United States District Court, N.D. Illinois, Eastern Division
June 18, 2004.
UNITED STATES OF AMERICA ex rel. EDGAR VILLATORO Petitioner,
KENNETH R. BRILEY, Warden, Respondent.
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 Petitioner overcome the procedural bars to his claims.
The Court thus affirmed the judgment of the Circuit Court.
Petitioner petitioned the Illinois Supreme Court for leave to
appeal this decision, but that motion was denied on October 10,
On November 29, 2000, Petitioner filed a petition for writ of
habeas corpus in this Court. In his petition before this Court,
Petitioner raises three issues: 1) ineffective assistance of
trial counsel; 2) ineffective assistance of appellate counsel;
and 3) the evidence was not sufficient to prove he committed the
underlying crime of first degree murder.
On September 28, 2001, we entered an order dismissing
Petitioner's petition for habeas corpus for his failure, in our
view, to file the instant petition within the one year statute of
limitations required by the Antiterrorism and Effective Death
Penalty Act. The Seventh Circuit Court of Appeals later vacated
our September 28, 2001 judgment pursuant to the holding in Smith
v. Walls, 276 F.3d 340 (7th Cir. 2002), and remanded the case
for further proceedings. Respondent then filed his response to
the habeas corpus petition, and Petitioner later filed a reply
Federal courts may issue a writ of habeas corpus if a
Petitioner demonstrates that he is "in [state] custody in
violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2245(a); Moffat v. Gilmore, 113 F.3d 698,
702 (7th Cir. 1997); see also Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1370 (7th Cir.
1994) (en banc) ("[F]ederal courts can grant habeas relief only
when there is a violation of federal statutory or constitutional
law."). The federal courts may not grant habeas relief under
Section 2254 unless the state court's judgment "(1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d).
Before a federal court may review the merits of a habeas
petition, a Petitioner must: (1) exhaust all remedies available
in state courts; and (2) fairly present any federal claims in
state court first, or risk procedural default. See Chambers v.
McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001) ("Failure to
exhaust available state court remedies constitutes a procedural
default."); see also Bocian v. Godinez, 101 F.3d 465, 468 (7th
Cir. 1996) (same). "The habeas petitioner must present his
federal constitutional claims initially to the state courts in
order to give the state `the opportunity to pass upon and correct
alleged violations of its prisoners' federal rights.'" McGowan
v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1997) (quoting Duncan
v. Henry, 513 U.S. 364, 365 (1995)).
A Petitioner has exhausted his state court remedies "by either
(a) providing the highest court in the state a fair opportunity
to consider the constitutional issue, or (b) having no further
available means for pursuing a review of one's conviction in
state court." Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th
In this case, exhaustion is not an issue. Respondent concedes
that Petitioner has exhausted his state court remedies for
purposes of federal habeas review because he has no further avenues in state court through which to challenge his
conviction. We now turn to the issue of procedural default.
I. Procedural Default
The procedural default hurdle forbids the federal courts from
addressing claims that were not fairly presented to the state
court. Jones v. Washington, 15 F.3d 671, 675 (7th Cir. 1994).
Procedural default occurs either when a state court has declined
to address a federal claim because the Petitioner failed to
satisfy an independent state procedural requirement, Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991), or when the Petitioner
fails to present a claim to the state courts at the time, and in
the way, required by the state. Hogan v. McBride, 74 F.3d 144,
146 (7th Cir. 1996). In Illinois, a habeas Petitioner is required
to raise all arguments before the Illinois Supreme Court, even
though the Court has discretionary control over its docket.
O'Sullivan v. Boerckel, 526 U.S. 838, 843 (1999).
