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United States ex rel Garcia v. Acevado

March 4, 2009

UNITED STATES OF AMERICA, EX REL. TIRZO GARCIA, PETITIONER,
v.
GERARDO ACEVADO, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

On October 13, 2000, at the conclusion of a bench trial, Judge Vincent Gaughan of the Circuit Court of Cook County, Illinois found Petitioner Tirzo Garcia guilty of first-degree murder, armed violence, and aggravated battery. The court sentenced Garcia to thirty-nine years in prison, and his conviction was affirmed on appeal. After his post-conviction appeals were also denied by the state courts, Garcia filed a petition for writ of habeas corpus in this court.*fn1 Garcia's petition identifies five grounds for relief: the unreliability of the trial witnesses' testimony; ineffective assistance of trial counsel; violation of Petitioner's rights under the Vienna Convention; the prosecutor's use of perjured testimony; and prosecutorial misconduct for failing to act with integrity. For the reasons that follow, the court concludes that the petition must be dismissed.

FACTUAL BACKGROUND*fn2

On September 1, 1996, Owen Rodriguez was shot and killed in front of a house at 5310 South Artesian in Chicago, Illinois. Petitioner, a Mexican national, was identified as the shooter and was tried in October 2000 at a bench trial along with co-defendant Luis Sanchez. Jason Walker, a third co-defendant, was tried simultaneously in front of a jury. All three defendants were found guilty for their participation in the murder: Sanchez was convicted of first-degree murder, armed violence, and aggravated battery, and was sentenced to twenty-eight years in prison; Walker was convicted of first-degree murder on an accountability theory and sentenced to thirty-two years; Petitioner was convicted of first-degree murder, armed violence, and aggravated battery and sentenced to thirty-nine years in prison.

Much of Garcia's habeas petition focuses upon the credibility of the witnesses who testified against him. Such a challenge rarely prevails; where a petitioner challenges the sufficiency of the evidence, habeas corpus relief is appropriate only if no rational trier could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). The court nevertheless reviews the testimony here briefly: Baltazar Luna testified that he attended a family gathering at his home on September 1, 1996, and that he was drinking alcohol at the party. At some point, Luna left the party with his uncle, Owen Rodriguez, to get gas for Rodriguez's car. On the way, the car stalled, and the two pushed the car to the side of the street. Luna testified that Petitioner was standing on the corner and asked Luna what he and Rodriguez were doing in the neighborhood. While Luna and Petitioner exchanged profanities, Rodriguez telephoned his wife, Miriam Acevado. Acevado showed up and helped Luna and Rodriguez push the stalled car a couple of blocks to 5310 South Artesian. Petitioner apparently followed them there, and he and Luna began shoving each other. Luna ultimately punched Petitioner in the nose, knocking him down. Petitioner then got up and left. Luna testified that Petitioner was wearing a black hoodie with a white t-shirt and several gold chains.

Martha Ortiz, the victim's niece, testified at trial that she also attended the family gathering and also consumed alcohol. That night, she went to dinner at a restaurant, where Petitioner rang up her order. Ortiz recalled that he was wearing a black hoodie, a white shirt, khaki pants, and a gold chain with a square medallion bearing the inscription, "King of Kings." Around 10:30 p.m. that evening, Ortiz was sitting on the porch of her house at 5310 South Artesian with Luna, Acevado, Carmen Santiago (the victim's sister-in-law) and Mary Rios, a family friend. Ortiz testified that while seated in front of her house, she observed a car approach and saw its lights turn off; shortly thereafter, approximately twenty to twenty-five Hispanic males came towards Ortiz and the others with her. The five individuals who had been sitting on the porch ran inside, but soon afterwards, something was thrown through the window on the front door, prompting Ortiz, Luna, Santiago, and Rios to come back outside. Ortiz recognized Petitioner in the group and observed that he was wearing the same outfit he had been wearing at the restaurant.

