# In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 2946

A RTHUR M ITCHELL

,

Petitioner

‐ Appellant

,

v.

D ONALD E NLOE

, Warden,

Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:10

‐ cv

‐ 03034

— Robert M. Dow

, Judge

.

____________________

A RGUED F EBRUARY 17, 2016

— D ECIDED M ARCH 24, 2016

____________________

Before B AUER

, F LAUM

, and W ILLIAMS

, Circuit Judges

.

F LAUM

, Circuit Judge

. Petitioner Arthur Mitchell admitted

to killing Ricky Neal on February 5, 1995 by striking him with

a brick. The killing arose out of a dispute when Neal was

working on Mitchell’s car in the backyard of Neal’s home.2 No. 14

‐ 2946

Mitchell asserted that he acted in self

‐ defense after Neal at

‐

tacked him with a wrench. The prosecution presented foren

‐

sic evidence that refuted Mitchell’s claim of self

‐ defense.

Following a trial in the Illinois Circuit Court, the jury con

‐

victed Mitchell of first degree murder. The circuit court sen

‐

tenced him to fifty

‐ seven years in prison. Mitchell now seeks

habeas relief alleging ineffective assistance of counsel and a

due process violation. We affirm the district court’s denial of

Mitchell’s request for habeas relief.

I. Background

A. State’s Case

‐ in

‐ Chief

An autopsy of Neal revealed evidence of blunt force

trauma to his face and the back of his head. There were abra

‐

sions on his forehead and nose, bruising to his forehead, a

two

‐ inch laceration over his right eye, and a bone fracture be

‐

neath his eyebrow. Neal also suffered two wounds to the back

of his head: a laceration behind his left ear and a linear lacer

‐

ation down the center of his scalp. Foreign debris was recov

‐

ered only from Neal’s face. Debris was not found in his hair

or on the back of his head. A post

‐ mortem toxicology report

revealed that Neal had been using alcohol and cocaine.

A forensic pathologist for the State, Dr. Larry Blum, testi

‐

fied that blunt force trauma to Neal’s head caused his death.

He said that Neal died from “a beating” that included “two

separate blows” to the back of his head. According to Dr.

Blum, unless Neal fell onto a large rock, the laceration on his

scalp was not consistent with a fall backwards from a stand

‐ ing position onto a gravel surface, nor could both lacerations

have resulted from such a fall.No. 14

‐ 2946 3

At trial, Sheila Mitchell (a distant relative of petitioner

Mitchell), the State’s sole eyewitness, testified to events sur

‐ rounding Neal’s death. 1 Sheila was serving a sentence for a

felony conviction at the time of trial. Sheila testified that she

did not “make any deal with the State to testify” against

Mitchell. She also stated that for ten years she had been re

‐ ceiving disability payments for physical and mental disabili

‐

ties.

Sheila testified that she consumed substantial amounts of

alcohol and crack cocaine the night before and on the morning

of Neal’s murder. She said that when she arrived at Neal’s

house, she continued to drink alcohol and smoke crack with

another woman, Jeanine Tanner, and Neal. Sheila further tes

‐

tified that Neal raised the front of Mitchell’s vehicle using a

car jack and began to work. Meanwhile, Sheila said she and

Tanner continued to drink and smoke crack inside the car,

sleeping intermittently.

Sheila testified that she heard Neal say that he had

dropped something into the motor and that Mitchell and Neal

were arguing. Sheila said that, at this point, she was slumped

down in the seat, trying to sleep. She further testified that Tan

‐

ner then shook her and twice uttered a profane exclamation.

Sheila said she sat up and saw Mitchell run behind the garage

and retrieve a brick; she then slumped back down. She testi

‐

fied that she heard Neal say, “Man, why do you want to do

this,” and looked up to see Mitchell with a brick in his hand.

Sheila said she could not see Neal’s hands because Neal was

standing with his back to her. She stated that Mitchell raised

1 Sheila Mitchell died on February 2, 2006.4 No. 14

‐ 2946

his arm and made a motion like he was going to throw a foot

‐

ball. Sheila said she did not believe Mitchell would hit Neal,

so she slumped back down in the seat. She then “heard the

fall” against the passenger door and, when she raised her

head, saw Mitchell holding the brick. Although Sheila testi

‐

fied that she did not see the brick hit Neal, she saw Mitchell

bring the brick down toward the ground twice.

