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United States of America Ex Rel. v. Rich Pillow

June 3, 2011

UNITED STATES OF AMERICA EX REL.
FLAVIANO DELAOLA, PETITIONER,
v.
RICH PILLOW, WARDEN, JACKSONVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Petitioner Flaviano Delaola, an inmate currently incarcerated at the Jacksonville Correctional Center in Jacksonville, Illinois, has filed an amended pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has also requested an evidentiary hearing on the claims raised in his amended petition, and appointment of counsel to assist him in that hearing. For the reasons below, the habeas petition and requests for an evidentiary hearing and for appointment of counsel are denied. The court declines to issue a certificate of appealability.

BACKGROUND

Petitioner and his co-defendant, Alex Cruzado, were tried in a joint trial in the Circuit Court of Cook County, Illinois, which ended in a mistrial when the jury could not decide on a verdict. See Rule 23 Order, People v. Delaola, Nos. 1-94-0154 and 1-94-0616, at 1 (Ill. App. Ct. Apr. 16, 1996). After a retrial, petitioner and Cruzado were convicted of first-degree murder, and petitioner was sentenced to forty-five years' imprisonment. The Illinois Appellate Court summarized the evidence presented at that trial as follows:

Ivan Amador and Ray Issa testified that in August 1990, they were members of the Latin Kings, a street gang that was part of a larger alliance called the "People," who were enemies of a separate coalition of street gangs called the "Folks," which included the Milwaukee Kings street gang.

On August 4, 1990, at about 1:45 a.m., Amador, Issa and John McIntyre left a party near Superior and Damen to eat. In an alley near a fast-food restaurant's parking lot, Cruzado and [petitioner] crossed their paths and walked ahead of them in the same direction. Issa testified that Cruzado and [petitioner] were six to ten feet in front of them when McIntyre said, "Look at them punks." Cruzado and [petitioner] turned around, and Cruzado pulled out a gun, saying "Folk love, Folks." Amador testified that he heard Cruzado say "What's up, Folks?" Cruzado started shooting. Amador hid behind a garbage can, and Issa ran. Amador saw both Cruzado and [petitioner] shooting; five or six shots were fired. McIntyre, also running, was shot and fell face first onto the pavement. Cruzado and [petitioner] then put their hoods on and ran towards Damen Avenue. Amador ran after them to see where they were going. When Amador returned to the parking lot, he turned McIntyre over and saw cuts on his face and a puddle of blood.

Rule 23 Order, People v. Delaola, Nos. 1-94-0154 and 1-94-0616, at 2-3 (Ill. App. Ct. Apr. 16, 1996). On August 22, 1990, Chicago police officers brought petitioner and Cruzado in for questioning about their possible involvement in the murder. Petitioner and Cruzado both gave written statements to the police in which they admitted shooting McIntyre. Id. at 3. They were subsequently charged with McIntyre's murder.

Prior to trial, petitioner and Cruzado filed motions to quash their arrests and to suppress the incriminating statements they had made to police, arguing that they were arrested without probable cause and that their statements were the product of police coercion. The trial court denied both motions, finding that petitioner and Cruzado were not arrested until after they had given the incriminating statements, and that their statements were not coerced.

During his case-in-chief, petitioner presented an alibi defense. Cruzado and Juan Renteria both testified that they were drinking beer in a park with petitioner on the night of the murder. Id. at 5. Renteria further testified that he was present at the police station when Cruzado and petitioner were questioned, and he heard screaming and banging against the walls. Id.

Petitioner also presented the prior sworn testimony of Nelson DeJesus, an eyewitness to the shooting, who had testified at the first trial and died before the retrial. DeJesus had testified that he witnessed the shooting and had briefly seen the shooters' faces, but was unable to identify Cruzado and petitioner in a lineup. Id. at 11-12. At the retrial, the prosecution objected (based on relevancy) to the portion of DeJesus's testimony stating that he had been unable to identify Cruzado and petitioner in a lineup. Id. at 11. The court excluded that portion of DeJesus's testimony. Id.

Petitioner appealed, raising seven claims relevant to the instant petition:

(A) The trial court deprived him of his right to confrontation by not allowing him to impeach Amador with his prior felony conviction;

(B) the trial court denied him his right to present a defense by not allowing him to question Amador and Issa about their gang affiliations;

(C) the trial court denied him his right to present a defense by not allowing him to present DeJesus's prior sworn testimony or present Public Defender Gallagher's testimony about the DeJesus lineup;

(D) the trial court denied him his right to present a defense by not allowing him to challenge Amador and Police Officer David Betz with prior inconsistent statements from the first trial, and refusing to instruct the jury on prior inconsistent statements;

(E) the trial court was biased against him, as evidenced by its improper comments, ridiculing Cruzado's counsel, and challenging the credibility of defense witnesses;

(F) trial counsel was ineffective for failing to object to hearsay testimony offered by Officer Betz; and

(G) trial counsel was ineffective for failing to object to rebuttal evidence in the form of testimony from two employees of the hospital where the victim's body was taken.

The Illinois Appellate Court affirmed petitioner's conviction, finding that although the trial court committed several errors, the errors were harmless in light of the "substantial" evidence of guilt, including petitioner's confession, "which detailed the facts of the crime and was corroborated by two eyewitnesses." Id. at 7-9, 11-12, 17-19, 20-22, 25-27, 35-36.

Petitioner filed a petition for leave to appeal ("PLA") in the Illinois Supreme Court, raising three claims relevant to the instant petition:

(A) the trial court violated his right to a fail trial by improperly challenging Renteria's credibility;

(B) the trial court denied him his right to present a defense by preventing him from presenting DeJesus's testimony from the first trial; and

(C) admission of Betz's hearsay evidence violated petitioner's right to confrontation. PLA, People v. Delaola, No. 81065. The court denied the PLA. Order Denying PLA, People v. Delaola, No. 81065 (Ill. Oct. 2, 1996).

In December 1996, petitioner filed a pro se petition for post-conviction relief, followed by a 2005 counseled supplemental petition, raising seven claims relevant to the instant petition:

(A) the trial court denied him a fair trial by ridiculing Cruzado's attorney when he objected to the prosecutor's cross-examination of Renteria, and challenging Renteria's credibility;

(B) the trial court denied him compulsory process and violated his right to present a defense by not admitting Nelson DeJesus's testimony from the first trial, or allowing ...


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