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Bucaram v. Chandler

May 30, 2007

ELIAS BUCARAM PETITIONER,
v.
NEDRA CHANDLER, RESPONDENT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Elias Bucaram ("Bucaram") has brought a petition pursuant to 28 U.S.C. § 2254 (2006) for a writ of habeas corpus. At a bench trial in 2000 Bucaram was found guilty of aggravated kidnapping and indecent solicitation of a child. Bucaram received concurrent sentences of 15 years for the two convictions. Bucaram is currently in the custody of the State of Illinois Department of Corrections, and is incarcerated at the Dixon Correctional Center, where respondent Nedra Chandler ("Chandler") is the warden. For the following reasons, I deny Bucaram's petition.

I.

A. Evidence Presented at Trial

Rosita Villanueva ("Villanueva"), then seven years old, was the first witness to testify at Bucaram's trial. She testified in Spanish with the assistance of an interpreter. People v. Bucaram, No. 99 CR 11735, Report of Proceedings, at A-9 (July 18, 2000). She testified that on May 1, 1999, she was in Mozart Park in Chicago (the "park") looking for a friend when she noticed Bucaram running near her. See People v. Bucaram, No. 1-01-0165, slip op. at 1-2 (Ill. App. Ct. Oct. 31, 2002).*fn1 Villanueva testified that Bucaram asked her if she wanted to go to his house, but she said no. Id. at 2. Bucaram took her hand and did not let go of it as he took her to his house; Villanueva did not want to go but did because she was "scared."*fn2 Id. Once inside Bucaram's basement apartment, Villanueva began to cry and initially refused Bucaram's offer of a toy. Id. During the time that Villanueva was in his apartment, Bucaram, who spoke in Spanish, asked her if she wanted to "make love" to him,*fn3 told her that "little girls could also do it" and put a movie on that depicted "three women without any clothes on." Id. After Villanueva again asked to leave, Bucaram grabbed her hand, told her "not to tell her mother," asked Villanueva to "kiss him in the mouth" and gave her a toy. Id. Bucaram then let her leave to go to the park. Id. Villanueva testified that after she returned to the park and spoke with the police, she showed the police where Bucaram had taken her and she identified Bucaram as the man who had taken her. Id. at 3.

Tanya Velez ("Velez") also testified at Bucaram's trial. She testified that while she was at the park on May 1, 1999, a park employee told her to go get "a little girl," referring to Villanueva. Id. She saw Villanueva with Bucaram (whom she later identified in a lineup) and approached and told her that the park employee wanted to see her. Velez testified that at this time Bucaram said "no" and grabbed Villanueva's hand, not letting go. Id. Velez further testified that Villanueva looked scared. Id.

The park employee Velez referenced in her testimony, Jerry Flores ("Flores") also testified at Bucaram's trial that on the morning of May 1, 1999 he saw a "short Hispanic man" approach Villanueva and try to touch her, but that Villanueva appeared frightened and pulled away. Id. at 4. Flores was not able to leave his work location and asked Velez to find out if Villanueva was in trouble; he observed Velez have a short conversation with Villanueva and Bucaram. Id.

Detective Karen Salvi ("Salvi") testified that she worked on Villanueva's case, and that on May 1, 1999, she went to a hospital and spoke with other police officers, Villanueva, and Villanueva's doctor. Id. Villanueva then went to the park with Salvi, showed Salvi the route she took with Bucaram to his apartment, and identified the address where Bucaram had taken her. Id. Salvi testified that the next day she returned to that address, recovered a piece of clothing described by Velez as being worn by Bucaram that day, and noticed two large pieces of luggage. Id. at 4-5. She testified that she is aware that later that day Bucaram was arrested and that at the time of his arrest he had his passport and money with him. Salvi further testified that on May 3, 1999, Velez and Villanueva both viewed a lineup and identified Bucaram, and that Flores also viewed the lineup but did not make an identification. Id. at 5.

The final witness for the prosecution was a "Detective Gutierrez" ("Gutierrez") who testified that he acted as a Spanish translator for an interview Bucaram had with other police officers and an assistant state's attorney on May 3, 1999. Id. Gutierrez testified that during this interview, Bucaram stated that he was in the park on May 1, 1999, when he observed Villanueva by herself and asked her if she was sad. Id. at 6. Bucaram told Villanueva she could play with a toy he had in his apartment, and took her to the apartment and closed the door. Id. After Villanueva cried, Bucaram told her that she should not tell her mother what happened, and then gave her a toy; she then kissed him on the cheek. Id. Gutierrez, when asked what Bucaram said in the interview about Villanueva leaving his apartment, testified, "I believe at that time she might have been crying." People v. Bucaram, No. 99 CR 11735, Report of Proceedings, at A-85. When Bucaram heard that the police were looking for him, he left the area with his passport and money, intending to go to Ecuador and not return.*fn4 See People v. Bucaram, No. 1-01-0165, slip op. at 6. During the interview Bucaram denied showing "dirty movies" to Villanueva. Id.

Leroy Rhodes ("Rhodes"), who owned the house in which Bucaram rented the basement apartment, testified that for two months prior to May 1, 1999, Bucaram was preparing to move back to Ecuador. Id. at 7. Rhodes also testified that he did not recall that the television in the apartment had a VCR, and that the building had standard cable service without any "x-rated" channels. Id.

