United States District Court, N.D. Illinois, Eastern Division
May 17, 2005.
PEREZ FUNCHES, Petitioner,
DONALD HULICK, Respondent.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Perez Funches (hereinafter, "Perez") filed a Motion
to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2254. For the following reasons, Funches' motion is DENIED.
On June 14, 1993, following a jury trial in Kane County Circuit
Court, Funches was convicted of first degree murder and sentenced
to a term of sixty years. Funches appealed his conviction and
sentence. On March 22, 1996, the Illinois Appellate Court vacated
the judgment, ruling that Funches should have been able to
represent himself in the post-trial proceedings, and remanded the
case. On remand, Funches' sentence was reduced from sixty to
Funches appealed asserting that: (1) he was denied a fair trial
when the prosecutor improperly bolstered the credibility of
Anthony Gibson, the State's star witness; (2) he was denied
effective assistance of counsel because his trial counsel failed
to call a witness who would have cast doubt on Gibson's credibility
and failed to object to the prosecutor's improper bolstering of
Gibson; and (3) the trial court abused its discretion when it
failed to sustain Funches' objections regarding threats made to
witnesses and alleged misstatements during the state's closing
arguments. The Illinois Appellate Court affirmed. On March 19,
1999, Funches filed a petition for leave to appeal (the "PLA") to
the Illinois Supreme Court. He only raised two issues in the PLA
that the prosecutor vouched for Gibson's credibility and
misrepresented the lighting conditions during closing arguments.
The Illinois Supreme Court denied the PLA.
On July 19, 1999, Funches filed a petition for post-conviction
relief in state court. After an evidentiary hearing, the Circuit
Court denied his petition. Funches appealed, raising five issues:
(1) violation of Brady v. Maryland, 373 U.S. 83 (1963); (2)
ineffective assistance of trial and appellate counsel; (3) abuse
of discretion by the court for failing to inquire about a
potential conflict of interest between with his trial counsel;
(4) ineffective appellate counsel for failing to raise
insufficient evidence as an issue on direct appeal; and (5)
denial of a fair trial because Gibson later signed an affidavit
recanting his testimony at Stephen Griffin's trial, Funches'
co-defendant. The Appellate Court affirmed the denial of the
post-conviction petition. Funches then filed a PLA asserting three issues: (1) the state
violated Brady; (2) the appellate court erred in finding that
Funches waived his ineffective assistance of counsel claims; and
(3) due to trial counsel's ineffectiveness, a conflict arose
between Funches and his counsel. The Illinois Supreme Court
denied the PLA.
On October 21, 2004, Funches timely filed the instant motion,
raising four claims: (1) ineffective assistance of trial counsel
for failure to subpoena two witnesses and secure Gibson's
criminal history; (2) insufficient evidence presented to prove
guilt beyond a reasonable doubt; (3) Brady violation; and (4)
denial of a fair trial due to the court's failure to inquire
about a possible conflict with his counsel.
II. PROCEDURALLY DEFAULTED CLAIMS
A state-court prisoner can petition the federal courts for
habeas relief under 28 U.S.C. § 2254. To have a cognizable claim,
a petitioner must show that his custody is in violation of the
U.S. Constitution, laws, or treaties. See Steward v. Gilmore,
80 F.3d 1205, 1214 (7th Cir. 1996). A petitioner waives the right
to federal review of his constitutional claims if they are
procedurally defaulted. See Farrell v. Lane, 939 F.2d 409,
410-11 (7th Cir. 1991). A claim is procedurally defaulted if the
petitioner has not afforded the state courts a full and fair
opportunity to review the claim. See O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999); Farrell, 939 F.2d at 410. A habeas
petition is also procedurally defaulted and barred from federal
review if a state court declines to review it due to petitioner's
failure to satisfy a state procedural rule. See Pisciotti v.
Washington, 143 F.3d 296, 300 (7th Cir. 1998). However, a
"federal habeas petitioner may raise a federal claim which has
been procedurally defaulted if he can demonstrate adequate
cause to excuse his failure to raise the claim in state court
and actual prejudice resulting from the default." Farrell,
939 F.2d at 411.
A. Ineffective Assistance of Counsel
Funches asserts two bases for his ineffective assistance of
counsel claims. First, Funches asserts that his trial counsel
failed to properly subpoena two defense witnesses. Funches
initially raised this issue on direct appeal in the appellate
brief, but he failed to raise it in his PLA to the Illinois
Supreme Court. Due to his failure to include this claim in the
PLA, the Illinois Supreme Court did not have a full and fair
opportunity to review it.
In his motion, Funches appears to argue that he could not have
raised this issue until post-conviction proceedings because his
appellate counsel refused to do so on appeal. The Court concludes
that this argument lacks merit Funches' appellate brief
included this subpoena issue clearly indicating no refusal by
appellate counsel to raise the issue on appeal. The arguments
presented and evidence in the record does not suggest that there exists
adequate cause to excuse the default or adequate prejudice from
the failure, and accordingly, the ineffective assistance claim
based upon the subpoena issue is procedurally barred.
