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Cabrera v. Johnson

United States District Court, Seventh Circuit

June 7, 2013

YOLANDE JOHNSON, [1] Respondent.



Pro se petitioner William Cabrera is serving a 60-year sentence for murder, a 14-year sentence for burglary, a 14-year sentence for robbery, and two sentences of natural life for murder. He has petitioned this court for a writ of habeas corpus under 28 U.S.C. § 2254 in connection with his most recent murder conviction and sentence of natural life, which was based on the fatal beating of a Illinois Department of Corrections guard. For the following reasons, the petition is denied.


The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Cabrera neither contests them nor points to clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts, and begins by summarizing the relevant facts and this case's complex procedural posture. See People v. Cabrera , No. 3-95-148 (Ill.App.Ct. 1998) (unpublished order) (Dkt. 15-1) (direct appeal);[2] People v. Cabrera, 764 N.E.2d 532, 326 Ill.App.3d 555, 261 Ill.Dec. 917 (Ill.App.Ct. 2002) (first state post-conviction appeal); People v. Cabrera , No. 3-04-258 (Ill.App.Ct. Jul. 7, 2006) (unpublished order) (Dkt. 15-12) (second state post-conviction appeal); People v. Cabrera , No. 3-08-558 (Ill.App.Ct. 2010) (unpublished order) (Dkt. 15-16) (third state post-conviction appeal);[3] and portions of the 8, 000 page state court record provided by the respondent (Dkt. 15). The court finds that the respondent has provided relevant portions of the record and thus proceeds based on the materials before it. See Rule 5(c) of the Rules Governing Section 2254 Cases in the United States District Courts.

A. State Direct Proceedings

In 1989, Cabrera was incarcerated at the Stateville Correctional Center due to convictions for first-degree murder, burglary, and robbery. Cabrera v. Hinsley, 324 F.3d 527, 529 (7th Cir. 2003) (appellate order addressing Cabrera's petition for a writ of habeas corpus based on his three state court convictions). He was also serving a sentence of natural life for an unrelated murder conviction. Id. At trial, the State contended Cabrera was a high-ranking leader of the Latin Kings street gang and held the position of "nation enforcer." In that role, he was responsible for enforcing the laws of the Latin Kings nation.

While Cabrera was incarcerated at the Stateville Correctional Center, Officer Lawrence Kush was employed as a correctional officer there. Officer Kush had a reputation for being very thorough when conducting "shakedowns" of prisoners' cells to search for drugs, make-shift weapons, and money. On April 1, 1989, Officers Kush and Selmon searched the cell of inmates Gatto and Torres. The officers found homemade knives, cocaine, and written gang materials.

According to Officer Selmon, Gino Colon, one of the two highest ranked members of the Latin Kings street gang, was outside the cell door during the search. Colon believed that the shakedowns were interfering with the Latin Kings' drug business and stated that both officers would get what was coming to them. Colon thus ordered a "hit" on Officer Kush. The State presented evidence that Cabrera's position as a nation enforcer meant he was responsible for enforcing the hit. Cabrera ordered two lower-ranking gang members, fellow prisoners David Starks and Salvatore Giancana, to carry out the hit.

On the Thursday before July 1, 1989, Giancana visited the cell of inmate Vito Spiezio, who was affiliated with the Latin Kings. According to Spiezio, Giancana was upset about being ordered to execute a hit on an officer because Giancana had only nine months left to serve on his sentence. Spiezio said he would try to help Giancana.

After Cabrera learned that Spiezio knew generally that a hit had been planned, he told Spiezio to meet him at the prison barbershop the following morning. While at the barbershop, Spiezio spoke with Cabrera, Giancana, and Starks. Spiezio learned that the hit was directed at Officer Kush and that Colon was intent on executing the hit. According to Spiezio, he had further conversations with Cabrera about efforts by Giancana and Sparks to get out of doing the hit. Spiezio also testified that he spoke with other inmates, including Wilfredo Rosario, about the hit. On July 1, 1989, Cabrera told Spiezio that Colon was adamant about carrying out the hit that day. While Spiezio was walking to his cell after helping run a handball tournament, he saw Officer Kush. As the two men crossed paths walking in opposite directions, Spiezio saw Giancana and Starks approach. Spiezio thought a hit was being directed at him as he was not in good standing with the Latin Kings. He ducked as Giancana swung a pipe at Officer Kush and then left the scene.

