The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
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,
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
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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