The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge
MEMORANDUM OPINION AND ORDER
Petitioner Oscar Martinez, by counsel, filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Martinez's petition.
Martinez does not present clear and convincing evidence challenging the statement of facts as set forth in the Illinois Appellate Court's opinion affirming the judgment of the Circuit Court of Cook County, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); see also Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). The Court, therefore, adopts the underlying facts as set forth by the Illinois Appellate Court, First District, in Martinez's direct appeal. See People v. Martinez, Nos. 1-02-2299 & 1-02-2300 (1st Dist. June 20, 2005) (unpublished order). The Court begins with a brief recounting of the facts as determined by the Illinois Appellate Court. See Easley v. Frey, 433 F.3d 969, 970 (7th Cir. 2006).
A. Roland Warlyn's Trial Testimony
The victim's father, Roland Warlyn, testified that he owned a building in Chicago where he had a catering business. Roland Warlyn fixed a portion of that building to be used as an apartment for the victim, Walter Warlyn. Walter Warlyn lived in the apartment and worked for his father's catering business. Roland Warlyn further testified that he knew that his son was a heroin user and a member of a street gang. On December 16, 1998, Roland Warlyn gave his son permission to borrow a white Ford catering van to go out for the evening. Roland Warlyn testified that his son did not show up for work the next day. Later that day, Roland Warlyn found out that his son had been killed.
B. Police Officer Finley's Trial Testimony
Chicago Police Officer D. Finley testified that on December 17, 1998, he was dispatched to Legion Park in Chicago to investigate a possible death. When Finley arrived at Legion Park, he saw Walter Warlyn lying face down. Finley could not feel Warlyn's pulse and consequently called an ambulance. Once Warlyn's body was turned over, Finley noticed severe trauma to Warlyn's face and head, as well as a bullet wound to his temple. Moreover, Finley noticed a large tattoo on Warlyn's abdomen and thought that the tattoo represented membership in the Imperial Gangsters street gang. Finley also found a set of Ford keys in Warlyn's pocket and saw a white Ford van parked 100 yards from Legion Park.
C. Police Officer Ricciardi's Trial Testimony
Chicago Police Officer Vito Ricciardi testified that he arrested Jill DeShon on an unrelated drug charge in February 1999. After the arrest, DeShon told Officer Ricciardi that she had information about Warlyn's murder. Based on this information, Officer Ricciardi began investigating Ian Bomkamp, Oscar Martinez, and Jeffrey Iniguez.
D. Jill DeShon's Trial Testimony
Jill DeShon testified that on the evening of December 16, 1998, she went to Legion Park with some friends. She further testified that Bomkamp, whom she knew as a ranking member of the Simon City Royals street gang, was with her at the park. DeShon testified that she left the park by herself to meet Bonnie Lopez at a nearby restaurant, and eventually brought Lopez back with her to Legion Park where Bomkamp remained. DeShon also testified that at some point after returning to the park, Martinez and Iniguez arrived and were accompanied by two men whom she did not know. Further, DeShon testified that Martinez was a ranking member of the Simon City Royals gang. The group stayed at the park -- drinking and smoking marijuana. DeShon testified that she did not drink, although she smoked some marijuana.
Thereafter, DeShon testified that they left the park in Martinez's car around 10 or 11 p.m. She further testified that they drove around for a while looking for drugs and eventually stopped at a social club. Although DeShon and Lopez were allowed to use the club's restroom, the doorman would not let the others inside the club. DeShon saw Warlyn at the door talking with Bomkamp, Martinez, Iniguez, and the two unknown men. Warlyn left the club with the group. DeShon got into Martinez's car with Martinez, Iniguez, Lopez, and the two unknown men. DeShon observed Bomkamp leave with Warlyn in the white van. While in the car, DeShon heard Iniguez say they were going to beat up Warlyn.
