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October 12, 2005.

JOSE GARCIA, Petitioner,
EDWIN R. BOWEN, Respondent.

The opinion of the court was delivered by: MARK FILIP, District Judge


Following a bench trial, Jose Garcia ("Garcia" or "Petitioner") was found guilty of two counts of attempted first-degree murder and two counts of aggravated battery with a firearm.*fn1 (D.E. 9, Ex. C at 1.)*fn2 The trial court sentenced him to seven years' imprisonment on each of the attempted murder counts, to be served consecutively. (Id.) Garcia appealed, arguing the following: (1) his guilt was not proven beyond a reasonable doubt because his conviction was based on unreliable eyewitness identifications; (2) his attorney failed to provide effective assistance of counsel; and (3) his consecutive sentences violated his due process rights. (Id.) The Illinois appellate court affirmed Garcia's conviction (id.), and the Illinois Supreme Court declined to review the matter (D.E. 9, Ex. E). Having exhausted his state court remedies and having preserved these claims, Garcia now petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court respectfully denies Garcia's habeas petition.

I. Background

  A. Factual Background*fn3

  On October 8, 1998, at approximately 9:15 in the morning, Robert Ortiz ("Ortiz"), Leopoldo Castro ("Castro"), and Roberto Del Valle ("Del Valle") were on their way to school in a van driven by Castro. (D.E. 9, Ex. C at 2.) Due to heavy traffic, the van stopped near the intersection of North Milwaukee Avenue and North Western Avenue in Chicago. (Id.) The occupants of the van saw a group of men, including Petitioner, who was five feet tall and one hundred-twenty pounds, standing on the street corner. (Id. at 2, 8.) Petitioner, wearing a black sweater with a hood and dark pants, began flashing various gang signs towards the van. (Id.)

  Garcia then approached the van and punched at the windows, trying to break them. (Id.) After repeatedly punching the windows and screaming at the occupants, he walked away from the van, back to the group of men, including an unidentified man on a bicycle who was wearing a brightly colored orange jacket. (Id.) The man with the bike pulled a gun from his waistband, and he gave the gun to Garcia. (Id.) Now armed with the gun, Garcia returned to the van and began shooting into the van through the windows at the occupants. (Id. at 2-3.) Del Valle was shot in the back. Castro, who had left the van, was hit in the leg. (Id. at 3.) Ortiz was not injured in the encounter. After the shootings, Garcia variously was smiling and laughing at Del Valle, one of his victims, who had been shot in the spine. (D.E. 18, Ex. B at 16, 18, 113.)

  Immediately after the shooting, Garcia fled north from the scene on foot, along with the man with the multicolored jacket, who fled on his bike. (D.E. 9, Ex. C at 3.) Castro briefly attempted to chase the perpetrators, but he was hindered by the gunshot wound to his leg. (Id.) Ortiz drove Castro and Del Valle to the hospital. (Id.) Del Valle was hospitalized and underwent surgery to remove the bullet from his spine. (Id.) Castro was treated for the injuries to his leg and released. (Id.) After arriving at the hospital, Ortiz and Castro each independently described the incident culminating in the shooting to the police. (Id.)

  Soon after the crime was reported, police officers noticed a bike lying in front of a liquor store not far from the scene of the shooting. (Id.) Inside the store, a sales clerk told police that a man with a brightly colored jacket had gone into the restroom at the rear of the store. (Id. at 4.) As the officers walked toward the restroom, Garcia emerged and was arrested. (Id.) At the time of his arrest Garcia was wearing white pants and red shoes. (Id. at 7.) The police found a brightly colored jacket in the restroom, with six .38 caliber bullets in the jacket. (Id. at 4.) Later, five spent .38 caliber casings were recovered from the scene of the shooting. (Id.)

  Within thirty to forty-five minutes of the shooting, the police brought Garcia to the hospital to be identified by the victims. (Id. at 3.) At the hospital, officers conducted separate show-up identification confrontations for Ortiz and Castro. (Id.) Both identified Garcia as the gunman. (Id.) Due to his physical condition at the hospital, a show-up confrontation was not conducted for Del Valle.*fn4 (Id. at 8.)

  A Cook County grand jury indicated Garcia in October 1998 on two counts of attempted first-degree murder and two counts of aggravated battery with a firearm. (D.E. 18, Ex. A at 8-12.) Garcia waived his right to a jury trial, choosing instead to have the trial judge decide his case. (Id. at 33.) At a trial beginning April 22, 1999, the state introduced Castro's and Ortiz's show-up identifications of Garcia. (D.E. 9, Ex. C at 5.) Castro, Ortiz, and Del Valle also made in-court identifications and testified to the foregoing events. (Id. at 2-5.)

  Based primarily on the testimony of the identifying witnesses, the judge found that the State had proved Garcia guilty beyond a reasonable doubt of all charges. (Id. at 4.) On January 25, 2000, the trial judge sentenced Garcia to seven years imprisonment on each of the attempted murder counts, to be served consecutively. (Id. at 1.)

