The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge
MEMORANDUM OPINION AND ORDER
Ariel Gomez is presently serving a thirty-five year sentence for the
crime of murder. He petitions for a writ of habeas corpus,
28 U.S.C. § 2254, asking for a new trial. I deny the writ because
Mr. Gomez has failed to demonstrate that the state court violated any
On June 13, 1997, the night the Chicago Bulls won their fifth National
Basketball Association championship, Mr. Gomez, then seventeen years
old, and four of his friends were driving around the northwest side off
Chicago, Illinois, in his mother's Nissan Pathfinder.*fn1 Jose Dominguez
was driving, and, at the intersection of Cicero and Diversey, several men
threw bricks and stones at the car. Mr. Gomez told Mr. Dominguez to pull
over, and Mr. Gomez pulled a .45 caliber semiautomatic pistol from under
the hood of the car. Mr. Dominguez drove back toward the intersection
with Mr. Gomez in the passenger seat, and as the car approached the crowd
of people at the intersection, Mr. Gomez says he fired once into the
crowd. Other witnesses at the scene said that they heard anywhere from
two to five shots. One shot hit and killed Concepcion Diaz.
Mr. Gomez was charged with first—degree murder and tried in a
joint bench trial with his four co-defendants. Although the cases were
technically severed, the judge heard evidence against all of the
defendants simultaneously. None of the defendants testified at trial,
although all of their statements to the police were admitted. In his
statement, Mr. Gomez told the police that "no one in the group on the
street had any guns or weapons," but forensic evidence showed that the
bullet that killed Mr. Diaz could not have come from the gun recovered
from Mr. Gomez. The trial judge accepted this finding, but speculated
that there was another gun that Mr. Gomez had concealed that fired the
fatal shot. Mr. Gomez was convicted of first-degree murder, and Mr.
Dominguez was found guilty of the same crime on a theory of
accountability. The other three co-defendants were acquitted. Mr. Gomez
appealed to the Illinois Appellate Court, where he challenged the
sufficiency of the evidence and argued, among other things, that he did
not knowingly and voluntarily waive the right to testify and that his
trial counsel was ineffective. He lost, and the Illinois Supreme Court
denied his petition for leave to appeal on January 29, 2001.
Mr. Dominguez also took his case before the Illinois Appellate Court,
and eight months after the court affirmed Mr. Gomez's conviction, the
Court held that there was insufficient evidence of Mr. Gomez's guilt on
the murder charge to hold Mr. Dominguez accountable. See People v.
Dominguez, No. 1-98-4519, slip Op. at 11-12 (Ill.App. Ct. May 17,
2.001). The same judge presided over the Gomez and Dominguez panels.
Because the trials were technically severed, the evidence was considered
separately against each defendant. The evidence against Mr. Dominguez was
virtually identical to the evidence against Mr. Gomez; the only
difference was that Mr. Dominguez's own statement to the police was
admitted. Portions of Mr. Gomez's statement were admitted as to Mr.
Dominguez, Id. at 8, but not Mr. Gomez's statement that nobody else in
the crowd had any weapons. The appellate court found that the trial court
had improperly inferred, in the absence off any evidence that Mr. Gomez
was the only shooter, that Mr. Gomez must have used another gun and
disposed of it. Id. at 12.
It is unjust that Mr. Gomez should sit in prison, convicted of murder,
while his co-defendant should be cleared of it on the grounds that one
cannot have accomplice liability if the principal — Mr. Gomez
— is innocent. However, I am obliged to confine my inquiry to the
possible violation of federal law by the state courts, and there is no
federal right to a consistent verdict. The Supreme Court has held that an
accomplice may be convicted of aiding and abetting a principal who has
been acquitted. Standefer v. U.S., 447 U.S. 10, 19 (1980); U.S. v.
Lahey, 55 F.3d 1289, 1296 (7th Cir. 1995). This rule holds true in both
jury and bench trials. Harris v. Rivera, 454 U.S. 339 (1981). In fact,
the Constitution does not even require that verdicts rendered against a
single defendant be consistent; the Supreme Court has stated that a
defendant may be convicted of one crime and acquitted of a second which
is a necessary condition of the first. U.S. v. Powell,
469 U.S. 57, 69
(1984); U.S. v. Sims, 144 F.3d 1082, 1084 (7th Cir. 1998) (holding that
"inconsistent verdicts in criminal cases do not give rise to a right to a
new trial"). Following these clear guidelines, I must ignore the
inconsistency of the Illinois Appellate Court and turn to the two
constitutional issues raised by the petitioner.
Petitioner argues, first, that his constitutional right to testify in
his own defense was denied by the state trial court. This claim is not
supported by the trial record. To be sure, Mr. Gomez did not testify at
his trial. But "courts have no affirmative duty to determine whether a
defendant's silence is the result of a knowing and voluntary decision not
to testify." U.S. v. Thompson, 944 F.2d 1331, 1345 (7th Cir. 1991). A
trial court must permit a defendant to testify if he makes his desire
known to the court (Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.
1988)), but nothing in the record here suggests that Mr. Gomez made a
similar demand. Petitioner's brief cites cases from other jurisdictions
which may require explicit waiver of the right to testify, but the rule
in this circuit is clear. If Mr. Gomez's lawyer did not inform him of his
right to testify, this is a matter of ineffective assistance of counsel,
discussed below. However, in the absence of any evidence that Mr. Gomez
was somehow prevented by the court from taking the stand, I have no basis
for finding that his failure to testify was anything other than a
tactical decision he now regrets.
Petitioner also argues that he was denied the effective assistance of
counsel because his lawyer failed to put him on the stand. As I noted in
my order of May 13, 2002, Mr. Gomez has procedurally defaulted on this
claim, and I may consider its merits only if he can "show that it is more
likely than not that no reasonable juror would have convicted him in
light of the new evidence." Schlup v. Delo, 513 U.S. 298, 327 (1995). The
new evidence in this instance would be Mr. Gomez's testimony.
Mr. Gomez's case does not meet this extremely strict standard. He
admits to firing a gun in the direction of the victim. He admits to
crashing his mother's vehicle in an attempt to keep. the police off his
trail. Numerous witnesses, including Mr. Gomez's co-defendants, observed
him firing toward the victim. Mr. Gomez himself stated that no one in the
vicinity other than himself had a gun. While ballistic evidence shows
that the gun found in Mr. Gomez's mother's house was not the gun that
killed the victim, it is plausible that Mr. Gomez used a different gun to
commit the murder. The addition of Mr. Gomez's testimony, which a jury
might or might not believe, to this body of evidence would not render an
acquittal likely enough to meet the Schlup standard. A reasonable juror
could conclude that Mr. Gomez was lying on the stand, ...