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May 17, 2005.

PEREZ FUNCHES, Petitioner,
DONALD HULICK, Respondent.

The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge


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 fifty-five years.

  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.


  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 ...

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