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U.S. EX REL. CARTER v. POLK

December 2, 2004.

UNITED STATES ex rel. TAWOINE CARTER (#K-58491), Petitioner,
v.
TERRY POLK,[fn1] Warden, Western Illinois Correction Center, Respondent.



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.

  I. BACKGROUND

  A. Trial Evidence

  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 Mar. 14, 2003) (unpublished order).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.

  B. Procedural Background

  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 ...


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