DeShon also testified that Warlyn and Bomkamp followed the others to Legion Park in the white van. Once at the park, Lopez and DeShon walked over to a bench and sat down. The rest of the group stood nearby. DeShon then saw Bomkamp, Martinez, Iniguez and the two unknown men hitting Warlyn with their fists while Warlyn yelled for them to stop. After Warlyn fell to the ground, the men began kicking him. Bomkamp then left the group and walked over to a fence at the park. Thereafter, Bomkamp returned with a gun and shot Warlyn. After hearing the gunshot, DeShon told Lopez to get up and the women walked over to Martinez's car and got inside. Martinez, Iniguez, and one of the other men got into the car with them. The other man stayed behind and fired more gunshots. DeShon saw Bomkamp go to the white van, but did not see what he did to the van. Bomkamp and the other man joined the rest of the group in Martinez's car and drove away. DeShon also testified that Iniguez, Lopez, and she were dropped off near her house. Iniguez told her not to say anything about what had happened at the park.
After Officer Ricciardi arrested DeShon on unrelated drug charges, DeShon called him a week later and told him about the murder. DeShon testified that she did not contact the police earlier because Iniguez had threatened her, but that after her arrest, her mother convinced her to contact the police. In addition, DeShon testified that the police did not offer her a deal in exchange for her testimony against Bomkamp, Martinez, and Iniguez. On cross-examination, DeShon admitted that she was a drug user and that she had been arrested for unlawful use of a weapon and possession of a controlled substance with intent to deliver. DeShon denied telling the police about the murder to get lenity on those charges.
E. Bonnie Lopez's Trial Testimony
Bonnie Lopez testified that she had known Bomkamp for several years and that Bomkamp was a ranking member of the Simon City Royals street gang. Lopez stated that on December 16, 1998, she was at a restaurant where she met Bomkamp and DeShon after which she went with them to Legion Park. Moreover, Lopez testified that Martinez and Iniguez met them at the park and that there were other unknown men at the park. Lopez stated that after about an hour she got inside Martinez's car with Bomkamp, Martinez, Iniguez, and DeShon. The group then went to a social club where they met Warlyn. Lopez and DeShon were allowed inside the club to use the restroom, but the men were not allowed to enter. After Lopez and DeShon returned from the restroom, the group left the social club. Lopez testified that she, Martinez, Iniguez, and DeShon got into Martinez's car and drove back to Legion Park. Lopez stated that she was intoxicated at the time and did not remember seeing Bomkamp or Warlyn at the park. Once they returned to Legion Park, Lopez rested on a park bench with DeShon after which she heard kicking and someone calling for help. She then heard a gunshot after which DeShon told her to get up. DeShon and Lopez then walked to Martinez's car. While walking, Lopez heard a couple more gunshots and then got into the car with DeShon and Martinez. Martinez drove them away from the park and warned them not to say anything about what had happened. Martinez dropped the women off near DeShon's house.
In addition, Lopez testified that she did not discuss the events of that night with DeShon and that it was not until February 1999 that the police came to her house to ask about Warlyn's murder. Last, Lopez testified that she did not contact the police herself because she was afraid of what might happen to her.
F. Oscar Montanez's Trial Testimony
At trial, Oscar Montanez testified that he was a member of the Imperial Gangsters street gang and knew Warlyn as a fellow gang member. Montanez testified that members of the Imperial Gangsters wear black and pink and get tattoos depicting the Imperial Gangster crown.
In the summer of 1998, Montanez and Warlyn were in a fight with members of the Simon City Royals. During the fight, Warlyn threw a can and injured one of the Simon City Royals. Montanez, however, testified that neither Bomkamp, Martinez, nor Iniguez were at this fight.
Montanez further testified that on December 16, 1998, he was at Bottoms Up Social Club when Warlyn walked in with a group of Simon City Royals. Montanez also testified that two women were with the group. In addition, Montanez stated that the club was inside Imperial Gangster territory and that he told Warlyn that the group could not enter the club. Warlyn told Montanez that it was "cool" and that he had grown up with the men in the group. Nevertheless, Montanez only allowed the women to come inside to use the restroom. Montanez also testified that he saw Warlyn get into a white van and drive away with the group.
G. Police Officer Rodriguez's Trial Testimony
Chicago Police Officer Joe Rodriguez testified that he had been a gangs crime specialist for 26 years and was assigned to investigate Warlyn's murder. Officer Rodriguez arrested Bomkamp, Martinez, and Iniguez in connection with his investigation and identified photographs of tattoos found on the defendants representing the Simon City Royals street gang. Officer Rodriguez also identified photographs of tattoos found on Warlyn's abdomen representing the Imperial Gangsters gang. He also testified that the two gangs were fighting in the latter part of 1998 and that Gabriel Flores, who was in custody on unrelated charges, told him this.
