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Velez v. Atchison

United States District Court, Seventh Circuit

August 30, 2013

VICTOR VELEZ, Petitioner,
v.
MICHAEL P. ATCHISON, Warden, Respondent.

MEMORANDUM OPINION AND ORDER

JOHN J. THARP, Jr., District Judge.

Before the Court is Petitioner Victor Velez's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the following reasons, the Court denies Velez's petition and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

I. Background

A. Facts[1]

On December 29, 2003, Velez accompanied a fellow gang member, Jesus Vega, to a bar in order to retrieve money from Jose Soto, another fellow gang member. Sometime en route, Vega told Velez that he intended to shoot Soto if he did not have the money, and Vega showed Velez that he was carrying a handgun. Subsequently, Vega gave Velez a cell phone and told him to act as a lookout and to alert him if the police arrived.

At trial, Soto's wife testified about the events of that night. She stated that she drove to the bar to give Soto something, but then she left to retrieve money from an ATM. She returned to the bar and waited in her car while Soto came out to pick up the money. After Soto got the money, he began to walk back to the bar. Soto's wife then saw Vega approach Soto and shoot him from approximately four feet away. Soto tried to run for safety, but Vega followed him and fired his gun at Soto four or five more times. Soto's wife, fearing that Vega would turn his gun on her, drove away from the scene. She eventually found Soto and attempted to take him to the hospital, but on the way they were involved in a car accident. The police and an ambulance thereafter transported Soto to the hospital where he later died from his gunshot wounds.

The next day, the police questioned Vega's distant cousin about the shooting. She lived approximately one block from the bar where the shooting took place, and she told the police, and later testified at trial, that on the night of the shooting Velez and Vega came to her home to request a dark, hooded sweatshirt. About fifteen minutes after they left with the sweatshirt, she heard gunshots. She also told the police that Velez called her shortly after she had heard the gunshots, and she was able to accurately identify Velez from a photograph. At that point, the police considered Velez to be a person of interest in the shooting.

Several days later, on January 9, 2004, Velez was brought into the police station, and police detectives John Day and Thomas Kolman began to question him. According to Day's testimony, Velez was not under arrest at that time; he was not wearing handcuffs, had not been photographed, and had not been fingerprinted when detectives entered the unlocked interview room to see him. Velez nonetheless claims that he was placed under arrest prior to coming to the police station, and that he remained under arrest the entire time he was there. The Illinois Appellate Court found that "[t]he record demonstrates, albeit scantily, that defendant voluntarily went to the police station, at least initially." People v. Velez, 388 Ill.App.3d 493, 505, 903 N.E.2d 43, 54 (1st Dist. 2009). Though Velez disagrees with this finding, he has not shown by clear and convincing evidence that it is incorrect. See infra at 20-21.

Before questioning Velez, Detective Day read Velez his Miranda rights. Velez immediately waived his rights and agreed to talk to the detectives; this interview lasted between sixty and ninety minutes. During the interview, Velez implicated himself in the crime by admitting that he acted as a lookout while Vega shot and killed Soto. After the interview, Detective Day asked Velez to take a polygraph examination. Velez agreed to both the polygraph and to stay overnight at the police station because the polygraph examiner was not available until the next morning. In the interim, Assistant State's Attorney James Papa arrived, and after again being advised of his Miranda rights, Velez agreed to speak with Papa in the presence of Detective Day. ASA Papa interviewed Velez for approximately thirty minutes. During the interview, Papa again asked Velez whether he would be willing to submit to a polygraph examination, and Velez again agreed. At the conclusion of Papa's interview, the police provided Velez with a cot, a beverage, and a bag of potato chips.

Sometime the next day, Velez was placed under arrest. He retained an attorney who came to the police station and met with him. After speaking with his lawyer, Velez declined to speak further with the police. But later, after his attorney had left the police station, Velez knocked on the door of his locked interview room and beckoned to Detective Kolman. Kolman opened the door and asked Velez what he needed. Velez responded that he wished to speak with him. Detective Kolman asked whether Velez had retained an attorney, and, if so, whether the attorney had told him not to speak to the police. Velez answered affirmatively to both questions, and Detective Kolman then asked if Velez still wanted to speak him despite his counsel's instructions. Velez assented. Thereafter, Detective Kolman again advised Velez of his Miranda rights, which Velez again waived. During the ensuing fifteen minute conversation, Velez asked to speak once more to an Assistant State's Attorney, and ASA Jeanne Bischoff came and spoke with Velez. After Bischoff took Velez's oral statement, Velez agreed to allow Bischoff to write out his statement. ASA Bischoff took down Velez's statement by hand with Velez's assistance, and she then reviewed the statement with Velez by reading it out loud to him. After Bischoff made several changes to the statement at Velez's request, both Bischoff and Velez signed each page of the statement. ASA Bischoff admitted that Velez's attorney was not present when he gave his statement, even though she was aware that he had hired an attorney. She also admitted that Velez's statement was not a verbatim recitation of her conversation with him.

