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August 24, 2005.

BLAIR LEIBACH, Warden, Danville Correctional Center, Respondent.

The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge


This case is before the court on the petition of Edward Ledezma for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994). For the following reasons, the petition for habeas corpus is denied.


  Petitioner Edward Ledezma does not challenge the statement of facts set forth in the order of the Illinois Appellate Court affirming his conviction for the attempt first-degree murder of Marco Mercado. For purposes of federal habeas review, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e). Accordingly, we adopt the facts as set forth in the opinion of the Illinois Appellate Court.

  I. Statement of Facts

  On December 21, 1994, Marco Mercado, Jesse Gutierrez and George Montejano were driving through Chicago. Mercado was driving. Montejano was in the front passenger seat, and Gutierrez was in the back seat behind Montejano. Both Mercado and Montejano were members of the "26" street gang. At about 9:00 p.m., Mercado stopped the car near the corner of 30th and Komensky Streets in Chicago. Approximately 15 members of the "26" gang were gathered there, and Mercado and Montejano spoke with one of the gang members, Julius Salazar.

  While talking with Salazar, an unknown individual wearing a red and black jacket with a white hood emerged from the gangway and approached Mercado's car. Mercado drove the car towards the individual to ascertain his identity and gang allegiance. The unidentified individual then fired gun shots into the car. One shot hit Mercado's leg, and another shot hit Mercado in the back, paralyzing him from the chest down.

  After Mercado was shot, Montejano kicked Mercado's foot off of the accelerator so that Montejano could control the accelerator while Mercado steered, and they sped away to a nearby fire station to call the paramedics. While at the fire station, Montejano spoke with Salazar, who told him that a gun battle had occurred after they drove away. According to Salazar, when the hooded individual fled, Salazar chased after him and fired numerous shots. The hooded individual also fired shots back at Salazar. Salazar saw the hooded individual enter a blue van parked in an alley, and Salazar fired several shots at the van. After telling Montejano what happened, Salazar left the fire station and did not speak to the police about this incident until he was arrested in an unrelated matter shortly before trial.

  At trial, Officer Duarte testified that he arrived at the fire station and spoke with Montejano and Gutierrez. Officer Duarte testified that Montejano and Gutierrez told him that the shooter got into a blue van and fled the area. Montejano and Gutierrez described the shooter as a male Hispanic wearing a black jacket with a white hood, approximately 5'6" or 5'7" tall, 130 or 140 pounds, and between 18 and 25 years old. Officer Duarte broadcast this information over the police radio. Officer Duarte was on his way back to the scene of the shooting to record the address with Montejano and Gutierrez when he received a radio message that other officers had stopped a blue van with the suspected shooter at the intersection of 30th and St. Louis Streets, which is approximately six blocks from where the shooting occurred. Montejano and Gutierrez heard the message over the radio. Officer Duarte testified at the preliminary hearing that when he arrived at 30th and St. Louis both Montejano and Gutierrez identified the van as the one they saw leaving the area of the shooting.

  There were five people who were inside the van when the police pulled it over. Officer Duarte testified that both Montejano and Gutierrez identified petitioner/defendant Edward Ledezma as the shooter. At trial, Officer Duarte testified that Montejano and Gutierrez identified Ledezma as the shooter while all five individuals were placed against a wall. However, prior to trial, in his testimony at a hearing on Ledezma's motions to quash the arrest and to suppress evidence and identification testimony, Officer Duarte testified that Montejano and Gutierrez identified Ledezma when he and the other four individuals were on the ground. The trial court denied the motions to quash arrest and suppress evidence and identification testimony.

  Officer Duarte explained at trial that Ledezma was first identified by Montejano when he was on the ground. The police officers then stood the five individuals up against a wall, and Ledezma was identified by both Montejano and Gutierrez. After Montejano and Gutierrez identified Ledezma, all five individuals who were in the van were arrested. Ledezma, and at least two of the individuals arrested with him, was a member of the Latin Kings street gang, which is a rival of the "26" gang. No weapon or ammunition was found inside the blue van. No fingerprints could be recovered from the bullet casings recovered from the scene. No gunshot residue test was performed on Ledezma, nor did an evidence technician process the van. At trial, Mercado admitted that he was a member of the "26" gang. In his testimony, Montejano initially denied membership in the "26" gang. However, in rebuttal, Montejano admitted that he was a crew leader in the "26" gang.

