The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
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
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
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
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
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 ...