Sheila testified that she did not see Neal swing a wrench

at Mitchell at any point. Sheila further testified that when she

emerged from the car, she saw Neal lying face down “on the

ground with blood gushing out of the back of his head.”

B. Mitchell’s Defense

At trial, Mitchell attempted to discredit Sheila’s version of

events and show that he killed Neal in self

‐ defense after Neal

attacked him with a wrench. Mitchell testified that while he

was driving Sheila, Tanner, and Neal to Neal’s house, Neal

smoked crack and Mitchell warned Neal not to smoke while

he worked on Mitchell’s car. Mitchell stated that once they

were at Neal’s house, Mitchell opened the hood of the car

while Neal remained inside the car with Sheila and Tanner.

Mitchell testified that Sheila and Tanner stayed in the car,

drinking, smoking, and sleeping. Mitchell further testified

that Neal also smoked crack and drank a beer. Mitchell said

he again warned Neal not to do drugs while working on the

car, but that Neal continued to smoke. According to Mitchell,

he then told Neal to put the car back together and said that he

would pay Neal for the work completed thus far. Mitchell tes

‐

tified that, after telling Neal to stop working, Neal told Mitch

‐No. 14

‐ 2946 5

ell that he had dropped a piece of the ratchet set into the en

‐ gine. Mitchell said that Neal then hoisted up the car using a

jack to change the oil.

According to Mitchell, as Mitchell was looking under the

car for the missing piece, Neal moved toward the car jack and

Mitchell believed that Neal was going to drop the car on him.

Mitchell said that he stood up, again told Neal to stop work

‐ ing on the car, and said that he would “put it [back] together

[himself].” Mitchell testified that he offered to pay Neal half

of what he owed him for the whole job. Mitchell further testi

‐

fied that he then reached for the wrench in Neal’s hand so that

he could put the car back together but that Neal would not

relinquish it. Mitchell said that when he gave Neal the money,

Neal “got highly upset” and threw it on the ground.

Mitchell testified that he bent down to pick up the money

and, when he looked up, he saw Neal “coming down on [him]

with th[e] wrench.” Mitchell said Neal struck his arm and fin

‐

ger. Mitchell testified that he fell to the ground, grabbed two

bricks from nearby, then stood up with one of the bricks in his

hand and hit Neal on the left side of the face. According to

Mitchell, at this point Neal stood directly in front of Mitchell,

wrench in hand. Mitchell stated that he then threw aside the

brick and knew from the blood and sweat dripping down

Neal’s forehead that Neal’s head was “busted.”

As explained by Mitchell, Neal then “swung the wrench

again,” nicking Mitchell’s nose. Mitchell testified that he

grabbed the other brick and stepped back to “counterpunch”

Neal. Mitchell said he slipped on his coat and “just threw the

brick and the brick went flying” out of his hand toward Neal.

He stated that as he fell, he saw Neal “go down like he was

ducking.” Mitchell testified that he did not know if the brick6 No. 14

‐ 2946

actually hit Neal, but that it “had to [have] hit him in the back

of his head because [Neal] fell.” He said he next saw Neal

“standing straight up in the air,” then fall straight back “like

a tree” onto the “pointy rocks and everything else” on the

ground. Mitchell said that he immediately removed the

wrench from Neal’s hand.

At trial, Mitchell explained that he hit Neal to protect him

‐

self. He stated that he would not have hit Neal with the bricks

if Neal had not swung the wrench at him. Mitchell also testi

‐

fied that his left index finger was swollen from being struck

by the wrench, prompting the police to photograph his hands.

On cross

‐ examination, Mitchell testified that he was not

“upset” with Neal, but “wanted to just end it all, put [the car]

back together” and leave because he “was tired.” On redirect

examination, Mitchell denied being “upset enough at

... Neal

smoking cocaine to take a brick and hit him with it.” Rather,

he said he “hit Ricky Neal with the brick and in my own self

‐

defense. I just wanted to leave.”

