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Torres v. McCann

May 20, 2009

VICENTE TORRES, PETITIONER,
v.
TERRY MCCANN, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: George W. Lindberg Senior U.S. District Judge

Hon. George W. Lindberg

MEMORANDUM OPINION AND ORDER

Before the court is Vicente*fn1 Torres' ("Torres" or "petitioner") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Torres is an inmate at Stateville Correctional Center in Joliet, Illinois. For the reasons set forth below, the petition is denied.

I. Procedural History

On May 11, 2004, Torres entered a blind plea of guilty to two counts of first degree murder for the murder of his longtime girlfriend, Maria Rivera ("Ms. Rivera"). On November 15, 2004, the trial judge in Will County, Illinois, sentenced Torres to forty-five years imprisonment. Four months after his sentence was imposed, Torres filed a pro se petition under the Illinois Post-Conviction Hearing Act ("Act") 725 ILCS 5/122-1 et seq. The trial court denied the petition as frivolous and patently without merit. Torres appealed that dismissal, and a divided appellate court reversed and remanded the cause for further proceedings. The state filed a petition for leave to appeal to the Illinois Supreme Court, which was granted. On April 17, 2008, the Illinois Supreme Court issued a judgment and opinion, reversing the appellate court and affirming the judgment of the trial court that Torres' post-conviction petition was frivolous and patently without merit. See People v. Torres, 228 Ill.2d 382, 320 Ill.Dec. 874, 888 (2008).

On January 7, 2009, Torres, via appointed appellate counsel, filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The sole issue in the habeas petition is whether Torres' trial counsel rendered ineffective assistance of counsel when he failed to consult with Torres about filing a direct appeal of the forty-five year sentence.

II. Relevant Facts

The state court's summary of the relevant facts are presumed correct absent "clear and convincing" evidence to the contrary. Williams v. Bartow, 481 F.3d 492, 498 (7th Cir. 2007)(citing 28 U.S.C. § 2254(e)(1)). There is no objection to the state court's factual summary, therefore this Court adopts that summary. On August 9, 2003, Torres went to the Bolingbrook residence of his longtime girlfriend, Ms. Rivera, with the intent to kill her. Eight days prior, Rivera told Torres she was dating someone else and did not want to get back together with him. Torres and Ms. Rivera had dated for more than thirty years and had children together.

On August 9, 2003, Torres brought a gun to Rivera's residence, which he purchased the day before. Torres wrapped the gun in a pair of pants and carried it into the residence. He went downstairs to a room in the basement where Ms. Rivera was sleeping. Torres made some noise and woke Ms. Rivera. She asked Torres to quiet down because she was sleeping and Torres responded, "Fine, you can go to sleep forever." Torres had difficulty pulling the slide of the gun back, which allowed Ms. Rivera to briefly run up some stairs. As Ms. Rivera reached the top of the stairs, Torres fired the gun at her and killed her. An autopsy revealed that the bullet struck Ms. Rivera in the left temple and exited through her right eye.

After the shooting, Torres fled the residence in his vehicle. Witnesses followed Torres' vehicle and were able to provide police with his location. Police gave chase for several miles and eventually apprehended Torres on Interstate 55. The police searched Torres' vehicle and found a nine-millimeter handgun on the floorboard. The gun was in a "discharge slide back position with a magazine engaged" and forensic testing showed that the gun matched the spent cartridge recovered from the murder scene. Witnesses identified Torres as the individual they followed from the murder scene.

On April 30, 2004, Torres indicated to the trial court that he wanted to enter a blind plea of guilty to both counts of first degree murder. In response to the trial court's questioning, Torres answered that he was pleading guilty to both counts and he understood the nature of the charges against him and that he had a right to plead not guilty. Torres also agreed to the factual basis the state outlined for the guilty plea. The trial court explained to Torres that the charges carried "a mandatory minimum prison sentence . . . of 20 years, and that can go as high as 60 years." The trial court repeated "So the range is," when Torres interrupted the court and stated "they've already told me that." The trial court indicated that he wanted to make sure Torres understood the sentencing range and continued "so it's a minimum of 20 years in prison and a maximum of 60 years in prison." The trial court also explained that Torres would have to serve one hundred percent of his sentence and would not be eligible for early release. Torres agreed that he had fully discussed his decision to plead guilty with his counsel, that his counsel had explained the consequences of a guilty plea, and that he was satisfied with the services his counsel provided.

Then, Torres indicated that he was only pleading guilty because his attorneys told him that he had no defenses. The trial court stressed to Torres that no one could make him plead guilty and that the decision on how to plead was his alone. The trial court offered to set a trial date, if Torres wanted to go to trial. After that exchange, Torres indicated three more times that he wanted to plead guilty, but the trial court insisted on postponing the plea hearing so defendant could consult with his counsel and consider his options.

Eleven days later, on May 11, 2004, the trial court conducted a second change of plea hearing. At that hearing, the trial court again admonished Torres about his rights and Torres indicated that he wanted to enter a blind plea of guilty. The trial court explained to Torres that if it accepted the guilty plea, the court could sentence him to a minimum of twenty years and a maximum of sixty years in prison and that Torres would have to serve that entire sentence, with no possibility of probation or good-time credit. The trial court inquired as to whether Torres had any questions about the possible sentence and Torres said "no." At the October 29, 2004 sentencing hearing, the trial court heard witness testimony and argument from both sides. Members of the victim's family and the state requested the maximum sentence provided by law and defense counsel requested a sentence "closer to the minimum." The trial court took the arguments and sentencing recommendations under advisement.

On November 15, 2004, the trial court sentenced Torres to forty-five years imprisonment. Prior to imposing the sentence, the trial court noted that, given Torres' age, "pretty much any sentence [it] impose[s] is a life sentence." The trial court also noted that Torres' case was "probably one of the most premeditated first-degree murders [it had] come across" in twenty-eight years. After imposing the sentence, the ...


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