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Gomez v. Acevedo

February 3, 1997

FRANCISCO GOMEZ,

PETITIONER-APPELLANT,

v.

GERARDO ACEVEDO, WARDEN, EAST MOLINE CORRECTIONAL CENTER,

RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 94 C 2161 James F. Holderman, Judge.

Before COFFEY, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

ARGUED FEBRUARY 9, 1996 *fn1

DECIDED FEBRUARY 3, 1997

Francisco Gomez appeals from a district court final order that denied him a writ of habeas corpus. Gomez alleges that he is being held in the custody of the respondent at the East Moline Correctional Center in violation of the Due Process Clause of the Fourteenth Amendment. More specifically, he argues that his conviction in Illinois state court for delivery of a controlled substance was not supported by sufficient evidence to find him guilty beyond a reasonable doubt, as the Due Process Clause requires. We hold that the new sec. 2254(d) of Title 28 (as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, sec. 104, 110 Stat. 1214, 1218 (1996)) mandates that federal courts give deferential review to state court decisions on sufficiency of the evidence claims. We find in this case that Gomez has not met the high burden that the AEDPA now requires, and we therefore affirm the District Court's decision not to issue the writ.

I. HISTORY *fn2

On August 21, 1989, Petitioner Gomez's co-defendant, Arturo Martinez, sold one kilogram of cocaine to an undercover Drug Enforcement Agency (DEA) special agent at the Holiday Inn in Hillsdale, Illinois. Gomez, who is an acquaintance of Martinez, was also present at the hotel at various times with Martinez that night. Gomez was convicted of delivery of a controlled substance in a bench trial in Illinois' Cook County Circuit Court on March 19, 1991. In his habeas petition, however, Gomez protests his innocence of any involvement in the drug transaction.

Martinez and the DEA agent negotiated the drug deal over the phone during the day of August 21, 1989. That evening, the agent called Martinez to say that he was at the hotel and ready to complete the deal. Martinez told the agent that he wanted to count the money before turning over the drugs and that he would have a friend bring the drugs to the hotel only after the money was counted.

Shortly after 9 p.m., a state police officer conducting surveillance at the hotel parking lot witnessed Martinez arrive at the hotel in a Camaro. Martinez went into the hotel to the DEA agent's room where the agent let Martinez count the money. Martinez then said he would page his friend who would bring the cocaine. Martinez made a phone call from the agent's room, but when he did not receive a call back, he told the agent that his friend probably could not return the call without knowing the agent's room number at the hotel. Martinez then left the room saying he was going to page his friend from the hotel lobby. Around 9:40 p.m., a DEA agent stationed in the lobby witnessed Martinez making a phone call. Martinez then went back to the hotel room and told the agent there that the friend would arrive in 20 minutes with the cocaine. Martinez never identified Gomez as the friend.

Approximately 20 minutes later, however, the police officer in the parking lot witnessed Gomez arrive on a motorcycle and then enter the hotel. The agent in the hotel room testified that Gomez knocked on the door at about 10 p.m. and that Martinez left the room to talk with Gomez in the hallway, where the agent observed them through a peephole. (This testimony is somewhat inconsistent with that of the agent in the lobby, who testified that Martinez left the hotel around 10 p.m. and then returned to the hotel room a few minutes later with Gomez.) After talking with Gomez, Martinez came back into the room and told the agent that Martinez would exchange the cocaine outside in the parking lot. The agent, however, refused to move the deal outside. Martinez agreed to do the deal the agent's way, but Martinez and Gomez then left the hotel in Martinez's Camaro at about 10:08 p.m.

Gomez testified at trial that Martinez drove him to a gas station where Martinez made a phone call and then drove Gomez back to the hotel. Gomez denied talking with Martinez or anyone else that night about selling cocaine, and he also denied possessing cocaine at any time that night. Sometime before 11 p.m., the agent in the hotel received a call from Martinez who said that he had the cocaine and would be returning alone in 20 minutes. Both Martinez and Gomez returned to the hotel a little after 11 p.m. The officer stationed in the parking lot observed both of them leave the car and walk around the parking lot for about a minute. Gomez then walked over to the sidewalk while Martinez moved the Camaro a couple of parking spaces over. Martinez got out of the car, opened the hood, and then closed it again. The officer was unable to see what either Gomez or Martinez was doing while the hood was up. Martinez and Gomez then walked sideby-side into the hotel, and Gomez waited in the lobby while Martinez went back to the hotel room. At approximately 11:12 p.m., Martinez entered the room and gave the agent a brown paper bag containing one kilogram of cocaine. Both Martinez and Gomez were then arrested. Neither Martinez nor Gomez was ever seen carrying the cocaine into the hotel, and Gomez's fingerprints were not found on any of the contraband.

Gomez testified at trial that he was at the Hillsdale hotel on August 21 because of a $500 loan he had made to Martinez a week before. Gomez cleared only $350 per week at his job, but he said the $500 loan came from three weeks of vacation pay he received on August 14. Gomez said Martinez called him at around 9 p.m. on August 21 telling him to come to the hotel to get the loan repaid. Gomez testified that he wanted the money as soon as possible because he wanted to leave on a vacation to California with his children. The prosecution stipulated that Gomez had received the vacation pay on August 14, but the prosecution also presented Gomez's prior conviction for possession of a controlled substance as evidence relevant to his credibility.

The state trial judge convicted Gomez, stating that he did not believe Gomez's testimony and that the prosecution had proven that Martinez and Gomez were acting in concert. The trial court sentenced Gomez to 18 years in prison. Gomez appealed to the Appellate Court of Illinois on two issues: 1) whether Martinez's statements were improperly admitted at trial under the coconspirator exception to the hearsay rule, and 2) whether the evidence was sufficient to prove Gomez guilty beyond a reasonable doubt. The Appellate Court rejected both arguments and affirmed the conviction. People v. Gomez, 658 N.E.2d 546 (Ill. App. Ct. 1993). Gomez then petitioned for leave to appeal to the Illinois Supreme Court, but Gomez raised only the hearsay issue and not the sufficiency of the evidence claim. The Illinois Supreme Court denied the petition. People v. Gomez, 622 N.E.2d 1215 (Ill. 1993). Gomez subsequently petitioned for a writ of habeas corpus in the U.S. District Court for the Northern District of Illinois. The District Court rejected the ...


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