The State challenged Mitchell’s testimony that Neal hit

him with a wrench. Following Mitchell’s testimony, the State

offered testimony from Detective Richard Demick, who inter

‐

viewed Mitchell on the day after Neal’s death. Detective

Demick testified that he saw no bruises or marks on Mitchell

at the interview. To refute this testimony, Mitchell introduced

the testimony of investigator Jeffrey Beasley, who said he saw

Mitchell three days after Neal’s death and observed that

Mitchell’s left index finger was swollen above the knuckle.

C. Jury Instructions

At the jury instruction conference, the Illinois Circuit

Court explained the lesser included offense of second degreeNo. 14

‐ 2946 7

murder instruction to Mitchell. The prepared instruction the

court read to Mitchell was for unreasonable belief in the ne

‐ cessity of self

‐ defense, one of two second degree murder in

‐

structions in the then

‐ current Illinois Pattern Jury Instruc

‐

tions, Criminal (3d ed. 1992). The pattern instructions also al

‐

lowed for a second degree murder instruction based on prov

‐

ocation.

Mitchell told the circuit court that he did not want the in

‐

struction because he did not “like the way that sounds” and

asked if “there is anything else worded out that is trying to

find me guilty[?]” The court responded, “this is the instruc

‐

tion the law says that you must give if you want to take the

chance of getting a second degree conviction.” Mitchell asked

two more times if “that’s the only way it’s worded” and the

court responded “[t]hat’s it.” The record does not reflect that

the court advised Mitchell of the possibility of an instruction

based on provocation. Mitchell declined to request a second

degree murder instruction, stating that he would “rather go

for everything than nothing.”

Following recess and discussion with counsel, Mitchell

changed his mind and agreed to an instruction on unreason

‐

able belief in the necessity of self

‐ defense. 2 Mitchell’s counsel

did not request the alternative provocation instruction. Dur

‐ ing closing arguments, Mitchell’s counsel stated: “Self

‐ de

‐

fense. That’s the case...

. My client acted in self

‐ defense, using

2 The circuit court instructed the jury that it could find Mitchell guilty of

second degree murder if he, “at the time he performed the acts which

caused the death of Ricky Neal, believed the circumstances to be such that

they justified the deadly force he used, but his belief that such circum

‐

stances existed was unreasonable.”8 No. 14

‐ 2946

just as much force as was being used on him to protect him

‐

self.” The jury rejected Mitchell’s claim of self

‐ defense and

convicted him of first degree murder. The court sentenced

him to fifty

‐ seven years in prison.

D. Post

‐ Trial Proceedings

Mitchell filed a direct appeal in the Illinois Appellate

Court. In 1997, the Illinois Appellate Court affirmed his con

‐

viction. Mitchell’s petition for leave to appeal was then denied

by the Illinois Supreme Court on June 3, 1998.

Mitchell filed a pro se post

‐ conviction petition in Illinois

state court, which he amended several times. In September

2002, Mitchell and his then

‐ post

‐ conviction counsel, Eric

Mitchell, interviewed Sheila. Eric Mitchell—who had been

appointed to represent Mitchell in July 2000—withdrew as

Mitchell’s counsel in January 2004, explaining that he was

“uncomfortable” with his interactions with Mitchell in court

as well as Mitchell’s “disturbing” statement regarding his

knowledge of the location of counsel’s father’s residence.

In June 2006, during the pendency of the proceedings on

his pro se post

‐ conviction petition, Mitchell filed a combined

petition for post

‐ conviction relief and a petition for relief from

judgment based on newly discovered evidence in the Illinois

Circuit Court. Attached to the combined petition was an un

‐

sworn, unsigned affidavit dated 2003, which Mitchell alleged

was the affidavit of Sheila Mitchell. In the affidavit, Sheila

averred that when she was interviewed by the police regard

‐ ing Neal’s death, the police “momentarily turned off the

video tape” and told her that she and Tanner could be

charged with accessory to murder. She stated that the police

informed her that if she testified against Mitchell they wouldNo. 14

‐ 2946 9

not charge her and “would make it light” on her. Also at

‐

tached to the combined petition was an unsworn, unsigned

affidavit dated 2006, which Mitchell alleged was the affidavit

of Eric Mitchell. Eric asserted that Sheila made the above

statements in his presence. In a supplement to the combined

petition, Mitchell alleged that Eric Mitchell was ineffective for

failing to move to appoint a stenographer to transcribe

Sheila’s “deposition” and for failing to get Sheila’s signature

before she died in 2006.

