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Mustari v. Pfister

United States District Court, N.D. Illinois, Eastern Division

February 27, 2014

HARRY MUSTARI, Petitioner,
RANDY PFISTER, Respondent.


MATTHEW F. KENNELLY, District Judge.

In September 2005, an Illinois jury convicted Harry Mustari of three counts of attempt first-degree murder and three counts of aggravated battery with a firearm in connection with a 2003 shooting in Maywood, Illinois. The Illinois Appellate Court affirmed Mustari's conviction on direct appeal. After the Illinois Supreme Court denied Mustari's petition for leave to appeal, he filed a petition for post-conviction relief in the Circuit Court of Cook County, which that court denied. The Illinois Appellate Court affirmed that decision, and the Illinois Supreme Court denied Mustari's petition for leave to appeal.

Mustari has now petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Respondent Randy Pfister, the warden of the prison where Mustari is incarcerated, argues that four of Mustari's claims are procedurally defaulted; the state courts' rulings on three of his claims were not unreasonable; and the remaining two claims (which are Fourth Amendment claims) are barred because Mustari had a full and fair hearing on them in the state courts.[1] Alternatively, Pfister argues that two of Mustari's claims are not cognizable in federal court because they are grounded in state law. Mustari waived the filing of a reply. For the following reasons, the Court denies Mustari's petition.


A. Trial court proceedings

By way of introduction, the Court adopts the following summary from the Illinois Appellate Court's opinion on direct appeal in this case:

On July 13, 2003, a group of friends, including Ernesto Diaz, Fernando Cabral, Richard Ramirez, Ivan Palomares, and Jaime Diaz, gathered at Ernesto's home in Maywood, Illinois. At around 10 p.m., defendant and Romero Navarez rode by on bicycles, indicated their gang affiliation with the Latin Kings, and defendant told the group of friends that they had "five minutes to get off the block." A few minutes later, a vehicle with three to five occupants, including Latin King members Johnny Garza, Alex Garcia, and Michael Martinez, drove up to Ernesto's house looking for the resident of the house. Ernesto spoke to them and explained that he and his friends were not in any gang. Martinez shook Ernesto's hand, told him he and his friends could stay, and the vehicle departed. A few minutes later, defendant approached Emesto's residence on foot. Another person also approached from a different direction but no one was able to identify him. When defendant was about two houses away, he reached into his waistband and retrieved a handgun. Defendant yelled, "You're [sic] five minutes are up, " and repeatedly shouted, "I told you, I told you." Defendant put one hand up to his face to cover his mouth, pointed his gun at the group of friends, and fired five shots. One of the five shots struck Ernesto and fractured his left hip. Another struck Cabral, fracturing his cervical spine and subsequently paralyzing him from the neck down. He was eventually able to regain some movement in his left leg and arm. Two of the other shots struck Palomares, puncturing his kidney and causing a lumbar spinal fracture. After a jury trial, defendant was convicted of three counts of attempt first-degree murder and three counts of aggravated battery with a firearm. Defendant was sentenced to two consecutive 30 year sentences, as well as two 30 year sentences and two 25 year sentences that will be served concurrently.

Resp.'s Ex. A at 2-3.

Before the jury was empaneled in Mustari's trial, the circuit court held a two-day hearing on two motions by Mustari. The court first heard a motion by Mustari to quash his arrest. Mustari claimed, through counsel, that the officers who arrested him did not have probable cause to do so. He called several witnesses, including Maywood police officer Jeremy Pezdek, who arrested Mustari for the shooting, and a Maywood detective named Randy Brown who investigated the shooting. Both testified that there was no warrant for Mustari's arrest and that witnesses at the scene of the shooting had identified the shooter as "Taz." Pezdek said he knew "Taz" to be a nickname for Mustari, and told Brown about his knowledge at the time of the investigation. Mustari called no other witnesses, and the prosecution rested without calling any. The court denied Mustari's motion to quash. The court stated that testimony regarding eyewitness identification of "Taz" as the shooter, combined with the officers' knowledge that "Taz" was associated with Mustari, was sufficient to establish probable cause for Mustari's arrest.

The court also held a hearing on Mustari's motion to suppress his statement to police. Mustari contended that he was in police custody in Maywood for "several days, " during which he was denied sleep and food and was threatened and beaten by police officers. Resp.'s Ex. M at 6. He also argued that the length of his detention contributed to the totality of circumstances amounting to a coercive environment. The parties called several witnesses to testify. The prosecution called two investigators who were present for the police interrogation of Mustari, including detective Brown, who testified that Mustari was able to eat, see family members, sleep, and make phone calls during his stay at the police station. The officers also said they explained Mustari's Miranda rights to him and then memorialized his confession, which he was permitted to review and alter. Mustari called his sister and his grandmother as witnesses. They testified that they had difficulty getting in to see Mustari while he was in police custody after his arrest but that they ultimately saw him late on his third day in custody. Mustari testified extensively about his arrest, detention, and interrogation by police. His testimony differed from that of the arresting and interrogating officers on several points. Mustari said the officers accused him of lying and hit, kicked, and threatened him, eventually coercing him into falsifying a story about committing the shooting. He also discussed his mental health, including his diagnosis of attention deficit hyperactivity disorder (ADHD) at age 13. Mustari testified on cross-examination that he had never taken medication for the disorder and that he had not been told to take it since age 13.

