United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOAN B. GOTTSCHALL, District Judge.
On June 18, 1995, Rogelio Rodriguez was fatally shot in the now-shuttered El Saloon Tavern on South Lawndale Avenue in Chicago. Following a jury trial, petitioner Raul Puente was found guilty of first-degree murder in connection with Rodriguez's death and was sentenced to a forty-year term of imprisonment. In 2004, Puente filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following protracted litigation culminating in an evidentiary hearing, the court rejected Puente's ineffective assistance of counsel claim based on the choice of a misidentification defense at trial. Although never mentioned in the parties' extensive briefs regarding that claim, Puente now asserts that he raised other claims in his 2007 brief in support of his amended habeas petition and asks the court to grant habeas relief based on those claims. The parties have submitted an agreed list of issues that are ripe for disposition. Dkt. 176. For the following reasons, Puente's request for habeas relief is denied.
For the purposes of this order, familiarity with the court's November 8, 2013 order, which summarizes the facts from the state court proceedings and the federal evidentiary hearing and addresses Puente's ineffective assistance of counsel claim based on the use of a misidentification theory, is assumed. See Dkt. 169. In a nutshell, following Puente's arrest, police claimed that Puente told Detective Perez that he fired blank rounds at the El Saloon on the night of the shooting. They also claim that Puente said that after arguing with a man at the El Saloon, he borrowed a gun, discharged it into the ceiling, fired another shot into the bar as he was being forced out into the street, and fired a third shot while in the street. These alleged statements were memorialized by the police. See Original Pet. Ex. G.
Retained counsel Raul Villalobos and his associate, Jesus Perez, represented Puente. They filed a motion to suppress Puente's alleged statements to the police. At the suppression hearing, Perez appeared on Puente's behalf. Puente testified, denied that he had made any incriminating statements to the police, and asserted that the police had failed to advise him of his Miranda rights. He also testified that the shooting was accidental. The trial court denied the motion to suppress. Following the hearing, Villalobos discussed a plea with Puente. Puente refused to give Villalobos permission to discuss a plea, and said he wanted to go to trial and testify about what had happened at the El Saloon. Puente then fired Villalobos.
After firing Villalobos, Puente hired attorney James Marcus based on a recommendation by Victor Medina, who was detained, along with Puente, at the Cook County Jail. Prior to trial, Marcus was aware that Jose Montejano (the bartender at the El Saloon) knew Puente by his first name, had told police that Puente had fired a gun inside the El Saloon on the night of the murder and left the El Saloon in a maroon car, and had identified Puente in a police photo array. Ultimately, however, Montejano was unable to make an in-court identification of Puente at trial.
Marcus was also aware that Cuahemoc Murillo, who was at the El Saloon on the night of the shooting, heard shots, saw a person outside the bar holding a gun and heard that person say he had just shot someone, and saw the person depart in a maroon car with the license plate number MGP 75. Puente met Murillo for the first time on the night of the shooting. Marcus knew that the license plate number on Puente's car was WGP 759. Prior to trial, Murillo said that Puente was one of two people in a four-person lineup who was the shooter. Murillo, too, ultimately did not make an in-court identification.
In addition, Marcus was aware that bar patron Juan Morales told police he saw Puente fire a gun at the El Saloon on the night of the murder. As with Murillo, Puente met Morales for the first time on the night of the shooting. Puente Dep. at 32. Morales selected Puente from a line-up as the shooter. At trial, Morales testified that he stopped by the El Saloon for a beer after work, people started throwing chairs, and then a man entered the bar holding a gun. According to Morales, he saw Puente in the bar with the gun in his hand, and there were approximately 15 people between him and Puente. Although Morales has cataracts and wears glasses, he was not wearing his glasses on the evening of the shooting.
Moreover, Marcus was aware that David Saragosa, who lived above the El Saloon, was acquainted with "Raul, " who lived in Cicero, and had a photograph from the baptism of one of Raul's children. Puente lived in Cicero, and church records showed that the "Raul" from the baptism was Raul Puente.
During a four-day evidentiary hearing before this court, Puente testified that prior to trial, Marcus did not provide him with the State's discovery or discuss the charges, trial strategy, potential defenses, or potential penalties with him. Puente denied telling Marcus that he was not at the El Saloon on the night of the shooting. Puente believes that Marcus should have pursued an "accident" defense and contends he would have rejected any suggestion that he use a misidentification defense. Marcus, on the other hand, testified that since Puente would not allow him to engage in plea negotiations and took the position that he was not at the El Saloon on the night of the shooting, he felt his only option was to proceed to trial on the first-degree murder charge with a misidentification defense.