A. Ineffective Assistance of Trial Counsel
Petitioner raises a series of ineffective assistance of counsel
claims. Petitioner raises five issues of ineffective assistance
of trial counsel, including: a) trial counsel's failure to move
to suppress an inculpatory statement; b) trial counsel's
concession of his guilt; c) trial counsel's presentation of a
defense that prejudiced his guilt and, in essence, amounted to no
defense at all; d) trial counsel's elicitation of prejudicial
evidence; and e) trial counsel's failure to explore any type of
The first issue that Petitioner raises, trial counsel's failure
to move to suppress an inculpatory statement is procedurally
defaulted because the Illinois Appellate Court rejected
Petitioner's claim pursuant to an adequate and independent state
procedural ground. When looking at a claim raised during a habeas proceeding, it is not
enough that a Petitioner sought a review. He must do so in a
manner that properly falls within a State's law and in the manner
set out by the State. See Hogan v. McBride, 74 F.3d 144, 146-47
(7th Cir. 1996). A Petitioner must present his arguments in
the way, and at the time, that State law requires in order to
avoid forfeiture of his claims. See Moleterno v. Nelson,
114 F.3d 629, 634 (7th Cir. 1997). Failure to do so "is an
independent state ground . . . barring review in federal court."
Hogan, 74 F.3d at 146-147; see also Jenkins, 8 F.3d at 507.
In this action, Petitioner did not properly present the claim
in the manner required under Illinois law. Petitioner first
raised the issue of trial counsel's failure to move to suppress
an inculpatory statement in his second post-conviction petition.
The Illinois Appellate Court rejected that argument and did so by
noting that the Illinois Post-Conviction Act (725 ILCS 5/122-3)
contemplated only the filing of one post-conviction petition. The
Illinois Appellate Court held that Illinois courts only allow a
second or successive petition if specific exceptions are met and,
in this case, Petitioner did not meet the exceptions necessary to
overcome the procedural bars to allow a second petition. Thus,
Petitioner did not meet the Illinois procedural requirements, and
Petitioner cannot represent to this Court that he properly sought
review in the Illinois courts. For these reasons, Petitioner's
first ground of ineffective assistance of trial counsel is
Petitioner's other claims of ineffective assistance of trial
counsel are also procedurally defaulted because they were never
presented to the Illinois courts. The complete failure of a
Petitioner to present his or her claims to the state courts
serves to bar federal review. Rodriguez, 63 F.3d at 55. In
order to preserve notions of federal-state comity, the United
States Supreme Court has mandated that fair presentment of an issue to the state
courts is a precondition to federal habeas relief. Rose v.
Lundy, 455 U.S. 509, 515 (1982). When a "claim could have been
but was not presented to the state court and cannot, at the time
that the federal court reviews the habeas petition, be presented
to the state court," that claim is procedurally defaulted.
Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992),
cert. denied, 508 U.S. 962 (1993); O'Sullivan v. Boerckel,
526 U.S. 838, 119 S.Ct. 1728 (1999). The remaining claims of
ineffective assistance of trial counsel raised in this habeas
petition were not raised by Petitioner on direct appeal,
post-conviction or even in a second improperly filed
post-conviction petition. Indeed, they are presented to this
Court for the first time and such presentation is improper.
Therefore, these remaining ineffective assistance of trial
counsel claims also are procedurally defaulted.
B. Ineffective Assistance of Appellate Counsel
Petitioner's second ground for habeas relief is that he
received ineffective assistance of appellate counsel. Petitioner
maintains that appellate counsel failed to raise the
ineffectiveness of trial counsel on appeal. Petitioner raises
five grounds of ineffective assistance of appellate counsel.
These include failure to raise: a) trial counsel's failure to
suppress a custodial statement; b) trial counsel's concession of
his guilt; c) trial counsel's presentation of a defense that
prejudiced his guilt and, in essence, amounted to no defense at
all; d) trial counsel's elicitation of prejudicial evidence; and
e) trial counsel's failure to explore any type of negotiated
plea. We find that all of these claims of ineffective assistance
of appellate counsel are procedurally defaulted.
Petitioner failed to raise four of these claims ((b)-(e),
above) before the Illinois Courts previously. Although Petitioner
did raise some claims of ineffective appellate counsel in his
state court proceedings, these claims were not the specific claims
raised here, and it is not sufficient that somewhat similar
claims were raised. See Boyko v. Parke, 259 F.3d 781, 788
(7th Cir. 2001). The failure of a Petitioner to present his
or her claims to the state courts serves to bar federal review.