An unidentified member of the group of Hispanic males shouted out, "Who hit my uncle?" Luna responded that he did, at which point the unidentified man hit Luna on the head and dragged him into the grass, where a number of the men proceeded to hit him. Although Ortiz had not identified Acevado as one of the persons who emerged from the house after the front window was broken, Ortiz testified that Acevado and Santiago tried to pull the men off of Luna while Rios and Ortiz herself remained on the porch steps. Rodriguez, who had been across the street locking up his car, came running over. Ortiz saw Defendant Walker pull out a gun, and saw Rodriguez struggle with Walker for the gun, which discharged into the air. While this was going on, Ortiz saw a man, dressed in the same clothing Garcia had been wearing earlier, walk around the parked cars towards the struggle between Rodriguez and Walker. Ortiz could not see the man's face because his hood was drawn up, but she saw him pull a gun from his waistband and shout, "I got him. I got him. Move." Ortiz recalled that the man at first pointed the gun towards the ground, but then brought it up towards Rodriguez. As Ortiz turned to go inside the house and call the police, she heard a gun discharge and immediately turned around again in time to see Rodriguez fall to the ground. Ortiz heard other shots coming from a parked station wagon, but she could not identify the shooter. The people assembled on the lawn then ran away from the house.

Carmen Santiago also testified for the prosecution. Santiago, too, stated that she had been at the family gathering, but testified that she had not been drinking. She testified that she stepped outside when she heard the window break, and saw Petitioner at the end of the porch wearing a black hoodie, a gold square medallion, white shirt, and beige pants. Santiago tried to keep the other men from beating Luna. She observed Garcia coming around the car with something shiny in his hands; although she could not make out his face because his hood was drawn up, she recognized him because his medallion and white shirt were still visible. She heard him say, "I got it. I got it," then heard a shot, and saw "fire coming out of the-blue coming out of the gun." Santiago testified that she was about four or five steps from Petitioner when the gun discharged and that she saw Rodriguez collapse to the ground.

Acevado, the victim's wife, also testified. She stated that she came to help Rodriguez and Luna with the stalled car a little after 9:30 p.m. on September 1, and saw Luna arguing with a short Hispanic male. She urged her nephew, Luna, "Please let's get out of here" and then helped push the stalled car back to the house on Artesian. She then saw the same short Hispanic male waiting for Luna at the corner. She watched the man get into another shoving match with Luna, ending when Luna punched him in the face. Acevado testified that soon afterwards, she was inside the house with other family members when they heard a window shatter. She and the other family members went outside to investigate and saw a group of fifteen to twenty men coming towards the house. The men pulled Luna to the grass and began beating him; Acevado testified that she tried to stop them but was unable to do so and fell backwards into a car. She then saw a short Hispanic man wearing a black hoodie, a white shirt, and light pants run around the station wagon shouting, "I got him. I got him." Acevado recognized this man as the same person she had seen earlier arguing with Luna. As Rodriguez approached the man and Luna, the man turned around and shot Rodriguez.

Mary Rios, the family friend who was sitting with other witnesses on the porch that evening, testified as well. Rios reported that she was outside the house with Luna and Ortiz when she saw approximately twenty to twenty-five men approach the house. Rios recalled standing on top of the stairs with Ortiz while Luna was being beaten. Rios saw a man wearing a black hoodie, dark yellow pants, a white t-shirt, and a chain with a medallion come around a car and walk towards Luna, saying, "I got him. I got him." Rios could not see the man's face because his hood was covering his head. She did see that he at first pointed the gun at Luna, but then turned and pointed it at Rodriguez. As Rios turned to go into the house, she heard a gun shot and turned around to see smoke coming from the man's gun. Rios was about fifteen feet from the shooter when the gun went off.

Finally, Detective Joe Stehlik testified about Petitioner's interrogation. The interview took place on the evening of September 14, 1996, after Petitioner was picked up based on his suspected involvement in the murder. (R. at I70, Ex. M to Ans.) Stehlik stated that he read Petitioner his Miranda rights and that Petitioner opted to answer the questions asked by Stehlik and by Assistant State's Attorney Tamara Loury. According to Stehlik, Petitioner told him that he "did not like" the way Luna was looking at him; that Luna struck him in the face; that Petitioner decided to go get some friends and come back to beat up Luna; that Petitioner went back to his mother's restaurant, where he worked, to retrieve a .38-caliber revolver that he claimed was inoperative; and that the Petitioner gave the gun to one of his friends and told him to bury it. The report Stehlik prepared following the interrogation makes no mention of these statements by Petitioner.

Towards the end of the week-long trial, Petitioner's counsel announced:

Judge, the defense would rest subject to representation to the court that I have talked to my client Tirzo Garcia and indicated to him that he has the option of testifying in this cause or not. I told him only he can make that decision and it was his alone. No one can take that decision away from him. It is my understanding that Tirzo Garcia chooses to remain silent.

(R. at I111:12-19, Ex. M to Ans.) Garcia did not speak up at this point, nor did the judge ask any ...


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