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September 27, 2005.

JASON GARNETT, Respondent.

The opinion of the court was delivered by: JAMES ZAGEL, District Judge


Salvador Longoria seeks a writ of habeas corpus. His petition is prolix and touches upon medical care issues that are not relevant to his petition. But, since it is possible to discern what his claims are, I must proceed.

Longoria was convicted of armed robbery and aggravated battery in a bench trial before a highly experienced and able judge and was sentenced to thirty years. The victim, Francisco Gonzales, had two to four beers before walking down 26th Street in Chicago when he saw Petitioner, a man he had known for about six months. Petitioner had a relationship with the sister of Gonzales' girlfriend — he was the father of the sister's child. Petitioner and two other men approached Gonzales and asked him for a quarter. Gonzales offered a dollar and took a roll of bills from his pocket. Petitioner told his companions to push Gonzales into an alley, which they did. Petitioner then approached Gonzales, took a dark object from his wheelchair, which he regularly used although he was able to walk unaided, stood up and stabbed Gonzales with the object in his left cheek, above his right eye, on his right forearm and on his left palm. After Petitioner's two helpers left, Gonzales gave Petitioner his roll of bills. Petitioner then walked away pushing his wheelchair.

  Gonzales went home, called 911 and was taken to the hospital where his wounds required 16 stitches. He told police that Petitioner had taken $470 from him. In fact, the amount was $174, which Gonzales later explained was the result of forgetting he had repaid a debt before the robbery. The medical evidence was consistent with Gonzales' account of the event.

  The defense was based on Gonzales' unreliability. He had been drinking before the incident and his blood alcohol level was too high to be the product of a few beers, he used several aliases, knew the petitioner, and had inconsistencies in his testimony. The trial judge made findings of fact and concluded that the photographs of Gonzales corroborated his account of how he got the wounds and that his testimony was consistent with police reports and preliminary hearing testimony. In short, the court credited Gonzales' testimony.

  Prior to sentencing, petitioner asked for new counsel, and a new public defender was appointed. That attorney filed a motion for new trial alleging possible incompetency to stand trial because of consumption of psychotropic drugs and alleging ineffective assistance of counsel. The trial court did not rule on the motion as a matter of law but instead held an evidentiary hearing. At the hearing, Petitioner's trial counsel refuted Petitioner's claim that he told her he was not feeling well on the date of trial and wanted a continuance so he could testify. She stated she had handled the case from the onset, that petitioner wanted a bench trial and was able to communicate with her without difficulty. Trial counsel testified that she warned Petitioner that much of the evidence he related to her would not come into evidence, unless he testified but despite this warning, he declined to take the stand. Despite being invited to testify at the hearing, Petitioner refused to do so, and the judge denied the motion for a new trial. On appeal, Petitioner argued reasonable doubt, ineffective assistance of counsel and excessive sentence. The appeal failed as did the post-conviction petition considered by the Appellate Court at the same time. Petitioner did draw a dissent on appeal. The dissenter gave weight to the fact that Gonzales admitted at trial that he did not want Petitioner coming around to his girlfriend's (or wife's) sister's place of residence — one way to achieve that end was to put Petitioner in prison. The dissenter also found that the tactical decisions of defense counsel were short of competent. The petition for leave to appeal was denied. A successive post-conviction petition was found frivolous and dismissed. This too was affirmed on appeal.

  The petition here rehashes the arguments made earlier in the case. This time there is a new cast to the claims. Petitioner says he is so physically handicapped that he could not commit the offense. The record, however, contains evidence to the contrary. Petitioner alleges that his lawyers hid medical records showing his poor mental health. Petitioner makes other allegations about the existence of evidence that apparently was not raised in state court and is raised here with no evidentiary support. Since those claims were not brought before the trial court, they have been forfeited. The forfeited claims are as follows: (a) the public defenders and the courts allowed him to go to trial and be maliciously prosecuted given his mental condition, (b) his post-trial counsel had a conflict of interest, (c) his trial attorney had, but did not call, a witness who would testify that Gonzales was the real trouble maker, (d) trial counsel should have introduced Petitioner's sweat pants to show Gonzales was the instigator, and (e) trial counsel should have proven that Gonzales was a crack addict and marijuana grower. When reviewing the remaining claims, the standard is not whether the state courts were right or wrong but whether, in reaching the decision on matters of law, the state courts' decision was based on an unreasonable determination of the facts in light of the evidence or was contrary to the law as determined by the Supreme Court. See Williams v. Taylor, 529 U.S. 362, 406-10 (2000).

  In evaluating Petitioner's ineffective assistance of counsel claim, the Appellate Court followed the appropriate Supreme Court precedent, and I agree with its findings. On Petitioner's first claim — that trial counsel erred in not impeaching Gonzales on his place of employment, it was not unreasonable for the Appellate Court to conclude that this failure would not have changed the verdict. During cross-examination, trial counsel confronted Gonzales with many inconsistences in his testimony, including the number of assailants present, the amount of money stolen, the manner in which he was assaulted, and how much alcohol was consumed. Failing to impeach Gonzales on his place of employment proves to be minor in light of the circumstances. On Petitioner's other claims for ineffective assistance of counsel, the findings of the Appellate Court were also reasonable.

  As is customarily the case when there is a dissent on appeal, the majority laid out its rationale with some care. With respect to Petitioner's claim of handicap, the Appellate Court found that Petitioner had waived his claim because he failed to present any reliable evidence, such as medical records or affidavits, to show he was physically incapable of committing the alleged offense. The Appellate Court also noted that Petitioner's trial counsel did, in fact, submit evidence of physical disability prior to sentencing to the trial judge. Moreover, many of Petitioner's allegations here could have been presented to the state court only with his testimony, but he declined twice to offer that testimony which means the record is bare of support of some of his key assertions. Ironically, the one thing about his lawyers that he does not complain about is his failure to testify — perhaps because, at the post-trial hearing, the trial judge offered him the chance to testify on the record and, on the record, he declined despite the clear implication of the judge's admonition that it was now or never.

  The findings of the state court that Gonzales was credible and that defense counsel was not ineffective cannot be overturned under federal law.

  Petitioner's request for a writ of habeas corpus is DENIED.


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