  The day after the shooting, Mercado picked out Ledezma's picture from a photo array shown to him at the hospital. At trial, Mercado identified Ledezma as the shooter. Gutierrez also identified Ledezma in court as the shooter and testified that he identified him the night of the shooting. At trial, Montejano also identified Ledezma in court and testified that, on the night of the shooting, he identified Ledezma first while he was on the ground and then also after he stood up against the wall.

  After the State rested, the defense sought to call Julio Salazar as a witness. Salazar was in police custody on an unrelated charge. Shortly before trial began, Salazar was arrested by the Chicago police in an unrelated matter. An assistant State's attorney took a handwritten statement from Salazar indicating that he witnessed Mercado, the victim in this case, being shot and that he chased the shooter from the scene. During this chase, Salazar stated that he and the shooter exchanged gun fire. Salazar said that when the shooter got into a blue van, he shot at the van. Salazar said that he was not able to identify the shooter. However, Salazar described the same clothing as Montejano had described, and Salazar's description matched the description of the clothing worn by Ledezma when he was arrested. When Ledezma's defense counsel indicated his intention to call Salazar as a witness, the trial court conducted a hearing outside the presence of the jury to determine the validity and parameters of any Fifth Amendment claim Salazar may have. The trial court appointed a public defender to represent Salazar and to assist in determining if Salazar had any valid Fifth Amendment concerns relating to his potential testimony in this case. After interviewing Salazar, the public defender represented to the court that he believed Salazar legitimately could invoke the Fifth Amendment as to whether he had fired shots at the shooter and the van.

  At the hearing, Ledezma's attorney extensively questioned Salazar about his involvement in the shooting of Mercado and the events that transpired after the shooting. However, Salazar invoked his rights under the Fifth Amendment. After the hearing, the trial court ruled that Salazar's invocation of his Fifth Amendment rights precluded defense counsel from questioning Salazar about being armed and shooting at the van. The trial court also ruled that defense counsel could not introduce into evidence Salazar's handwritten statement that he had been armed and shot at the van.

  After this ruling, defense counsel called Salazar as a witness. Salazar testified that he could not identify Ledezma as the shooter because the shooter wore a white hood over his head. Salazar further testified that he saw the shooter enter a blue van. Salazar also admitted that he was a member of the "26" gang.

  Gregory Ferns and Isidro Diaz also testified at trial on Ledezma's behalf. They testified that they were with Ledezma in the blue van on the night of the shooting, but that the van never was near the scene of the shooting and that Ledezma was not involved. In addition, Diaz testified that he was not a member of a gang. However, a police officer testified in the State's rebuttal case that he saw Diaz throw gang signs and yell "King Love" on September 29, 1995.

  In rebuttal, the State called assistant State's attorney Mark Shlifka, who testified that he took a statement from Ledezma on December 22, 1994 in which Ledezma denied being in the area on the night of the shooting, but admitted wearing a red and black jacket with a white hood. After closing arguments, the jury found Ledezma guilty of attempt first-degree murder, and he was sentenced to a 30-year term of imprisonment.

  II. Procedural History

  Ledezma appealed his conviction and sentence to the Illinois Appellate Court. In his appeal, Ledezma raised the following issues for review:
(1) the trial court erred when it refused to reconsider its pre-trial ruling or grant a new trial in light of Officer Duarte's inconsistent pre-trial and trial testimony;
(2) the trial court erred when it denied Ledezma's motion to suppress the show-up identification as unduly suggestive;
(3) the trial court denied Ledezma his right to present a defense when it precluded him from introducing evidence that Salazar made an incriminating statement; and
(4) the prosecution withheld Brady information about witness, ...

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