The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
*fn1 Terry Polk is currently the Warden at the Western Illinois
Correction Center and is thus the proper Respondent in this
habeas action. See Rule 2(a) of the Rules Governing Habeas Corpus
Cases under 28 U.S.C. § 2254. Therefore, the Court substitutes
Polk as the Respondent. See Fed.R.Civ.P. 25(d)(1).
MEMORANDUM OPINION AND ORDER
Before the Court is petitioner Tawoine Carter's petition for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254(d)(1). For
the reasons discussed below, the Court denies Carter's petition.
Carter does not challenge the statement of facts set forth in
the Illinois Appellate Court opinion affirming the judgment of
the trial court, and thus those facts are presumed correct for
purposes of the Court's review. See 28 U.S.C. § 2254(e)(1);
Ward v. Hinsley, 377 F.3d 719, 721 (7th Cir. 2004). The
Court, therefore, adopts the underlying facts set forth by the
Appellate Court of Illinois, First Judicial District. See People
v. Carter, No. 1-01-2945 (1st Dist. Mar. 14, 2003) (unpublished order).
The evidence presented at trial establishes that on March 19,
1998, Heriberto Tafolla ("Tafolla") went to a currency exchange
to pay his bills. Carter and his brother were inside the currency
exchange. After paying his bills, Tafolla walked through an alley
to go home. Tafolla noticed that Carter and his brother had
followed him down the alley. Shortly thereafter, Carter pulled a
small, black .25 caliber semi-automatic gun out of his waist and
ordered Tafolla to stop. Carter then told Tafolla to give up all
his money. Tafolla complied and gave all of his cash to Carter.
Tafolla testified that during the robbery a brown Chevrolet
Caprice drove by. The driver of the Caprice was later identified
as Ventura Alvarez ("Alvarez"). Tafolla knows Alvarez because
they used to live on the same street. Tafolla further testified
that Alvarez stopped and backed up his car after he drove by the
scene of the robbery. Seeing the Caprice back up, Carter and his
brother started running. Alvarez got out of his car with a bat in
his hand. Tafolla then saw Carter fire a shot at Alvarez. Carter
began running and Alvarez got back into the Caprice and followed
Carter and his brother.
Tafolla did not report the robbery to the police because he was
scared. Later that day, however, police officers came to
Tafolla's house to question him about the robbery. Tafolla then
went to the police station to view a line up. Tafolla identified
Carter and his brother as the people who had robbed him.
Officer Magarito Ramirez ("Officer Ramirez"), an off-duty
police officer for the Chicago Police Department, testified that
he saw an empty Caprice stopped in the middle of the street
blocking two lanes of traffic. Officer Ramirez, who was
accompanied Danny Castillo, an off-duty Chicago Housing Authority police officer, further testified that
he saw Alvarez running into the nearby Church's Chicken parking
lot with a bat in his hand. Officer Ramirez recognized Alvarez
because they grew up in the same neighborhood. Officer Ramirez
testified that he saw Carter's brother standing in the middle of
the parking lot and Carter standing between two cars. Officer
Ramirez also testified that he saw Carter slip and fall down and
Alvarez come within five to ten feet of Carter. Carter recovered,
got up, raised a small, black, semi-automatic gun, and fired a
shot at Alvarez. Alvarez turned and fled. Carter and his brother
then walked across the parking lot.
Thereafter, Carter and his brother walked down the street.
Officers Ramirez and Castillo followed them. Officer Ramirez then
drove down to the next street corner, parked his car, and waited
for Carter and his brother. As Carter and his brother approached,
Officers Ramirez and Castillo showed them their badges and
ordered them to stop. Instead of stopping, Carter and his brother
fled and the officers followed. Carter ran across a playground,
stumbled, got up, and then pointed his gun at Officer Ramirez. As
Officer Ramirez drew his weapon, Carter resumed running in the
same direction as his brother. While running, Carter passed the
gun to his brother. After a long chase, Officers Ramirez and
Castillo arrested Carter.
Another Chicago Police Officer testified to finding the gun
near the scene of Carter's arrest. The recovered gun was a .25
caliber semi-automatic handgun that had a bullet in the chamber
and four bullets in the magazine. Officer Ramirez made a positive
identification of the gun used in the shootings, as well.
Following a jury trial in the Circuit Court of Cook County, the
jury found Carter and his brother guilty of aggravated discharge of a firearm in violation
of 720 ILCS 5/24-1.2-A(2). The trial court sentenced Carter to 12
years imprisonment to be served ...