The circuit court denied Mitchell’s petition and he ap

‐ pealed to the Illinois Appellate Court, arguing that his trial

counsel was ineffective for failing to request a jury instruction

on second degree murder based on provocation, and the cir

‐

cuit court erroneously denied Mitchell an evidentiary hearing

on the claim in his combined petition that Sheila gave false

testimony at trial when she denied making a deal with the

State to testify against Mitchell. The Illinois Appellate Court

affirmed the denial of his petition in 2009, with one justice dis

‐ senting.

In 2010, Mitchell filed a pro se 28 U.S.C. § 2254 habeas pe

‐

tition in the Northern District of Illinois, asserting twenty

‐

nine claims. The district court appointed counsel to assist

Mitchell. In September 2013, the district court denied Mitch

‐

ell’s request for habeas relief, declined to issue a certificate of

appealability, and entered judgment. In October 2013, Mitch

‐

ell timely filed a pro se motion to reconsider pursuant to Rule

59(e). The district court denied Mitchell’s Rule 59(e) motion,

finding that Mitchell failed to clearly establish that the district

court manifestly erred in rejecting his habeas claims and

denying a certificate of appealability. Mitchell appeals.10 No. 14

‐ 2946

II. Discussion

Mitchell presents two arguments on appeal to this Court.

He asserts that he is entitled to habeas relief due to ineffective

assistance of counsel and a due process violation. In a federal

habeas proceeding, we review the district court’s findings of

fact for clear error and legal conclusions, including mixed

questions of law and fact, de novo. Harding v. Walls

, 300 F.3d

824, 827 (7th Cir. 2002). We may grant habeas relief if the ad

‐ judication by the Illinois Appellate Court:

(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 pro

‐ ceeding.

Id. (citing 28 U.S.C. § 2254(d)). Thus, to the extent the state

court adjudicated Mitchell’s claims on the merits, he must

show that the state court decision was not just “incorrect or

erroneous,” but “objectively unreasonable.” Lockyer v. An

‐

drade

, 538 U.S. 63, 75 (2003).

A. Ineffective Assistance of Counsel Claim

Mitchell’s first argument on appeal is that he is entitled to

habeas relief, or at least an evidentiary hearing, due to inef

‐

fective assistance of counsel. Mitchell contends that trial coun

‐

sel’s failure to request a jury instruction for second degree

murder based on provocation violated his Sixth Amendment

right to effective assistance of counsel. Strickland v. Washing

‐

ton

, 466 U.S. 668, 686 (1984).No. 14

‐ 2946 11

Under Strickland

, trial counsel renders ineffective assis

‐

tance when counsel’s performance falls below an objective

standard of reasonableness and the petitioner is prejudiced by

that performance. Id. at 687–88. Our case law establishes that

where evidence at trial supports a lesser jury instruction, trial

counsel may make a strategic decision not to request such in

‐

struction. See, e.g.

, United States ex rel. Barnard v. Lane

, 819 F.2d

798, 805 (7th Cir. 1987). Strickland generally provides a pre

‐ sumption of strategic decision

‐ making by counsel. Woolley v.

Rednour

, 702 F.3d 411, 422–23 (7th Cir. 2012). However, that

presumption does not extend to situations where there was

“no strategic rationale underlying [the] errors.” Id. at 423.

We therefore face two questions: First, whether Mitchell’s

trial counsel made a reasonable, strategic choice to omit the

provocation instruction; and second, whether the evidence in

the record indicates that the failure to give an instruction on

provocation prejudiced Mitchell. Mitchell claims that the facts

supported two second degree murder instructions, one for

unreasonable belief in the necessity of self

‐ defense and an

‐

other for provocation. A provocation instruction under the Il

‐

linois Pattern Jury Instructions, Criminal, No. 7.03A (3d ed.