The prosecution called in rebuttal the Maywood police officer Mustari accused of coercing his confession as a rebuttal witness, and counsel for both sides gave closing statements. The court denied Mustari's motion. It concluded that the totality of circumstances showed "that the defendant waived his Miranda Rights without coercion and that his will was not overborne." Resp.'s Ex. N at 170. The Court therefore ruled that Mustari's inculpatory post-arrest statement was admissible at his trial.

At the trial, the prosecution first called officer Pezdek, who repeated some of his testimony from the prior motion hearing. He testified that he was on duty on July 13, 2003, when he heard a call on his radio for shots fired and men down. Afterward, he went to the location of the shooting, where he saw "[a] commotion" and "two men lying down" on the grass outside a house in Maywood. Resp.'s Ex. O at 26-27. At that time, Pezdek testified, police units were responding to the area. Pezdek called for paramedics, and the shooting victims were treated at the scene. Pezdek worked to secure the crime scene, and he listened to detective Brown as he questioned witnesses who were at the scene.

Skipping ahead a bit, detective Brown testified at Mustari's trial that when he arrived at the scene of the shooting, he "got all the witnesses together" and "started taking statements-well, listening to what they had to say in reference to the shooting." Resp.'s Ex. R at 60. Brown identified the witnesses as Jaime Diaz, Ernesto Diaz, Giovanni Herrera, Richard Ramirez, and perhaps two others whose names he did not recall. Brown was asked "When you spoke with Jaime Diaz, did he supply you with the name of the shooter?" After the trial court overruled defense counsel's objection, Brown replied, "He went by the name of Taz." Id. at 61. Similarly, Pedzek was asked whether he had learned the identity of the shooter at the scene and, after the court overruled defense counsel's objection, stated "[t]he nickname that I heard was Taz." Id. at 30. Pedzek did not identify the witness who had supplied the name.

Pedzek was asked whether he knew Taz's real name pursuant to his duties as a police officer, and he replied that Taz's name was Harry Mustari. Brown likewise testified that Pedzek told him that this was Taz's real name. Brown further testified that a witness, unnamed, gave him a description of a white male with a medium build, wearing a white t-shirt and jeans.

The next day, Pezdek testified, he saw Mustari walking in Maywood and arrested him. After Mustari was arrested, Brown testified, he was placed in a line-up, where Jaime Diaz identified him as the shooter, as did another eyewitness, Richard Ramirez.

After Brown testified, the prosecution called Jaime Diaz as a witness. Diaz said he was at his brother Ernesto's house with several others on July 13, 2003 when two individuals rode by on bikes warning the group to clear the block. Diaz testified that he recognized one of them as Taz from having played Pop Warner football with him in sixth grade, and that his real name was Harry. (Diaz identified Mustari in court as the person he saw that day.) Diaz said that Mustari later returned on foot, told the group that its five minutes were up, pulled out a gun, covered his face, and began firing. When police arrived at the scene, Diaz testified, he spoke with detective Brown and told him that Taz was the shooter. Diaz also said he later identified Mustari in a lineup as the shooter.

The prosecution also called the surgeon who examined the gunshot victims, as well as an evidence technician who surveyed the crime scene and the victims themselves. In addition, the prosecution called Richard Ramirez, who identified Mustari in court as the shooter and testified that he identified Mustari as the shooter in a police lineup on July 16, 2003. On cross-examination, defense counsel elicited from Ramirez that he had been convicted of unlawful use of a weapon, a felony. When defense counsel then asked Ramirez if he was placed on two years' probation for that offense, the prosecution objected. The court sustained the objection. In a discussion at sidebar, defense counsel renewed the objection, arguing that the question about Ramirez's probation "goes to bias or motive to testify a certain way, " but the court disagreed. Resp.'s Ex. Q at 250. The assistant state's attorney who participated in taking Mustari's post-arrest statement also testified. He stated that he memorialized Mustari's confession with Mustari's approval and ascertained from Mustari that he was being treated well by the Maywood officers. The defense called Mustari's grandmother and sister, who testified they were not permitted to see Mustari while he was in police custody until after he had confessed to the shooting.

