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United States of America Ex Rel. v. Joseph Yurkovich

December 13, 2010

UNITED STATES OF AMERICA EX REL. ESTEBAN RUIZ, PETITIONER,
v.
JOSEPH YURKOVICH, WARDEN, PALLMEYER
JACKSONVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R.

MEMORANDUM OPINION AND ORDER

In 2005, following a jury trial, Petitioner Esteban Ruiz was convicted of reckless homicide and sentenced to a 10-year term of imprisonment. He now seeks relief from his conviction pursuant to 28 U.S.C. § 2254, raising three claims: (1) he contends that the Illinois reckless homicide statute violates the Equal Protection Clause of the Fourteenth Amendment because there is no rational basis for differences between that statute and the Illinois driving under the influence ("DUI") statute; (2) Petitioner urges that he was denied the trial counsel of his choice in violation of the Sixth Amendment; and (3) he argues that the Illinois reckless homicide statute violates the Due Process Clause by creating a mandatory presumption of guilt. (Pet. for Writ of Habeas Corpus at 5-6.) For the reasons set forth below, Ruiz's petition for habeas corpus relief is denied.

BACKGROUND

Factual Background

On federal habeas review, the state court's factual findings are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Clear and convincing evidence is that which shows a fact to be "highly probable." United States v. Boos, 329 F.3d 907, 911 (7th Cir. 2003). Petitioner provides no evidence to rebut the Illinois courts' findings. Accordingly, this court adopts the factual account set forth in the opinion of the Illinois Appellate Court on direct appeal. People v. Ruiz, No. 1-05-2883 at 1 (1st Dist. Ill. App. Mar. 30, 2007) (Rule 23 Order, Ex. A to Resp's Answer.)

On August 29, 2002, Petitioner crashed his van into the side of a car carrying six individuals. (Id. at 2.) One of the individuals, a two-year old girl, died as a result of the collision. (Id.) The State charged Petitioner with three counts of reckless homicide and six counts of driving under the influence of alcohol. (Id.) At trial, the State nolle prossed all charges, with the exception of one count of reckless homicide. (Id.)

Petitioner was initially represented by the public defender, but at some point, he retained attorney Irving Federman, who entered an appearance on Petitioner's behalf. (Ruiz, No. 1-05-2883 at 2; Trial Tr. at C32.)*fn1 Thereafter, Petitioner fired Federman and retained attorney R. Schelly to represent him. (Ruiz, No. 1-05-2883 at 2; Trial Tr. at C46.)*fn2 Trial was set to begin on January 14, 2004, but Petitioner fired Schelly and, on a date not stated in the record, attorney Raymond L. Prusak entered an appearance for the Petitioner. (Ruiz, No. 1-05-2883 at 2., Id.; Trial Tr. at C61.) On September 20, 2004, Petitioner's case was again set for trial, but Petitioner again fired his attorney and two new attorneys, Gus Santana and David Sotomayor, entered appearances for him, necessitating a further continuance of the trial date. (Ruiz, No. 1-05-2883 at 3; Trial Tr. at C111, C112.) At some point, Attorney Mercedes Jaile entered an additional appearance for Petitioner, as well. (Ruiz, No. 1-05-2883 at 2; Trial Tr. at C69.)

On February 1, 2005, Petitioner's case finally proceeded to trial. (Id.) That morning, however, the trial judge advised Petitioner that, according to Attorney Sotomayor, Attorney Santana would not be present at the trial due to family emergency. (Id.) (Why Sotomayor did not provide this information to Petitioner directly is not explained in the record.) The court announced that the trial would nevertheless go forward as scheduled, as both Sotomayor and Jaile were ready to proceed. (Id.) In response, Petitioner stated, "I don't know. Well, if they-you say that it has to go to trial, fine, but I would like my other attorney here." (Id.) The court noted that Attorney Santana had not contacted the court or returned calls from the court or the State's Attorney's Office, and Petitioner admitted that he himself had not spoken with Santana "in a long time." (Id.) The court gave Sotomayor an opportunity to call Santana, but after an off-the-record discussion, jury selection began. (Id. at 4.) There is no indication whether Sotomayor actually reached Santana by phone, but Santana played no role in the trial and there is no record of any request for a further continuance so that Santana could participate.

