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January 5, 2004.

United States of America ex rel. ALEJANDRO RUVALCABA (#K-63734), Petitioner,
DANNY JAIMET, Warden, Hill Correctional Center,[fn1] Respondent

The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

*fn1 Ruvalcaba is in the custody of Danny Jaimet ("Jaimet"), Warden of the Hill Correctional Center. Thus, Jaimet is the proper respondent in this habeas action. See Rule 2(a) of the Rules Governing Habeas Corpus Cases under 28 U.S.C. § 2254. Accordingly, this court substitutes Jaimet as respondent. See Fed.R.Civ.P. 25(d)(1).


In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner Alejandro Ruvalcaba ("Ruvalcaba") challenges his conviction for first degree murder and attempted first degree murder entered in the Circuit Court of Cook County, Illinois. Ruvalcaba raises the following claims: (1) his confession given while he was a juvenile was involuntary; (2) the police arrested him without a warrant; (3) prosecutorial misconduct; (4) the State failed to prove him guilty beyond a reasonable doubt; and (5) the trial court abused its discretion when it imposed an excessive sentence.*fn2 For the reasons set forth below, the petition is denied. Page 2


  Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a court must deny a petition for a writ of habeas corpus with respect to any claim adjudicated on the merits in the state court unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d); Price v. Vincent, 538 U.S. 634, ___, 123 S.Ct. 1848, 1852 (2003). A state court's decision is contrary to clearly established Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [it]." Williams v. Taylor, 529 U.S. 362, 405 (2000). In order for a state court decision to be considered "unreasonable" under this standard it must be more than incorrect, it must lie "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) ("The state court decision is reasonable if it is minimally consistent with the facts and circumstances of the case.") (internal citations and quotations omitted).

  Before reviewing the state courts' decisions, however, the court must determine whether the petitioner fairly presented his federal claims to the state courts, as any claim not presented to Page 3 the state's highest court is deemed procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Moreover, "[a] federal court will not review a question of federal law decided by a state court if the decision of the state court rests on a state procedural ground that is independent of the federal question and adequate to support the judgment." Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002). A federal court may not grant habeas relief on a defaulted claim unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Anderson v. Cowen, 227 F.3d 893, 899 (7th Cir. 2000).


  When considering a habeas petition, the court must presume that the state courts' factual determinations are correct unless Ruvalcaba rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002).*fn3 The facts below, a verbatim recitation of the facts from the Illinois Appellate Court's direct review of Ruvalcaba's conviction, are established:

  On the evening of November 7, 1994, in an alley on the south side of Chicago and as a result of a random shooting, Hiram Martinez was killed and his companions, Carlos Flores and Luis Sanchez, were wounded. Sixteen-year-old defendant, Alejandro Ruvalcaba, also known as "Ace," was arrested at 11:30 that same evening and taken to the Area 1 police station where he subsequently confessed to shooting his loaded gun into the alley. Defendant and co-defendants, Juan Meneses and Juan Alvarez, were indicted for Martinez's murder and the attempted murder of Flores and Sanchez. Page 4