Rodriguez, 63 F.3d at 55. Therefore, Petitioner's claims
(b)-(e) of ineffective assistance of appellate counsel are
procedurally defaulted because they were not properly presented
to the Illinois courts.
As for Petitioner's claim (a), appellate counsel's alleged
failure to raise trial counsel's failure to suppress a custodial
statement, we also find that this claim is procedurally
defaulted. Petitioner, conceivably raised this issue in his
second post-conviction petition, when he raised a claim regarding
trial counsel's ineffectiveness for failing to move to suppress
the custodial statement and then raised a general claim of
appellate counsel's ineffectiveness for failing to raise trial
counsel's ineffectiveness. However, this claim is procedurally
defaulted based on the doctrine of independent and adequate state
grounds as mentioned above.
Specifically, Petitioner raised this issue for the first time
in his second post-conviction petition. The Illinois Appellate
Court rejected that argument and did so by noting that the
Illinois Post-Conviction Act contemplated the filing of only one
post-conviction petition. Although Illinois courts allow for a
second or successive petition if certain conditions are met, the
Illinois Appellate Court held that Petitioner did not meet these
exceptions. Therefore, Petitioner's claim of ineffective
assistance of appellate counsel for failing to raise trial
counsel's failure to suppress a custodial statement is
procedurally defaulted because he did not present it to the State
courts in the manner required under Illinois law. C. Cause And Prejudice
A federal court may nonetheless address the merits of a
procedurally defaulted claim if the Petitioner can establish
cause and prejudice that would excuse it or, alternatively,
establish that he fits within the miscarriage of justice
exception to the cause and prejudice rule. Coleman, 501 U.S. at
750-51; Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977).
Beginning with the cause and prejudice standard, the Supreme
Court has interpreted "cause" under this test to be something
external to the Petitioner which is both beyond his control and
which cannot be fairly attributed to him. Murray v. Carrier,
477 U.S. 478, 488 (1986). In order to establish prejudice, the
Petitioner "must show not merely that the errors at . . . trial
created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions." Id. at 494.
In this case, Petitioner has not persuaded us that cause and
prejudice exist so as to excuse the operation of procedural
default in regard to these claims. Petitioner was able to
adequately raise claims in his direct appeal and in the first
post-conviction petition, but he gives no reasons as to why these
defaulted claims were not raised in the State courts in the
manner required by the State courts. We find that Petitioner has
not offered any sufficient external considerations that explain
why he was able to raise some claims sufficiently, but not
others. Moreover, although Petitioner makes some general
allegations that he was prejudiced, he has not convinced us that
the alleged errors so "infected his trial [or appeal] with error
of constitutional dimensions." We conclude that Petitioner has
not established cause and prejudice for his default. Although
Petitioner has failed to establish cause and prejudice to excuse
his procedural default, he can still overcome this forfeiture by
showing that he fits within the "miscarriage of justice"
exception. This exception is limited to those extraordinary cases in which
the Petitioner is actually innocent of the crime for which he is
imprisoned. Bell v. Pierson, 267 F.3d 544, 551 (7th Cir. 2001).
Therefore, it requires a colorable claim of actual innocence, as
opposed to legal innocence, coupled with an allegation of a
constitutional claim. See Sawyer v. Whitley, 505 U.S. 333,
339-40 (1992). The miscarriage of justice exception applies only
if the Petitioner can demonstrate that it is more likely than not
that no reasonable fact finder would have convicted him in the
absence of the alleged defect in the state court proceedings.
Schlup v. Delo, 513 U.S. 298, 327 (1995).
We find that Petitioner has not shown that this is the
extraordinary instance where a fundamental miscarriage of justice
has occurred and where a constitutional violation has probably
resulted in a conviction of one who is actually innocent of the
crime in question. See, Coleman, 501 U.S. at 748. There is
simply no evidence of Petitioner's innocence. Petitioner signed a
statement admitting his guilt and further testified at trial that
he kicked and punched the victim, which ultimately resulted in
his death. Therefore, Petitioner is not entitled to the
"miscarriage of justice" exception.
