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June 18, 2004.

KENNETH R. BRILEY, Warden, Respondent.

The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge


This case is before the Court on the petition of Edgar Villatoro for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we deny the petition for habeas corpus.


  Petitioner does not challenge the statement of facts set forth in the order of the Illinois Appellate Court affirming his murder conviction. People v. Villatoro, No. 1-95-0417 (Ill.App. First. Dist. 1996). For purposes of federal habeas review, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e). Accordingly, we will adopt the facts as our own.

  The victim in this case, Herbert Gibson, was a 66-year-old homeless person. At a bench trial in the Circuit Court of Cook County, Sergeant Robert Stevens testified that on July 17, 1993 about 3:10 a.m., he went to the back of a shopping mall near 5235 North Broadway in Chicago and saw the victim lying on the ground. He spoke with Wanda Smith who lived near the scene and thereafter started looking for a man of Hispanic descent dressed in white clothing.

  Fifty minutes later, Sergeant Stevens was at the intersection of Foster and Broadway when he saw Petitioner, who was wearing white clothing, get up from a bench, look at the officer and run into a restaurant. Sergeant Stevens pursued him, but was unable to catch him. About 7:30 a.m., Sergeant Stevens saw Petitioner, who was now shirtless, with red marks on his shoes and pants. Sergeant Stevens asked Petitioner what was wrong because he was limping, and Petitioner said he had been involved in a fight and that he had injured his feet while kicking someone. Sergeant Stevens then placed Petitioner in custody.

  Dr. Cynthia Porter performed the autopsy on the victim. She testified that the victim had an abrasion on the right side of his face and right ear. He had bleeding into the sclera, which is the white part of the eyes. He also had a bruise around his left eye and a large bruise on the left cheek and bruises on his shoulders. Internally, Dr. Porter found two subgaleal hemorrhages and a large subdural hematoma on the right side the brain. The victim also had a fracture of the chest plate and fractures of his ribs. Dr. Porter opined that the victim died as a result of multiple injuries sustained from blunt trauma, consistent with being kicked in the head and face. The tests performed on the victim were negative for alcohol and drugs. However, the victim died three days after being admitted to the hospital and had metabolized any alcohol by the time of the autopsy.

  Assistant State's Attorney Brian Suth testified that on July 19, 1993, he interviewed Petitioner at the police station and then prepared a handwritten statement, which Petitioner signed. The handwritten statement was admitted into evidence. The statement indicated that in the late evening hours of July 16, 1993, Petitioner went into a liquor store. He then left and went into an alley to urinate and there he met a man. After Petitioner relieved himself, he and the other man shared a beer. The man then left, and the victim approached Petitioner and asked him for money. Petitioner refused and the victim said something. Petitioner then beat the victim until he fell, and then Petitioner kicked him five times in the head. He stopped kicking the victim when the victim stopped moving. Petitioner stated that at no time did the victim threaten him or display a weapon.

  For the defense, Aciz Rostamali testified that he knew the victim, whom he described as a "bum." Mr. Rostamali testified that the victim drank a lot and would cause problems with people and begin fights if people refused his requests for change.

  Wanda Smith testified that she lived in an apartment near the scene, and on July 17, 1993 about 2:30 a.m., she heard what sounded like someone being beaten. She looked out the window and saw two men running away, one of whom had a "tail" on his hair while the other was wearing a hat. She could not tell their races. Ms. Smith testified that she called the police.

  Petitioner testified that on July 14, 1993 he got paid and about 3:30 p.m., he and several women got some beer and drank on the south side of the city. Petitioner also consumed cocaine and marijuana. He then asked the women to drop him off near the public housing projects because he was drunk. The next morning he called his girlfriend who was mad at him and told him to move out of their apartment. Petitioner then continued drinking and passed out the following day.

  Petitioner testified that when he awoke, he looked for a liquor store. There he met a man, and the two went into an alley and shared a beer. Petitioner walked further up the alley and there he encountered the victim who asked him for money and "lurched" at him. Petitioner pushed and slapped the victim, and the victim fell down. When the victim tried to push himself up, Petitioner thought he was going to come at him so he kicked him his face. The victim again went to get up, and Petitioner kicked him two more times until he was motionless. Petitioner then panicked and left. He fell asleep near the sidewalk and when he awoke, someone had taken his jewelry and shirt. A policeman approached, and Petitioner was taken to the station and later to the hospital because he had hurt his foot.