  B. Procedural Background

  An applicant for writ of habeas corpus under 28 U.S.C. § 2254 ("Section 2254") must exhaust the remedies available in the State courts before a federal court can entertain a petition for a writ. 28 U.S.C. § 2254(b)(1). Exhausting all state remedies includes presenting each claim on direct appeal and in a petition to the state supreme court for discretionary review. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). If the claims have been preserved through the state criminal appeals process, a prisoner in state custody must allege that he is being held in violation of the Constitution or laws or treaties of the United States in order for a federal court to entertain an application for writ of habeas corpus. 28 U.S.C. § 2254(a).

  In this case, Garcia presented three issues to the state appellate court on direct appeal: (1) that the identification evidence against him was impermissibly suggestive, (2) that his trial counsel provided ineffective assistance, and (3) that his due process rights, as guaranteed under Apprendi v. New Jersey, 530 U.S. 466 (2000), were violated. The state appellate court denied Garcia's appeal on all three issues and affirmed his conviction. (D.E. 9, Ex. C at 25.) Garcia then presented the same three issues in a petition to the Illinois Supreme Court requesting review of his case. The Illinois Supreme Court declined to accept the case. (D.E. 9, Ex. E.) Garcia now comes to this Court making essentially the same allegations he did in state court (although, as explained below, his third claim is presented in such skeletal form in this Court that one might fairly conclude that claim is waived in this Court). Accordingly, Garcia sufficiently exhausted the remedies available in state court and may proceed with his claims here.

  II. General Legal Standards

  Garcia's habeas corpus petition is governed by 28 U.S.C. § 2254, subject to the applicable amendments of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). As amended, Section 2254(d) teaches that a federal court may only grant a habeas petition concerning a person in state custody if one of two conditions is satisfied. First, the writ is to be granted if adjudication of the claim in the state courts "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Second, a writ of habeas corpus should be granted when the state court proceedings "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." 28 U.S.C. § 2254(d)(2).

  The "contrary to" provision pertains to issues of law, which are reviewed de novo. Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999). A state court's decision is "contrary to" clearly established Supreme Court law if the state court applies a rule that contradicts the governing law, as set forth by the Supreme Court, or if the "state court confronts facts materially indistinguishable from a relevant Supreme Court precedent and arrives at [an opposite] result." Williams v. Taylor, 529 U.S. 362, 404-05 (2000).

  Under the "unreasonable application of" clause of Section 2254(d)(1), the Court defers to "a reasonable state court decision." Anderson v. Cowan, 227 F.3d 893, 896-97 (7th Cir. 2000) (citing Schaff v. Snyder, 190 F.2d 513, 522 (7th Cir. 1999)). As the Seventh Circuit has repeatedly instructed, the unreasonable application prong of Section 2254(d)(1) is "a difficult standard to meet." Floyd v. Hanks, 364 F.3d 847, 850 (citation omitted); Jackson v. Frank, 348 F.3d 658, 662 (7th Cir. 2003) (citation omitted); see also Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (holding that "unreasonable," for the purpose of Section 2254(d)(1), means "something like lying well outside the boundaries of permissible differences of opinion").

  "[W]hen a state-court decision unreasonably applies the law of [the Supreme] Court to the facts of a prisoner's case, a federal court applying § 2254(d)(1) may conclude that the state-court decision falls within that provision's `unreasonable application' clause." Williams, 529 U.S. at 409. In this regard, the Supreme Court has repeatedly instructed that an unreasonable application of federal law is something more than simply an application that the habeas court might not itself have reached in the first instance or that the habeas court thinks is incorrect. Thus, for example, in Woodford v. Viscotti, 537 U.S. 19, 24 (2002), the Supreme Court explained the role a federal habeas court is to play:
Under § 2254(d)'s `unreasonable application' clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Strickland incorrectly. Rather, it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner. An unreasonable application of federal law is different from an incorrect application of federal law. The Ninth Circuit did not observe this distinction, but ultimately substituted its own judgment for that of the state court, in contravention of 28 U.S.C. § 2254(d).
(internal citations and quotation marks omitted; emphases in Woodford); accord, e.g., Williams, 529 U.S. at 410 ("[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.").*fn5

  As to determining the underlying facts of a case, a federal court presumes that a state court's factual findings are correct. See Schaff v. Snyder, 190 F.3d 513, 521 n. 5 (7th Cir. 1999). To overcome this presumption, a petitioner has the burden of rebutting the state court factual findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Schaff, 190 F.3d at 521 n. 5. Specifically, the Seventh Circuit teaches that this court is not to second guess the finder of fact "because the cold pages of an appellate record do not allow . . . [a district court] the opportunity to observe the verbal and nonverbal behavior of the witnesses, including their reactions and responses to the interrogatories, any confused or nervous speech patterns, ...

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