1992), would have read: “A mitigating factor exists so as to

reduce the offense of first degree murder to the lesser offense

of second

‐ degree murder if, at the time of the killing, the de

‐

fendant acts under a sudden and intense passion resulting

from serious provocation by [the deceased].” According to

Mitchell, the record suggests that trial counsel likely failed to

consider giving the provocation instruction and should not

have been afforded the presumption of “strategy.”12 No. 14

‐ 2946

The Illinois Appellate Court held that because a second

degree murder conviction requires different mental states un

‐

der theories of “unreasonable belief” and “provocation,” trial

counsel acted strategically by not requesting a provocation in

‐

struction. Likewise, the district court found that Mitchell had

not set forth evidence to suggest that trial counsel’s perfor

‐

mance was deficient. The district court made this finding

based on trial testimony that showed that Mitchell’s counsel

“clearly chose a self

‐ defense theory” over a provocation the

‐

ory. The district court emphasized that this “is not unreason

‐

able and is the type of tactical choice a defense counsel often

must make...

. [T]rial counsel reasonably could have con

‐

cluded that this alternative instruction—one at odds with his

theory of the case—would only confuse the jury and under

‐

mine the strategy counsel had already adopted.” 3

We agree with the circuit and district courts that the evi

‐

dence in the record cannot support both a provocation theory

and self

‐ defense theory. Mitchell testified at trial that he

“wasn’t upset” and “just wanted to leave.” It would have

been clearly inconsistent for counsel to present evidence that

Mitchell was acting because of sudden and intense passion

given this testimony. Thus, trial counsel acted reasonably by

not presenting the provocation instruction. The district court

and the Illinois Appellate Court correctly found that it would

3 Furthermore, the district court concluded that Mitchell was not preju

‐

diced by trial counsel’s choice because the jury did not accept Mitchell’s

explanation for how Neal was killed. Because the jury did not believe

Mitchell’s story, the district court found it implausible that the jury would

have embraced a provocation theory. Thus, Mitchell could not have won

on a provocation theory, just as he failed to convince the jury that he acted

in self

‐ defense.No. 14

‐ 2946 13

not have been proper—and likely would have confused the

jury—to provide a second degree murder instruction based

on provocation.

Mitchell also fails to show that he was prejudiced due to

counsel’s failure to request a provocation instruction. See

Smith v. McKee

, 598 F.3d 374, 388 (7th Cir. 2010) (“Prejudice

means, ‘an error which so infected the entire trial that the re

‐ sulting conviction violates due process.’” (citation omitted)).

To convict for second degree murder under either self

‐ de

‐

fense or provocation, the jury would have had to believe

Mitchell’s version of events. But the forensic evidence contra

‐

dicts Mitchell’s story. The jury took a view of the evidence

that permitted conviction for first degree murder. It is un

‐ likely that the jury would have disregarded that evidence and

believed Mitchell’s account even if counsel had presented an

alternative provocation instruction.

In sum, because Mitchell did not show that his trial coun

‐

sel acted unreasonably or that he was prejudiced by counsel’s

decision, the district court properly dismissed Mitchell’s

claim of ineffective assistance of counsel.

B. Due Process Claim

Mitchell’s second argument is based on Sheila’s unsworn,

unsigned affidavit, which avers that the State offered not to

charge her as an accessory to murder in exchange for her tes

‐ timony against Mitchell. Mitchell asks this Court to grant an

evidentiary hearing to prove the validity of the affidavit.

Mitchell contends that the State’s failure to correct Sheila’s

false testimony would constitute a due process violation and

entitle him to a new trial. See Brady v. Maryland

, 373 U.S. 83,

87 (1963) (“[T]he suppression by the prosecution of evidence14 No. 14

‐ 2946

favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punish

‐

ment, irrespective of the good faith or bad faith of the prose

‐ cution.”). This is because a conviction obtained through the

use of false evidence, known to be such by representatives of

the State and allowed to go uncorrected, violates a criminal

defendant’s due process rights. Napue v. Illinois

, 360 U.S. 264,

269 (1959).

