United States District Court, N.D. Illinois
June 4, 2004.
United States of America ex rel. EDGAR TORRES (#B-03292), Petitioner,
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.
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
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.
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
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," When Officer Eichman reached cell 4-5, he observed that an
inmate was bleeding profusely and screaming for help.
Officer Eichman then called for further help and arranged for medical
attention. When he and two other officers entered cell 18 they discovered
Cox laying in a pool of blood. The officers conducted cell searches but
did not recover any weapons or bloody clothing. Cox died as a result of
the beating and stabbing.
Pagan testified that when Torres entered their joint cell, he saw that
Torres had blood on his pants, his hands, and on a homemade knife he was
carrying. Pagan testified that after Torres entered their cell, he
removed the pants he was wearing, ripped them into pieces and flushed them down the toilet. Torres also washed the blood off his hands
and the knife. Torres and the other inmates involved threw their knives
into a vent.
Torres and five other inmates were arrested for the death of Cox. All
were tried together in a bench trial. Torres made motions to quash his
arrest and suppress pre-trial identification evidence. At the hearing on
the motions, Detective Joseph Walsh testified that on June 1, 1995, he,
his partner, and Assistant State's Attorney Joe Alesia conducted three
lineups at Cook County Jail. Torres was included only in one such lineup
and was selected. Detective Richard Chernikovich testified that on June
6, 1995 he met with Pagan and showed him approximately thirty black and
white photographs of inmates from tier A4, each marked with the inmate's
name. Pagan pointed out approximately ten individuals who may have been
involved in the murder, including Torres. Pagan knew Torres a month
before the incident and was his cellmate for one day before the murder.
After hearing all of the evidence, the trial court denied both the motion
to suppress evidence and the motion to suppress identification. The judge
found that the identification procedures did not violate any of Torres'
After the bench trial Torres was found guilty. Four of his
co-defendants, Demetrius Green, Reginald Guice, Marvin Hicks and Robert
Munoz, had their motions for directed findings granted after the
prosecution's case. The only other remaining co-defendant, Duane Calhoun,
was found not guilty by the trial court at the conclusion of the
Torres' petition for habeas relief contains two claims: (1) the
evidence presented at trial was insufficient to support his conviction,
in violation of his Fourteenth Amendment right to due process of law; and
(2) the identification evidence obtained by suggestive procedures was admitted at trial also in violation of his Fourteenth Amendment right to
due process of law. Because Torres raised his claims for relief before
all three levels of the Illinois court system during his trial and direct
appeal, he has exhausted his administrative remedies under
28 U.S.C. § 2254(b)(1)(A). The court, therefore, examines the merits of
A. Insufficient Evidence
Torres argues that he was denied Due Process because the evidence
introduced at his trial was insufficient to prove his guilt beyond a
reasonable doubt. According to Torres, the evidence was insufficient
because the trial judge relied on the same evidence to convict him that
the judge concluded was insufficient to convict his co-defendants. Torres
claims that the evidence introduced by the prosecution was
circumstantial, unreliable, and based on witnesses who gave inconsistent
accounts of the offense. Specifically, Torres says that Pagan's testimony
cannot be a rational basis for his murder conviction.
The Due Process Clause is violated when a defendant is convicted at
trial despite the fact that "no rational trier of fact could have found
proof of guilt beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 324 (1979). In applying this standard, the reviewing court
must give deference to the trier of fact and will not reweigh the
evidence, make credibility determinations, or substitute judgments. See
Ford v. Ahitow, 104 F.3d 926, 938 (7th Cir. 1997); United States v.
Mejia, 909 F.2d 242, 245 (7th Cir. 1990). Torres claims that the evidence
presented against him was unreliable because it was based on the testimony
of three "jail house snitches." However, "[t]he Jackson inquiry does not
focus on whether the trier of fact made the correct guilt or innocence
determination, but rather whether it made a rational decision to convict
or acquit." Herrera v. Collins, 506 U.S. 390, 402 (1993) (emphasis in
original). Torres raised this claim on direct review, and the Illinois Appellate
Court affirmed his conviction. The appellate court noted that the trial
court found three pieces of evidence persuasive in convicting Torres: (1)
the in-court testimony of Pagan; (2) a prior written statement by Edgar
Hill; and (3) a prior written statement by DeAngelo Horton.
Pagan, who was Torres' cellmate at the time of the murder in question,
testified at trial that he saw Torres and Calhoun chasing Cox into cell
18. Pagan further testified that when Torres entered their joint cell,
he had blood on his pants, hands, and on the shank he was holding. Pagan
stated that after Torres entered their cell he removed the pants he was
wearing, ripped them up, and flushed the pieces down the toilet. Pagan
also observed Torres washing blood off of his hands and the shank.
As for Hill, he initially refused to testify at trial. He stepped down
from the witness stand but was later recalled to testify again. At this
time his testimony was that he did not remember anything that happened at
or around the time of the May 1995 killing. Similarly, Horton testified
that while he remembered that Cox had died, he did not see him get
stabbed. Thereafter, Assistant State's Attorney Joe Alesia was called to
the stand. Alesia read handwritten statements previously given by Hill
and Horton.*fn1 Hill had previously indicated that he had seen Cox being
beaten with a broom stick and stabbed with shanks being held by Reginald
Guice, Robert Munoz and Torres. Horton had previously given a statement stating that he
had seen Hicks, Green, Guice, Munoz and Torres pushing Cox into a cell
and all were carrying large knives.
