In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2946
ARTHUR MITCHELL,
Petitioner‐Appellant,
v.
DONALD ENLOE, 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.
____________________
ARGUED FEBRUARY 17, 2016 — DECIDED MARCH 24, 2016
____________________
Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.
FLAUM, 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 brick
6 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 degree
No. 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 would
No. 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 evidence
14 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 and
No. 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 demonstrate
16 No. 14‐2946
III. Conclusion
For the foregoing reasons, we AFFIRM 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.