July 7, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14-cv-7018 - John
W. Darrah, Judge.
Wood, Chief Judge, and Bauer and Kanne, Circuit Judges.
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 appeal that the
trial court violated his Sixth Amendment right to have a jury
determine every factual element required for conviction. He
contended that the trial court should have allowed the jury
to determine whether the underlying offense of mob 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.
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 (111. 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 answer.
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."
ensued. Evans punched Daniel in the jaw, and the men scuffled
with fists, belt buckles, and a box cutter. The 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 unclear whether he fell accidentally, jumped, or was
pushed). Daniel fell on the third rail and was electrocuted.
state prosecuted Evans and his accomplices with felony murder
based on mob action. To obtain a felony-murder conviction in
Illinois, the prosecution must prove two elements: (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-l(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-l(a)(1). Evans argued to the trial court that, in
addition to the above elements, the jury must also find a
judicially created third element for a felony murder: that he
committed the underlying predicate felony of mob action with
a felonious purpose independent of the murder. Evans proposed
two instructions that, he asserted, would properly apprise
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 action are not inherent in an act of murder
In order for you to find the Defendant guilty, you must find,
beyond a reasonable doubt, that the defendant acted with a
felonious purpose for Mob Action that was independent of a
felonious purpose for a murder.
trial court refused both proffers and instructed the jury
using the two statutory elements noted above, from the
Illinois Pattern Jury Instructions. The jury convicted Evans,
and he received a sentence of 28 years.
appealed but obtained no relief. He argued on direct appeal
that the court's refusal to allow the jury to determine
whether he committed mob action with a felonious purpose
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 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."
People v. Morgan, 758 N.E.2d 813, 838 (111. 2001).
The Appellate Court of Illinois agreed with Evans's
description of felony murder. But, the court continued, the
trial court properly instructed the jury. The Supreme Court
of Illinois denied review.
petitioned in federal court for a writ of habeas corpus.
See 28 U.S.C. § 2254. He framed his
jury-instruction argument 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 ...