### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 3531

M AURICE E VANS

,

Petitioner

‐ Appellant

,

v.

S TEPHANIE D ORETHY

, Warden,

Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 14

‐ cv

‐ 7018

— John W. Darrah

, Judge

.

____________________

A RGUED J ULY 7, 2016

— D ECIDED A UGUST 12, 2016

____________________

Before W OOD

, Chief Judge

, and B AUER and K ANNE

, Circuit

Judges

.

P ER C URIAM

. An Illinois jury convicted Maurice Evans of

felony murder based on the felony “mob action,” which led

to the death of Daniel McKenzie. Evans argued on direct ap

‐ peal that the trial court violated his Sixth Amendment right to

have a jury determine every factual element required for con

‐

viction. He contended that the trial court should have allowed

the jury to determine whether the underlying offense of mob2 No. 15

‐ 3531

action had a felonious purpose independent of the killing. The

last state court to address this issue concluded that the trial

court “adequately apprised” the jury. Evans renewed his

claim in his petition for collateral relief under 28 U.S.C. § 2254,

but the district court denied relief. It reasoned that Evans’s

claim improperly asks a federal court to review a state court’s

interpretation of state law. We find that Evans’s petition does,

in fact, properly present a federal claim: the denial of his Sixth

Amendment right to have a jury determine each element of a

state crime. But Evans’s assertion that Illinois defines felony

murder to include “independent felonious intent” as a factual

element is wrong. We thus affirm the district court’s denial of

Evans’s petition.

Background

We recite the facts as found by the state court in reviewing

Evans’s direct appeal. See People v. Evans

, 2013 IL App (1st)

111921

‐ U (Ill. App. Ct. Oct. 29, 2013). This case began with a

late

‐ night, gang

‐ related brawl on a Chicago “L” train. Evans

and three other young men were riding a northbound Red

Line train at about 2 a.m. when brothers Daniel and Michael

McKenzie and their friend, Rob Base, boarded the same car at

22nd Street. Evans approached Michael and asked “who he

be” (a reference to gang affiliation) and Michael replied that,

although he used to be a member of the Gangster Disciples,

he “wasn’t on that” and they just wanted to get somewhere.

Evans then asked the same question of Daniel, who didn’t an

‐

swer. According to a fellow passenger, either Evans or one of

his companions then warned, “Oh, okay. You GD, huh. Yeah,

we at war with GD’s. We New Breeds.”

A fight ensued. Evans punched Daniel in the jaw, and the

men scuffled with fists, belt buckles, and a box cutter. TheNo. 15

‐ 3531 3

McKenzie brothers and their friend fled the train, but the

clash continued. Evans’s group chased the others across the

train’s platform. Michael and Rob Base got away, but Evans

caught Daniel when he picked up a trash can lid to defend

himself. CTA surveillance video, played for the jury, shows

Evans’s men kick Daniel and beat him with their belts until

Daniel tumbled from the platform onto the tracks. (It is un

‐

clear whether he fell accidentally, jumped, or was pushed).

Daniel fell on the third rail and was electrocuted.

The state prosecuted Evans and his accomplices with fel

‐

ony murder based on mob action. To obtain a felony

‐ murder

conviction in Illinois, the prosecution must prove two ele

‐

ments: (1) that a defendant “kill[ed] an individual without

lawful justification” while (2) “he is attempting or committing

a forcible felony other than second degree murder.” 720 ILCS

5/9

‐ 1(a)(3). Mob action, in turn, is “the knowing or reckless

use of force or violence disturbing the public peace by 2 or

more persons acting together and without authority of law.”

720 ILCS 5/25

‐ 1(a)(1). Evans argued to the trial court that, in

addition to the above elements, the jury must also find a judi

‐ cially created third element for a felony murder: that he com

‐

mitted the underlying predicate felony of mob action with a

felonious purpose independent of the murder. Evans pro

‐ posed two instructions that, he asserted, would properly ap

‐ prise the jury of this additional element:

In order for you to find the defendant guilty, you

must find, beyond a reasonable doubt, that the acts

which constitute Mob Action do not arise from an

act of murder, and that the acts constituting Mob ac

‐

tion are not inherent in an act of murder itself.4 No. 15

‐ 3531

In order for you to find the Defendant guilty, you

must find, beyond a reasonable doubt, that the de

‐

fendant acted with a felonious purpose for Mob Ac

‐

tion that was independent of a felonious purpose for

a murder.

The trial court refused both proffers and instructed the jury

using the two statutory elements noted above, from the Illi

‐

nois Pattern Jury Instructions. The jury convicted Evans, and

he received a sentence of 28 years.

Evans appealed but obtained no relief. He argued on di

‐

rect appeal that the court’s refusal to allow the jury to deter

‐

mine whether he committed mob action with a felonious pur

‐

pose independent of murder violated his right to have a jury

determine every fact necessary for conviction. Citing Illinois

law, he observed that “where the acts constituting forcible fel

‐

onies arise from and are inherent in the act of murder itself,

those acts cannot serve as predicate felonies for a charge of

felony murder.” People v. Morgan

, 758 N.E.2d 813, 838 (Ill.

2001). The Appellate Court of Illinois agreed with Evans’s de

‐ scription of felony murder. But, the court continued, the trial

court properly instructed the jury. The Supreme Court of Illi

‐

nois denied review.

