Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


November 7, 2005.

DONALD HULICK, Respondent.

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

Petitioner, Elliot Vera-Natal ("Petitioner" or "Vera-Natal"), seeks a writ of habeas corpus against Respondent, Donald Hulick, Warden of the Hill Correctional Center in Galesburg, Illinois. For the reasons stated below, Vera-Natal's petition for a writ of habeas corpus ("Petition") is respectfully denied.


  Petitioner is imprisoned pursuant to a judgment of the Illinois courts. That judgment followed a bench trial in which Vera-Natal was convicted of first-degree murder and attempted first-degree murder and was sentenced to consecutive prison terms of thirty and eight years, respectively.*fn1 (D.E. 15, Ex. B at 1, 15.)*fn2

  On April 17, 1998, Vera-Natal traveled on a red bicycle to a gas station in Waukegan, Illinois. (Id. at 2.) Some members of the Maniac Latin Disciples street gang, none of whom was armed, were in and around a white van parked outside of the gas-station store. (Id. at 2, 21.) Vera-Natal (who also went by the nickname "Big Tiny"), was a member of the Spanish Cobras street gang, one of the rivals of the Maniac Latin Disciples. (Id. at 21.) Vera-Natal exchanged stares with at least two of the Maniac Latin Disciples. (Id. at 6, 21.) Brian Vinson ("Vinson") and at least one other person in the van also flashed "signs" and exchanged words with Vera-Natal. (Id. at 21.)

  After these exchanges, Petitioner rode his bike closer to his eventual shooting victims and placed his hand at his waist. (Id.) Vinson, while standing near the van, threw a bottle of transmission fluid at Vera-Natal; the bottle did not hit Petitioner. (Id.) In response, Petitioner got off his bike, drew a .38 caliber firearm from his waistband, and repeatedly fired at Vinson and the others in the van. (Id.) Eyewitness testimony and the position of the shell casings showed that Vera-Natal was walking toward the van as he fired. (Id.) Vera-Natal's shots killed Jose Perez ("Perez") and wounded Vinson. Perez sustained a fatal gunshot wound to his side, while Vinson sustained a gunshot wound to the ankle that required surgery. (Id. at 21, 32.) Vinson could not work for several weeks as a result of his injury. (Id. at 21, 32.)

  After the shootings, Vera-Natal fled the gas station, discarded the gun in an alley gutter, and went into hiding. (Id. at 18.) Two days after the incident, Vera-Natal flew from Chicago to Puerto Rico under the alias "Alvin Gonzalez." (Id. at 3, 18.) Petitioner made no return flight arrangements. (Id.) Petitioner was arrested three months later in Puerto Rico on unrelated charges. (Id.) On October 21, 1998, a grand jury in Lake County, Illinois, indicted Vera-Natal for the shootings at the gas station. (Id.) On February 2, 1999, Vera-Natal waived extradition, and he was transported back to Illinois two weeks later. (Id.) The evidence that Vera-Natal shot the victims was overwhelming; the only issue at trial was the "imperfect self-defense" argument offered on behalf of Vera-Natal by his counsel.*fn3 (Id. at 20.) Vera-Natal confessed to the Waukegan police that he fired shots at the van and stated that he shot at the van because he was "scared for his life" because "the Maniacs were looking for him." (Id. at 17.) Vera-Natal contended that he feared for his life ever since he had discovered that the Maniac Latin Disciples had allegedly put out an "SOS" on him — an order from the leaders of the gang to shoot Vera-Natal on sight. (Id. at 16-17.)