Bucaram also testified. He testified that he was in the park on May 1, 1999 when he saw Villanueva in the park and she told him she was sad because her friends were not there. Id. Bucaram offered to give Villanueva a toy, which she accepted, and he took her to his residence to give her the toy. Id. Bucaram testified that he did not "forcefully" take Villanueva to his home, but only held her hand at the end of the park and later when they crossed a street with a lot of traffic. Id. at 7-8. As they were leaving the park, Velez stopped them to tell them that a "black man" was looking for Villanueva. Id. at 7. Bucaram testified that Villanueva refused to go with Velez, saying that her parents did not allow her to "associate with black people." Id. Villanueva then told Bucaram that they should go to his house quickly because her mother would be mad if she went with him. Id. at 8.

Bucaram testified that he and Villanueva were only in his apartment for two minutes. Id. He testified that he went in the apartment alone first, and that she then asked him if she could come in, which he allowed. Id. He testified that he gave Villanueva the toy immediately after she entered the apartment. She then turned to walk toward the door, which he opened for her because it was tightly closed. Id. He testified that he showed her how to use the toy while they were outside in the yard, and that he asked her, "What do you say" and that she replied, "thank you." Id. Bucaram denied showing any videos to Villanueva, denied asking her to "make love" or to kiss him on the lips, but testified that he did turn on the television while Villanueva was in his apartment. Id. He also testified that after Villanueva told him "thank you" he patted her on the head and told her "that she was very lovely." People v. Bucaram, No. 99 CR 11735, Report of Proceedings, at A-116. As spelled by the court reporter, Bucaram testified that the words that he used were, "Aros tu amor." Id. After Bucaram and Villanueva left the apartment, he testified that he walked with her a short time. See People v. Bucaram, No. 1-01-0165, slip op. at 8. Bucaram admitted during cross-examination that he did not know Villanueava or her parents prior to May 1, 1999 and that when he asked Villanueva if she was alone in the park, she replied "yes." Id. at 8-9.

Following closing arguments, the court found Bucaram guilty of aggravated kidnapping and indecent solicitation of a child. Id. at 9.

B. State Appellate Procedural

History With the assistance of counsel, Bucaram appealed his conviction, contending that there was insufficient evidence to prove him guilty of the charges beyond a reasonable doubt because there was not sufficient evidence that he "secretly confined" Villanueva or had confined her for a significant period of time as necessary to support the kidnapping conviction, and there was not sufficient evidence that he showed her pornographic movies as necessary to support the indecent solicitation conviction since he offered unimpeached evidence that he had neither a VCR nor access to special cable channels, which impeached Villanueva's unsupported testimony that Bucaram showed her an inappropriate video and asked her to "make love." The appellate court rejected these arguments, finding that the element of "secret confinement" was met because Bucaram took her to a private residence, hidden from public view and from her parents. Id. at 10-11. In addition, the court concluded that even a kidnapping of a few minutes was sufficient to support a charge of kidnapping. Id. at 11-12. The court also found there was sufficient evidence to convict Bucaram of indecent solicitation because the trial court was free to credit Villanueva's testimony over the testimony of the defense witnesses. Id. at 13-14. Bucaram then filed a pro se petition for leave to appeal to the Illinois Supreme Court, raising this and the additional issue that the trial court failed to prove that he had kidnapped Villanueva against her will, and that his appellate counsel failed to properly present this issue on appeal. The Illinois Supreme Court denied his petition for leave to appeal. See People v. Bucaram, 202 Ill. 2d 676, 272 Ill. Dec. 360, 787 N.E.2d 175 (2003).

Bucaram subsequently filed a pro se post-conviction petition for relief with the trial court. His first set of arguments focus on the lack of evidence to support his conviction. In his petition he generally questioned the logic of his conviction, arguing that Villanueva's testimony did not make sense and suggesting that she had not been truthful. He further contended there was no physical evidence linking him to the crimes for which he was convicted. He also suggested that the prosecutor had knowingly allowed perjured testimony, arguing that Villanueva committed perjury because she was afraid of punishment. The trial court dismissed his petition, finding it frivolous and without merit under the doctrine of res judicata as Bucaram had already challenged the sufficiency of the evidence on direct appeal and lost. See People v. Bucaram, No. 99 CR 11735-01, slip op. at 3 (Cir. Ct. Cook Co. Sept. 30, 2003). The court did not address Bucaram's perjury argument.

Bucaram appealed this denial to the appellate court, this time with the assistance of counsel. On appeal he contended that the trial court erred in dismissing his post-conviction petition solely on res judicata grounds. Bucaram argued, relying on People v. McGhee, 337 Ill. App. 3d 992, 996-97, 272 Ill. Dec. 509, 511-12, 787 N.E.2d 324, 326-27 (Ill. App. Ct. 2003), that a post-conviction petition may not be summarily dismissed on the ground of res judicata or waiver. The appellate court affirmed the trial court, finding that McGhee and the other cases Bucaram cited in support of his petition were from other appellate divisions and were in conflict with the precedent of that court of appeals that a court may rely solely on res judicata to dismiss a post-conviction petition. See People v. Bucaram, No. 1-03-3530, slip op. at 2 (Ill. App. Ct. Dec. 23, 2004). Bucaram then filed a petition for leave to appeal to the Supreme Court on the same ground, contending ...


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