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.
MEMORANDUM OPINION AND ORDER
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
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
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
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).