The opinion of the court was delivered by: Virginia M. Kendall, United States District Judge Northern District of Illinois
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner Aurelio Montano ("Montano"), a citizen of Mexico, was convicted by a jury in the Circuit Court of Kane County, Illinois of two counts each of first degree murder and concealment of a homicidal death in 1998. The circuit judge sentenced him to life in prison without parole for the two murders and to two concurrent terms of four years each for concealment of the homicidal deaths. Montano is currently housed in the Stateville Correctional Center in Joliet, Illinois. He now brings a petition for writ of habeas corpus alleging violations of his rights under Doyle v. Ohio, 426 U.S. 610 (1976) and the Vienna Convention and requesting an evidentiary hearing and thereafter either release from custody or a new trial. For the reasons stated below, Montano's petition is denied.
Montano and his nephew, Juan Barbosa ("Barbosa"), were charged with the murders of Claudia Ramos and Juan Medina, who were found slain in a drainage ditch on June 28, 1996.*fn1
Barbosa entered into a plea agreement with the State's Attorney's Office providing that Barbosa would be allowed to enter a guilty plea to one count of murder and receive a sentence of sixty years imprisonment in exchange for his truthful testimony. Montano proceeded to trial on all charges.
Investigator Mark Greene ("Greene") of the LaSalle County sheriff's department, who interviewed Montano after his arrest and after he had been given Miranda warnings, testified at the trial. Prior to the trial the circuit court granted the prosecutor's motion in limine asking that testimony pertaining to Montano's physical conduct during his interview with Greene, specifically that he turned away and put his head down when faced with accusations, be admitted into evidence. At trial, Greene testified that during the post-arrest interview he told Montano that he did not believe an explanation he gave as to how he came into possession of the victim's wallet, watch and rings. Montano responded that he "was not taking responsibility for anybody else." The prosecutor then asked Greene: "Did he react in any other way at that point in time?" Greene replied: "He dropped his head and didn't stay [sic] anything after that until he asked for his attorney."
Montano's defense attorney requested a sidebar immediately after this statement. He argued at sidebar that Greene's statement amounted to a Doyle violation - that is, Montano's post arrest silence and request for an attorney was used against him - but he did not believe that the statement was elicited by the question posed by the prosecutor. See, e.g., Doyle v. Ohio, 426 U.S. 610, 618-19 (1976) (arrested person's post arrest silence cannot be used to impeach his testimony at trial). The prosecutor suggested a curative instruction which the defense attorney refused. At the prosecutor's suggestion, the trial continued without prejudice to the defense's right to move for a mistrial.
When the trial resumed the prosecutor stated that he had no further questions for Greene. At the end of the trial day the defense moved for a mistrial. The circuit court heard and denied the motion the next morning, finding that although the comment was "arguably" a Doyle violation, the prosecutor did not intend to elicit it. The Court directed the prosecutor not to make any reference to the remark and offered to instruct the jury to disregard it. The defense declined the instruction and the prosecutor never referred to or made use of the remark during the remainder of the trial. The jury later found Montano guilty of all charges and the Judge sentenced him to life in prison without parole for the murders and to two concurrent terms of four years for the concealment of the homicidal deaths.
Montano appealed his convictions to the Appellate Court of Illinois arguing that Greene's testimony violated his due process rights because the prosecutor elicited testimony revealing that he refused to talk and had asked for an attorney. See People v. Montano, Nos. 2-99-0071 & 2-00-0524 cons. (Ill.App.Ct. 2000). The Appellate Court found that Greene's comment "constituted a Doyle violation" because it "could have created the inference that defendant was trying to shield himself from responsibility for the murders" but that the error was harmless in light of the extensive evidence of Montano's guilt presented during the course of the trial. The Court affirmed the convictions. Montano then filed a Petition for Leave to Appeal to the Illinois Supreme Court raising the same issue which was denied on November 29, 2000. See People v. Montano, 742 N.E.2d 332 (Ill. 2000).
On May 3, 2001, Montano filed a post-conviction petition in the Circuit Court of Kane County as provided for under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq, arguing that his right to due process had been violated because the state failed to advise him of his right to communicate with the Mexican consulate as guaranteed by Article 36 of the Vienna Convention. The circuit court held an evidentiary hearing and then denied Montano's petition. Montano appealed and the appellate court found that he waived the issue because he failed to raise it during pretrial proceedings, trial, post-trial motions and direct appeal and because the plain error doctrine did not apply to Vienna Convention violations. See People v. Montano, 848 N.E.2d 616, 619-20 (Ill.App.Ct. 2006). The appellate court also held that a new trial was not warranted in part because Montano was not prejudiced by any violation of the Vienna Convention. Id. at 622. Montano then filed a Petition for Leave to Appeal to the Illinois Supreme Court which petition was denied on September 27, 2006. See People v. Montano, 857 N.E.2d 680 (Ill. 2006). Montano thereafter filed this petition for writ of habeas corpus on March 5, 2007, arguing both that a harmful Doyle error occurred during his trial and that his rights under the Vienna Convention were violated. He requests a new trial. The State agrees that Montano has exhausted all of his state-court remedies and that his petition is timely.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief is only granted if the state court's decisions were contrary to or an unreasonable application of federal law as clearly established by the Supreme Court. See Williams v. Taylor, 529 U.S. 362, 402-03 (2000). 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 [the Supreme] 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 contrary result. Id. at 405. A state court's decision is an "unreasonable application" of Supreme court law if the state court identified the correctly identified controlling law but unreasonably applied it to the facts of the case at hand. Id. "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 Williams, 529 U.S. at 410 (an unreasonable application of federal law is different from an ...