Second, Funches argues that his trial counsel's assistance was
constitutionally inadequate because he failed to secure Gibson's
criminal history. Funches did not raise this ineffective
assistance claim on direct appeal. Citing People v. Stewart,
123 Ill.2d 368, 372 (1988), the Illinois Appellate Court during
post-conviction proceedings found this issue waived because it
could have been presented on direct appeal, but was not (waiver
of issues not raised on direct appeal).
Funches asserts that the court erred in finding waiver. He
contends that the plain error standard should have applied
because the evidence was closely balanced. The Court notes that
the Illinois Appellate Court expressly found that there was
substantial evidence against Funches at trial, and discussed some
of the pertinent testimony in its decision. The court was correct
to find waiver. This alleged issue existed at the time Funches
filed his appeal, Funches could have and should have raised
it during his direct appeal. This conclusion is especially
apparent in light of the fact that Funches raised other
ineffective counsel claims during his direct appeal. Moreover,
the Seventh Circuit has held that "[i]f a claim is found to be
waived by an Illinois appellate court, that constitutes an independent and adequate state ground
and we will not entertain that claim." Aliwoli v. Gilmore,
127 F.3d 632, 634 (7th Cir. 1997). Accordingly, Funches' claim is
procedurally defaulted and not subject to federal review.
B. Sufficiency of Evidence
Funches argues that there was not sufficient evidence presented
at trial to prove him guilty beyond a reasonable doubt.
Specifically, Funches contends the evidence presented shows that
he could not have been the shooter. Funches first raised this
issue in his state post-conviction appeal. The Illinois Appellate
Court concluded that Funches' appellate counsel was not
ineffective for failing to raise insufficiency of the evidence
because there was substantial evidence presented against Funches
at trial, and any such challenge would have been non-meritorious.
Funches did not raise this issue in the PLA to his
post-conviction proceedings, and has not demonstrated that there
is adequate cause to excuse the failure. Therefore, this claim is
also procedurally defaulted.
III. REMAINING CLAIMS
To prevail in a habeas corpus action, a petitioner must show
that the state court's decision involved in an "unreasonable
application of clearly established Federal law, as determined by
the Supreme Court" or that the decision was "based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." § 2254(d). "A state court's factual determination is presumed to be correct and the
petitioner has the burden of rebutting this presumption by clear
and convincing evidence." Id. at § 2254(e). Federal court
intervention is only permissible when a state court decision is
objectively unreasonable. See Woodford v. Visciotti,
537 U.S. 19, 27 (2002).
A. Brady Violation
Funches claims that the state violated Brady by knowingly
withholding evidence regarding Gibson's criminal history. To
succeed on a Brady violation claim, "a defendant must establish
that (1) the prosecution suppressed or withheld evidence that (2)
was favorable and (3) material to the defense." Crivens v.
Roth, 172 F.3d 991, 996 (7th Cir. 1999).
Funches acknowledges that his counsel obtained "contact cards"
from the state regarding Gibson that "suggested" he had a
criminal history. (Resp. Br. at 2). He argues, however, that
despite two pre-trial discovery requests, the state failed to
produce files on Gibson's criminal history. The Illinois
Appellate Court considered this claim and concluded that the
State did not withhold evidence. In so holding, the court found
that Funches' trial counsel knew of Gibson's criminal history. In
fact, the trial record reflected that Funches' counsel referenced
Gibson's criminal history in his opening statement and spent
considerable time discussing it in his closing argument.
Additionally, Gibson himself testified about his felony convictions during the trial, and Funches' counsel
cross-examined him on this subject. The Court concludes that the
Illinois Appellate Court's decision was based upon a reasonable
determination of the facts in light of the evidence presented,
and a reasonable application of the law. Accordingly, Funches'
motion is denied.
B. Alleged Conflict With Counsel
Funches' final assertion is that he was denied a fair trial
because the court failed to inquire about a possible conflict
between himself and his trial counsel he claims his counsel
"limit[ed] [his] defense." (Br. at 21). The Illinois Appellate
Court concluded that no error occurred and that there had been no
unfair prejudice to Funches. The court noted that Funches did not
complain of, or object to, his counsel's performance until after
the defense rested. Funches later complained that his trial
counsel failed to call certain witnesses and did not ask certain
questions he requested. The Illinois Appellate Court properly
found that this type of disagreement is not a conflict of
interest and further noted that decisions regarding trial
strategy are best left to counsel. See People v. Gustafson,
75 Ill.App.3d 497, 500 (Ill.App. 1979). Funches' allegations are
better described as a disagreement over trial strategy. "A court
must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action `might be considered sound trial strategy.'"
Strickland v. Washington, 466 U.S. 668, 689 (1984). The
Illinois Appellate Court did not unreasonably apply the law or
determine the facts. Accordingly, Funches' motion is denied on
For the reasons stated herein, Funches' Motion to Vacate, Set
Aside or Correction Sentence is DENIED.
IT IS SO ORDERED.
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