In his statement, Velez admitted that on December 29, 2003, he went with Vega to his cousin's house to obtain a sweatshirt. Velez stated that he asked Vega why they were in a "hot" neighborhood, and Vega revealed his handgun and told him that he intended to retrieve money from Soto, and that he intended to shoot Soto if he would not pay him. Vega then gave Velez a cell phone and instructed him to watch his back and call out if he saw the police. Velez also admitted in his statement that he stood across the street from the bar while Vega waited outside. Then, when Soto appeared, Vega fired five or six shots at him. Thereafter, according to Velez's statement, both Soto and Vega fled. Velez ran to another street nearby and waited for an additional thirty to forty minutes. Velez then used the cell phone to call Vega's cousin to ascertain Vega's location. Vega then called Velez and instructed him to meet at a designated address. When they met, Vega informed Velez that he had shot Soto. Velez returned the cell phone to Vega and the two parted ways.

B. Procedural History

A Cook County grand jury later indicted Velez for first degree murder. Prior to trial, Velez's defense counsel filed a Motion to Suppress Statements Made During Improper Interrogation, claiming that the police violated Velez's Fourth and Fifth Amendment rights during the interrogation. After Detectives Day and Kolman testified about Velez and ASA Bischoff's conversation leading to Velez's inculpatory statement, Velez's counsel advised the court that he wished to withdraw the motion. The judge then directly advised Velez that if he withdrew the motion, he could not litigate it again. Velez replied that he understood the consequences, and that he voluntarily and willingly wished to withdraw the motion.

At trial, the jury found Velez guilty of first degree murder and he was sentenced to forty-five years of imprisonment.

Velez appealed his conviction and sentence to the Illinois Appellate Court arguing that: 1) his trial counsel was ineffective for abandoning his motion to suppress his statement and for failing to file a motion to quash his arrest; 2) he was denied the right to a fair trial when the State impermissibly introduced testimony regarding his refusal to speak to police after invoking his right to counsel; 3) the trial court erred in allowing admission of gang-related evidence; 4) the cumulative errors deprived him of his right to a fair trial; 5) the evidence was insufficient to prove him guilty beyond a reasonable doubt on a theory of accountability; and 6) his sentence of forty-five years' incarceration was excessive. The Illinois Appellate Court affirmed Velez's conviction and sentence. See People v. Velez, 388 Ill.App.3d 493, 903 N.E.2d 43 (1st Dist. 2009).

Velez then filed a petition for leave to appeal to the Illinois Supreme Court, where he raised the following claims: 1) the State impermissibly commented on his post-arrest silence; 2) the appellate court erred by denying his ineffective assistance of counsel claim; and 3) the appellate court erred in reaching the merits of his suppression motion. The Illinois Supreme Court denied Velez's petition for leave to appeal without an opinion. People v. Velez, 232 Ill.2d 594, 910 N.E.2d 1131 (Ill. 2009). Velez petitioned to the United States Supreme Court for a writ of certiorari, but his petition was denied. Velez v. Illinois, 558 U.S. 948 (2009).

Velez then initiated a claim for post-conviction relief in state court pursuant to 725 ILCS 5/122-1, raising four claims: 1) his trial counsel was ineffective for failing to file a motion to quash his arrest and suppress evidence; 2) his trial counsel was ineffective for failing to object to the introduction of his written statement on the grounds that it was inadmissible under the "completeness" doctrine; 3) there was insufficient evidence to prove him guilty under a theory of accountability; and 4) his prison sentence was excessive because it was greater than the sentence given to Vega, the actual shooter. The state trial court summarily dismissed Velez's post-conviction petition, and the appellate court affirmed the dismissal. People v. Velez, No. 1-10-1650, 2011 IL App (1st) 101650-U (1st Dist. Dec. 7, 2011). Velez then petitioned the Illinois Appellate Court for rehearing, but his petition was denied. He petitioned the Illinois Supreme Court for leave to appeal, but the court denied that petition as well. People v. Velez, No. 114052, 968 N.E.2d 1072 (Ill. May 30, 2012).

Velez now brings a petition for writ of habeas corpus, [2] raising the following claims: (1) in violation of due process, the evidence at trial did not prove him guilty beyond a reasonable doubt; (2) the State improperly commented on his post-arrest silence; (3) the police violated his Fifth Amendment right to counsel and to remain silent; (4) his trial counsel was ineffective because he failed to file a Motion to Quash Arrest and Suppress Evidence or object to the admission of Velez's written statement; (5) his appellate counsel was ineffective for failing to raise his trial counsel's ineffectiveness; and (6) his sentence is disproportionate and excessive.

II. Analysis

To be eligible for a writ of habeas corpus, Velez must demonstrate that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see Cheeks v. Gaetz, 571 F.3d 680, 684 (7th Cir. 2009). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court adjudicating a habeas petition may grant relief on the basis of a claim that has been adjudicated on the merits by a state court only if the state court proceeding "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in the light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d).[3] A judgment is "contrary to" established federal law when the court applies a rule that contradicts Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405 (2000). "An unreasonable application' occurs when a state court identifies the correct governing legal principle from [the U.S. Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] petitioner's case." Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotation omitted). "[I]f it is a close question whether the state decision is in error, then the ...


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