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United States of America Ex Rel. v. Marcus Hardy

February 22, 2012

UNITED STATES OF AMERICA EX REL.
OMAR GALVEZ, PETITIONER,
v.
MARCUS HARDY, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge:

MEMORANDUM OPINION

This case comes before the Court on the petition for a writ of habeas corpus filed by Petitioner Omar Galvez ("Galvez") pursuant to 28 U.S.C. § 2254. For the reasons stated below, the Court denies the petition and declines to issue a certificate of appealability.

BACKGROUND*fn1

Following a jury trial in the Circuit Court of Cook County, Illinois, Galvez was found guilty of first degree murder and sentenced to forty-six years of imprisonment.

Galvez is currently in the custody of Respondent Marcus Hardy ("Respondent"), the Warden at Stateville Correctional Center in Joliet, Illinois.

At trial, Anthony Muniz ("Muniz"), a member of the Maniac Latin Disciples gang, testified against Galvez. According to Muniz, on the night of September 28, 2000, he was with his brother Noel Torres ("Torres") and fellow gang members in the parking lot of a Chicago pizzeria. Muniz saw a blue car approaching, driven by rival Latin Lovers gang member Pedro Samano ("Samano"), also known as Pee Wee. Muniz alerted his friends when Samano stopped the car near the entrance to the parking lot. Muniz then saw Galvez, whom he recognized as a Latin Lovers gang member from the neighborhood, lean out of the passenger side window and fire four or five shots at Torres and the men standing near him. A bullet struck Torres in the head and killed him.

At the scene, Muniz told a Chicago police officer that the driver of the car and shooter were Latin Lovers gang members. Muniz identified the driver as an individual known as Pee Wee and described the shooter as a Hispanic individual from the neighborhood. At the police station, Muniz identified Samano from a book of photographs as the driver of the car. Muniz could not identify the shooter from the book of photographs, and Galvez's photo was not in the book. Another member of the Maniac Latin Disciples who was standing next to Torres when he was killed also identified Samano as the driver.

Approximately three years later, the police arrested Samano for an unrelated matter. Samano gave a false name to the police because he feared he would be charged for his role in Torres' death. After the police learned his true identity, Samano relayed his account of the crime and identified Galvez as the shooter from a photo array. Then, on October 15, 2003, Muniz also identified Galvez as the shooter in a photo array and a lineup.

Samano admitted at trial that he drove the blue car to the pizzeria with Galvez in the passenger seat but proclaimed no knowledge that Galvez planned to shoot anyone. Samano testified that he parked his car by the pizzeria, heard gunshots coming from the passenger side of the car, and then saw Galvez holding a black gun on his lap. Galvez urged Samano to drive away, and Samano complied. Samano parked the car two blocks away, where Samano and Galvez got out of the car and ran in different directions.

After a jury found Galvez guilty of first degree murder and for causing Torres' death by personally discharging a firearm, the Circuit Court of Cook County sentenced Galvez to a total of forty-six years of imprisonment. On appeal, Galvez raised issues concerning gang evidence that are not included in his habeas petition. The state appellate court affirmed the judgment and the Illinois Supreme Court denied Galvez's petition for leave to appeal.

On March 6, 2009, Galvez filed a pro se post-conviction petition in the Circuit Court of Cook County. Galvez contended, among other things, that: (1) police denied him his right to counsel during a pre-trial lineup; (2) trial counsel was ineffective for failing to object to Muniz's and Samano's identification of Galvez; and (3) appellate counsel was ineffective for failing to raise many issues, including trial counsel's failure to call alibi witnesses. The petition included affidavits from Alexander Galvez, Jimmy Cabanas, and Michael Cabanas (the "Alibi Witnesses"), which stated that they were with Galvez at a different Chicago restaurant at the time of the shooting. According to the affidavits, the Alibi Witnesses informed Galvez's trial attorney of their statements. The court dismissed the petition, finding it frivolous and patently without merit.

On appeal, Galvez's counsel filed a brief addressing only whether trial counsel was ineffective for failing to call the Alibi Witnesses. Galvez sought leave to file a pro se supplemental brief raising two additional issues: (1) whether trial counsel was ineffective for failing to object to the in-court identification testimony of Muniz and Samano and Samano's out-of-court declarations and identification of Galvez; and (2) whether Galvez was denied his right to counsel during a lineup. Without explanation, the state appellate court denied Galvez leave to file his pro se supplemental brief. On December 13, 2010, the state appellate court affirmed the circuit court's decision, holding that trial counsel was not ineffective for failing to call the Alibi Witnesses. Galvez's appellate counsel filed a petition for rehearing that was denied on January 5, 2011. Galvez subsequently sought leave to file a pro se petition for rehearing that the state appellate court denied, noting that a defendant represented by counsel has no authority to file pro se motions.

Galvez's counsel filed a petition for leave to appeal in the Illinois Supreme Court and Galvez sought leave to file a supplemental brief. On February 22, 2011, the Illinois Supreme Court returned the unfiled supplemental brief to Galvez, explaining that Galvez could not file a brief because he was represented by counsel. On March 30, 2011, the Illinois Supreme Court denied Galvez's petition for leave to appeal.

On October 4, 2011, Galvez filed a petition for a writ of habeas corpus with this Court ...


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