The Illinois Appellate Court evaluated the sufficiency of the evidence
in Torres' case under the standard in Jackson and explicitly deferred to
the factual determinations made by the trial judge because he was in a
position to hear the evidence and observe the witnesses. The court
recognized that the trial judge was persuaded by Pagan's testimony and
the two written statements made by Hill and Horton. Moreover, the
Illinois Appellate Court recognized that the trial court was in a
position to disbelieve Hill and Horton's testimony at trial and to credit
their pretrial statements. The Illinois Appellate Court also acknowledged
that Pagan's testimony had briefly changed when he spoke with defense
counsel before trial but, once again, deferred to the trial court's
belief as to why Pagan had changed his version of the events.
Viewing the evidence in the light most favorable to the prosecution,
the Illinois Appellate Court found that "any rational trier of fact could
have found that the essential elements of the crime had been proven
beyond a reasonable doubt and that the defendant was one of the offenders
in this case." People v. Torres, No 1-98-4536, 19-20 (Ill.App. Ct. Aug.
14, 2001). That decision was not contrary to or an unreasonable
application of the Jackson standard. This claim, therefore, is denied.*fn2 B. Improper Identification
Torres argues that he was denied due process of law under the
Fourteenth Amendment because the trial court refused to suppress
pre-trial photo identification evidence. Torres claims that Pagan's
pre-trial identification was obtained by suggestive procedures because
Pagan identified approximately ten suspects, including Torres, using
photos that displayed the inmates' names.
The record is not entirely clear on this claim. It appears that, in
addition to the photo array described above, Torres was placed in a
lineup presented to Hill and Horton. The Illinois Appellate Court's
opinion describes this lineup involving Torres but fails to state whether
Torres was identified by Hill and/or Horton. In reviewing the trial
court's denial of Torres' motion to suppress pretrial identification
evidence, the Illinois Appellate Court focused almost entirely on this
lineup identification by Hill and Horton and not on Torres' complaint of
the photo arrangement presented to Pagan. In his answer, respondent
concedes that Torres was identified by both Hill and Horton through a
lineup, but submits that Torres' petition here focuses only on the photo
identification by Pagan. Although Torres' petition does focus on the
photo array and not the lineup, Torres does mention being subjected to a
suggestive lineup. Liberally construing his pro se petition the court will consider whether the June 1, 1995
lineup involving Torres was unconstitutional.
The Due Process Clause is violated when a conviction is based on
eyewitness identification that "was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable
misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968).
Initially, if the procedure was unnecessarily suggestive, the court must
consider whether under the totality of the circumstances the
identification was reliable. Neil v. Biggers, 409 U.S. 188, 199 (1972),
Only if the procedure was impermissibly suggestive and unreliable would
there be a Due Process violation. See id.
Concerning Torres' lineup identification, the Illinois Appellate Court
held that Torres failed to demonstrate that the lineup was improperly
suggestive due to age, height, weight, dress, complexion and other
distinguishing characteristics of the participants. Moreover, the
Illinois Appellate Court further noted that Torres had failed to
establish (1) that the various witnesses were allowed to make their
identification of the accused in the presence of each other or were
allowed to discuss their identification of the defendant during the
identification process; (2) that the police failed to take the reasonable
and necessary precautions to prevent an accidental witness-suspect
confrontation; or (3) that the emotional or physical condition of the
witness was such as to impair his ability to make a fair and rational
identification of the offender.
Furthermore, the trial judge, who heard the evidence at the motion to
suppress and was presented with the photographs of the lineup, stated as
Secondly, after viewing the lineups, I would also say
they could have been better, but, these three lineups
are better than most. They do pass the constitutional
mustard [sic]. They do satisfy basic due process, and
the grounds of fairness, and their constitution and composition are not suggestive
in my mind to bring about a mis-identification, to
unfairly and unconstitutionally single out any of the
So, these lineups could have been better, but
they are certainly in my judgment adequate and not
violative of any of the defendants' constitutional
rights to a fair identification procedure.
(Tr. Rec. at A-102.) After reviewing the evidence in this case the
court cannot call the Illinois Appellate Court's decision that the lineup
was not suggestive unreasonable. To a large degree the Illinois Appellate
Court deferred to the trial court's findings of fact. The trial court was
in the best position to gauge the suggestiveness of the lineups because
it was presented with the actual photographs of the lineups themselves.
Thus, Torres' claim for relief on this ground is denied.
As for the photo array presented to Pagan, while the Illinois Appellate
Court first stated that the photo array was not unnecessarily
suggestive, it nevertheless did consider the five factors articulated in
Neil for determining reliability of an identification procedure. Those
factors include: "The opportunity of the witness to view the criminal at
the time of the crime, the witness' degree of attention, the accuracy of
the witness' prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of time
between the crime and the confrontation." Id. at 199-200. The court also
considered the witness' relationship with the suspect prior to the
crime. Applying these factors, the Illinois Appellate Court determined
that the trial court did not abuse its discretion by denying Torres'
The Illinois Appellate Court's decision was reasonable for two
principal reasons. First, Pagan knew both Torres and Cox prior to the
date of the murder. Indeed, Torres served as Pagan's cellmate immediately
prior to the murder, even if it was for only one day. The names on the
photographs could not have been impermissibly suggestive to Pagan since
he was familiar with Torres' appearance. The presence or absence of a name on Torres'
picture would not change the fact that ten days after the murder Pagan
would have recognized Torres in a photograph. Second, because the names
were written on all of the pictures, Torres' photograph did not stand out
from the array of the thirty pictures Pagan viewed. Presumably Torres
knew the names of many of the other inmates also. Therefore, the
photographs that Pagan viewed were neither impermissibly suggestive nor
unreliable. Accordingly, the Illinois Appellate Court's decision was not
contrary to or an unreasonable application of the law as articulated by
the Supreme Court in Neil. Torres' claim, therefore, is denied.
For the reasons stated above, the court concludes that Torres is not
entitled to habeas relief. All other pending motions are denied as moot.
This case is terminated.