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United States ex rel Vega v. Hardy

August 27, 2010

UNITED STATES EX REL. JESUS VEGA, (#R21806), PETITIONER,
v.
MARCUS HARDY, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Petitioner Jesus Vega's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Vega's habeas petition. Further, the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

BACKGROUND

Vega does not present clear and convincing evidence challenging the statement of facts set forth in the last state court decision to address his arguments on the merits, which was the post-conviction Circuit Court of Cook County, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010). The Court therefore adopts the underlying facts as set forth by the Circuit Court of Cook County in denying Vega's post-conviction petition. See People v. Vega, 04 CR 03039 (Cook Cty. Cir. Ct. May 30, 2008) (unpublished).

I. Factual Background

On December 29, 2003, the victim, Jose Soto, was drinking with his cousin, Angel Navarro, at a bar on the southwest corner of Karlov and Armitage Streets in Chicago, Illinois. Around 10:30 p.m., Jose's wife, Rosalee Soto, went to the bar to bring Jose his telephone. When Rosalee arrived, Jose gave her his ATM card and asked her to get him some cash. Rosalee returned to the bar around 11:10 p.m. and called Jose to come outside and get the $40.00 she had retrieved for him. Thereafter, Rosalee rolled down the window of her car, handed Jose the cash, and told him not to stay out too late. As Jose turned to walk back to the bar, Vega shot him. Thereafter, Jose ran east and Vega fired four to five more shots. Jose then collapsed and was later pronounced dead at Illinois Masonic Hospital in Chicago, Illinois. Rosalee identified Vega as the shooter in a line-up after the shooting and testified at trial that she was face-to-face with him from a distance of about four feet.

II. Procedural Background

Following a 2005 jury trial in the Circuit Court of Cook County, the jury convicted Vega of first degree murder and the Circuit Court sentenced him to seventy-five years' imprisonment. See 720 ILCS 5/9-1(a)(1). On June 20, 2007, the Illinois Appellate Court allowed Vega's agreed motion for summary disposition granting him an extra day of credit for time that he served before his jury trial. Vega took no further action on direct appeal and did not file a petition for leave to appeal ("PLA") to the Supreme Court of Illinois.

On March 24, 2008, Vega filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. In his pro se post-conviction petition, Vega argued that: (1) he was not proven guilty beyond a reasonable doubt; (2) the indictment failed to adequately state the nature and elements of the charge against him; (3) his sentence should be modified to reward him good conduct credit; (4) his trial counsel was constitutionally ineffective for failing to object to the State's (a) improper impeachment of a hostile witness, (b) use of impermissible hearsay, (c) eliciting perjured testimony, and (d) prejudicial closing arguments; and (5) appellate counsel was constitutionally ineffective for failing to raise the above claims on direct appeal. The Circuit Court dismissed Vega's post-conviction petition as frivolous and patently without merit on May 30, 2008. See 725 ILCS/122-2.1(a)(2). The Circuit Court also ordered Vega to pay the filing fees and court costs associated with his filing of the post-conviction petition and ordered the Illinois Department of Corrections to deduct these fees from Vega's prisoner trust account.

Vega, by counsel, appealed the Circuit Court's dismissal, but he did not challenge the merits of the Circuit Court's decision dismissing his petition as frivolous and patently without merit. Instead, Vega's counsel argued that the Circuit Court erred in ordering him to pay the filing fees and costs from his prisoner trust account. Thereafter, Vega filed a motion for leave to file a pro se supplemental brief, but the Illinois Appellate Court denied his motion. On October 7, 2009, the Illinois Appellate Court affirmed the judgment of the Circuit Court, namely, that the filling fees and court costs should be deducted from Vega's prisoner trust account. On October 6, 2009, Vega filed a PLA to the Supreme Court of Illinois reasserting the same claims that he brought in his post-conviction petition. The Supreme Court of Illinois denied Vega's PLA on January 27, 2010.

III. Habeas Petition

On March 11, 2010, Vega signed the present pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). Construing his pro se allegations liberally, see McGee v. Bartow, 593 F.3d 556, 565-66 (7th Cir. 2010), Vega's habeas claims include: (1) he was not proven guilty beyond a reasonable doubt; (2) the indictment failed to adequately state the nature and elements of the charge against him; (3) his sentence should be modified to reward him dayfor-day good conduct credit; (4) his trial counsel was constitutionally ineffective for failing to object to the State's (a) improper impeachment of a hostile witness, (b) use of impermissible hearsay, (c) eliciting perjured testimony, and (d) prejudicial closing arguments; and (5) his appellate counsel was constitutionally ineffective for failing to raise the above claims on direct appeal.

LEGAL STANDARDS

I. Habeas ...


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