During his rebuttal argument, one of the prosecutors trying the case made this statement: "The bottom line is the only person who said the Defendant wasn't out there, and that the Defendant wasn't the shooter, and the Defendant wasn't doing all this gang banging[, ] was the Defense counselor." Resp.'s Ex. S at 44. The defense objected to this statement, but the trial court overruled the objection. After the jury was sent to deliberate, defense counsel moved for a mistrial on the basis of the rebuttal argument, contending that the prosecutor's comment shifted the burden of proof to the defendant; the court denied the motion. The jury later convicted Mustari of three counts of attempt first-degree murder, and three counts of aggravated battery with a firearm.

At Mustari's sentencing hearing, the court heard witnesses and stated that it considered aggravation and mitigation evidence. This evidence included statements from Mustari's family, his criminal and mental health history, his rehabilitation potential, the seriousness of his offenses, and his own "nature and character." Resp.'s Ex. T at 68. The court sentenced Mustari to two consecutive thirty-year terms, to run concurrently with twenty-five- and thirty-year terms on the other counts against Mustari. The court noted that Mustari had to serve eighty-five percent of the sentence under Illinois law.

B. Appeal and post-conviction proceedings

Mustari appealed his conviction in October 2006. He argued that the trial court should have granted his motions to quash his arrest and to suppress his statements to police and that should not have admitted testimony from officer Pezdek and detective Brown about eyewitness identification of Taz as the shooter at the crime scene. Mustari further argued the court should not have precluded the defense from eliciting testimony from prosecution witness Richard Ramirez about his probation status at the time of the shooting. Mustari also contended, among other things, that the prosecution impermissibly commented on his silence during its rebuttal argument and that his sentence was excessive because it did not comply with the Illinois constitutional requirement requiring a balancing of aggravating and mitigating factors.

The Illinois Appellate Court affirmed Mustari's conviction. It first held that probable cause existed for Mustari's arrest because the Maywood officers had an eyewitness identification of Taz, whom Pezdek knew to be Mustari. The court next concluded that the trial court's denial of Mustari's motion to suppress his confession was not manifestly erroneous. It noted that Mustari was frequently apprised of his Miranda rights, no evidence supported his allegations of physical abuse by officers, and he signed statements attesting to good treatment by police. The court also said that "the length of time in custody is only one factor to be considered and we do not find that interviewing defendant three times over two days was sufficiently significant to warrant suppressing his statements." Resp.'s Ex. D at 6. Next, the court determined that Pezdek's and Brown's statements about out-of-court eyewitness identifications of Taz were not improperly admitted. The court observed that an eyewitness who said Taz was the shooter, Diaz, "eventually testified at trial and was subjected to a thorough cross-examination as to his ability to identify defendant." Id. at 7. It also determined that the identification was admitted "[i]n order [for the officers] to fully explain their investigation and how they were able to identify Harry Mustari as Taz." Id. at 8. Further, the court held that the admission of the statements did not violate the Confrontation Clause of the Sixth Amendment, because they were admissible non-hearsay. Id. (citing Crawford v. Washington, 541 U.S. 36, 59 (2004)).

The appellate court went on to hold that it was not a Confrontation Clause violation for the court to disallow Mustari from cross-examining witness Ramirez about his past probation status. The court distinguished the situations of the witnesses in the cases Mustari cited from that of Ramirez when he testified. See id. at 11 (citing People v. Foley, 109 Ill.App.3d 1010, 441 N.E.2d 655 (1982); People v. Baptiste, 37 Ill.App.3d 808, 347 N.E.2d 92 (1976)). The court stated that Ramirez "was not on probation at the time of trial, had no pending charges against him at the time of trial, was not an accomplice, and had already admitted that he had been convicted of aggravated unlawful use of a weapon." Id. Therefore, it was not an abuse of discretion for the trial court to limit Mustari's cross-examination of Ramirez on the subject of his prior probation status. The court reached a similar conclusion on Mustari's argument that the prosecution made improper comments in rebuttal. The prosecution's statement was not improper, the court held, because it was intended to show that the state witnesses contradicted Mustari's theory. Finally, the court held that Mustari's sentence was not an abuse of discretion, because there is a presumption that the trial court considered mitigating evidence, and because of Mustari's criminal record and the nature of his crime.

Mustari filed a petition for leave to appeal (PLA) the appellate court's decision. In that petition, he raised seven issues for review. Among other arguments, he again challenged the denial of his motion to quash arrest and his motion to suppress his post-arrest statement on the basis of the length of his detention. Mustari also argued that the appellate court mischaracterized his mental health history in stating that there was no evidence of his having a mental disability; he argued that the court ignored his ADHD diagnosis and refusal to take medication for it. He again contended that the trial court should not have admitted testimony from Pezdek and Brown about the out-of-court eyewitness identifications because they were hearsay and violated the Confrontation Clause. And Mustari reprised his argument that he should have been permitted to cross-examine Ramirez on his past probation status in accordance with the Confrontation Clause. As for his sentence, he repeated an argument from his appeal that the prosecution asked the trial court to "warehouse" ...

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