Smith petitioned in federal court for a writ of habeas cor

‐

pus. See 28 U.S.C. § 2254. He framed his jury

‐ instruction argu

‐

ment as a denial of the Sixth Amendment right to have a jury

determine beyond a reasonable doubt every element required

for conviction. The district court denied his petition on the

ground that a federal court may not review a state court’s in

‐ terpretation of state law. The district court then issued Evans

a certificate of appealability.No. 15

‐ 3531 5

Analysis

On appeal Evans continues to press his Sixth Amendment

Claim. He argues that, in addition to the statutory elements of

felony murder ((1) commission of a forcible felony (2) that

causes death), the Supreme Court of Illinois has added a third.

The third element, Evans contends, requires proof to a jury

that the defendant committed the predicate felony with a pur

‐

pose independent from the act of murder itself. Because, Ev

‐

ans continues, the state courts denied his Sixth Amendment

right—clearly established by the Supreme Court—to have a

jury determine every fact necessary for conviction, 28 U.S.C.

§ 2254(d) entitles him to relief.

The state acknowledges Evans’s constitutional right to

have a jury determine each element of the crime, but counters

that his argument rests on a misstatement of state law. The

state appellate court correctly determined that “independent

felonious purpose” is not an element of felony murder, the

state insists.

The district court was wrong to view Evans’s claim as pre

‐ senting only an issue of state law. Although his petition re

‐ quires an understanding of Illinois law, Evans contends that

the trial court violated his federal Sixth Amendment right to

have a jury determine whether he committed each element of

the charged crime. And that right is clearly established: “The

touchstone for determining whether a fact must be found by

a jury beyond a reasonable doubt is whether the fact consti

‐

tutes an ‘element’ or ‘ingredient’ of the charged offense.” Al

‐ leyne v. United States

, 133 S. Ct. 2151, 2158 (2013); Hurst v. Flor

‐

ida

, 136 S. Ct. 616, 621–22 (2016) (applying principle that Sixth

Amendment and due process clause require “each element of

a crime be proved to a jury beyond a reasonable doubt” to6 No. 15

‐ 3531

hold unconstitutional a sentencing scheme where death pen

‐ alty was imposed after a judge determined presence of aggra

‐ vating factors); Mullaney v. Wilbur

, 421 U.S. 684, 703–04 (1975)

(affirming grant of petition for a writ of habeas corpus where

state violated due process by shifting burden to defendant to

prove absence of heat of passion in order to reduce murder

charge to manslaughter). If felony murder in Illinois includes

as a third element “independent felonious intent,” then the

premise of Evans’s claim under the Sixth Amendment is sat

‐

isfied.

The problem with Evans’s reasoning, however, is that he

cannot establish a Sixth Amendment violation because “inde

‐ pendent felonious intent” is not an element of Illinois felony

murder. The cases on which Evans relies do not require that

the prosecution supply evidence of independent felonious in

‐

tent. Rather, they require an inquiry into whether two

events—the predicate felony and the resulting death—are so

closely connected that the prosecution must prove murder in

‐

stead of felony murder. “[W]here the acts constituting forcible

felonies arise from and are inherent in the act of murder itself,

those acts cannot serve as predicate felonies for a charge of

felony murder.” Morgan

, 758 N.E.2d at 836–38. In Morgan

, a

teenager who shot his grandparents was convicted of felony

murder based on the predicate crimes of aggravated battery

and aggravated discharge of a firearm. Id. at 818–19, 838. The

court ruled that the state should not have charged felony mur

‐

der because the predicate felonies and the murders depended

on the same acts. Permitting the state to prosecute felony mur

‐

der in that situation would enable the state to charge all fatal

shootings as felony murder, eliminating the need to prove in

‐

tent to kill.No. 15

‐ 3531 7

Morgan is thus about the legal sufficiency of the facts un

‐ derlying a charge of felony murder—a question for a judge,

not a jury. Morgan himself had moved to dismiss the charge

of felony murder before trial, confirming the high court’s

view that he challenged the legal sufficiency of the charge. Id.

at 836. Two years later the state’s high court confirmed this

view. It reversed as legally deficient a conviction for felony

murder because a single act formed the basis of both the al

‐ leged underlying felony (aggravated battery) and the killing.

People v. Pelt

, 800 N.E.2d 1193, 1197 (Ill. 2003). The Illinois Su

‐

preme Court has also twice upheld as legally sufficient con

‐

victions for felony murder where the underlying felony (mob

action, as in Evans’s case) is separate from the ensuing death.

See People v. Davis

, 821 N.E.2d 1154, 1163 (Ill. 2004); People v.

Davison

, 923 N.E.2d 781, 787 (Ill. 2010). In Davis

, the court held

that mob action was a proper predicate felony because it was

sufficiently distinct from the killing: the state had to prove

that the defendant took part in a violent, group disturbance,

but the defendant need not have touched the victim. 821

N.E.2d at 1163. And the Davison court ruled that the state

could properly charge felony murder where the defendant

participated in a group pursuit and attack of the victim—thus

committing mob action—but had no intent to kill. 923 N.E.2d

at 787.

These cases establish that the trial court here committed

no Sixth Amendment violation because the trial judge did not

withdraw from the jury any factual questions. Evans’s mob

had “independent felonious intent” only if the mob’s beating

of him was sufficiently distinct from the death that the beating

caused. And this question about the separateness of those two

events was a legal one for the court, not the jury. Davison

, 923

N.E.2d at 785 (“Because this appeal solely presents a question8 No. 15

‐ 3531

of law, we review it de novo. ”). Evans’s trial counsel doubtless

understood this when, at the close of the state’s case in chief

and relying on the four cases just discussed, he moved for a

legal ruling that no felony murder had occurred. Because “in

‐ dependent felonious intent” is a legal assessment of the sepa

‐

rateness of two events, the Sixth Amendment did not require

a jury to decide the issue. Accordingly, we AFFIRM.