  A number of eyewitnesses confirmed Vera-Natal's identity as the shooter — either through pretrial photospread identifications; in-court identifications; and/or testimony in which they described the shooter's appearance and clothing, which matched testimony describing Vera-Natal's appearance on the day of the shootings. (See, e.g., id. at 4, 5, 9, 11, 13, 14.) In the latter regard, several witnesses identified the shooter as a man wearing a baby blue shirt and a baseball cap tilted to the left who had been riding a red bicycle. (See, e.g., id. at 4, 7, 9, 11.) (Witnesses explained that the baby blue or powder blue shirt is a symbol of Vera-Natal's Spanish Cobras street gang, and that wearing a cap with the brim tilted to the left is a symbol of disrespect towards the Maniac Latin Disciples. (See, e.g., id. at 9-11).) Other witnesses testified that Vera-Natal was wearing a pale blue shirt and a tilted baseball cap and was riding a red bicycle at or around the time of the incident. (See, e.g., id. at 3-4, 7, 9, 11.) Vera-Natal did not testify. (Id. at 20.) His attorney argued that Vera-Natal had an unreasonable belief that his use of force was justified, and therefore a second-degree murder conviction was appropriate. (Id. at 20.) After deliberating, the trial court found Petitioner guilty on all of the counts of the indictment and entered judgment on one count of first-degree murder and one count of attempted first-degree murder. (Id. at 22.) In rejecting Petitioner's imperfect self-defense claim, "the trial court made detailed findings of fact." (Id. at 20.) The trial court/factfinder rejected Vera-Natal's defense on the basis of, inter alia, the following evidence: (1) Vera-Natal wore apparel symbolizing his gang and antagonistic to the Maniac Latin Disciples at the time of the shootings; (2) he carried a gun with him to the gas station; (3) none of the Maniac Latin Disciples at the gas station was armed; and (4) Vera-Natal walked toward and closed on the van as he fired the shots. (Id. at 22.) The trial court also rejected the contention that the existing rivalry between the two gangs, prior gang incidents, and the purported S.O.S. order established that Petitioner feared for his life when he closed on the van and repeatedly fired on it. (Id.) Instead, "[t]he [trial] court concluded that defendant [i.e., the Petitioner] fired simply because he was angry at members of a rival gang." (Id.)

  The trial court scheduled a sentencing hearing and ordered a pre-sentence investigation. (Id.) As part of the pre-sentence investigation ordered by the Court, Petitioner was examined by two mental health professionals. (Id. at 22-23.) The first, Dr. Karen Chantry, observed symptoms that, in her view, suggested "a strong possibility of neurological impairment and/or a seizure disorder such as temporal lobe epilepsy." (Id. at 23.) She referred Petitioner to a psychologist specializing in neuropsychology to examine him for any neurological impairment. (Id.) That psychologist, Dr. Elizabeth Thompson, determined that Petitioner was deficient in "executive functioning," and further stated that "defects in executive functioning can cause a person to misjudge social situations and act irrationally and impulsively." (Id. at 24.) Dr. Thompson also explained that if the Petitioner were taken out of his "normal structure," "he will make poor decisions." (Id.) In offering these observations, Dr. Thompson acknowledged that she did not read any of the police reports related to the shooting and that she had no experience in forensic analysis of first degree or second degree murder cases. (Id. at 24-25.) She also admitted that Petitioner's normal structure appeared to be gang culture. (Id. at 25.)

  At sentencing, the trial court denied Petitioner's motion for a new trial, stating that the putative evidence of his neurological impairment would not have changed the court's findings or verdict on the first-degree murder and first-degree attempted murder charges. (Id. at 25.) The court sentenced Petitioner to thirty years on the first-degree murder conviction and eight years on the attempt conviction. (Id.) The court, after finding that Petitioner inflicted severe bodily injury on his murder victim, ordered the sentences to run consecutively pursuant to 720 ILCS 5/8-4(a).

  On direct appeal, Petitioner argued: (1) his convictions for first-degree murder and attempted first-degree murder should both be reduced from first to second degree because he met the criteria for "imperfect" self-defense; (2) he should receive credit against his sentence for his time in custody after he waived extradition from Puerto Rico; and (3) the imposition of consecutive sentences under 5/8-4(a) violated the constitutional requirements set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000). (D.E. 15, Ex. B at 1-2.) The appellate court agreed that Vera-Natal should receive credit for time in custody after he waived extradition, but rejected his two other claims. (Id. at 33.) The appellate court affirmed the trial court's factual findings that Petitioner did not believe in the need for self-defense so as to warrant the shootings, and the Petitioner could not have believe his response to Vinson's aggression was proportionate. (Id. at 27.) In fact, the Illinois Court of Appeals stated that "[w]e agree with the trial court that defendant did not believe in the need for self-defense when he confronted Vinson and the others at the Mobil station. Even if we were to assume that defendant could believe that Vinson became the initial aggressor in the encounter by throwing a plastic bottle at defendant, we could not conclude that defendant believed that his response to Vinson's aggression was proportionate." (Id.)*fn4 The appellate court also determined that the generic evidence concerning Vera-Natal's potential neurological defects did not explain or legally mitigate his response to the specific situation he encountered just before he shot the victims. (Id. at 30.) Finally, the court of appeals observed that the Illinois Supreme Court has ruled that the offense of attempted second-degree murder does not exist in Illinois. (Id. at 31.)

