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U.S. EX REL. TORRES v. BRILEY

June 4, 2004.

United States of America ex rel. EDGAR TORRES (#B-03292), Petitioner,
v.
KENNETH BRILEY, Warden, Stateville Correctional Center, Respondent



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

MEMORANDUM OPINION AND ORDER

In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner Edgar Torres ("Torres") challenges his conviction for first degree murder entered in the Circuit Court of Cook County, Illinois. For the reasons stated below, his petition is denied.

HABEAS STANDARD

  Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), this court must deny Torres' 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." 28 U.S.C. § 2254(d); Price v. Vincent, 538 U.S. 634 (2003). A state court's decision is contrary to clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [it]." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

  A state court's decision is an unreasonable application of clearly established Supreme Court law "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of a particular prisoner's case" or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. 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).

  BACKGROUND

 A. Procedural History

  Following a bench trial, Torres was convicted in the Circuit Court of Cook County of first degree murder. He received a sixty-year sentence to be served consecutively to a thirty-year sentence received from a prior conviction. Torres appealed to the Illinois Appellate Court arguing (1) the evidence was insufficient to support the finding that he was guilty beyond a reasonable doubt; (2) the trial court incorrectly denied his motion to quash his arrest and suppress identification evidence; and (3) his sentence was excessive. The Illinois Appellate Court affirmed his conviction and sentence. People v. Torres, No. 1-98-4536 (Ill.App. Ct. Aug. 14, 2001) (Resp. Ex. D.)

  Torres filed a pro se petition for rehearing in the Appellate Court. He argued his first two claims but not that his sentence was excessive. The Illinois Appellate Court denied the petition, People v. Torres, No. 1-98-4536 (Ill.App. Ct. Oct. 11, 2001) (Resp. Ex. F.) Torres then filed a pro se petition for leave to appeal to the Illinois Supreme Court in which he raised the three issues that he presented in his initial appeal to the Illinois Appellate Court. (Resp. Ex. G.) The Illinois Supreme Court denied Torres' petition on February 6, 2002. People v. Torres, No. 92743 (Ill. 2002) (Resp. Ex. H.) Torres filed this habeas petition on January 22, 2003. Because his petition was filed within one year after the conclusion of his direct review in the Illinois courts, this court has jurisdiction to consider the habeas petition. See 28 U.S.C. § 2244(d)(1)(A); Gray v. Briley, 305 F.3d 777, 778 (7th Cir. 2002).

 B. Facts

  When considering a habeas petition, the court must presume that the state courts' factual determinations are correct unless the petitioner 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). Torres has not presented clear and convincing evidence to rebut this presumption. Therefore, the court adopts the Illinois Appellate Court's recitation of facts in People v. Torres, No 1-98-4536 (Ill.App. Ct. Aug. 14, 2001) (Resp. Ex. D.)

  Torres and the victim, Vincent Cox ("Cox"), were inmates at the Cook County Jail in 1995. Officer Clark Eichman, a Cook County Sheriff Correctional Officer, testified that on May 27, 1995 he was watching tiers A and B4 in Division 1 of the Cook County Jail, On tier A4 he observed inmates gather in the halls near cells 2, 3, 18, and 19 and yell, "Folks against the People." He testified that the "People" and the "Folks" are the two umbrella groups of gangs in Chicago. At the time of the offense, Torres was a part of the Spanish Cobra gang, a faction of the Folks.

  Angel Pagan ("Pagan"), former cellmate of Torres and a member of the Spanish Cobra gang, testified that he witnessed Torres, who was carrying a homemade knife, and another inmate, Duane Calhoun, chasing Vincent Cox into cell 18, Pagan lost sight of Torres while he was in cell 18.

  Officer Eichman testified that he saw several inmates begin to making stabbing motions at each other, and he heard loud screaming which prompted him to make a call announcing that a fight was in progress on his tier. Officer Eichman could not clearly see who was fighting. When he heard an inmate screaming for help, he proceeded onto the catwalk of tier A4. He heard inmate Edgar Hill screaming, "Get some help here immediately," ...


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