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UNITED STATES EX REL. BALDERAS v. GODINEZ

June 21, 1995

UNITED STATES OF AMERICA ex rel. ANTONIO BALDERAS, Petitioner,
v.
SALVADOR GODINEZ,1 Respondent.



The opinion of the court was delivered by: MILTON I. SHADUR

 Antonio Balderas ("Balderas") has filed a 28 U.S.C. ┬ž 2254 ("Section 2254") petition for writ of habeas corpus ("Petition"). Balderas challenges his 1989 convictions for murder, attempt murder and armed robbery, for which he is now serving a sentence of life imprisonment without possibility of parole and a concurrent 30 year prison term. *fn2" For the reasons stated in this memorandum opinion and order, Balderas' Petition is denied and this action is dismissed.

 Facts

 Section 2254(d) makes the Illinois Appellate Court's findings of fact presumptively correct as long as they are made after a hearing on the merits and are fairly supported by the record ( Armstrong v. Young, 34 F.3d 421, 426 (7th Cir. 1994)). It is plain that the statement of facts in the Illinois Appellate Court opinion ( People v. Balderas, 241 Ill. App. 3d 845, 847-850, 609 N.E.2d 936, 939-41, 182 Ill. Dec. 402 (1st Dist. 1993)) indeed fairly reflects the record. This Court therefore accepts that summary:

 
At trial, Luis Pagan recounted the events which unfolded at 2:20 p.m., at his grocery store, located at 4894 North Ashland Avenue on March 4, 1988. At that time, Pagan and Miguel Rivera were alone in the store when two men entered. The taller of the two men, whom Pagan identified as defendant, asked where the potato chips were located. The other unidentified man stood near the counter while defendant walked around the store. Defendant eventually walked to the potato chip rack where Rivera was standing.
 
Pagan then heard a "commotion" and, turning, saw defendant grab Rivera by the collar and put a gun to his back. Pagan tried to push the alarm button to call police, but defendant pointed the gun at him and threatened him not to move. Defendant then brought Rivera to the counter, raised the gun to Rivera's left temple, and demanded money from both men. Rivera gave defendant his wallet, from which defendant removed all the money. Defendant asked for Pagan's wallet, but became angry when he found it empty. He pushed the gun into Pagan's back and repeated his demand for money. When defendant told Pagan that he was going to kill him, Pagan gave defendant his money and opened the cash register. Defendant pushed Pagan from the register and took the money out himself.
 
After emptying the register draw [sic] of its cash, defendant returned the gun to Rivera's temple and demanded more money from the men. Pagan gave defendant some money which he had managed to keep hidden. Defendant told Pagan to turn around, and the unidentified man told defendant to "kill the motherfuckers and let's get out of here." As Pagan was turning around, he heard a shot and saw Rivera fall to the ground. Smiling, defendant turned to Pagan and said, "now you're next motherfucker." Defendant put the gun to Pagan's face and pulled the trigger. Pagan heard a "click" then grabbed defendant's hand and smashed his arm down against the counter and the cash register. Defendant let go of the gun, and Pagan retrieved it. Pagan attempted to fire a shot at defendant, but he "just heard a click." Defendant pushed Pagan, and Pagan fell behind the counter. Defendant fled from the store, running south toward Lawrence Avenue. Pagan pushed the police alarm button and gave chase, following defendant through an empty lot near the store. Pagan fired a shot toward defendant, but defendant was not hit and was able to make a getaway.
 
When Pagan returned to the store, he found Rivera dead. Eventually, police arrived at the scene, and Pagan described the gunman as a black male, six feet or taller, between 25 and 30 years of age. He wore a blue jacket with a red sweater underneath it and a blue and white cap with the words "Raising hell in Wisconsin" printed across the top. Pagan recalled that shortly after 3 p.m., a police car pulled in front of the store, and officers told him that they had a man they wanted him to see. Defendant was in the back seat of the squad car, leaning aside "trying to hide his face." Pagan identified defendant as the gunman.
 
Michael King was leaving his brother's home near Pagan's store at 2:20 p.m. when he saw three black men walking through a gangway between Paulina and Ashland Avenues. Two of the men were short, and the other, whom King identified as defendant, was over six feet, wearing a blue jacket and brown corduroy pants. King, at that point entered his car, and pulled out of the gangway, turning at the intersection of Ainslie and Ashland Avenues. There, he saw one of the three men he had seen in the gangway standing in front of Pagan's store. When King arrived at his home, he heard a report on his police radio "scanner" that Pagan's store had just been robbed. King then walked back to the scene and told one of the officers that he had seen three men coming through the gangway. King took the officers to the gangway, and they toured the area, but could not find any of the suspects. As King was returning to the crime scene, he saw defendant being transferred from a squad car to a police paddy wagon. King turned to a plain clothes officer standing near him and identified defendant as one of the three men he had seen in the gangway just prior to the robbery.
 
Defendant was taken to the scene by Chicago police officer Robert Slupski, who, as part of the police manhunt for the homicide offenders, was touring a nearby department store. While Slupski was in the store, he received a report regarding the detention of a shoplifting suspect by the store's security personnel. Upon arriving at the security office, Slupski noted that defendant, the shoplifting suspect, matched the description of the gunman. He notified those at the scene that he was bringing a possible suspect back for identification. Slupski removed the handcuffs the store's officials had put on defendant and recuffed him with his own handcuffs. As soon as he put the cuffs on defendant, defendant complained of wrist pain. When Slupski asked defendant how he had hurt his wrist, defendant replied that he did not know and that he had "just hurt it." Slupski then took defendant to the homicide scene where Pagan identified him as the gunman.
 
