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October 9, 1998

JAIME MACIEL, Petitioner,
LAMARK CARTER,1 Respondent.

The opinion of the court was delivered by: CASTILLO


 Petitioner Jaime Maciel was convicted of first degree murder and burglary and sentenced to 60 years' imprisonment. Maciel unsuccessfully sought both direct and collateral review of his conviction and sentence. Now he petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons set forth below, we deny Maciel's petition.


 Because the Illinois appellate court has fully set forth the underlying facts, we will summarize them here. *fn2" On March 28, 1991, Dansby Maye and his partner, Donald Buffa, the victim, were delivering beer to a lounge on Commercial Street, in Chicago, Illinois. Maye and Buffa brought in the first load and, while Maye remained in the lounge, Buffa returned to the truck. Maye heard a gunshot, returned to the truck, and discovered that Buffa had been shot.

 Maciel was arrested and later confessed. He was 17 years old. The circumstances surrounding Maciel's arrest and confession were contested both before and during trial. At a pretrial hearing on Maciel's motion to quash the arrest and suppress his confession, Officer John Botich testified that he and three other officers were assigned to investigate the shooting. As they canvassed the neighborhood, they learned that three individuals, "Mou," "Ger Bear," and "Jimmy Z," may have been involved in the shooting, and that Dominick Anaya may have further information. Anaya informed that "Mou," "Ger Bear" and "Jimmy Z." were members of the Young Bloods, a gang to which he also belonged, and confirmed that they would have information concerning the shooting. Anaya's sister, Nina Zavala, told Officer Botich that she dated a member of the Young Bloods and "knew for positive that Jimmy Maciel was the shooter." She gave the officers Maciel's address. She also stated that Maciel used the name "Jimmy Z." Zavala expressed concern for her and her brother's safety; Officer Botich assured her that he would try to keep her identity confidential. Thus, in his report, he referred to them as "concerned citizens" and a "confidential informant".

 On the basis of Zavala's statement, Officer Botich and the other officers went to Maciel's house. Officer Botich testified that Maciel's mother let them into the house, that Maciel voluntarily accompanied them to the station, that Maciel was never handcuffed and was free to leave at any time, and that he was arrested only after they reached the station and learned that Maciel's co-defendants, Gerardo Delgado ("Ger Bear") and Maurilio Moreno ("Mou"), had implicated him in the shooting. Maciel, on the other hand, testified that the officers entered his house without a warrant, grabbed him, and took him outside where they placed him in handcuffs and under arrest. His family corroborated his testimony.

 While at the station, the officers told Maciel that Delgado and Moreno had implicated him in the shooting. Soon thereafter, Maciel signed an eleven page sworn confession, in which he admitted to shooting Buffa.

 The state trial court found that the officers should have attempted to secure a warrant before entering Maciel's house, and therefore suppressed Maciel's arrest. The court further found, however, that the information supplied by Zavala provided probable cause to arrest Maciel. Moreover, "independent information" obtained at the police station (i.e., that Maciel's co-defendants had implicated him) "re-established" probable cause. For these reasons the trial court refused to suppress Maciel's confession.

 The court held a second pretrial hearing after Maciel filed a motion for reconsideration. At this hearing, Zavala testified that she never spoke to the police, that she did not know Maciel's address, and that her brother and the defendants were not gang members. She stated that after hearing her name mentioned in connection with this case, she went to Maciel's house and executed an affidavit witnessed by Maciel's family. Officer Botich's testimony at the second hearing was consistent with his testimony at the previous hearing. The court denied the motion for reconsideration, finding that Zavala was sorely impeached and that she had a motive for testifying falsely; namely, she was afraid of retribution for fingering Maciel.

 Prior to trial, the State successfully moved in limine to preclude Maciel from mentioning an alleged prior incident of police brutality in his opening statement. Specifically, on February 3, 1991, in the middle of the night, police officers allegedly entered Maciel's house without a warrant to arrest him. An altercation ensued during which his mother was pushed, Maciel and one of his brothers were beaten, and Maciel and another brother were arrested. The State feared that the defense would use this incident to attack Maciel's confession without presenting Maciel's own testimony. Similarly, the State successfully moved in limine to prevent witnesses other than Maciel from testifying about the February 3 incident before Maciel broached the subject himself under oath.

 The State presented the following evidence at Maciel's trial. Officer Don Morrow testified that, while on duty and patrolling the area, he responded to an emergency call of "man shot." Seeing three Hispanic men walking together, Officer Morrow stopped his car. Although the men fled, Officer Morrow apprehended two of them, one of whom was Maciel. Neither of the men had any weapons, and they were both released. Officer Robert Lucas' testimony detailed the neighborhood canvass. He said that numerous people identified the three defendants -- initially by their nicknames -- as involved in the shooting. He also described the conversations the police had with Zavala and Anaya.