  Petitioner testified that after he was arrested, the police took him to the scene of the crime and forced him down the alley. He testified that the police became angry and punched him when he corrected their mistake about the location of the incident. Petitioner testified that the police told Petitioner that they had his footprints and made him stay at the police station on Sunday night in order for him to sober up. The next day, Petitioner gave a statement to the Assistant State's Attorney.

  On January 12, 1995, following a bench trial, Petitioner was found guilty of first degree murder and sentenced to a prison term of forty years imprisonment. Petitioner appealed his conviction to the Illinois Appellate Court, First District, raising three arguments: 1) his conviction must be reduced to involuntary manslaughter because he was intoxicated at the time and, thus, his conduct was reckless rather than intentional; 2) his sentence of 40 years was an abuse of discretion because of his alcoholism and it was the victim's behavior that provoked the physical confrontation; and 3) he had no history of violence. On November 22, 1996, the Illinois Appellate Court affirmed the judgment of the Circuit Court of Cook County.

  Petitioner next sought leave to appeal to the Illinois Supreme Court, arguing that the Appellate Court erred in rejecting his argument that his conduct could not be considered reckless and that they used the wrong standard in making their decision. Petitioner's petition for leave to appeal to the Illinois Supreme Court was denied on April 2, 1997. On September 29, 1997, Petitioner filed a timely pro se petition for post-conviction relief. In his post-conviction petition, Petitioner raised five claims: 1) the trial court improperly denied him the opportunity to introduce evidence of gang crimes, which would have shown that an unknown gang member committed the fatal assault; 2) Petitioner's due process rights were violated because he was not proven guilty beyond a reasonable doubt; 3) the trial court and prosecution misstated the facts; 4) ineffective assistance of counsel because trial counsel failed to preserve grounds one and three and failed to call favorable witnesses; and 5) ineffective assistance of appellate counsel for failing to raise trial counsel's ineffective assistance. On December 15, 1997, the Circuit Court of Cook County denied the petition.

  Petitioner appealed the denial of his post-conviction petition to the Illinois Appellate Court on January 5, 1998. On June 9, 1998, he also filed a petition for revestment in the Illinois Appellate Court, requesting that it revest the Circuit Court with jurisdiction to adjudicate an amended petition for post-conviction relief. Petitioner argued in that petition that fairness required him to present ineffective assistance of counsel claims to the Circuit Court. Attached to this petition was an amended post-conviction petition raising claims that he had not previously raised in his original post-conviction petition, as well as a Sixth Amendment claim. The Illinois Appellate Court denied Petitioner's request for revestment.

  Petitioner acquired appellate counsel to handle the appeal of the denial of his post-conviction petition, but that counsel withdrew pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), asserting that there were no appealable issues resulting from the denial of Petitioner's post-conviction petition. The Appellate Court affirmed the judgment of the Circuit Court on March 30, 1999. Petitioner did not seek leave to appeal to the Illinois Supreme Court. On May 11, 1999, Petitioner filed a second pro se post-conviction petition. In it, he raised all of the issues raised in his first post-conviction petition as well as the following additional issues: 1) the evidence presented was insufficient to support a claim of first degree murder; 2) the trial court erred in ruling that premeditation was not an essential element of first degree murder; 3) the prosecution failed to prove premeditation and specific intent beyond a reasonable doubt; 4) the Illinois statute defining first degree murder was unconstitutional; 5) the State failed to place him at the scene of the crime; and 6) the trial court failed to assign Petitioner counsel during the pendency of his post-conviction petition. In addition, Petitioner raised ineffective assistance of counsel claims. In arguing that he received ineffective assistance of trial counsel, Petitioner claims that counsel was ineffective for failing: 1) to investigate; 2) to suppress an incriminating statement; 3) to discover DNA evidence; 4) to advance a theory of voluntary intoxication; and 5) to properly preserve the record. In arguing that he received ineffective assistance of appellate counsel, Petitioner claims that appellate counsel failed to: 1) raise trial counsel's ineffectiveness to preserve the record; and 2) advance meritorious arguments on appeal.

  On June 24, 1999, this successive post-conviction petition was denied with no explanation from the Circuit Court. Once again, Petitioner was appointed appellate counsel to represent him in connection with the denial of the successive petition, and once again that counsel moved to withdraw from the appeal. In his motion to withdraw, appellate counsel maintained that there were no appealable issues and, further, that the judge below had correctly ruled.

  On March 14, 2000, the Illinois Appellate Court granted appellate counsel's motion to withdraw and, further, denied Petitioner's appeal. The Court noted that successive post-conviction proceedings were prohibited unless: 1) the initial proceedings were deficient in some fundamental way; or 2) when fundamental fairness so requires. The Appellate Court found that neither of these conditions were met, nor could ...

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