Prior to defendant's first trial, defendant moved to suppress his confession and to quash his arrest and suppress his statements, which the trial court denied. Defendant's first trial on the charges resulted in a verdict of not guilty for the attempted murder of Sanchez and a hung jury on the other charges. The jury in defendant's second trial found defendant guilty of the murder of Martinez and the attempted murder of Flores. This appeal followed.
In his motion to suppress his confession, defendant alleged, in pertinent part, that the police officers had not attempted to notify his parents of his arrest, he was refused an attorney because he was told he "did not need an attorney,"he had not intelligently waived his right to an attorney, and, because the police had psychologically coerced him into giving a court-reported statement, his statement was involuntary.
The evidence presented during the hearing on defendant's motion to suppress his confession revealed that Officer Joseph Gula and his partner had gone to the Ruvalcaba residence at 5443 South California in Chicago after being asked by fellow detectives, who were investigating the November 7 shooting, to locate defendant. There, they spoke to defendant's brother, Ricardo, the only person home, and explained, without disclosing the nature of the investigation, that they were looking for defendant. Ricardo informed the officers that defendant was not at home. Some time later, after arresting codefendants Juan Meneses and Juan Alvarez, but failing to find defendant, Gula returned to the Ruvalcaba residence. When no one answered the door, Gula left his business card in the door. Gula then, upon learning that defendant's girlfriend lived on the 5500 block of South Mozart, went to that location where he found defendant and transported him to the Area 1 Violent Crimes Unit. Subsequent to defendant's arrest at 11:30 p.m., Gula was asked to locate defendant's parents, and he went back to the Ruvalcaba residence at 2 a.m. on November 8, but he found no one at home and his business card still in the door.
  Further evidence revealed that, at approximately 11:30 p.m., defendant was placed in an interview room and his handcuffs were removed. Detective William Moser, in the presence of Detective Albert Graf, read defendant his Miranda rights, and defendant responded that he understood each one, including the one stating that he could be charged and tried as an adult. A youth officer was not present but, according to Moser, one eventually came into the interrogation room and, during that time a brief conversation, lasting 15 to 20 seconds, occurred. Defendant asked Moser why he was there; the youth officer responded that it was a murder investigation; and defendant, in turn, responded that he did not know anything about a murder. Page 5
Moser testified that, shortly after defendant's arrival at the police station, he had asked defendant where his parents were, and defendant responded that he did not know. Moser also asked defendant for his home telephone number, but defendant did not supply one. Moser then sent tactical officers to 5556 So. Mozart, the residence of defendant's girlfriend where defendant stated he was living, and Moser sent tactical officers, a second time, to the Ruvalcaba home on South California, where no one answered the door.
Moser further testified that defendant participated in a lineup with codefendants Meneses and Alvarez shortly after midnight. Thereafter, Moser went into the interrogation room several times throughout the late evening and mid-morning hours to check on defendant's " well-being," and asked defendant if he needed to use the washroom or if he was either thirsty or hungry. At 9 a.m. on November 8, Moser and Youth Officer Magnus Burney were present during a 10-minute interrogation conducted by Assistant State's Attorney Thomas Biesty. Biesty recited from memory defendant's Miranda rights, and defendant denied knowing anything about a murder. Moser also spoke with defendant's girlfriend, Diana Caguana, who had brought her's [sic] and defendant's baby to Area 1. Sometime after 9 a.m., defendant asked that a picture of Caguana be taken, and at 10 a.m., a picture was taken "to prove to defendant that Caguana was at the station." Moser never told defendant that he could not see Caguana prior to the picture being taken. Rather, Moser allowed Caguana to speak with defendant at 11 a.m. upon defendant's request.
At 11:30 a.m. Biesty, after giving defendant his Miranda rights and informing him that he was not defendant's attorney but rather the prosecutor, interrogated defendant in the presence of Moser and Burney. Pursuant to defendant's inquiry as to what his codefendants were saying, Biesty showed defendant copies of the codefendants' statements without telling defendant that he had to conform his statement to those of his codefendants. Defendant confessed and then chose to memorialize his oral statement. At 12:40 p.m., in the presence of Moser, Biesty, and Burney, defendant gave a court-reported statement.
  According to Moser, defendant was allowed to use the bathroom, to sleep, and to eat, and defendant never asked to use the telephone or to consult with either a family member or an attorney. Defendant appeared to "be a competent and intelligent young man," who understood Moser's questions, answered them clearly, understood written and spoken English, and had not waived hisMiranda rights. Defendant had not been continuously questioned during his 14-hour detention, and no detective had told defendant that he did not need an attorney or that if he cooperated or implicated codefendant Meneses he would be released. Page 6
