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United States of America Ex Rel. v. Marcus Hardy

September 30, 2011


The opinion of the court was delivered by: United States District Judge Elaine E. Bucklo


Petitioner Juan Caballero filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For all the reasons that follow, that petition is denied.


Petitioner's Trial and Sentencing*fn1

Petitioner's written statement*fn2 said that he, Luis Ruiz, Placido LaBoy, and Nelson Aviles were entering a restaurant called King Castle as Arthur Salcido, Michael Salcido and Frank Mussa were leaving. Michael Salcido approached Ruiz and asked if he knew where they could buy some marijuana. After Ruiz said no, Michael asked if he knew Juan Cortez. Petitioner, Ruiz, LaBoy and Aviles were members of the Latin Kings and they knew that Juan Cortez was a Latin Eagle, but they played along with Michael, letting him think that they were members of the same gang as Cortez. Michael bragged about his connections to the Latin Eagles and claimed to have driven the car during several "hits."

The three teenagers got into the front seat of their car, while petitioner, Ruiz, LaBoy and Aviles got in the back seat, and they drove to a nearby alley on the pretense of making a drug deal. Arthur and Frank were told to stay in the car while petitioner and the co-offenders walked down the alley with Michael. Once they were out of sight, they began to beat and kick Michael. When he was on the ground, they revealed they were Latin Kings. Petitioner and Aviles stayed with Michael while Ruiz and LaBoy returned to the car. They came back a few minutes later, with the car. LaBoy was driving, with Arthur and Frank still in the front seat. Ruiz was in the back seat. Petitioner, Aviles, and Michael got in the back seat and LaBoy drove to another alley. During this brief drive, the four conversed in Spanish and decided that they had to kill the three young men so that they could not be identified.

After they stopped, Ruiz handed petitioner a gun. Petitioner and LaBoy walked Michael and Frank down the alley and ordered them to lie facedown in a snowbank. Petitioner gave the gun to LaBoy and told him to stay there while he went back to the car to see what was happening. When he got there, he saw Aviles repeatedly stabbing Arthur, who was in the right front seat of the car. The medical examiner testified that Arthur had 18 neck wounds and eight chest wounds.

Ruiz told petitioner to "go get the other guy." Frank was led back to the car and told to close his eyes and get in the left front seat. LaBoy told petitioner to stab him, but petitioner stated that he had never stabbed anyone and would rather shoot him. LaBoy grabbed the knife from Aviles and began stabbing Frank. Petitioner stated, "I told him to slice his throat." The medical examiner testified that Frank died as a result of 21 stab wounds to the neck, jaw, chest and back. Petitioner then went back to where Michael was lying in the snow to watch him.

Finally, petitioner led Michael back to the car and told him to keep his eyes closed and get in the back seat. Michael opened his eyes and, when he saw the others, began to resist.

Petitioner took the knife from LaBoy, grabbed Michael by his hair, and slashed his throat. He continued to stab Michael until he got tired. Michael yelled, "I'm dead. I'm dead. Don't stab me." Petitioner stabbed him a few more times. LaBoy took the knife and stabbed him several more times, to make sure he was dead. The medical examiner testified that Michael had multiple stab wounds, including 24 to the face and neck, 5 to the chest and abdomen, and 3 to the back.

Petitioner said that Ruiz, LaBoy, and Aviles then took several pairs of socks from a suitcase they had found in the car, put the socks on their hands, and attempted to wipe off any fingerprints they might have left. The police recovered two bloody socks near the scene, which were admitted into evidence. In addition, one fingerprint matching Ruiz was found on an outside rear window of the car. As they walked away, LaBoy discarded the knife in a snowbank. The four went to LaBoy's house to clean up. Ruiz stated that he had to return the gun he had been carrying to the person from whom he borrowed it. The others got in a cab to go home.

The assistant state's attorney who questioned petitioner testified that he asked petitioner whether, if he had it to do over, he would do the same thing again. Petitioner replied, "[I]f it was a sure thing." The assistant State's Attorney said, "[T]here's no such thing as a sure thing. You got caught." Petitioner's response was, "a lot of Kings kill people without getting caught. . . . I'd kill Michael for sure, but I don't know about the other two."

Petitioner agreed to return to the scene with the detectives and to point out where the knife had been discarded. They did not recover the knife at that time. A knife was discovered in a snowbank several days later by a passerby, who turned it over to the police. It had minute bloodstains that were insufficient to type or identify.

After the jury found petitioner guilty, the sentencing stage began several days later. At the sentencing stage, the state introduced evidence of petitioner's prior conviction for unlawful use of a weapon in 1978, for which he received a sentence of probation. The jury also heard testimony that while in custody awaiting trial, defendant solicited another prisoner who was about to be released to put out a "hit" on the individual petitioner suspected of informing the police of his involvement in the murders. Petitioner was sentenced to death.

Three of the four killers -- petitioner, Ruiz and LaBoy -- were apprehended within days of the murders, but LaBoy was released after a preliminary hearing for lack of probable cause. Along with petitioner, Ruiz was also convicted and sentenced to death. The fourth, Nelson Aviles, fled to California, where he was eventually arrested in 1988. He agreed to plead guilty and to testify against LaBoy, in return for a sentence of 40 years' imprisonment. The State unsuccessfully sought the death penalty for LaBoy, who received three consecutive natural life sentences. While Ruiz originally received the death penalty, his sentence was overturned and he eventually received a 60-year sentence.