 Detective James Dwyer provided the most compelling testimony. Initially, Detective Dwyer testified that three individuals identified Maciel's co-defendants, Delgado and Moreno, in a lineup: Armand Prieto, the owner of a tire shop located next to the lounge; Jose Santillan, Prieto's nephew; and another man. *fn3" Then, he testified about Maciel's confession. Detective Dwyer told the jury that, after waiving his Miranda rights, Maciel told Detectives Dwyer and Leahy that he was with Delgado and Moreno in the vicinity of the lounge. Maciel explained that he decided to steal a case of beer, but that Buffa came out of the lounge. Maciel confessed that he shot Buffa, but said he had aimed below the waist. Maciel said that he then ran and threw the gun into a dumpster. Detective Dwyer testified that Maciel gave this same statement to a court reporter and Assistant State's Attorney Jonathan Lustig. Maciel's statement was read to the jury.

 Maciel took the stand in his defense to convey his state of mind at the time he confessed to killing Buffa. Maciel explained that he ran from the police on the day of the shooting because he was supposed to be in school. Maciel stated that the police arrested him at his home, without a warrant, sometime between 12:30 and 2:30 p.m. While at the police station, Maciel contended that he was threatened and physically abused while handcuffed to the wall; that he was placed in a lineup but no one identified him; and that Detective Dwyer threatened to kill him. Fearing further reprisal, he told the officers that he would do whatever they wanted him to do. Maciel testified that Detective Dwyer proceeded to coach him, telling him what to say when he gave the statement to the court reporter (the court reporter denied this). Maciel claimed that he never read the statement, and denied killing Buffa. Maciel's family confirmed his testimony regarding the February 3 incident. *fn4" After Maciel denied that he ever carried a gun, the State introduced a photograph of Maciel wearing a holster with a gun. Maciel responded that the gun was only a toy.

 Zavala also testified and repeated the story that she told during the pretrial hearing on Maciel's motion for reconsideration. On cross-examination, the State asked her what would happen to her if anyone discovered that she had given information concerning the shooting. The court sustained the defense's objection. Zavala later stated that no-one had threatened her.

 The jury found Maciel guilty of first degree murder and burglary. Following a sentencing hearing, the trial court sentenced Maciel to 60 years' imprisonment. The court specifically found that Maciel was without remorse or the potential for rehabilitation.


 Maciel appealed the judgment to the Illinois Court of Appeals, arguing that: (1) the trial court erred in failing to suppress his incriminating statements; (2) the trial court violated his due process rights by excluding reference to the February 3, 1991 incident in defense counsel's opening statement, and by requiring Maciel to testify as the first defense witness; (3) the trial court erroneously admitted certain evidence; (4) the State's insinuations that Maciel had intimidated witnesses violated his right to a fair trial; (5) the cumulative impact of the trial errors deprived him of a fair trial; and (6) his sentence was excessive. The Illinois appellate court rejected all of Maciel's contentions.

 Maciel filed a petition for leave to appeal in the Illinois Supreme Court, which was denied without opinion on January 31, 1996. The United States Supreme Court denied Maciel's petition for a writ of certiorari on October 7, 1996.


 While his appeals were pending, Maciel submitted a petition for post-conviction relief to the trial court. In his pro se petition, Maciel reiterated several of the arguments presented in his direct appeal. Maciel's only new claim was that he received ineffective assistance of counsel. Maciel alleged that his attorney failed to investigate certain allegations concerning one of the investigators in Maciel's case, Sergeant O'Hara. Specifically, Maciel contended that prior to the pretrial hearing on his motion to suppress, he learned that Sergeant O'Hara was suspended from the Chicago Police Department for his participation in improper interrogation procedures. Because Maciel claimed that his own confession was coerced, he thought that this information would be relevant to his case. Maciel reported the information about O'Hara to his attorney. Counsel, however, allegedly told Maciel that the information "didn't make a difference." The post-conviction court summarily denied the petition on January 19, 1996.

 Maciel missed the February 18, 1996 deadline for appealing the denial of his post-conviction petition. Six months later, Maciel filed a motion for leave to file a late notice of appeal. The Illinois appellate court denied Maciel's motion on August 28, 1996.


 In his petition, Maciel argues that he is entitled to habeas relief because the trial court: (1) did not suppress his confession which was allegedly obtained pursuant to an illegal arrest, and as a result of police coercion; (2) violated his constitutional right to present a defense, to effective assistance of counsel, and his right against self-incrimination by excluding any reference to the February 3 incident from the defendant's opening statement, and by requiring Maciel to testify as to his state of mind before introducing evidence on that incident; (3) violated his Sixth Amendment right to confront witnesses by admitting hearsay evidence; and (4) violated his right to a fair trial by allowing the introduction of prejudicial evidence. He also claims that the state engaged in prosecutorial misconduct; that his attorney rendered ineffective assistance by failing to investigate Sergeant O'Hara, and by not objecting to certain trial errors; and that his sentence was constitutionally excessive. For the reasons set forth below, we deny Maciel's petition.


 I. Legal ...

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