During the evidentiary hearing, the court allowed Puente to develop his claim that Marcus' choice of a mistaken identity defense instead of an involuntary manslaughter defense violated his right to effective assistance of counsel. The court found that Marcus provided constitutionally adequate assistance when counseling Puente about plea negotiations and proceeding to trial while contesting that Puente was at the El Saloon on the night of the murder. It then concluded that, given Puente's insistence that he was not at the El Saloon when Rodriguez was shot, Marcus' only option was to argue mistaken identity so his decision to raise that defense could not support the granting of habeas relief.
Puente's amended habeas petition raises three additional claims, each of which has numerous sub-parts:
1. Trial counsel was ineffective for failing to:
a. move to suppress suggestive identification evidence (Memo. in Support of Amended Pet. at 48-60) - specifically:
i. the suggestive police photo array that:
(A) led to Puente's arrest, his self-incriminating statement to Detective Perez, and the police line-up; and
(B) was shown to bar patron Juan Morales to assist Morales in identifying Puente in court during the trial and were admitted into evidence with no objection by trial counsel; and
ii. the police line-up, where bartender Jose Montejeno identified Puente;
b. challenge eight jurors who were potentially biased in favor of the State because they were either victims of crime or closely connected to law enforcement officers or victims of crime ( id. at 60-63);
c. investigate ( id. at 63-75) - specifically:
i. attorney Jesus Perez (who was employed by retained, experienced counsel Raul Villalobos) did not investigate:
(A) whether probable cause supported Puente's arrest;
(B) why arresting officer Detective Perez did not obtain an arrest warrant;
(C) whether Puente's incriminating statement to Detective Perez was voluntary due to alleged police coercion; and
(D) whether Puente's waiver of his Miranda rights was knowing and voluntary.
Alternatively, (E) Perez investigated these areas but failed to act on the results of his investigation;
ii. all of Puente's trial counsel (Villalobos, who was fired by Puente, his associate, Perez, and replacement retained counsel James Marcus) did not investigate "the facts regarding the State's unduly suggestive photo array and suggestive line-up evidence" ( id. at 64);
iii. Marcus did not investigate or develop evidence demonstrating that the shooting was "unintentional and reckless or negligent and accidental, including "Puente's own potential testimony as well as that of others" ( id. at 65);
iv. Marcus "failed to investigate when he failed to cross-examine vision conflicted, bar patron Morales about [Morales'] description of the shooter as being a shadow'" ( id. at 69);
v. counsel (presumably Marcus) did not consider calling an expert ballistic witness to testify that the victim was not hit at close range and that the bullet that struck the victim had ricocheted. The ricochet testimony would have supported Puente's contention that the gun discharged accidentally after he was struck in the back of his legs with a barstool;
vi. Marcus did not investigate the applicable law as he:
(A) argued mistaken identity instead of the more favorable defenses of involuntary manslaughter or second degree murder;
(B) asked for an instruction on involuntary manslaughter based on the argument that Puente did not intend to kill Rodriguez when an involuntary manslaughter instruction required evidence showing that Puente did not intend to kill anyone (not just Rodriguez);
(C) did not request a jury instruction on second degree murder; and
(D) did not research "the legal basis of the trial court's instruction to the jury on assessing the reliability of witness testimony" ( id. at 71) and thus failed to object to an erroneous instruction regarding witness identification testimony;
d/e. (d) allow Puente to exercise his right to testify by "keeping him off the witness stand and not advising him of his right to testify, while (e) pursuing an unsound defense of mistaken identity" ( id. at 86-90); and
f. object to an improper jury instruction regarding witness identification testimony ( id. at 90-95); and
g. the cumulative effect of trial counsel's errors denied Puente the right to effective assistance of counsel.