Detective Albert Graf testified that he had purchased food for defendant and the codefendants on two separate occasions: the first time between 3 and 3:30 a.m. and the next time at approximately 8:30 a.m.
Assistant State's Attorney Biesty corroborated Detective Moser's testimony regarding defendant's interrogations.
Defendant's father, Rosario, and brother, Abel, testified that they had returned to their home around 10 p.m. on November 7 to find the police searching the home for defendant. The police left, and neither Rosario nor Abel heard anyone come back to the house the remainder of the night or the next morning. The front door of the house had a buzzer, but it was not working according to Rosario.
Caguana testified that she had spoken to the police as well as an assistant State's Attorney at Area 1 where a picture of her and her baby had been taken. According to Caguana, the detective had not permitted her a contact visit with defendant.
Defendant testified that he had been questioned twice by a police officer upon arriving at Area 2, but on neither occasion had he been advised about his right to remain silent. During the second interrogation, defendant had asked the officer to call either defendant's aunt or one of his friends so they, in turn, could contact his father because the Ruvalcaba residence did not have a telephone, but the officer told defendant that defendant could not make a telephone call. A third interrogation occurred, during which time the officer denied defendant's request to contact his father. Defendant further stated that he could not remember whether the officer had read him hisMiranda rights. Also during this interrogation, the officer had told defendant that, although Caguana was present at the station, defendant could not see her until he "cooperated" with the police. When defendant refused to answer any question posed by the officer, the officer had told defendant that "he was going to go get [Caguana] and get the truth out of her. And if she tried lying that he was going to make sure he put her in jail and take the baby, and make sure the baby ended up in D.C.F.S." When defendant expressed his disbelief that Caguana was at the station, the officer left the room and returned with a picture of Caguana and the baby. Defendant denied having seen Caguana prior to his giving his statement.
  Defendant further testified that the assistant State's Attorney had advised him of his Miranda rights, but he did not waive them. Defendant could not recall if anyone had advised him that he would be charged as an adult, and no one had explained to him that his statement could be used against him. According to defendant, the assistant State's Attorney had told him that he knew defendant was Page 7 not the person who had fatally shot the victim Martinez, but to stop lying and cooperate because the only person police were interested in was codefendant Meneses and that defendant could leave as soon as he gave a statement. Defendant further stated that Biesty had shown him codefendant Alvarez's statement, telling him that"in order for everything to work out * * * whatever [defendant said] would have to be in compliance with whatever [codefendant] Alvarez said. So it could help us out." Defendant then decided to give a statement so that he could go to work and because he was hungry. Defendant did not see a youth officer until after he was given a copy of his statement to sign. According to defendant, the youth officer did not speak with him.
On cross-examination, defendant testified that he signed each page of his court-reported statement which contained his answers that the police had treated him "good" and had fed him, no one had made any promises to him or threatened him prior to his giving his statement, and that he had slept, understood his rights, and had been allowed to use the washroom. Defendant admitted that while giving his statement he had not had Alvarez's statement and that he had not complained to the detective that the assistant State's Attorney had forced him to change his confession.
In rebuttal, Youth Officer Burney testified that he had been present during the 9 and 11:30 a.m. interrogations and the taking of defendant's court-reported statement and that defendant had been given his rights each time. No one had told defendant to say anything in particular or to conform his statement to another codefendant's so that he would be released. Defendant never asked to make a telephone call, and no one had advised defendant that he did not need an attorney because the police knew defendant did not shoot the victims and was not the target of the investigation.
Following the parties' arguments, the trial court denied defendant's motion to suppress his confession, basing its determination on the witnesses' credibility. The court found that the officers had substantially complied with the requirements contained in the Juvenile Court Act.The court further found that defendant had not been subjected to intense psychological pressures and had voluntarily given his statement after being advised of his constitutional and juvenile rights.