Assistant State's Attorney Chris Cummings [("Cummings")] spoke with defendant at Area 6 Headquarters (Area 6). After initially denying his involvement in the shooting, defendant confessed that he and two "acquaintances" decided to rob the grocery store. Defendant maintained that the owner of the store and a customer struggled with defendant over defendant's gun and that the gun "somehow" "went off" during the struggle. After the gun was fired, defendant "somehow" hurt his right hand, dropped the gun, and ran out of the store. As defendant was running away, he heard a shot from behind him. Defendant ran to Sears, where he was arrested for shoplifting. Defendant agreed to provide Cummings with a transcribed statement, which was substantially similar to his oral statement.
 
Dr. Shaku Teas, an assistant Cook County medical examiner, testified that her autopsy findings indicated Rivera was killed by a gunshot wound to the left temple. The amount of gunpowder and soot around the wound indicated that the gun was very close to Rivera's head and was "probably touching his skin" when the shot was fired.
 
It was defendant's testimony that, on the afternoon of the shooting, he was to meet his girlfriend at a bakery located at 1701 West Foster Avenue. Defendant, who lived on the south side, took the "CTA" to Lawrence Avenue, where he transferred to a bus. Defendant arrived on the north side too early to meet his girlfriend so, to pass the time, he went into a Sears store, located four to five blocks from the bakery. While in the store, defendant decided to steal a garment bag, but was apprehended by a store security officer and taken to the security office, where he was questioned. Officer Slupski later came to the office and told defendant that he matched the description of a robbery suspect. Defendant recalled being taken to the scene of the shooting where Pagan identified him as the gunman. Defendant was transported to Area 6 and placed in an interview room, where he repeatedly denied any involvement in the shooting.

 Importantly for purposes of Section 2254(d), the Appellate Court credited not only Pagan's "clear and convincing" testimony and King's corroborative testimony, but also "the convincing nature of the State's evidence" (241 Ill. App. 3d at 862, 609 N.E.2d at 948-49). Finally, to the extent that other portions of the trial record need to be mentioned in the course of resolving the matter, they will be referred to as needed in this opinion.

 Procedural History

 After he was convicted on all counts in the indictment, Balderas filed a post-trial motion. When the trial court denied that motion, Balderas appealed to the Illinois Appellate Court, where his convictions were affirmed (241 Ill. App. 3d 845, 609 N.E.2d 936, 182 Ill. Dec. 402). Next the Illinois Supreme Court denied his petition for leave to appeal (151 Ill. 2d 567, 616 N.E.2d 338 (1993)). Finally Balderas sought relief under the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7). It is significant in terms of the later analysis in this opinion that only one issue raised in that post-conviction petition coincided with any issue advanced in the current Petition: the question whether the post-arrest interrogation of Balderas violated his Fifth Amendment rights. *fn3" After the Circuit Court dismissed Balderas' post-conviction petition as frivolous, the Illinois Appellate Court affirmed, and he did not seek further review by the Illinois Supreme Court within the required time period (Ill. Sup. Ct. R. 315(b)).

 While all of this was going on, Balderas had filed his original Section 2254 petition (in Case No. 93 C 6546), and this Court initially granted him leave to proceed in forma pauperis. But when the Illinois Attorney General pointed out that Balderas then had a state court appeal pending, this Court dismissed that original petition because of Balderas' failure to exhaust his state remedies (1993 U.S. Dist. LEXIS 18711 (N.D. Ill. Dec. 21)).

 Balderas then tried again with his current self-prepared Petition. This effort survived the threshold scrutiny called for by Denton v. Hernandez, 504 U.S. 25, 32-33, 118 L. Ed. 2d 340, 112 S. Ct. 1728 (1992), and this Court appointed Sheldon Nagelberg, Esq. to act as Balderas' counsel on a pro bono publico basis. Although Balderas had initially failed to exhaust his state court remedies (his appeal from the post-conviction petition dismissal was still pending), the Appellate Court's July 11, 1994 affirmance of that dismissal eliminated that barrier. With all state remedies now having been exhausted, the case is ripe for decision.

 Balderas' Federal Claims

 Before this Court Balderas asserts that six errors committed during his trial violated three federal constitutional provisions. According to Balderas:

 
1. Investigators infringed his Fifth Amendment rights when they continued to interrogate him even after he invoked his right to remain silent.
 
2. Balderas' Sixth Amendment right to counsel was violated by the failures of (a) his trial counsel either to introduce as substantive evidence an inconsistent statement by a prosecution witnesses or to preserve that issue for appeal and (b) his appellate counsel to argue that same inconsistency on appeal.
 
3. Prosecutors violated Balderas' Fourteenth Amendment right to due process of law when they (a) referred during the trial to his post-arrest silence, *fn4" (b) offered testimony of a police lab technician as that of an expert without first establishing the witness as such and (c) engaged in misconduct on five occasions during closing argument.

 Procedural ...


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