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U.S. v. CHANDLER

October 8, 2004.

UNITED STATES OF AMERICA ex rel. EDWIN DAVILA,[fn1] Petitioner,
v.
NEDRA CHANDLER,[fn2] Respondent.



The opinion of the court was delivered by: BLANCHE MANNING, District Judge

*fn1 The record refers to the plaintiff as both Davila and Davilla. In the interests of consistency, and because the Illinois Department of Corrections lists the plaintiff's name as Edwin Davila, see http://www.idoc.state.il.us/subsections/search/default.asp, the court will use the single-1 spelling of his name.

Petitioner Edwin Davila's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. For the following reasons, Davila's petition is denied.

I. Background

  The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Davila has not provided clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts, and will briefly summarize the key facts which are relevant to Davila's § 2254 petition. See People v. Davila, No. 1-98-3002 (1st. Dist. Dec. 19, 1997) (unpublished order) (direct appeal); People v. Davila, No. 95-CR-24591 (Cir. Ct. Mar. 30, 1998 (unpublished order) (first state post-conviction petition); People v. Davila, No. 98-1477 (1st. Dist. July 19, 1999) (unpublished order) (affirming same); People v. Davila, No. 1-01-158 (1st. Dist. Oct. 22, 2003) (unpublished order) (affirming summary dismissal of second state post-conviction petition), as modified on February 4, 2004.

  On July 2, 1995, at 1:30 a.m., Michael Ybarra, accompanied by Jaime/Jamie Alvarez (who was in the front passenger seat) and Ivar Velasco (who was in the back seat), was driving around Chicago's northwest side looking for marijuana. Ybarra stopped at a red light at the intersection of Ashland and Blackhawk Streets, where a group of men outside a restaurant were flashing gang signs and yelling "King Killer" and "Disciples" at the passing cars. This did not sit well with the occupants of Ybarra's vehicle, who shouted expletives to the group of men as Ybarra drove off.

  The group of men chased after Ybarra's car on foot and Velasco saw a white Buick pull out of the restaurant parking lot and join the chase. Next, the Buick pulled up on the driver's side of Ybarra's car. Both Ybarra and Velasco saw Davila, who was driving the Buick, from a distance of seven or eight feet. Davila rolled down his window, flashed gang signs, threw two bottles at Ybarra's car, and drove off. Ybarra, who clearly was not conflict-adverse, turned and followed Davila's car down a side street.

  Davila parked his car diagonally across the street, blocking it so Ybarra could not pass. Davila jumped out of his car and yelled something to a group of men (the record does not specify whether this was the original group from the restaurant or a new group), who began to pelt Ybarra's car with food and bottles. Both Ybarra and Velaso saw Davila clearly by the light of a nearby streetlight. They also saw him grab an object from someone in the group. They realized that Davila was now armed when he opened fire on Ybarra's car from a distance of ten feet, shattering several windows, and then continued to shoot as he approached the car.

  When Alvarez yelled, "Let's get out of here," Ybarra put his car in reverse, escaped down a nearby alley, and drove to an emergency room. Alvarez, who was bleeding from his head, later died, and Ybarra received treatment for a torn artery in his leg. After the shooting, there was broken glass and food on the street and the windshield of Ybarra's car was covered with food.

  On July 9, 1995, Detective Reynaldo Guevara went to the scene of the shooting and tried to locate witnesses. He spoke with Davila, who was working on a car in the area. After conducting additional interviews, Guevara assembled a photographic array and showed it to Velasco and Ybarra, who was hospitalized. Velasco and Ybarra initially denied seeing the shooter but during follow-up interviews with the police, they ultimately identified Davila from the photos. Both Ybarra and Velasco also subsequently identified Davila as the shooter in a lineup.

  At trial, Ybarra admitted that he did not immediately identify Davila from an array of photographs or admit that he knew anything about the shooting, explaining that he was afraid of being shot again and that he feared for the safety of his wife and children. He also stated that he eventually cooperated because, "it was the right thing to do." Velasco testified that he did not initially identify the shooter because he did not want to get involved, but later cooperated "because [he] was sure." The trial court found that the identification testimony was credible and thus convicted Davila of first degree murder and attempted first degree murder.

  Before his sentencing, Davila filed a motion for a new trial, asserting that newly discovered evidence showed that he was not the shooter. Specifically, Christopher Lorenzi and Carlos Cotto gave Davila affidavits stating that they saw Philip (also known as Billy) Willis empty a revolver into Ybarra's car and that Davila was not at the scene. Lorenzi and Cotto stated that they were friends of Davila's, and had known him for ten and eight or nine years respectively. The trial court again found that Ybarra and Velasco's identification testimony was credible. It also stated that it believed that Lorenzi and Cotto were members of the same gang that Davila belonged to, and that they were trying to protect him. The court thus denied Davila's motion for a new trial. Davila appealed this ruling. The Illinois Appellate Court affirmed, and Davila did not file a petition for leave to appeal ("PLA") with the Illinois Supreme Court.

  Davila next filed a state post-conviction petition, contending that trial counsel was ineffective because he failed to call Lorenzi, Cotto, and Myriam Porras, Davila's girlfriend. In support, Davila attached the affidavits from Lorenzi and Cotto submitted in connection with his motion for a new trial, as well as an affidavit from Porras which stated that Davila had called her at the time of the shooting from a payphone a mile away, and that she had told Davila's counsel this information prior to the trial.

  The trial court denied the post-conviction petition, explaining that Davila's ineffective assistance claim was waived because the basis for the claim was in the record so it could have been presented on direct appeal. Alternatively, it rejected Davila's claim on the merits under Strickland v. Washington, 466 U.S. 668, 687-91 (1984). Specifically, the court found that counsel's failure to subpoena the three witnesses did not fall below an objective standard of reasonableness because the record showed that the witnesses were close to Davila and that counsel could have made a strategic decision not to call them. It also noted that the evidence in the case was not closely balanced. It thus concluded that counsel was constitutionally effective, notwithstanding the waiver of this entire issue. Davila appealed, contending that he did not waive his ineffective assistance claim because the record did not show that his lawyer spoke with the three new witnesses, and that in any event, his counsel was ineffective. The Illinois Appellate Court noted that affidavits in the trial record supported Davila's ineffective assistance argument and thus affirmed the trial court's finding of waiver. It also agreed with the trial court that testimony from the three new witnesses would not have changed the outcome of the trial. Finally, it held that Davila could not attack reasonable strategic decisions by counsel, such as counsel's decision not to call Porras because she was Davila's girlfriend. It thus affirmed the trial court. Davila filed an unsuccessful PLA raising the ineffective assistance argument.

  He then filed a second state post-conviction petition based on new evidence which purportedly showed that he was actually innocent. In support, he pointed to affidavits from additional witnesses (Pedro Carmona and Samuel Matias) who stated that someone named Phil or Billy shot the victims. The trial court summarily dismissed the petition, finding that the new evidence was cumulative because other evidence submitted at trial also identified Phil/Billy as the shooter. It also observed that the affidavits were unpersuasive because they contained facts which were inconsistent with the rest of the record. For example, Carmona and Matias claimed that Ybarra's car contained four men and that Ybarra had rammed the car driven by the shooter, but Ybarra's car had three men and was covered with food debris with no evidence of front-end damage. It thus found that the new evidence was not so conclusive that it would have probably changed the result at trial.

  Davila also unsuccessfully argued that during the hearing on his motion for a new trial, his trial counsel could not have raised an ineffective assistance of trial counsel because this would be a conflict of interest. The appellate court affirmed across the board. Davila filed a ...


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