Accordingly, Petitioner's claims of ineffective assistance of
trial and appellate counsel are procedurally defaulted and are
barred from federal habeas review.
It is worth noting that, even if we were to reach the merits of
Petitioner's ineffective assistance of counsel claims, Petitioner
is not entitled to habeas relief on these claims. The standard
for reviewing a claim of ineffective assistance of counsel is set
forth in Strickland v. Washington, 466 U.S. 668 (1984).
Strickland sets forth a two-prong analysis for determining
ineffectiveness of counsel: 1) a showing that counsel's
performance was deficient; and 2) a showing that the deficient performance prejudiced the defendant.
Id. at 678.
In order to prevail on his claim of ineffectiveness under the
first prong of the Strickland test, Petitioner must show that
his counsel's performance fell below an objective standard of
reasonableness. Id. In reviewing the challenged conduct, "a
court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance." Id. To satisfy the prejudice prong of the
Strickland test, Petitioner must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the results of the proceeding would have been different.
Id. This Court "need not determine whether counsel's
performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies." Id.
Rather, "[i]f it is easier to dispose of an ineffective
assistance of counsel claim based on the ground of lack of
sufficient prejudice, which . . . will often be so, that course
should be followed." Id.
In this case, Petitioner has not shown that his counsel's
performance fell below an objective standard of reasonableness.
Moreover, there has been no showing that there is a reasonable
probability that, but for counsel's alleged errors, the outcome
of the court proceedings would have been any different. As
mentioned above, Petitioner admitted his guilt in a written
statement and further testified at trial that he kicked and
punched the victim, which ultimately resulted in his death. Thus,
there is no reasonable probability that, but for counsel's
alleged errors, the outcome of the court proceedings would have
been any different.
For all of these reasons, Petitioner's claims of ineffective
assistance of counsel fail.
II. Merits of the Claim Properly Presented
Based on the discussion above, Petitioner has properly
preserved the claim of insufficiency of the evidence in his habeas petition. Title 28,
United States Code, Section 2254(d) governs the consideration of
any claim adjudicated by a state court on its merits. Under that
statute, we may grant habeas relief only if the state court's
adjudication of the claim "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(2)(1). Under subsection (d)(2), habeas relief is possible
if the state court adjudication "resulted in a decision that was
based on an unreasonable determination of the facts in light of
the evidence presented" in the state court.
The Supreme Court, in Williams v. Taylor, 529 U.S. 362
(2000), attempted to clarify the applicable standard of review
within the meaning of section 2254. The Court noted that the Act
does not explicitly prescribe a recognizable standard of review
for applying either of the statutory clauses. Id. at 385.
Recognizing the need for further clarification and direction to
lower courts, the Supreme Court concluded that the "[the Act]
plainly sought to ensure a level of `deference to the
determinations of state courts,' as long as those decisions do
not conflict with federal law or apply federal law in an
unreasonable way." Id. at 376. Additionally, the Supreme Court
determined that, in passing the statute, "Congress wished to curb
delays, to prevent `retrials' on federal habeas petitions and to
give effect to state convictions to the extent possible under the
law. When federal courts are able to fulfill these goals within
the bounds of the law, [the statute] instructs them to do so."
Id. Therefore, this Court is directed to apply a deferential
review of the state court decision unless it is determined that
the state court violated federal law.
Petitioner argues that there was not sufficient evidence to
prove that he committed the crime of which he was convicted.
Specifically, Petitioner argues that the evidence at trial was inconsistent with the finding that Petitioner committed first
degree murder when the evidence at trial would have been
consistent with a finding of involuntary manslaughter, as the
requisite intent for a finding of murder was not shown. This
argument is without merit.
In order to prove that the evidence was constitutionally
insufficient to sustain the conviction, Petitioner must
demonstrate that, "viewing the evidence in the light most
favorable to the prosecution, [no] rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307 (1979).
