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November 4, 2002


The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge.


Esmelix Leyva was convicted in Illinois state court of home invasion and attempted aggravated criminal sexual assault of his girlfriend's daughter. He appealed, lost, and filed a petition for leave to appeal to the Illinois Supreme Court, which was denied. He files a petition for a writ of habeas corpus under 28 U.S.C. § 2254, raising four claims: (1) that the state trial court abused its discretion when it admitted evidence of another sexual assault committed by Mr. Leyva; (2) that there was insufficient evidence of attempted aggravated criminal sexual assault to sustain his conviction; (3) that the state trial court should have instructed the jury that battery was a lesser-included offense of attempted aggravated criminal sexual assault; and (4) that the prosecutor's closing and rebuttal argument denied him a fair trial. I deny the petition.


In 1998, Mr. Leyva lived across the street from Hattie K., whom he had met at church and whom he was dating.*fn1 Hattie's twenty-two-year-old daughter, J.K., was living with Hattie for the summer. On June 14, 1998, J.K. was at home with her mother and Mr. Leyva. At about 11:30, J.K. went to bed, and Mr. Leyva left the house for about twenty minutes, then returned to Hattie's house. He asked Hattie to come back to his house, and once they were back at Mr. Leyva's house, he snatched Hattie's keys from her hands, left the room, and locked Hattie in his room from the outside.

Mr. Leyva went back to Hattie's house where J.K. was sleeping and woke her. He knocked on her door and told her that he needed to talk to her in the bathroom. Mr. Leyva told J.K. that his relationship with her mother was a "cover-up," and that Hattie was actually involved in a romantic relationship with another neighbor across the street. When J.K. told Mr. Leyva that she did not believe him, he locked the bathroom door and pushed J.K.'s hand away when she tried to unlock it. Mr. Leyva told J.K. that he was "madly in love" with her and wanted to "make love to her." Mr. Leyva told J.K. to take off her clothes, lie down on the floor, and "show him her `pussy.'" J.K. refused and started to cry, and Mr. Leyva took out a black object shaped like a gun,*fn2 which J.K. believed to be a gun, and threatened to kill both of them.

J.K. frantically reached for the door, and a physical struggle ensued. J.K. and Mr. Leyva pushed, punched and scratched each other. Mr. Leyva put J.K. in a headlock and wrestled her to the floor. Mr. Leyva pointed the gun-shaped object at J.K.'s head and told her that if she stopped screaming he would get off her. J.K. stopped screaming and Mr. Leyva again told her to take off her clothes and "show him her `pussy.'" J.K. cried and pleaded with Mr. Leyva to let her go. Mr. Leyva reached into his pocket and took out a pipe and a white substance, which he proceeded to smoke. While Mr. Leyva was smoking, J.K. punched him and ran out the bathroom door.

Hattie testified that when she realized she was locked in, she called to a neighbor for help, but ultimately used a comb to unlock the door and get out of Mr. Leyva's apartment. She ran toward her house, where she heard a woman screaming, and realized that it was her daughter. She rang her doorbell (Mr. Leyva had taken her keys), and J.K. opened the door and told Hattie that Mr. Leyva had "tried" to rape her. Mr. Leyva said that J.K. was "crazy" and ran away. Hattie and J.K. called the police. When Mr. Leyva returned to Hattie's house later that night, Hattie called the police again and Mr. Leyva was arrested.

When confronted by an assistant state's attorney, Mr. Leyva denied any wrongdoing. He originally told police that the scratches on his face were from shaving, but later told the assistant state's attorney that they were caused by "gangbangers." When the assistant state's attorney introduced herself to Mr. Leyva, he said that his former girlfriend, M.K., was a "United States Attorney" and that he went to jail because of her. The assistant state's attorney recognized M.K.'s name and knew her as another assistant state's attorney.

At trial, the details of the incident with M.K. were admitted over Mr. Leyva's objection. In June 1993, M.K. was living with her father in a second floor apartment. She returned home one night in June at about 9:30 p.m., and after she parked her car, she was approached by Mr. Leyva, whom M.K. knew to be a friend of her father. Mr. Leyva told M.K. that he needed to talk to her about her father, saying that her father owed money to "gangbangers" and that because he had failed to pay, her house could be firebombed. Mr. Leyva asked M.K. if she had any money and suggested that she go with him, but M.K. refused and went into her house.

M.K. asked Mr. Leyva what he wanted, and he said that he was going to rape her and that she should take off her clothes. Mr. Leyva reached toward his back, and M.K. thought that he had a gun. M.K. and Mr. Leyva began to fight, and Mr. Leyva wrestled her to the floor. Standing over her, he ordered M.K. to remove her clothes and called her a "fucking bitch." M.K. begged him to stop, but removed her clothes, then Mr. Leyva removed his clothes and attempted to have intercourse with M.K., saying that she was his "fantasy" and that he had wanted to do this for a long time.

Eventually, after lying on the couch together, Mr. Leyva allowed M.K. to get up and get a glass of water and get dressed in her bedroom. M.K. heard footsteps at the door and realized her father was home, and she went to the door to stop him because she believed that Mr. Leyva had a gun. After M.K. promised that she would meet him outside, Mr. Leyva left through the back door, and M.K. and her father called the police. Mr. Leyva fled, and as a result he was not arrested until February 1994, nine months later.

Mr. Leyva did not testify at trial, and he did not call any witnesses. His counsel argued that his intent was innocent, that he attempted to have a consensual sexual relationship with J.K., and that the state's witnesses were not credible. He claimed that the police and the state's attorneys were trying to frame him because of his sexual assault on M.K., an assistant state's attorney, six years before. He was convicted by a jury of home ...

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