The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
An Illinois jury convicted Angel Navarro of first-degree murder. The trial judge sentenced him to a prison term of sixty years. Navarro has petitioned this Court pro se for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that his trial and appellate counsel rendered ineffective assistance, he was denied due process, the prosecution made improper comments during closing argument, and the trial judge considered improper factors when sentencing him. For the reasons stated below, the Court denies Navarro's petition and declines to issue a certificate of appealability.
Respondent has not provided the Court with trial transcripts in this case. See Simental v. Matrisciano, 363 F.3d 607, 612 (7th Cir. 2004) (district court need not review state court transcripts in resolving habeas petition and may rely on state court factual determinations). Navarro contends that the state appellate court opinions do not provide a complete record of the facts and provides his own factual summary with record citations, but he expressly states that the full transcript need not be filed. Accordingly, the Court's factual summary is taken from the state appellate court opinions, with reference to Navarro's factual summary where appropriate. Cossel v. Miller, 229 F.3d 649, 651 (7th Cir. 1999) (state court findings presumed correct unless rebutted with clear and convincing evidence).
Josue Guerra was shot and killed on April 6, 2004 at approximately 8 p.m. on the west side of Chicago. Police arrested Navarro for the shooting.
At trial, the prosecution presented the testimony of four primary witnesses. Artemio Magdaleno testified that he was with Guerra and a number of friends walking to a store. Before reaching the store, they encountered Navarro in a group with five or six other men. The two groups had a confrontational exchange, and then Magdaleno and his group proceeded into the store.
Magdaleno testified that after leaving the store he, Guerra, and their friends continued walking. Magdaleno heard a gunshot and ducked. He testified that he looked in the direction of the shot and saw Navarro firing a gun at him and his friends. Magdaleno said that even though it was somewhat dark, he was able to see Navarro in the light generated by the muzzle flashes of the gun. Magdaleno admitted that several of his friends were standing between him and the shooter and that those friends began running toward him as the shooter began. He stated, however, that they did not interfere with his view of the shooter. Magdaleno eventually ran to his house, which was close by, and he returned to the scene later to see Guerra being loaded into an ambulance.
Heber Garcia lived near the shooting and at the time was unloading his truck.
He heard a gunshot and turned and saw Navarro pointing a gun. Garcia then went with his wife into the vestibule of their building. Garcia heard two more gunshots and saw Navarro walking away. Garcia was able to see Navarro clearly and testified that he was wearing a white t-shirt and white pants. Garcia saw Navarro place a gun somewhere in his clothes. Garcia next saw police arrive on the scene and heard them yell at Navarro. Navarro began to run. On cross-examination, Garcia admitted that he had not seen Navarro fire the final two shots and that he was unable to see Navarro for about ten seconds between seeing him fire the first shot and seeing him walk away.
Carlos Colon testified that he lived in a nearby apartment building and was looking out the window at the time of the shooting. He stated that he heard a gunshot and saw Navarro holding a gun. Colon was close by and he stated that the area where Navarro stood was lit by at least two street lights. Colon stated that Navarro was wearing cream sweatpants and a white t-shirt and that he saw Navarro put a gun in the waistband of his pants. Colon also saw police arrive at the scene and Navarro begin to run from then. On cross-examination, Colon admitted that he wore glasses and had pleaded guilty to felony theft more than nine years before. Defense counsel also later called a police detective who stated that Colon had initially told him that he was not looking out the window at first and did not look until after he heard the first shot.
Police officer John Meer testified that he and his partner were on patrol in the area when they heard gunshots at approximately 8:08 p.m. and drove to the area from which they heard them. On reaching the scene, Meer saw Navarro running away while wearing a white t-shirt and white or beige sweatpants. Meer began to chase Navarro and during the chase saw Navarro pull a gun out of his pants. Meer was only about ten to twenty feet behind Navarro when Navarro turned down a gangway. Meer responded by running down a parallel gangway, losing sight of Navarro.
When Meer emerged from the gangway onto a street, he saw Navarro standing on the curb, but he was now wearing a black hooded sweatshirt. Meer testified on cross-examination that he had not seen Navarro holding a black sweatshirt before he disappeared down the gangway. Meer chased Navarro again and was able to catch and arrest him. Meer searched Navarro and recovered marijuana, but no gun.
Meer took Navarro back to the crime scene. There, police presented him to the three witnesses who all identified him as the shooter. During the show-up, Navarro stood outside a police vehicle, illuminated by either flashlights or floodlights, with his hands handcuffed behind his back. Both Garcia and Colon testified that Navarro was wearing a different darker shirt when police presented him at the show-up than he had worn during the shooting, but they testified that they still recognized him.
Navarro contends that police first had Garcia and Colon stand on opposite sides of a tree, presumably so they could not see each other, and indicate whether Navarro was the shooter. Only after both had identified Navarro as the shooter did Magdaleno come forward as a witness and also indicate that Navarro was the shooter. According to Navarro, police had no idea where Magdaleno was while Garcia and Colon identified him.
Police recovered a loaded handgun from a yard on the same block on which Meer arrested Navarro. Its caliber matched the caliber of three shell casings recovered at the scene of the shooting. Neither the gun nor the casings had fingerprints on them.
Police tested Navarro's hands and sweatpants for gunpowder residue but found none.
One witness recounted facts that suggested that Navarro had not shot Guerra. Luis Diaz testified that he was with Magdaleno and Guerra. Diaz stated that they got into an argument with a man known as Little Danny, that Little Danny was not Navarro, and that he had never seen Navarro before. Diaz saw the shooter, but could not identify him. He testified that the shooter was not Little Danny. According to Navarro, Diaz also testified that the shooter was wearing a dark sweatshirt and beige sweatpants.
Before trial, Navarro's attorney did not move to suppress the show-up identifications made by the witnesses at the scene of the shooting. At trial, during Meer's testimony defense counsel stipulated that Navarro was the man whom Meer had seen run away from the scene of the shooting. Navarro states that the trial judge instructed the jury to accept that stipulation.
In closing argument, defense counsel conceded that Navarro had run from Meer. He argued, however, that Navarro had only done so because he had marijuana and was trying to get away from the danger the shooting represented. Defense counsel emphasized that most witnesses had seen the shooter wearing a white t-shirt and that Navarro had been wearing a dark sweatshirt. Counsel also suggested that Meer saw Navarro holding a cell phone and not a gun, reminding the jury that Navarro's girlfriend had testified that Navarro had called her just before the time of the shooting. Defense counsel also questioned the ability of the witnesses to see the shooter and identify Navarro and argued that Colon should not be believed due to the fact that he had a felony conviction. Defense counsel asserted that the subsequent identifications that the witnesses had made of Navarro during the show-up were tainted by the suggestive nature of the show-up, because police presented only a single suspect who was handcuffed and spotlighted.
In its rebuttal closing argument, the prosecution emphasized that Navarro could have put on the dark sweatshirt in an attempt to deceive the police. The prosecution also stated that Navarro's counsel had conceded that he ran from Meer, and that because witnesses had seen the shooter run from Meer, Navarro must be the shooter. According to Navarro, the prosecution also criticized defense counsel's attempted impeachment of Colon, suggesting that the conviction was too old to be relevant, defense counsel had been trying to ...