H. Forensic Pathologists' Trial Testimony
A Cook County forensic pathologist testified that he performed an autopsy on Warlyn. The pathologist stated that he saw several abrasions and bruises to Warlyn's face and body, as well as three gunshot wounds. Tests showed that Warlyn had consumed heroin, cocaine, and alcohol before he was killed. The pathologist believed that Warlyn's death was caused by the multiple gunshot wounds. Furthermore, a forensic scientist with the Illinois State Police analyzed a fingerprint and palm print lifted from Warlyn's white van and matched both prints to print identification cards made by Bomkamp.
II. Procedural Background
Following a 2001 jury trial in the Circuit Court of Cook County, the jury convicted Martinez, along with his co-defendants Bomkamp and Iniguez, of first degree murder and aggravated battery for the death of Warlyn. The Circuit Court sentenced Martinez to fifty years' incarceration for murder and a concurrent prison term of five years for aggravated battery. Martinez and Bomkamp appealed their convictions and sentences together, while Iniguez filed a separate appeal. (R. 14-1, Respondent's Rule 5 Exhibits, Ex. A.)
On direct appeal, Martinez and Bomkamp argued that (1) the indictments against them were defective, (2) they were denied a fair trial by the admission of irrelevant and prejudicial evidence of gang tattoos, (3) their right against self-incrimination was violated by photographic evidence of gang tattoos, (4) they were denied their right to confront witnesses, (5) the trial court did not properly instruct the jury, and (6) cumulative error deprived them of a fair trial. (Id.) On June 20, 2005, the Illinois Appellate Court, First District, affirmed the Circuit Court of Cook County. (Id., Ex. D.) Martinez filed a petition for rehearing that the Illinois Appellate Court denied on August 2, 2005. (Id., Ex. F.)
Martinez then filed a petition for leave to appeal ("PLA") in the Illinois Supreme Court arguing: (1) his Fifth Amendment right against self-incrimination was violated when the State photographed his gang tattoos and displayed the photographs to the jury in a testimonial or communicative manner; (2) the trial court erred in refusing to give the jury an accomplice instruction; (3) prejudicial gang-related evidence deprived him of a fair trial; (4) improper hearsay testimony -- purporting to support a gang-related motive -- deprived him of a fair trial; and (5) persistent limitations on the right to cross-examine denied him a fair trial. (Id., Ex, G.)
Martinez also filed a motion for leave to file an amended supplement to his PLA, which the Illinois Supreme Court granted on September 27, 2005. (Id., Ex. H.) In his supplement, Martinez argued that a conflict existed between two divisions of the First District Appellate Court because the Second Division concluded that the same gang evidence -- found to be properly admitted at trial against Martinez -- was improperly admitted against his co-defendant Iniguez, who appealed his conviction and sentence separately. (Id.) Martinez also raised the additional argument that Illinois Pattern Instruction (IPI) 3.15 was ambiguous and misleading under People v. Herron, 215 Ill.2d 167, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). On December 1, 2005, the Illinois Supreme Court denied Martinez's PLA. (Id., Ex. J.)
On October 13, 2005, Martinez filed a post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq., in the Circuit Court of Cook County arguing that his trial and appellate counsel were ineffective for failing to raise issues regarding IPI 3.15. (Id., Ex. K.) On September 28, 2006, the trial court denied Martinez's post-conviction petition. (Id., Ex. L.) Martinez then filed a notice of appeal with the Illinois Appellate Court on October 10, 2006. (Id., Ex M.) The appeal from that judgment of dismissal is still pending.
Martinez, who is represented by counsel, brings the following claims in his habeas petition: (1) his rights to due process and equal protection under the Fourteenth Amendment were violated when two divisions of the Illinois Appellate Court treated similarly situated defendants differently on review of the same evidence; (2) his Fifth Amendment right against self-incrimination was violated when the Circuit Court of Cook County allowed photographs of his tattoos into evidence; (3) the admission of prejudicial gang-related evidence violated his Sixth Amendment right to confrontation and deprived him of a fair trial in violation of due process of law as guaranteed by the Fourteenth Amendment; and (4) limitations to his right to cross-examine certain witnesses violated the confrontation clause of the Sixth Amendment and deprived him of a fair trial under the Fourteenth ...