  Subsequent to this ruling, the court heard evidence concerning defendant's motion to quash arrest and suppress evidence allegedly illegally obtained. Defendant alleged in his motion, in pertinent part, that the arresting officers did not have probable cause and/or a reasonable suspicion that defendant had committed, was committing, or was about to commit a crime and that, as a result of his "illegal arrest," the prosecution had acquired evidence violative of defendant's constitutional rights. Page 8
At the hearing, Detective Graf testified that he had spoken with three witnesses at the crime scene, two of whom were Flores and Sanchez, who had told him that they had earlier been walking with Martinez in an alley near 2719 West 59th Street when they were approached by two people wearing dark clothing, the taller of whom asked, "What's up, 26'er?" Sanchez responded, "What's up?" The two groups then passed each other, and Flores and Sanchez looked behind them as they were walking and saw the two individuals draw weapons and start randomly firing at them. They ran for cover and subsequently returned to the crime scene to discover Martinez fatally shot.
Israel Cobian, the third witness to whom Graf had spoken, told him that he had been approached earlier that day by codefendant Meneses, whom he knew as "Sinister," and by codefendant Alvarez, whom he knew as "Smack." Sinister was visibly upset because someone had just broken the windshield of his car, and Sinister asked Cobian if he knew who had done the damage. Cobian told Sinister that he did not know, and Sinister and Smack walked away. Shortly thereafter, Cobian saw Sinister, Smack and another passenger drive by in the car with the smashed windshield; he saw the car turn into 59th Street; he then heard several gunshots coming from the general direction the car had taken; he ran towards 59th Street to investigate; and, as he approached the street, he saw Sinister running from an alley to his parked car and speeding away.
After speaking with Detective Graf, Cobian directed Graf and other detectives to Sinister's residence located three blocks from the homicide scene. Once there, Cobian pointed out the car he had seen Sinister driving: a late model, blue Cadillac Seville, with heavy damage to its windshield, parked in front of the residence. Graf and the detectives entered the residence and spoke to the mother and sister of codefendant Meneses.The sister told them that the car belonged to her brother, Meneses, that he went by the nickname Sinister, and that he had just left with his friends, Ace (defendant) and Smack (codefendant Alvarez). Graf relayed this information to other tactical officers, who, in turn, told him that defendant, Meneses, and Alvarez were members of the Latin Kings street gang and the victims belonged to a rival street gang known as the LaRaza. Graf then told the tactical officers to locate defendant and codefendants.
  Officer Gula testified that, as a 9th District gang tactical officer, he was familiar with the gangs in the district. Because of this familiarity, Gula knew the victims as members of the LaRaza street gang and knew that the LaRaza and the Latin Kings were rivals. Gula stated that he had received instructions from the detectives who had spoken to Meneses' sister to locate and bring to Area 1 three individuals, whom they identified as Sinister, Ace, and Smack. Gula, having previously dealt with Sinister on a number of different occasions, knew that Sinister's given name was Meneses and that he was a member of the Latin Kings. Page 9 Gula also knew that Ace (defendant) was another Latin Kings gang member. Gula did not know a person by the nickname of Smack, but a fellow 9th District gang tactical officer informed Gula that Smack was codefendant Alvarez. Responding to the instructions he had received from the detectives, Gula made a warrantless arrest of defendant at Caguana's residence.
Following the parties' arguments, the trial court denied defendant's motion to quash arrest and suppress evidence, finding that the officers had probable cause to arrest defendant.
At defendant's second trial, the following pertinent testimony was introduced. The LaRaza and Latin Kings had been "at war" with each other, and the area bounded by 59th-61st and Fairfield-Washtenaw, the vicinity where the crimes occurred, was LaRaza territory. In addition, Flores and Sanchez, the victims of the attempted murder and fellow LaRaza street gang members, each testified that they had seen defendant, without warning or provocation, pull a gun from his waistband and fire shots at them and Martinez as they were attempting to flee. Flores and Sanchez fled the alley and reached Sanchez's house, where Sanchez told Flores to get a gun hidden by the LaRaza in a window sill of a nearby house. Flores retrieved the gun, and he and Sanchez returned to the alley and discovered Martinez lying on the pavement, fatally shot. Flores and Sanchez left the crime scene to return the gun to its hiding place, but returned once again to the alley and related what they had just experienced to the police, who had recently arrived. Both Flores and Sanchez testified that neither of them had, nor had Martinez, a gun on them prior to the shooting.
Cobian's testimony from defendant's first trial was read to the jury and into the record. Cobian had observed Meneses driving his car slowly south on Washtenaw toward 59th Street about 15 minutes after Meneses had approached him on foot, questioning him whether he knew who had broken the windshield of his car. Alvarez was sitting in the front passenger seat and defendant, whom Cobian knew to be a Latin Kings street gang member known as Ace, was sitting in the back seat. Cobian identified defendant, as well as Meneses and Alvarez, in a lineup as being the three individuals whom he had seen in Meneses' car on the night of the shootings.