The Illinois Appellate Court held that this claim was pro

‐ cedurally defaulted because Sheila’s affidavit was unsigned

and thus lacked the indication of reliability needed to toll the

statute of limitations. See 735 Ill. Comp. Stat. 5/2

‐ 1401(c)

(2006). The district court agreed that any claim based on

Sheila’s affidavit was procedurally defaulted.

On appeal, Mitchell argues that his due process claim was

not procedurally defaulted because the Illinois Appellate

Court “failed to apply the tolling criteria in a manner con

‐

sistent with firmly established Illinois practice.” Mitchell

notes that § 2

‐ 1401 of the Illinois code permits a petitioner to

seek relief from judgment based on newly discovered facts.

Id. at 5/2

‐ 1401. Specifically, § 2

‐ 1401 allows for tolling of the

two

‐ year filing deadline where “the ground for relief is fraud

‐ ulently concealed.” Id. at 5/2

‐ 1401(c). Mitchell asserts that his

combined petition and the unsigned affidavits of Sheila and

Eric Mitchell adequately alleged a basis for obtaining relief

from judgment based on perjured testimony, and thus the

case should be remanded to the state court for an evidentiary

hearing on those claims.

The district court and Illinois Appellate Court properly

found that the unsigned affidavits do not constitute the “clear

showing” required to establish fraudulent concealment andNo. 14

‐ 2946 15

toll the two

‐ year limitation period under § 2

‐ 1401. People v.

Coleman

, 794 N.E.2d 275, 292 (Ill. 2002). To establish fraudu

‐

lent concealment, a defendant “must specifically allege facts

demonstrating that his opponent affirmatively attempted to

prevent the discovery of the purported grounds for relief, as

well as offer factual allegations demonstrating his good faith

and reasonable diligence in trying to uncover such matters

before trial or within the limitations period.” People v. Dodds

,

7 N.E.3d 83, 92 (Ill. App. Ct. 2014) (citing Coleman

, 794 N.E.2d

at 293). A signed and notarized affidavit is one well

‐ estab

‐

lished method of setting forth specific factual allegations. See

Thompson v. IFA, Inc.

, 536 N.E.2d 969, 972 (Ill. App. Ct. 1989)

(“It is insufficient merely to assert that the basis for relief was

fraudulent concealment; rather, petitioner must allege facts,

supported by affidavit, demonstrating affirmative acts or rep

‐

resentations by respondent designed to prevent discovery of

the purported grounds for relief.”). 4 Here, the affidavits were

unsigned and unsworn. We therefore agree with the district

court that this claim was procedurally defaulted. 5

4 Mitchell relies on In re Marriage of Frazier to argue that there is no require

‐

ment that allegations of fraud be supported by signed and notarized affi

‐

davits. 561 N.E.2d 160, 163 (Ill. App. Ct. 1990). But the Frazier court ob

‐

served that § 2

‐ 1401 “permits parties to seek [r]elief from final orders and

judgments

... upon petition supported by affidavit or other appropriate

showing as to matters not of record.” Id. at 162 (alteration in original) (ci

‐

tation, internal quotation marks, and other punctuation omitted).

5 Even assuming, arguendo, that Mitchell had established fraudulent con

‐

cealment, he does not make a showing of cause and prejudice necessary

to excuse the procedural default. Bolton v. Akpore

, 730 F.3d 685, 696 (7th

Cir. 2013) (“Procedural default may be excused

... if the petitioner can

show both cause for and prejudice from the default, or can demonstrate16 No. 14

‐ 2946

III. Conclusion

For the foregoing reasons, we A FFIRM the judgment of the

district court.

that the district court’s failure to consider the claim would result in a fun

‐

damental miscarriage of justice.”). Mitchell did not suffer prejudice as

there is no reasonable likelihood that additional information about the

State’s purported deal with Sheila would have affected the verdict.

Sheila’s credibility was vigorously attacked on multiple fronts by defense

counsel. Even the prosecutor agreed that Sheila was an incredible witness

and instead emphasized that Mitchell’s version of events did not fit the

physical evidence. The jury had ample reason to disbelieve Sheila but the

physical evidence corroborated her testimony. Since there is an insuffi

‐

cient showing of prejudice and no indication of a fundamental miscarriage

of justice, we agree with the circuit and district courts that an evidentiary

hearing is not warranted.