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United States ex rel Cisneros v. McCann

May 11, 2010

UNITED STATES OF AMERICA EX REL. ALEJANDRO CISNEROS, PETITIONER,
v.
TERRY MCCANN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Joan H. Lefkow

OPINION AND ORDER

Alejandro Cisneros ("Cisneros"), who is currently incarcerated at Stateville Correctional Center in Joliet, Illinois, has filed a petition for writ of habeas corpus based on alleged violations of his Fifth, Sixth, and Fourteenth Amendment rights. Cisneros raises two issues: 1) whether he was denied effective assistance of counsel; and 2) whether the trial court improperly denied him the right to compulsory process and the opportunity to testify on his own behalf in violation of his Due Process rights. For the reasons stated below, Cisneros's petition for a writ of habeas corpus [#1] is denied.

BACKGROUND

The following is a brief summary of the facts taken primarily from the Illinois Appellate Court's opinion affirming the trial court's judgment. See People v. Cisneros, No. 1-04-0333, at 1-7 (Ill. App. Ct. Apr. 15, 2005) (unpublished opinion). On the night of October 31, 2001, Ivan Nunez and his wife Maria were at the Rendezvous Bar in Chicago. As they prepared to leave, Ivan was shot and later died at a hospital.

At trial in the Circuit Court of Cook County, two witnesses testified that Cisneros was present at the Rendezvous Bar at the time of the shooting. Cesar Sanchez, a disk jockey at the bar, testified that as he was leaving the bar that night, Cisneros was standing outside and inquired as to whether the victim were inside. Shortly after, Sanchez crossed the street and then heard the sound of gunshots. When Sanchez looked back, he saw Cisneros jump through the passenger window of a truck being driven by another individual and watched the truck drive away with Cisneros's legs hanging out the window. Rudolfo Cruz, a security guard at the bar, testified that he heard gunshots outside, at which point Nunez came into the bar. Cruz then saw Cisneros open the door and fire three shots at Nunez. Cruz also testified about a previous incident at the Rendezvous concerning Cisneros and Nunez. According to Cruz, Cisneros appeared at the Rendezvous bar "once or twice a month." Id. at 4. Two months before the shooting, Cruz asked Cisneros to leave because he was bothering Nunez's wife. This led to a fist fight between Cisneros and Cruz and resulted in Cisneros being banned from the bar for a few weeks.

Waitresses Lilliana Peña and Lourdis Gonzalez, were also present. Pena testified that she heard gunshots fired outside the bar and saw the victim enter the bar afterward. Similarly, Gonzalez testified that she heard one or two gunshots before the victim entered the bar saying, "I got hit." Id. at 5. Gonzalez also testified that she only heard gunshots fired outside the bar and did not see who fired the shots because the individual stayed outside. An officer at the scene, however, found one cartridge case in the bar's doorway and one on the sidewalk outside. Additionally, the officer found a fired bullet along the bar counter, which ran along the back wall opposite the doorway.

After the state's evidence had been presented, Cisneros's counsel told the court, for the first time, that they wished to establish an alibi defense with the testimony of Cisneros's mother, Josephine Cisneros. Although the prosecution did not object, the trial judge sua sponte barred Cisneros's mother from testifying to his alibi defense on the ground that the request was untimely. The trial judge stated that she would not permit a "trial by ambush," id. at 6, and as a sanction, the trial judge further denied Cisneros the opportunity to make an offer of proof.

Cisneros called Jose Morales to testify that he and Cisneros were at the Rendezvous Bar on the night of the shooting but Cisneros dropped him back at his house at about 1:15 a.m., approximately 45 minutes before the shooting. Morales did not know where the defendant was after that time. Additionally, Cisneros testified on his own behalf that he neither had a gun nor shot anyone on the night Ivan Nunez was shot and that he was home at the time of the shooting. The trial judge struck Cisneros' testimony that he was home at the time of the shooting, however, because it related to the alibi defense which it had already barred. A jury convicted Cisnerosof one count of first degree murder and one count of aggravated discharge of a firearm. He was sentenced to 48 years in prison for the murder conviction.

On direct appeal, Cisneros raised two issues: 1) whether there was sufficient evidence at trial to prove him guilty beyond a reasonable doubt; and 2) whether he received ineffective assistance of counsel because his attorneys failed to file a timely notice of his alibi defense and alibi witnesses and inadequately cross-examined state's witnesses. The Illinois Appellate Court affirmed the trial court's judgment. The court found that the "[o]verwhelming evidence demonstrated that a rational trier of fact could find that defendant fatally shot the victim." Id. at 14. Additionally, with regard to his claim of ineffective assistance of counsel, the court found that Cisneros "failed to demonstrate how his mother's testimony... would have changed the outcome of his case." Id. at 15. Furthermore, the appellate court found that Cisneros's counsel "thoroughly cross-examined the State's witnesses" and that "[t]rial counsels' decision on how to cross-examine the State's witnesses or whether to pursue a certain line of questioning was a matter of trial strategy." Id. at 16. The Illinois Supreme Court subsequently denied leave to appeal. People v. Cisneros, 844 N.E.2d 41, 41, 217 Ill. 2d 573, 300 Ill. Dec. 369 (2005).

Cisneros sought post-conviction relief in the Circuit Court of Cook County, raising four issues: 1) whether the trial court improperly denied Cisneros's rights to compulsory process and due process by barring him from calling an alibi witness; 2) whether Cisneros received ineffective assistance of counsel where his attorneys failed to timely file notice of an alibi; 3) whether the trial court improperly denied Cisneros the right to testify on his own behalf as to his whereabouts at the time of the murder; and 4) whether Cisneros received ineffective assistance of appellate counsel because they did not raise the issue of the trial court's refusal to allow Cisneros to testify on his own behalf. The Circuit Court of Cook County dismissed Cisneros's petition for post-conviction relief, ruling that his claims were patently frivolous and without merit.

On appeal of the post-conviction relief ruling, Cisneros also argued in his post-conviction proceedings that he was entitled to a judge different from the trial judge. The Illinois Appellate Court affirmed the trial court's decision, ruling that it was appropriate for the trial judge to preside over post-conviction proceedings. It further ruled that Ciseneros's request for post-conviction relief was foreclosed based on res judicata and forfeiture, People v. Cisneros, No. 01-06-2380, at 5, 6-7 (Ill. App. Ct. Dec. 6, 2007), both of which are encompassed within a determination that a claim is frivolous or patently without merit. See People v. Blair, 831 N.E.2d 604, 615-16, 215 Ill. 2d 427, 294 Ill. Dec. 654 (2005). The Supreme Court denied Cisneros' petition for leave to appeal this decision.

LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the court may not grant a petition for writ of habeas corpus unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is contrary to Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the] 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 result opposite to [the Court]." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed. 2d 389 (2000). An "unreasonable application" of federal law occurs "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. As long as the state court "applied the correct constitutional standard... [the court] must affirm unless convinced that the determination was unreasonable." Stanley v. Bartley, 465 F.3d 810, 813 (7th Cir. 2006) (citing Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed. 2d 334 (2005)).

Federal habeas review is not available in "cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule... unless the prisoner can demonstrate cause for the default and actual prejudice... or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed. 2d 640 (1991). "[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." ...


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