Starks and Giancana, who were wearing prison jump suits, gloves, and stocking caps with cut-out holes, hit Officer Kush's head and body repeatedly with pipes. When other prisoners and prison officials discovered Officer Kush, he was vomiting and bleeding from his head. He was pronounced brain dead upon his arrival at the hospital. Prison officials recovered jump suits, gloves, stocking caps, pipes, and a radio from the prison grounds.

During cross-examination, Spiezio stated he benefitted from testifying as the State agreed to recommend probation in connection with a guilty plea for conspiracy to commit aggravated battery. Spiezio also testified that he did not recall telling an investigator that he went along with what he was told to say, had lied to the grand jury based on threats to release him into the prison's general population, and had told another inmate he was fabricating stories to cast suspicion on others.

Cabrera was convicted of first degree murder. After the jury directed the court not to impose the death penalty, Cabrera was sentenced to natural life imprisonment. Cabrera appealed with the assistance of counsel and contended his conviction was not supported by sufficient evidence because Spiezio's testimony was unreliable. The Illinois Appellate Court rejected Cabrera's sufficiency of the evidence argument and affirmed. Cabrera filed an unsuccessful petition for leave to appeal ("PLA") with the Illinois Supreme Court raising the same issue but did not file petition for a writ of certiorari with the United States Supreme Court.

B. State Post-Conviction Petition Proceedings

1. Cabrera's First Hearing (Due Process)

Cabrera filed a timely pro se post-conviction petition pursuant to 725 ILL. COMP. STAT. § 5/122-1. On March 10, 1999, he filed an amended petition with the assistance of counsel contending that (1) trial counsel was ineffective for failing to call inmates Starks and Rosario to testify at trial since Starks would have testified Cabrera was not involved in the hit and Rosario would have denied that he spoke with Spiezio about the hit and thus impeached Spiezio; and (2) his due process rights were violated because correctional officers threatened to bring federal drug charges against inmate Brian Nelson if he testified for the defense, causing Nelson to refuse to testify. The trial court rejected the ineffective assistance of counsel claim but ordered a hearing on the due process claim.

At the hearing, Nelson testified that Spiezio, not Cabrera, enforced the hit. Nelson also stated that he refused to testify for the defense at trial because Russell Nelson, a Department of Corrections investigator, threatened to charge him criminally. Russell Nelson testified and denied he threatened Brian Nelson. The trial court found that Brian Nelson's testimony was not credible and denied Cabrera's due process claim.

Cabrera appealed, arguing, (1) his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) intimidation directed at Brian Nelson prevented him from testifying and thus violated Cabrera's due process rights; and (3) trial counsel was ineffective for failing to call Starks and Rosario to testify for the defense. The Illinois Appellate Court affirmed the rejection of Cabrera's Apprendi and due process claims but remanded so the trial court could hold an evidentiary hearing to address whether trial counsel was ineffective for failing to call Starks and Rosario.

2. Cabrera's Second Hearing (Ineffective Assistance of Trial Counsel)

On November 25, 2003, the state trial court held a second evidentiary hearing to address Cabrera's ineffective assistance of trial counsel claim. The post-conviction court appointed public defender Gregory Reeder to represent Cabrera. Initially, Reeder advised the court that he intended to withdraw because he had been supervised by one of Cabrera's two trial attorneys (Roy Sabuco). Reeder never sought to withdraw, however.

Michelle Hansen, Cabrera's second trial attorney, testified that Starks and Rosario were on her witness list for trial. She could not interview Starks because he was a co-defendant and his attorney instructed him to refuse to speak with her. Hansen was able to interview Rosario and did not believe his testimony would be beneficial, explaining:

Aside from his criminal record and the fact that my conversation with him did not yield anything that I thought would be positive for Mr. Cabrera, it was just a matter of trial strategy that we decided that it would not benefit Mr. Cabrera if we called [Rosario] to testify.... [N]o matter what [Rosario] said, I didn't believe anything he said in that regard would be believeable because of the fact that Mr. Rosario had so much more rank with the organization ...

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