistance of counsel is procedurally barred 

by his failure to present it before the Illinois courts is not debatable. Furthermore, given that the 

Illinois Appellate Court identified the Jackson standard and carefully analyzed the evidence to 

conclude that a rational trier of fact could find the elements of the offense proven beyond a 

reasonable doubt, Hebron has not established that reasonable jurists would disagree with the Court’s 

assessment of his Jackson claims. 

Conclusion

For the reasons provided in this Memorandum Opinion and Order, the Court denies Hebron’s

petition for writ of habeas corpus [7] and declines to issue a Certificate of Appealability. This case is 

hereby terminated.

SO ORDERED ENTER: 8/20/15

_____________________________

JOHN Z. LEE

 U.S. District Judge

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