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U.S. EX REL HURTADO v. BRILEY

June 25, 2004.

United States of America ex rel. ROBERTO HURTADO (#K-79902), Petitioner,
v.
KENNETH BRILEY, Warden, Stateville Correctional Center, Respondent.



The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

MEMORANDUM OPINION AND ORDER

In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner Roberto Hurtado ("Hurtado") challenges his conviction for two counts of first degree murder and two counts of aggravated kidnaping entered in the Circuit Court of Cook County, Illinois. Hurtado argues that he is entitled to habeas relief because his confession was obtained in violation of Vienna Convention. For the reasons stated below, the petition is denied.

HABEAS STANDARD

  Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), this court must deny Hurtado's petition for a writ of habeas corpus with respect to any claim adjudicated on the merits in the state court unless the state court's decision "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(d); Price v. Vincent, 538 U.S. 634, 638-39 (2003). A state court's decision is contrary to clearly established Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [it]." Williams v. Taylor, 529 U.S. 362, 405 (2000)

  A state court's decision is an unreasonable application of clearly established Supreme Court law "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of a particular prisoner's case" or "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. 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." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) ("The state court decision is reasonable if it is minimally consistent with the facts and circumstances of the case.").

  Before reviewing the state courts' decisions, however, the court must determine whether Hurtado fairly presented his federal claims to the state courts, as any claim not presented to the state's highest court is deemed procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Moreover, "[a] federal court will not review a question of federal law decided by a state court if the decision of the state court rests on a state procedural ground that is independent of the federal question and adequate to support the judgment." Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002). A federal court may not grant habeas relief on a defaulted claim unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Anderson v. Cowen, 227 F.3d 893, 899 (7th Cir. 2000).

  BACKGROUND

  A. Procedural History

  On January 26, 2000, following a jury trial in the Circuit Court of Cook County, Illinois, Hurtado was convicted of two counts of first degree murder and two counts of aggravated kidnaping. He was sentenced to two terms of life imprisonment without parole and two terms of 15 years to run concurrently. Hurtado appealed, arguing (1) that the trial court erred in not suppressing his confession where it was obtained in violation of the Vienna Convention; (2) that he did not receive a fair trial due to inflammatory actions by the victims' families at trial and due to the State eliciting highly prejudicial but irrelevant testimony from a witness; and (3) that the trial court erred in allowing the State to introduce into evidence the existence of another, uncharged murder that was wholly unrelated to the crime and was highly prejudicial to his defense. On October 18, 2002, the Illinois Appellate Court affirmed Hurtado's convictions and sentences. (Resp. Ex. E.)

  Thereafter, Hurtado filed a petition for leave to appeal to the Illinois Supreme Court. (Resp. Ex. F.) This petition raised only his argument that the trial court erred in not suppressing his confession because it was obtained in violation of the Vienna Convention. On February 5, 2003, the Illinois Supreme Court denied Hurtado's petition for leave to appeal. (Resp. Ex. G.) Hurtado filed this habeas petition on October 21, 2003. Because this petition was filed within one year after the conclusion of Hurtado's direct review in the Illinois courts, this court has jurisdiction to consider the habeas petition. See 28 U.S.C. § 2244(d)(1)(A); Gray v. Briley, 305 F.3d 777, 778 (7th Cir. 2002).

  B. Facts

  When considering a habeas petition, the court must presume that the state courts' factual determinations are correct unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). Hurtado has not presented clear and convincing evidence to rebut this presumption. Therefore, the court adopts the Illinois Appellate Court's recitation of facts in People v. Hurtado, No. 98-12993, slip op. at 2-7 (1st Dist. 2002) (unpublished order) (Resp. Ex. E.)

  The evidence at Hurtado's trial, including his statement to police (which was published to the jury) and the testimonial witness, showed that the bodies of Jose Romero and Jose Segura were found severely beaten, wrapped in plastic and duct tape and burned in a stolen minivan in early April 1998. The victims were friends and were last seen together shortly before their murders. Both victims died as a result of strangulation and blunt force trauma.

  At the time of the murders, the Latin Kings street gang "controlled" the Chicago suburb of Palatine. The gang had split into two rival factions: the Pimptown Latin Kings and the Palatine Latin Kings. Hurtado, along with Raul Dorado, Noel DeLeon, Joseph Dole ...


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