  The appellate court also rejected Petitioner's Apprendi challenge to his consecutive sentences. The appellate court noted that the Illinois Supreme Court decided People v. Carney, 752 N.E.2d 1137 (Ill. 2001), while Petitioner's appeal was pending; Carney squarely addressed and rejected a claim virtually identical to Petitioner's claim. (D.E. 15, Ex. B at 31.) Because decisions by the Illinois Supreme Court apply to all pending cases unless the opinion directs otherwise, the appellate court applied Carney to Petitioner's Apprendi claim and rejected the claim. (Id.) The appellate court also determined that Petitioner inflicted severe bodily injury on his attempted-murder victim within the meaning of Illinois law because Vinson missed several weeks of work due to his ankle injury and resultant surgery. (Id. at 32 (discussing Illinois statutory provisions and caselaw).)

  Petitioner filed a petition for leave to appeal with the Illinois Supreme Court that advanced the following claims: (1) the trial court denied him due process when it "misinterpreted" his affirmative defense; (2) the trial court erred when it applied the wrong burden of proof and failed to consider mitigating evidence; (3) the trial court abused its discretion when it determined that the evidence concerning his neurological disorder would not have changed the verdict; (4) the appellate court erred when it determined that Illinois does not recognize the crime of attempted second-degree murder; and (5) Apprendi invalidates the consecutive sentences imposed by the trial court. (Id., Ex. C.) The Illinois Supreme Court denied his petition on May 30, 2002. (Id., Ex. D.)

  Petitioner subsequently filed a post-conviction petition in the circuit court on June 10, 2002. (D.E. 15, Ex. E.) The post-conviction petition raised the following claims: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) his sentence was disproportionate to the crime and to the sentences of other defendants in unrelated cases; and (4) the trial court relied upon improper aggravating factors at sentencing. (Id.) On July 31, 2002, the circuit court issued a written order dismissing the petition as frivolous and patently without merit. (D.E. 15, Ex. F.) Petitioner appealed the circuit court's denial of post-conviction relief. (D.E. 14, Ex. G.) The only issue raised in his appeal was that the mandatory consecutive sentences were based on the "severe bodily injury" inflicted upon the murder victim Lopez, not Vinson, who was the victim of attempted murder. (Id. at 4.) This claim was based entirely upon state law and did not raise any federal constitutional issues. The appellate court affirmed the dismissal of Petitioner's post-conviction plea for relief, finding that even though the trial court's reasoning was in error (it had explained that consecutive sentences were appropriate because Petitioner inflicted "severe bodily injury" on his murder victim, and murder is not a qualifying offense for this enhancement (id. at 3-4), presumably because every murder victim suffers such an injury), the consecutive sentences were nonetheless proper and required under Illinois law. (Id.) In this regard, the Illinois Court of Appeals explained that
[D]espite the trial court's error, the consecutive sentences are not void. On the contrary, the consecutive sentences are still mandatory, as defendant did inflict severe bodily injury on Vinson [the attempted murder victim] during the commission of the attempted first-degree murder. [. . . .] Thus, although the trial court's stated justification was improper, its imposition of consecutive sentences was not only proper but required. Indeed, were we to grant defendant's request to make his sentences concurrent, our judgment would be void. See People v. Arna, 168 Ill. 2d 107, 113 (1995) (concurrent sentences are void when consecutive sentences are mandatory).
(Id. (underlining in original).)

  Petitioner filed a petition for leave to appeal his post-conviction denial of relief to the Illinois Supreme Court. Petitioner raised a single claim — that his consecutive sentences were void because the trial and appellate courts misconstrued state law. (D.E. 15, Ex. K.) While the caption claimed this was a violation of his rights under the Eighth and Fourteenth Amendments, the argument cited no federal cases or principles of law, nor did it explain why the concurrent sentences were cruel and unusual punishment. The Illinois Supreme Court denied his petition for leave to appeal on October 6, 2004. (D.E. 15, Ex. L.) On March ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.