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June 18, 2004.

CHARLES L. HINLSEY,[fn1] Respondent.

The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge

*fn1 Martinez's petition named Roger D. Cowan, the former warden the Menard Correctional Center, as the respondent. Accordingly, Charles L. Hinsley, the current warden of that facility, is hereby substituted as the respondent. See Fed.R.Civ.P. 25 (d)(1); Rule 2(a) of the Rules Governing Habeas Corpus 28 U.S.C. § 2254 Cases.


Petitioner Hippilito Martinez filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Martinez claims his constitutional rights were violated through the prosecutor's misuse of peremptory challenges and use of an improper statement during the State's closing argument. Martinez also raises additional claims that are not cognizable and procedurally defaulted. For the following reasons, Martinez's petition is DENIED.

  I. Factual & Procedural History

  Martinez does not challenge the statement of facts set forth in the Illinois Appellate Court opinion affirming the decision of the Circuit Court of Cook County. Thus, those facts are presumed correct for the purposes of this Court's review. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). On December 29, 1994, a car with two occupants pulled along side Rashknie Walker. The passenger of the car fired multiple gunshots at Walker. After the shooting, the car fled the scene. Walker died from his wounds a few days later. The two occupants of the car were later determined to be Hippilito Martinez, the Petitioner, and Daniel Cruz. Eyewitnesses identified Martinez as the passenger and shooter. In March 1995, Martinez was arrested for the murder of Walker, and his trial was severed from the trial of Cruz. Following a jury trial in the Circuit Court of Cook County, Martinez was convicted on one count of first-degree murder. The trial court imposed a fifty-five year prison sentence.

  Martinez appealed his conviction and sentence to the Appellate Court of Illinois, raising six issues: (1) the trial court erred in failing to grant a mistrial when the prosecution commented on Martinez's failure to testify; (2) the trial court erred in allowing into evidence mention of Martinez's gang membership and allowing the State to elicit gang-related expert testimony; (3) the trial court erred in denying Martinez's Batson claim; (4) the trial court gave improper jury instructions; (5) the trial court erred in denying Martinez's motion to quash based upon the lack of an arrest warrant or probable cause; and (6) the prosecution failed to prove guilt beyond a reasonable doubt. On September 18, 1998, the Illinois Appellate Court affirmed the judgment of the trial court. Martinez sought leave to appeal to the Illinois Supreme Court raising the same issues. The Illinois Supreme Court denied the petition for leave to appeal on December 2, 1998.

  On June 8, 1999, Martinez filed a petition for post-conviction relief. In this petition, Martinez raised two issues: (1) ineffective assistance of counsel when counsel did not impeach the testimony of prosecution eyewitnesses Kenneth Walker and Leeotis Nicholson who misstated their location at the time of the crime; and (2) prosecutorial misconduct when the State commented negatively on how Martinez did not testify in his own defense. The Circuit Court of Cook County rejected the petition for post-conviction relief on August 2, 1999. After the circuit court judgment, the appellate defender sought leave to withdraw as counsel. The appellate court permitted the appellate defender to withdraw and affirmed the dismissal of the post-conviction petition on September 29, 2000. Martinez did not file a petition for leave to appeal to the Illinois Supreme Court.

  On May 7, 2001, Martinez filed his second amended petition for a writ of habeas corpus with this Court.*fn2 Martinez raises five claims: (1) the trial court committed reversible error when it denied Martinez's challenge to the prosecutor's use of peremptory challenges to have minority jurors excluded from the jury pool; (2) the trial court allowed the prosecution to engage in improper closing argument; (3) the trial court did not allow Martinez to impeach defense eyewitness Patricia Wilkins regarding an inconsistent statement; (4) the trial court erred in not granting Martinez's motion in limine to prevent the testimony of a prosecution expert on gangs to explain motive; and (5) the trial court erred when it did not allow Martinez to perfect the impeachment of prosecution witnesses Kenneth Walker and Leeotis Nicholson.

  II. Standard of Review

  Martinez filed his petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, which governs the granting of a writ of habeas corpus. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Hardaway v. Young, 302 F.3d 757, 761 (7th Cir. 2002). Under the AEDPA, a petitioner is entitled to a writ of habeas corpus only if the challenged state court decision is either "contrary to" or "an unreasonable application of" clearly established federal law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000).

  A state court's decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth by the Supreme Court" or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Id. at 405-06. A state court decision is an "unreasonable application" of federal law if the state court identified the correct legal rule, but unreasonably applied it to the facts of the case. Id.; Matheney v. Anderson, 253 F.3d 1025, 1041 (7th Cir. 2001). 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." See Hardaway, 302 F.3d at 762.

  In conducting a habeas review, courts are limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Generally, federal courts do not review state evidentiary questions in habeas corpus proceedings unless the ruling denied a defendant a fundamentally fair trial. Gross v. Greer, 773 F.2d 116 (7th Cir. 1985) (quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir. 1974)); United States ex rel. Lee v. Flannigan, 884 F.2d 945, 952 (7th Cir. 1989).

  III. ...

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