  Assistant State's Attorney Biesty read into evidence defendant's court-reported statement, which contained the following pertinent facts. Defendant had been at Caguana's home on November 7 at approximately 7 or 7:30 p.m. when Meneses, Alvarez, and a third person whom defendant knew as Chaos came to visit. Meneses asked defendant to get the .32 revolver that Meneses had previously given defendant, and defendant retrieved the revolver, loaded with a single round, from the bedroom. Defendant then accompanied Meneses, Alvarez, Page 10 and Chaos back to Meneses' residence where Meneses retrieved a .9-millimeter automatic gun. The four then proceeded to the alley, and Meneses made a hand gesture depicting a gun, which meant, to defendant, that Meneses wanted to go and shoot the persons who had damaged his car's windshield. Defendant followed Meneses into the alley, while Alvarez stayed behind in Meneses' car and Chaos served as a "lookout" for "cops."
Once in the alley, defendant saw three unknown individuals approaching him and Meneses. One of the three "threw up" the LaRaza street gang sign and said, "What's up, LaRaza." In response, Meneses "threw up" the gang sign of the 26ers, a gang allied to the LaRaza, and said, "What's up 26ers." Immediately thereafter, Meneses pulled out his gun and fired approximately 10 shots at the three individuals, who began running away from defendant and Meneses. Defendant then pulled his gun and pointed it "towards this big fence" that was in the direction of the running individuals, and fired it until the one round went off. Defendant and Meneses returned to the car and sped away with Alvarez to Meneses' home, where defendant washed his hands.
Dr. Donna Hunsaker, a Cook County deputy medical examiner, testified that Martinez died of a through-and-through gunshot wound to the chest and that his cause of death was a homicide.
Detective Graf testified that he had recovered two guns in the garage of Meneses' home: a partially loaded .9-millimeter semiautomatic pistol and an empty.32 caliber revolver. Ernest Warner, a firearms examiner for the Chicago police crime lab, testified that he had examined the two weapons and had concluded that 11 discharged cartridge cases had been fired from the .9-millimeter semiautomatic pistol.
Robert Berk, an Illinois State Police crime lab analyst, testified for the defense. He stated that he had performed gunshot residue tests (GSR) on the victims. Based on his observations, Berk concluded that gunshot residue had existed on Flores' right palm, although Berk could not conclude whether Flores had discharged a weapon. The GSR tests conducted on Martinez and Sanchez were inconclusive.
  Defendant testified that he had followed Meneses into the alley, not knowing that Meneses was going to shoot and kill someone. After Meneses and the victims exchanged greetings, Meneses and Flores started "shooting at each other." Martinez and Sanchez then began to run down the alley when defendant pulled out his gun and shot once toward a fence on his right. Defendant fired the gun because he "didn't want to be in a situation where they might get a chance to shoot back-to shoot at me." After firing the gun, defendant ran back to Meneses' Page 11 car and returned to Meneses' house, where he gave his gun to Meneses and washed his hands.
Defendant further testified that his court-reported statement did not accurately reflect what had occurred on November 7 because Biesty had told him what to say in the statement. Specifically, Biesty told him to say that Chaos had served as a lookout and that Meneses had made a hand gesture to him indicating a gun prior to their entering the alley. Biesty had also told him to demonstrate the handgun gesture during the court-reported statement.
On cross-examination, defendant testified that he believed he and Meneses were only going to break windows as they walked into the alley with their guns. Defendant admitted that the victims were not armed. Defendant stated that before he had fired his gun he could see that Martinez was stumbling, and, when he had fired his gun, Flores and Sanchez were running "further away from" him.
In rebuttal, Biesty testified that he had not told defendant to make a hand gesture depicting a gun when defendant had given his court-reported statement and that defendant's court-reported statement was almost a verbatim transcript of his oral statement.
After the parties rested, the jury found defendant guilty of first degree murder and attempted first degree murder, and, after hearing testimony in aggravation and mitigation, the trial court sentenced defendant to 50 years' imprisonment for first degree murder and 30 years for attempted murder, the sentences to be served concurrently. This appeal followed.
(Resp. Ex. B at 2-16.)


  At his first trial, Ruvalcaba was found not guilty of the attempted first degree murder of Sanchez. (Resp. Ex. A at 1 ¶ 2.) The jury was unable to reach a verdict on the charges of first degree murder of Martinez and attempted first degree murder of Flores. (Id.) The State retried Ruvalcaba on those remaining offenses. (Id.) At the second trial, Ruvalcaba was convicted of first degree murder of Martinez and attempted first degree murder of Flores. (Id.) Thereafter, the trial court sentenced him to 50 years' imprisonment for the first ...

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