The Illinois Appellate Court for the First District applied this
standard when it thoroughly and completely examined Petitioner's
claim. The Appellate Court noted that upon a sufficiency of the
evidence claim, the inquiry is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. The Appellate Court, citing
People v. Brisbon, 106 Ill.2d 342, 478 N.E.2d 402 (1985),
further noted that a conviction will not be set aside unless the
evidence is so unsatisfactory as to create a reasonable doubt of
the defendant's guilt. The Appellate Court concluded that the
trier of fact is in the best position to judge the credibility of
the witnesses, to determine the weight to be accorded their
testimony and to draw inferences from the testimony. People v.
Jimerson, 127 Ill.2d 12, 43, 535 N.E.2d 889 (1989).
Upon reviewing the evidence in Petitioner's case, the Illinois
Appellate Court found that there was sufficient evidence to show
the requisite intent for first degree murder. The Court found
that Petitioner's argument, that he was intoxicated at the time
of the beating, was not sufficient reason that he could not have
formed the requisite intent for the crime. The Court noted that
the mere evidence of some intoxication is insufficient to negate
the requisite intent, and the burden is on the Petitioner to establish that his
condition was such as to render him wholly incapable of forming
The Illinois Appellate Court noted that Petitioner had been
able to discuss the episode with the arresting officer.
Furthermore, the Court found that State had shown intent to kill
or that Petitioner had acted with the knowledge that his actions
created a strong probability of death or probable harm based on
his statements following the attack. The Court cited evidence
that Petitioner had kicked the victim so hard that it caused his
foot to swell. Therefore, the Appellate Court used the proper
standard in reaching its conclusion as it relied upon Brisbon,
and People v. Collins, 106 Ill.2d 237, 478 N.E.2d 267 (1985),
in which the Illinois Supreme Court relied upon the United States
Supreme Court's decision in Jackson v. Virgina, 443 U.S. 307,
Petitioner supports his claim by arguing that he used a
prodigious amount of alcohol and recreational drugs prior to the
attack and that he panicked when he saw the victim. These
assertions are clearly evidentiary questions that are properly
within the purview of the trier of fact. Without offering any new
evidence or facts to support his petition, Petitioner is simply
asking this Court to overturn the decision of the Illinois courts
and reach a new conclusion. Nothing has changed since those
determinations were made. Petitioner is merely asking this Court
to substitute its judgment for that of the Illinois courts and to
place its own factual analysis in place of the Illinois courts.
This Court cannot do this.
Petitioner also cites a series of Illinois Appellate Court
cases wherein Appellate Courts reversed or reduced convictions to
lesser offenses. These cases cannot give Petitioner the relief he
seeks. In each of those cases cited (People v. Gresham,
78 Ill. App.3d 103, 398 NE.2d 398 (3rd Dist. 1979); People v.
Hawkins, 296 Ill. App.3d 830, 696 N.E.2d 16 (1st Dist. 1998);
People v. Holmes, 246 Ill. App.3d 179, 616 N.E.2d 1000 (3rd Dist.
1993); People v. Collins, 213 Ill. App.3d 818, 572 N.E.2d 1005
(1st Dist. 1991)), the decision rested on the specific facts
of the case. Petitioner certainly cannot find relief based upon
the unique facts of another crime.
In sum, we find that the state court conclusion is consistent
with, and a reasonable application of, federal law. Therefore, we
deny Petitioner's claim that the evidence at his trial was
constitutionally insufficient to prove him guilty.
For the foregoing reasons, we deny the § 2254 petition for a
writ of habeas corpus brought by Petitioner Edgar Villatoro. This
is a final and appealable order. This case is terminated.
It is so ordered.  Jury Verdict. This action came before the Court for a trial
by jury. The issues have been tried and the jury rendered its
[X] Decision by Court. This action came to hearing before the
Court. The issues have been heard and a decision has been
IT IS HEREBY ORDERED AND ADJUDGED that we deny [1-1] the
section 2254 petition for a writ of habeas corpus brought by
petitioner Edgar Villatoro. This is a final and appealable order.
This case is terminated.
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