The procedural history of this case is quite long and complicated. Petitioner appealed his judgment of conviction directly to the state supreme court, raising eighteen claims. On March 23, 1984, the Illinois Supreme Court affirmed. Petitioner's petition for a writ of certiorari to the United States Supreme Court was denied on October 29, 1984.

Petitioner filed a state post-conviction petition in November 1985, an amended petition in March 1986, and a second amended petition in April 1986, which the trial court dismissed in 1986 without an evidentiary hearing. Petitioner appealed, raising five claims. With respect to petitioner's claim that his counsel was ineffective for failing to introduce the mitigating testimony of several potential witnesses solely because they were not categorically opposed to the death penalty, the Illinois Supreme Court remanded the case to the trial court to hold an evidentiary hearing. Following the remand, the trial court conducted an evidentiary hearing and denied the petition. Petitioner again appealed and raised the failure to call mitigation witnesses claim. The Illinois Supreme Court affirmed, concluding that petitioner could not show prejudice. Petitioner's petition for a writ of certiorari was denied by the United States Supreme Court on June 1, 1993.

On October 29, 1993, petitioner filed a second post-conviction petition, which was dismissed by the trial court on May 29, 1996. Petitioner appealed, raising two arguments:

(1) his sentence was unconstitutionally disparate compared with those of LaBoy and Aviles; and (2) the trial court should have "life-qualified" his jury pursuant to Morgan v. Illinois, 594 U.S. 719 (1992). The appellate court found that petitioner was entitled to an evidentiary hearing regarding his allegation that his sentence was unconstitutionally disparate from LaBoy, but that he had not made a sufficient showing regarding Aviles. The court also found that Morgan was not retroactively applicable to cases on collateral review.

The trial court held the evidentiary hearing and denied the petition. The trial court found that petitioner's death sentence was not unconstitutionally disparate from LaBoy's life sentence because: (1) petitioner was "as involved" as LaBoy and was an active and willing participant in the killings; and

(2) petitioner "was a ruthless killer who exhibited absolutely no remorse for his crime and, in fact, indicated that he would do it again if he could get away with it." Petitioner appealed, arguing that: (1) he was denied due process because the State made arguments regarding roles and relative culpability that was inconsistent with arguments made at LaBoy's sentencing hearing; and (2) his sentence was unconstitutionally disparate compared with that of LaBoy. Finding no due process violation and rejecting petitioner's disparate sentence argument, the appellate court affirmed.

On May 1, 2000, petitioner filed a third post-conviction petition, alleging a violation of his rights under Article 36 of the Vienna Convention on Consular Relations. The trial court denied the petition and petitioner appealed, arguing that:

(1) petitioner made a substantial showing of a violation of his rights under Article 36; and (2) the trial court erroneously determined that petitioner had procedurally defaulted his claim of ineffective assistance of counsel, and procedural default is not a bar to relief on an Article 36 claim.

On January 10, 2003, the Governor of Illinois, as part of a mass commutation, commuted petitioner's sentence to life imprisonment.

On September 30, 2004, the Illinois Appellate Court affirmed the denial of petitioner's third post-conviction petition. The court held that petitioner's Article 36 claim was procedurally defaulted, and petitioner failed to show cause and prejudice to excuse the default. The court rejected petitioner's ineffective assistance claim because it was insufficiently developed in violation of state court rules and was unsupported on the merits. On November 4, 2004, petitioner filed a petition for leave to appeal ("PLA") raising three claims: (1) the International Court of Justice's ("ICJ") rulings suggested that Vienna Convention Article 36 rights should not be subject to state procedural default rules; (2) the ICJ's rulings suggested that a petitioner should not have to show prejudice when alleging a violation of Article 36 rights; and (3) the appellate court should not have made a factual determination that petitioner's contention that he would have halted interrogation had he been informed of his Article 36 rights was not credible. On September 29, 2005, the Illinois Supreme Court denied the PLA.

On January 27, 2005, petitioner sought leave to file a fourth post-conviction petition, alleging that his life sentence was unconstitutionally disparate to Ruiz's 60-year sentence. On April 1, 2005, the trial court denied leave because petitioner did not attach transcripts from Ruiz's sentencing hearing, in contravention of state statutory requirements, and petitioner could not, in any event, satisfy the cause and prejudice test applicable to successive petitions. Petitioner appealed, arguing: (1) the trial court should have granted leave to file the successive petition; and (2) the trial court should not have faulted petitioner for failing to attach sentencing transcripts from Ruiz's hearing, because that case had not yet proceeded to appeal and the proceedings had not been transcribed. On June 8, 2007, the Illinois Appellate Court affirmed. On August 21, 2007, petitioner filed a pro se PLA, arguing: (1) the trial court should have granted leave to file a successive petition because petitioner's sentence was unconstitutionally disparate compared to a co-offender's; and (2) the trial and appellate courts erred in finding the petition frivolous and in concluding that the failure to attach transcripts constituted a failure to properly support the petition. On September 5, 2007, petitioner moved to withdraw his PLA. On September 11, 2007, the Illinois Supreme Court granted the motion to withdraw the PLA.

On March 29, 2005, petitioner filed his fifth post-conviction petition, claiming that police violated his Article 36 rights to consular notification and access, and that this claim first became viable when the ICJ issued its decision in Case ...

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