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Cortez v. Harrington

United States District Court, Seventh Circuit

December 5, 2013

HECTOR CORTEZ (#R66371), Petitioner,
v.
RICK HARRINGTON, Warden, Menard Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

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

BACKGROUND

Cortez does not present clear and convincing evidence challenging the statement of facts in the last state court decisions addressing his arguments on the merits, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Bolton v. Akpore, 730 F.3d 685, 687 (7th Cir. 2013). The Court therefore adopts the underlying facts as set forth by the Illinois Appellate Court in People v. Cortez, 402 Ill.App.3d 468, 931 N.E.2d 751, 341 Ill.Dec. 854 (1st Dist. 2010), and People v. Cortez, No. 1-11-027 (1st Dist. June 29, 2012) (unpublished).

I. Factual Background

The State of Illinois prosecuted Cortez for murder in relation to the death of Joshua Siguenza, also known as "Tun Tun." The victim was found in Ronan Park on Chicago's North Side in the early morning of July 26, 2002. At trial, Chicago Police Officer Jeremy Gomez testified that he was the first to arrive on the scene at Ronan Park and that he and his partner determined that the victim was dead. Officer Gomez further testified that Ronan Park was known turf of the Lawrence and Kedzie faction of the Latin Kings street gang.

In addition, Marie "Vicki" Adame and her sister Vilma "Veronica" Adame testified for the State at trial. Both testified that at the time of the shooting, they were associated with the Latin Kings, and that on July 25, 2002, they went to a liquor store with Ruby Castillo and purchased liquor. They later met up with an individual named Gordo, as well as Tun Tun, and then walked to Ronan Park. While they were sitting at a picnic table, Cucuy (Antonio Martinez) and Tetoz (Cortez) approached, after which the sisters got up to walk away. At that time, Vicki saw that Cortez was twirling a gun around. As she walked away, she heard the men arguing and then she heard gunshots. After that, she then turned and saw sparks near Cortez. She heard four or five shots as she ran away. Veronica testified that she did not see Cortez with a gun, but saw a white t-shirt wrapped around his right hand. When Veronica heard a gunshot, she turned and saw Cortez standing on the picnic table with Martinez beside him and Tun Tun under the table. Unlike Vicki, Veronica did not see sparks, but did hear four or five shots.

Several days later, Cortez called Vicki and told her to keep the incident at Ronan Park to herself. Indeed, neither Vicki nor Veronica went to the police to report what they saw, but police officers picked them up later and took them to a police station for questioning. There, both Vicki and Veronica Adame identified photographs of Cortez and Martinez.

At trial, Paulscha Joseph testified that he was a former Latin King and became a government informant following an arrest. On October 8, 2002, Joseph met with several high ranking members of the Latin Kings, including Martinez. The high ranking members assigned Joseph to dispose of two guns for the gang, one of which was the murder weapon in the Tun Tun shooting. Thereafter, on October 15, 2002, Joseph went to Martinez's uncle's house, where Martinez handed over the gun. In a recorded conversation published to the jury, Joseph asked Martinez who was shot with the gun to which Martinez responded, "Tun Tun." Joseph asked Martinez if he was the one who "smoked" him and Martinez responded "yeah." When Joseph asked why, Martinez responded that he "had problems with this motherfucker." Joseph left with the gun and then gave it to federal agents.

On October 17, 2002, Joseph drove Cortez home from a gang meeting. During the ride, the conversation turned to Tun Tun's shooting. Joseph recorded the conversation, which was subsequently played for the jury. During the conversation, Joseph asked Cortez who "did it" and Cortez replied "me, bro" because Tun Tun was "talkin shit." Further, Joseph asked how many times Cortez shot Tun Tun and Cortez said "five." Joseph then asked Cortez, "you shot him all five times?" and Cortez replied, "yeah." Cortez indicated that he "left him in the park." Shortly after this conversation, Chicago police arrested Cortez and Martinez.

The parties stipulated to a portion of a handwritten statement Martinez made to a Cook County Assistant State's Attorney on November 3, 2002. In his statement, Martinez explained that when Joseph asked him who killed Tun Tun, Martinez told Joseph that he killed Tun Tun because he wanted to be the "big man" and to be "respected" and "feared" by Joseph. Also, the parties stipulated to the admission of the autopsy photographs and to the foundation for three bullets that the medical examiner would testify he recovered from Tun Tun's body during the examination. At trial, a police detective testified that a forensic scientist specializing in firearm identification determined that the bullets recovered from the victim's body were fired from the gun recovered from Martinez. Furthermore, the trial court admitted the autopsy report, including a toxicology report on the victim, over Cortez's objection.

II. Procedural Background

After hearing all of the evidence, a jury found Cortez guilty of first degree murder while personally discharging a firearm in October 2007. The Circuit Court sentenced him to 45 years in prison. Cortez appealed his conviction to the Illinois Appellate Court, First District, arguing that the Circuit Court violated his right to confront witnesses when the court admitted into evidence (1) Martinez's repudiation of his prior confession, and (2) the autopsy report. On June 22, 2010, the Illinois Appellate Court affirmed Cortez's conviction. Cortez filed a petition for a rehearing on July 6, 2010, that the Illinois Appellate Court denied on July 19, 2010.

Cortez then filed a petition for leave to appeal ("PLA") in the Supreme Court of Illinois arguing that the Circuit Court violated his right to confront witnesses when it admitted into evidence (1) Martinez's repudiation of his prior confession, and (2) the autopsy report. On November 24, 2010, the Supreme Court of Illinois denied Cortez's PLA. ...


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