The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner, Jesus Lucio, Jr., filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254 against Respondent, Roger E.
Walker, challenging his conviction in Illinois state court.
Petitioner argues that he was denied the effective assistance of
counsel at trial because his counsel failed to call two witnesses
to testify that would have supported Petitioner's alibi.
Petitioner was arrested for murder. Petitioner, a member of a
gang, confessed to the crime and gave a court-reported statement,
although Petitioner originally claimed that he was with his
brother-in-law, Hector Tablas, at the time of the murder. One
witness, who had no prior relationship with Petitioner, testified
that he identified Petitioner as the murderer from a line-up the
night of the shooting. Another witness, a member of a rival gang,
testified that he watched Petitioner run from the scene of the
shooting after the gun-shots were fired. A third witness was a
security guard for the school attended by Petitioner and the
victim. This witness, who had no gang or family connections with Petitioner, had walked the victim
home from school as part of a gang protection program for
students. During these walks, the witness heard Petitioner make
numerous threats towards the victim.
Petitioner's counsel did not call Juan Cedillo identified to
police as Petitioner's uncle or Tablas as alibi witnesses, even
though Petitioner's counsel's opening argument mentioned that
Petitioner told police he was with Tablas at the time of the
murder. During its closing argument, the prosecution commented on
the failure to call these alibi witnesses.
According to the affidavits of Tablas and Cedillo, Petitioner
was with Tablas and Cedillo at the time of the shooting. The
affidavits also stated that Petitioner's counsel never contacted
or interviewed Tablas and Cedillo. However, at a pre-trial
suppression hearing, Petitioner's counsel called Tablas as a
witness, and Tablas was listed as a possible alibi witness at
Petitioner was convicted of murder, and his direct appeal was
denied. Petitioner then filed a post-conviction motion, which was
denied by an Illinois trial court. The trial court stated that:
I have reviewed my notes of the trial, and I believe
that the evidence was overwhelming at trial. There
was a court-reported statement. There was an
eyewitness, another witness who had [Petitioner] in
the area. Also [sic] a security guard then went into
that [Petitioner] was talking to the victim.
I believe in order to proceed further on the
post-conviction, new evidence being presented must be
of such a conclusive character that would probably
change the results on a new trial. I don't believe
that testimony, based on my review of the notes,
would be of such character that it would result a
retrial would be any different.
I believe looking at People v. Palmer,
162 Ill. 2d 465
that the Defense has not achieved the prong of
Strickland v. Washington. There is no such
prejudice to raise ineffective claims at this point. The post-conviction appeal was also denied by an Illinois
appellate court. The appellate court stated that Petitioner's
ineffective assistance of counsel claim was governed by
Strickland v. Washington, 466 U.S. 668
[Petitioner] must show that counsel's representation fell below
an objective standard and prejudiced [Petitioner]." The appellate
court then stated:
As to the first prong of Strickland, trial counsel
not only knew about Tablas, he called Tablas as a
witness at the suppression hearing and listed Tablas
as a possible alibi witness. Trial counsel clearly
made contact and spoke with Tablas. Further, counsel
filed an amended answer to discovery asserting a
possible alibi defense.
As to the second prong of Strickland, [Petitioner]
asserts nothing more than an allegation, without
specifics, that he would have been acquitted had
these witnesses been called to testify. This does not
Surely, appellate counsel here is aware of the
presumption of trial strategy in trial counsel's
decisions (again, see generally: Strickland v.
Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.S.
Ct. 2052 (1984) and People v. Vernon,
276 Ill. App. 3d 386, 392 (1995)) which was not rebutted here. And,
appellate counsel here posits that trial counsel told
the jury that they would hear from Tablas; this is
not true. Trial counsel mentioned Tablas to the jury
when addressing [Petitioner's] conversation with
police: "he had told police that he was with his
brother-in-law to be [Mr. Tablas]".
The Illinois Supreme Court refused to hear Petitioner's appeal.
Under 28 U.S.C. § 2254(d), a writ of habeas corpus of a person
in custody pursuant to a state court judgment will only be
granted if the claim:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding. "To prevail on his ineffective assistance of counsel claim,
[Petitioner] must demonstrate that: (1) his counsel's performance
fell below an objective standard of reasonableness and (2) caused
his prejudice." Murrell v. Frank, 332 F.3d 1102
, 1111 (7th Cir.
2003) (Murrell) (citing Strickland v. Washington,
466 U.S. 668
, 687-88 (1984)). As long as the state court properly
identified and applied this legal standard, as both the trial and
appellate courts did here, Petitioner's ineffective assistance of
counsel claim may only be granted if the state court unreasonably
applies this standard to the facts of the case. Murrell,
332 F.3d at 1111. This bar is a high standard, as the state court
must make a clear error. Murrell, 332 F.3d at 1111. If the
state court "took the constitutional standard seriously and
produced an answer within the range of defensible positions,"
then Petitioner's claim must be denied. Murrell,
332 F.3d at 1111 (citation omitted). All factual determinations, including
credibility decisions, are presumed correct unless rebutted with
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Murrell,
332 F.3d at 1112. A trial court's and appellate court's factual
determinations are entitled to deference. See
28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539
, 546-47 (1981);
Murrell, 332 F.3d at 1112.
Both the Illinois appellate court and trial court held that
Petitioner was not prejudiced by his trial counsel's performance.
Petitioner argues that this factual determination was clearly
erroneous because: (1) the alibi was his only defense, (2) the
prejudice was amplified when trial counsel mentioned that
Petitioner was with Tablas at the time of the murder, and (3) the
prejudice was further amplified when the State's closing argument
pointed out no alibi defense was presented. To establish prejudice, there must be a reasonable probability
that, but for counsel's errors, the result of the proceeding
would have been different. Murrell, 332 F.3d at 1111 (citing
Strickland v. Washington, 466 U.S. at 694). As discussed above,
the evidence against Petitioner consisted of: (1) Petitioner's
confession, (2) a disinterested witness who identified Petitioner
as the murderer from a line-up the night of the shooting; (3) a
witness who observed Petitioner running from the scene after
gun-shots were fired; and (4) a witness who heard Petitioner
threatening the victim. The Illinois courts' factual finding in
this regard was not clearly erroneous; and the statements of two
interested witnesses, both relatives of Petitioner which are
favorable to Petitioner, do not establish a reasonable
probability that, but for counsel's errors, the result of the
proceeding would have been different. See Sullivan,
819 F.2d at 1392.
The post-conviction review by the Illinois courts fully
considered the issue of assistance of counsel, applied the
appropriate standard, and reached a conclusion within the range
of defensible positions. Accordingly, Petitioner's ineffective
assistance of counsel claim is denied.
For the foregoing reasons, the Petition for Writ of ...