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United States ex rel Herrera v. Chandler

November 29, 2007

UNITED STATES EX REL. FELIPE HERRERA (#K-57122), PETITIONER,
v.
NEDRA CHANDLER, WARDEN, DIXON CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Felipe Herrera's petition for a writ of habeas corpus. See 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Herrera's petition.

BACKGROUND

Herrera 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). Therefore, the Court adopts the underlying facts as set forth by the Illinois Appellate Court, First Judicial District. See People v. Herrera, No. 1-97-3254 (Ill.App.Ct. 2004) (unpublished). The Court begins with a brief summary of the facts as determined by the Illinois Appellate Court on direct appeal. See Easley v. Frey, 433 F.3d 969, 970 (7th Cir. 2006).

I. Factual Background

Herrera and his co-defendant, George Gipson, were involved in a gang-related drive-by shooting on January 14, 1990. Gipson pleaded guilty to first degree murder and the judge sentenced him to 20 years' imprisonment. The State presented Gipson as an adverse witness at Herrera's bench trial. At trial, however, Gipson maintained that he had no recollection of the shooting incident. The State then introduced Gipson's court-reported statement for impeachment and cross-examination purposes. Gipson's statement revealed that Herrera, Gipson, and another gang member drove with a gun to a rival gang's location because Herrera was angry that a rival gang member had damaged his car. One shot was fired and Gipson stated that he could not remember if he fired the shot because he was intoxicated.

Other trial evidence reveals that Herrera was accompanied by two fellow gang members when he sought revenge on a rival gang whose member had thrown a brick through his car window. Herrera and the other gang members drove to the rival gang's territory and fatally shot the victim, Pedro Caceres. At trial, Herrera acknowledged that he was present at the crime scene. In his sworn statement, Herrera acknowledged that he "decided to get a pistol and go back to the place where they busted my window."

II. Procedural Background

Following a bench trial in the Circuit Court of Cook County, the trial court convicted Herrera of first degree murder and sentenced him to 30 years' imprisonment. (Ex. A.) The judgment of conviction was entered against Herrera on June 30, 1997. (Ex. C.) Herrera filed a timely notice of appeal, but the Illinois Appellate Court dismissed his appeal on June 20, 2000, for want of prosecution. (Exs. A, B.) On July 30, 2003, the Supreme Court of Illinois issued a supervisory order reinstating Herrera's direct appeal. (Ex. A.)

Counsel was appointed to represent Herrera for his reinstated appeal. (Id.) Appointed counsel filed a motion for leave to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Herrera responded to counsel's Anders motion raising the following claims: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) trial counsel was ineffective for advising him to waive his right to a jury trial and for failing to pursue plea negotiations, file pretrial motions, impeach the State's witnesses, and argue Herrera's motion for a new trial; (3) appellate counsel was ineffective for moving to withdraw instead of arguing that the trial court erred when it admitted Herrera's co-defendant's statement into evidence; and (4) the trial court abused its discretion at sentencing. (Id.) On March 31, 2004, the Illinois Appellate Court granted appointed counsel's Anders motion for leave to withdraw and affirmed Herrera's conviction. (Id.)

Thereafter, Herrera filed a petition for leave to appeal ("PLA") to the Supreme Court of Illinois. (Ex. D.) In his PLA, Herrera argued that (1) appointed appellate counsel's motion to withdraw failed to comply with certain procedural rules; (2) he was denied due process because he did not have the opportunity to file a pro se direct appeal or appellate counsel reappointed; (3) trial and appellate counsel were constitutionally ineffective; and (4) the State did not prove him guilty beyond a reasonable doubt. (Id.) On October 6, 2004, the Supreme Court of Illinois denied Herrera's PLA. (Ex. E.)

On March 8, 2005, Herrera filed a pro se post-conviction petition in the Circuit Court of Cook County pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. (Ex. C, F.) In his post-conviction petition, Herrera argued that: (1) mandatory supervised release under Illinois law is unconstitutional, and thus that portion of his sentence must be vacated; (2) his conviction based on the theory of accountability was unconstitutional; and (3) he was denied effective assistance of appellate counsel. (Id.) On April 29, 2005, the Circuit Court of Cook County dismissed Herrera's post-conviction petition. (Ex. G.) On appeal, Herrera, by counsel, filed a legal memorandum to the Illinois Appellate Court arguing that the trial court erred in summarily dismissing Herrera's post-conviction petition that alleged ineffective assistance of appellate counsel because counsel failed to challenge Herrera's conviction based on the theory of accountability. (Ex. G.) On September 27, 2006, the Illinois Appellate Court affirmed the trial court's dismissal of Herrera's post-conviction petition. (Ex. I.)

Herrera then filed a PLA to the Supreme Court of Illinois arguing: (1) that he had clearly stated a "gist" of a valid constitutional claim warranting further post-conviction proceedings based on his ineffective assistance of appellate counsel claim; and (2) his conviction for accountability was in error because there was no principal offender proven guilty beyond a reasonable doubt. (Id.) On January 24, 2007, the Supreme Court of Illinois denied Herrera's post-conviction PLA. (Ex. K.)

On July 25, 2007, Herrera filed the present petition for habeas relief pursuant to 28 U.S.C. § 2254(d)(1). Construing his pro se habeas petition liberally, see Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006), Herrera sets forth the following claims: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) his trial counsel provided constitutionally ineffective assistance of counsel; (3) his appellate counsel provided constitutionally ineffective assistance of counsel; and (4) his sentence is unconstitutional. (R. 1-1.)

LEGAL STANDARDS

I. Habeas Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief cannot be granted unless the state court's decision was contrary to, or an unreasonable application of federal law clearly established by the Supreme Court. Raygoza v. Hulick, 474 F.3d 958, 963 (7th Cir. 2007); see also Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Williams, the Supreme Court explained that a state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Id. at 405.

Under the "unreasonable application" prong of the AEDPA standard, a habeas petitioner must demonstrate that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. Id. at 407. "This reasonableness determination is quite deferential, such that a state decision may stand as long as it is objectively reasonable, even if the reviewing court determines it to be substantively incorrect." Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir. 2005); see also Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005) (state court decision must be objectively unreasonable). To be considered "unreasonable," a state court's decision must lie "well outside the boundaries of permissible differences of opinion." Gilbert v. Merchant, 488 F.3d 780, 790 (7th Cir. 2007) (quoting Hardaway v. ...


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