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United States ex rel Changyaleket v. McCann

December 8, 2008

UNITED STATES EX REL. ARTIT CHANGYALEKET, (#R-13362), PETITIONER,
v.
TERRY MCCANN, WARDEN, STATEVILLE 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 Petitioner Artit Changyaleket's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Changyaleket's habeas petition.*fn1

BACKGROUND

Changyaleket does not present clear and convincing evidence challenging the statement of facts set forth in the Illinois Appellate Court's opinions affirming the judgments 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 Virsnieks v. Smith, 521 F.3d 707, 714 (7th Cir. 2008). The Court thus adopts the underlying facts as set forth by the Illinois Appellate Court in People v. Changyaleket, No. 1-02-2112 (Ill.App.Ct. Oct. 29, 2003) (unpublished); People v. Changyaleket, 1-06-0056 (Ill.App.Ct. Jan. 31, 2007) (unpublished). The Court begins with a recounting of the facts as determined by the Illinois Appellate Court. See Easley v. Frey, 433 F.3d 969, 970 (7th Cir. 2006).

I. Factual Background

Petitioner Artit Changyaleket ("Changyaleket") was a dealer of the controlled substance ecstacy. On November 10, 2000, Changyaleket's apartment that he shared with his co-defendant Quang Nguyen ("Nguyen") and another individual was burglarized. After the burglary, about 200 ecstacy pills and approximately $6,000 in cash were missing. Changyaleket suspected that "Mikey" was responsible for the burglary because Mikey owed Changyaleket some money and was supposed to meet Changyaleket that night, but failed to show up. Also, Mikey knew where Changyaleket kept his drugs and money because Mikey had walked in on Changyaleket and Nguyen while they were conducting a drug sale.

Changyaleket and his friends then attempted to locate Mikey. Nguyen called a friend who lived in Elgin, Illinois and found out that Mikey was there. When Changyaleket, Nguyen, and others arrived at the friend's house in Elgin, Mikey was there, along with two other individuals Steve Lu ("Lu") and Vu Hoang ("Hoang"). About ten minutes after arriving, Changyaleket suggested that they get something to eat. Lu, Hoang, Nguyen, and Changyaleket went in Nguyen's car and after driving for a few minutes, Changyaleket pulled a gun and asked Lu and Hoang about the burglary. Lu and Hoang insisted that they did not know anything about the burglary. Changyaleket then told them that he was going to take them to a cornfield.

At trial, Lu testified that they pulled up to a cornfield after which Changyaleket put a gun to Hoang's head. Lu further testified that he could see that Hoang's hands were down by his side. Moreover, Lu testified that he and Hoang were trying to remain calm when all of a sudden Lu heard a boom. He then saw Hoang take a gasp of air and slump down on the window. Blood was coming out of Hoang's head. Nguyen then began pulling Hoang's body out of the car while Changyaleket pushed Hoang out. After dumping the body in the cornfield, they drove off.

Lu testified that thereafter Nguyen drove to a store and Nguyen, Changyaleket, and Lu went inside to buy paper towels and Lysol. Lu testified that he did not run away because he feared for his life. On the way back to their friend's house in Elgin, Changyaleket cleaned the back seat. When they got back, Lu got out of the car to go home when Changyaleket asked him for his identification and cell phone number. Changyaleket then threatened to kill Lu and his family.

At trial, Nguyen testified that while he was driving, Changyaleket was waiving a gun back and forth and pointing it at Lu and Hoang demanding that they tell him what happened to his drugs and money. Nguyen further testified that Changyaleket told him to drive to a cornfield. Meanwhile, Changyaleket told Lu and Hoang that they better tell him about the burglary or one of them was going to die. In addition, Nguyen testified that he drove the car about fifty feet into a cornfield and stopped. Changyaleket then pointed the gun at Lu and told him that because he knew him, he would not kill him, but because he did not know Hoang, he would have no problem killing him if they did not tell him what he wanted to hear. Nguyen further testified that Changyaleket then pointed the gun at Hoang's head and said that they had until he counted to three to tell him about the burglary or Hoang would die. Again, Lu and Hoang tried to explain that they knew nothing about the burglary. Also, Lu and Hoang said they would do anything Changyaleket wanted and would help him find the drugs and money. Changyaleket then said "too late" and shot Hoang in the head.

Nguyen also testified that Changyaleket instructed him to pull Hoang out of the car, after which he pulled Hoang about fifteen to twenty feet into the cornfield. When Nguyen returned to the car, Changyaleket told him to stop at a store to get paper towels to clean the car. During the drive, Changyaleket told Lu that he had ten days to find Changyaleket's "stuff" or he would kill Lu and his family. Meanwhile, Nguyen testified that he did not see Hoang make any movement before the gun went off and that there was not a struggle before Changyaleket fired the gun.

Changyaleket also testified at trial. Specifically, Changyaleket testified to essentially the same set of facts except that he did not threaten Lu or Hoang. Changyaleket further testified that he did not voluntarily pull the trigger of the gun, but that it felt like someone hit is his arm and the gun went off. Also, Changyaleket testified that he stayed in various hotels after the shooting, dyed his hair, and fled the jurisdiction for a substantial period of time after the shooting in an effort to evade the police.

II. Procedural Background

After a bench trial in the Circuit Court of Cook County, the trial judge convicted Changyaleket of first degree murder and concealment of a homicidal death and sentenced him to concurrent terms of forty-five years' and five years' imprisonment. (R. 12-1, Resp.'s Rule 5 Exs., Ex. E ). On direct appeal, Changyaleket challenged the sufficiency of the evidence on both counts and argued that the trial court should have dismissed the indictment because a police detective testified falsely before the grand jury. (Ex. A, C.) After the Illinois Appellate Court affirmed his convictions on October 29, 2003, Changyaleket filed a petition for leave to appeal ("PLA") to the Supreme Court of Illinois arguing that the false grand jury testimony required the dismissal of the indictment as ...


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