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Lucio v. United States

August 14, 2009

ABEL LUCIO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: James F. Holderman Chief Judge, United States District Court

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, Chief Judge

Abel Lucio ("Lucio") has petitioned the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that Lucio's trial counsel and appellate counsel were both constitutionally ineffective and the State presented insufficient evidence to convict Lucio on one count of armed robbery. For the reasons set forth below, Lucio's § 2254 petition is denied.

BACKGROUND

Lucio does not contest the following facts, which are set forth in further detail in People v. Lucio, No. 1-03-1437, slip op. at 1-4 (Ill. App. Ct. 1st Dist. Dec. 8, 2004) (Dkt. No. 14, Gov't Ex. D):

In the early morning hours of August 5, 2001, three men broke into the home of Carmen Marquez ("Marquez"). At home with Marquez were her two children, her cousin Macario Lopez ("Lopez"), and her brother Juan Rodriguez ("Rodriguez"). One of the intruders, later identified by Marquez as Lucio, proceeded to demand money at gunpoint from Marquez. Marquez complied and provided him with $500 in cash, as well as some jewelry. The same intruder also took some compact discs and a cellular phone from the home.

Later that same morning Marquez reported the crime to police officer Al Wilcox, who took descriptions from Marquez and one of her daughters. These descriptions were used to create computer generated composite sketches of the three men who broke into the home. On August 7, 2001, Marquez and Lopez each picked Lucio out of a six man photo array prepared by Officer Wilcox.Rodriguez viewed a similar array of photos, but identified a man other than Lucio. Lucio was arrested on August 7, 2001 and charged with three counts each of home invasion, armed robbery, residential burglary, and aggravated unlawful restraint, as well as one count of armed violence.

At trial, Lucio pleaded not guilty to all charges. During his testimony, Lucio emphasized that Marquez and her husband, Plimio Estefania ("Estefania"), were previously acquainted with Lucio. Lucio testified that he had purchased drugs from Estefania on approximately eight occasions, three of which were witnessed by Marquez.

On July 1, 2002, Lucio was convicted on all counts. After merging certain counts, the trial judge imposed a 20-year sentence on Lucio for the home invasion conviction. The court also imposed three 15-year sentences for armed robbery with a firearm, each to run concurrently with the sentence for home invasion, and a 15-year enhancement to the home invasion conviction pursuant to 720 Ill. Comp. Stat. 5/12-11(c), because Lucio was armed with a handgun at the time of the offense.

PROCEDURAL HISTORY

Lucio challenged his sentences on direct appeal. In relevant part, the appellate court found the 15-year enhancement for home invasion with a handgun to be unconstitutional and reversed one of the armed robbery convictions because there was insufficient evidence that Lucio had actually taken property from Rodriguez. The Supreme Court of Illinois denied Lucio's petition for leave to appeal, but directed the appellate court to reconsider its decision to vacate the 15-year enhancement in light of People v. Herron, 830 N.E.2d 467 (Ill. 2005). People v. Lucio, 834 N.E.2d 908, 908 (Ill. 2005). On remand, the appellate court reinstated the 15-year enhancement. People v. Lucio, No. 1-03-1437, slip. op. at 14 (Ill. App. Ct. 1st Dist. Jan. 8, 2006) (Dkt. No. 14, Gov't Ex. H.)

Concurrent with the appellate court proceedings, Lucio filed a pro se post-conviction petition in the Circuit Court of Cook County.Lucio asserted in this petition that his trial counsel was ineffective during plea negotiations for two reasons: 1) failing to inform Lucio that the 15-year enhancement for home invasion with a handgun would raise Lucio's sentencing range from 6-30 years to 21-45 years; and 2) failing to tell Lucio that Rodriguez and Estefania would not testify at Lucio's trial. The Circuit Court of Cook County summarily dismissed this petition, finding it was patently without merit. People v. Lucio, No. 1-04-2386, slip. op. at 3 (Ill. App. Ct. 1st Dist. July 27, 2007) (Dkt. No. 14, Gov't Ex. N) (tracing the procedural history of Lucio's claims before ruling on appeal). Lucioargued to the appellate court that his ineffective assistance of counsel claim should not have been dismissed because it raised the "gist of a meritorious constitutional claim." Id. The appellate court considered Lucio's argument and affirmed the summary dismissal. Id. at 11. The Supreme Court of Illinois denied Lucio's petition for leave to appeal in People v. Lucio, No. 105181 (Ill. 2007). (See Dkt. No. 14, Gov't Ex. P.)

Lucio timely filed the instant petition for habeas corpus relief pursuant to 28 U.S.C. ยง 2254 on October 27, 2008. Lucio claims his trial counsel was ineffective for three reasons: 1) failing to advise Lucio during plea negotiations that the 15-year enhancement would raise the sentencing range for a conviction for home invasion with a handgun; 2) failing to tell Lucio during plea negotiations that Rodriguez and Estefania would not testify at trial; and 3) failing to call Rodriguez and Estefania as witnesses at trial. Lucio also claims his appellate counsel was ineffective for not bringing trial counsel's failure to call Rodriguez and Estefania as ...


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