At trial, Raul DeLeon testified that on August 29, 2002, around 3:00 p.m., Petitioner, DeLeon, and two friends drank beer in an alley outside a garage near 5100 South Talman Avenue. (Id.) DeLeon estimated that Petitioner consumed seven beers. (Id.) Then, around 5:00 pm, Petitioner entered his van, which was parked in the alley behind South Talman, and quickly proceeded to crash into a post located in the alley. (Id.) After hitting the post, Petitioner drove away. (Id. at 4-5.) Three witnesses-Lugenia Stepp and Carlotta Cathey, two neighbors who were talking together in front of their homes on Washtenaw Avenue, and Cassandra Muhammad, who was driving behind Petitioner's van-all testified that Petitioner drove down the street at approximately 45 to 50 miles per hour. (Id. at 6-7.) Cathey testified that she observed Petitioner raising a can to his mouth while driving. (Id.) Finally, Stepp, Cathey, and Muhammad confirmed that as Petitioner approached the stop sign at the intersection of Washtenaw Avenue and Marquette Road, he did not attempt to use his brakes, slow down, or even look both ways. (Id.) Rather, Petitioner drove straight through the stop sign and crashed into a car. (Id.)

Petitioner also took the stand at trial. He conceded that he was driving fast initially, but asserted that he did so in order to get away from some sort of gang altercation. (Id. at 14.) He claimed that two gang members shot him with "something" and that he drove away quickly and hit the pole "because they were going to continue bothering [him]." (Id.) Despite these fears, Petitioner claimed he approached the stop sign at the intersection of Washtenaw Avenue and Marquette Road at a speed of no more than 20 miles per hour. (Id. at 15.) Petitioner also insisted that, contrary to the testimony of Stepp, Cathey, and Muhammad, he did in fact slow down before entering the intersection, but never saw the car coming before he crashed into it. (Id. at 15-16.) He admitted that he did not come to a complete stop but explained that he was scared and "didn't have any feelings [in] [his] arm or [his] hand." (Id.) Dan Goedert, a nurse who later treated Petitioner, testified that although he did not appear to have suffered a gunshot wound, Petitioner did have a laceration on his arm. (Id. at 11.)

Officer Joseph Walsh and his partner were the first police officers at the scene of the crash. (Id. at 7.) Officer Walsh approached Petitioner, still seated in the driver's seat, and immediately detected the odor of alcohol on Petitioner's breath. (Id. at 7-8.) Because the crash had jammed the driver side door, Petitioner was forced to exit via the passenger side door; as he did so, two empty Budweiser cans fell to the ground. (Id.) Petitioner stumbled upon exiting the van and leaned on the side of the van for support as he walked to the rear of the vehicle, apparently at the officer's direction. (Id.) Walsh observed that Petitioner's eyes were glassy and bloodshot, that his speech was slurred, and that he leaned back against the van for support. (Id.)A paramedic who responded to the crash, Boguslaw Talaga, testified and confirmed Walsh's conclusion that Petitioner was intoxicated. (Id. at 9.)

Finally, Officer Richard Barber, who arrived on the scene after the other police and medical providers, testified that the ambulance in which Petitioner was being treated smelled strongly of alcohol, and that Petitioner's speech was slurred and mumbled. (Id. at 10.) Barber remained at the crash site to conduct an investigation of the crash scene, during which he collected a total of five beer cans from inside and outside the van. (Id.)Barber concluded that Petitioner was under the influence of alcohol, based upon Barber's personal and professional experience, and his observations that Petitioner (1) had the smell of alcohol on his breath, (2) had slurred/mumbled speech, (3) had bloodshot eyes, (4) had beer cans in his van, (5) admitted to drinking, and (6) failed to stop at a clearly marked stop sign. (Id. at 11.) After completing his on-scene investigations, Barber drove to Holy Cross Hospital, where the ambulance had taken Petitioner to receive treatment. (Id. at 10.) Barber conferred with Dan Goedert, the nurse, and requested that Goedert obtain blood and urine samples from the Petitioner. (Id. at 11.)

Before Goedert took the samples, he read the hospital's standard consent form to Petitioner, and Goedert, Petitioner, and Barber all signed the form. (Id.) After he obtained consent, Goedert drew blood and took a urine sample from Petitioner using a standard Chicago Police Department kit provided by Barber. (Id.) According to Goedert, the procedure involved placing a tourniquet on Petitioner's left arm, cleansing the extraction area with an iodine preparation that did not contain alcohol, inserting a needle, drawing blood into vials through a vacuum, applying a dressing, and then removing the tourniquet. (Id. at 12.) Goedert testified that this method of blood extraction is generally accepted in the medical community and that he had employed this method many, many times before. (Id.)

While Petitioner was in the emergency room, he continued to receive intravenous saline and an intravenous antibiotic, neither of which contained any alcohol. (Id.) Petitioner also received a tetanus shot. (Id.) The injection site for the tetanus shot was cleaned with isopropyl alcohol, but Goedert explained that isopropyl alcohol differs from the ethanol alcohol found in alcoholic beverages, and that isopropyl alcohol is not usually ingested. (Id.) The doctor who examined Petitioner, Dr. Eggebeen, did not testify at trial, but both parties stipulated as to his testimony: Dr. Eggebeen noted that Petitioner exhibited "acute alcohol ...


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