2. The trial court erred in:
a. failing to declare a mistrial based on prosecutorial misconduct ( id. at 96-98) based on:
i. the prosecution's elicitation of Detective Perez's testimony that:
(A) he had obtained Puente's photograph from police records for use in the photo array; and
(B) he did not ask Puente if he used an alias because he already had Puente's "criminal history" ( id. at 96); and
ii. the prosecution's argument to the jury, as part of the State's rebuttal case, that Puente could have called witnesses of his own to testify about the shooting. According to Puente, since he would have been the key witness regarding his version of events, this argument improperly referred to his right to remain silent; and
b. denying Puente's motion for an involuntary manslaughter instruction because the testimony that the trial court relied on in making this decision (bar patron Morales' testimony about the shooting) was not credible or was consistent with Puente's statement to the police and thus showed Puente lacked the intent to commit first degree murder ( id. at 99-104);
c. imposing a sentence that, while within the sentencing range in effect at the time, is excessive given his personal characteristics and potential to be rehabilitated ( id. at 104-108); and
d. dismissing Puente's pro se state post-conviction petition in violation of 725 Ill. Comp. Stat. § 5/122-2.1, which provides that the court has ninety days to screen dismiss petitions and after that time has passed, the petition must be docketed for further proceedings ( id. at 108-111); and
e. the cumulative effect of the trial court's errors denied Puente of his right to due process and a fair trial.
3. Appellate counsel on direct appeal was ineffective for failing to raise:
a. the ineffectiveness of trial counsel in Puente's direct proceedings ( id. at 111-15);
b. Puente's excessive sentence claim ( id. );
c. a claim based on the denial of Puente's motion for a new trial based on the failure to suppress Puente's statement and the allegedly suggestive line-up (Statement of Issues at 3, Dkt. 176); and
d. the cumulative effect of appellate counsel's errors denied Puente of his right to effective assistance of appellate counsel (Memo. in Support of Amended Pet. at 115).
II. STANDARD OF REVIEW
To the extent that Puente preserved his claims so that this court may reach their merits, he is entitled to a writ of habeas corpus under 28 U.S.C. § 2254 if the challenged state court decisions are either "contrary to" or "an unreasonable application of" clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-05 (2000). A state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by the Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Williams, 529 U.S. at 405.
With respect to the "unreasonable application" prong of § 2254(d)(1), Puente must demonstrate that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. See id. at 407. A state court's application of Supreme Court precedent is unreasonable if the court's decision was "objectively" unreasonable. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786 (2011) ("even a strong case for relief does not mean that the state court's contrary conclusion was unreasonable").
Puente's appointed counsel decided to raise a plethora of claims - at least thirty, depending on how sub-parts are counted - despite the Seventh Circuit's "repeated counsel that the equivalent of a laser light show of claims may be so distracting as to disturb our vision and confound our analysis.'" Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 513 (7th Cir. 2011) (quoting United States v. Lathrop, 634 F.3d 931, 936 (7th Cir. 2011)); see also Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (the "kitchen sink" approach to briefing is distracting, confusing, and "consumes space that should be devoted to developing the arguments with some promise"). The deluge of claims in this case is especially challenging to address as the various claims are often contradictory, not clearly articulated, or pop up inside discussions of other claims.
In the interests of brevity, the court will assume that the reader has reviewed its November 8, 2013 opinion addressing the ineffective assistance of counsel claim based on the use of a misidentification defense. That opinion includes a detailed summary of the events before, during, and after the shooting at the El Saloon, the suppression hearing, the pretrial proceedings, the trial, Puente's direct appeal, Puente's collateral state court proceedings, and the federal evidentiary hearing. In addition, due to the number of claims with multiple levels of sub-parts, to minimize confusion, the court will: (1) provide the relevant procedural posture when it discusses each claim, instead of summarizing the entire procedural posture separately; and (2) proceed through the claims in the order presented by Puente, instead of using the more efficient method of grouping them together by subject ( i.e., claims that are not cognizable in federal habeas corpus proceedings). With this in mind, the court turns to Puente's lengthy list of claims.
A. Ineffective Assistance of Trial Counsel
To receive habeas relief on an ineffective assistance of counsel claim, Puente must establish that his attorney's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-91 (1984). Under Strickland, the court's review of counsel's performance is "highly deferential, " meaning that to prevail, Puente must "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Woolley v. Rednour, 702 F.3d 411, 422-23 (7th Cir. 2012) (quoting Strickland, 466 U.S. at 689). If Puente fails to satisfy the performance or prejudice prongs under Strickland, the court's inquiry ends. See Strickland, 466 U.S. at 697.
As noted below, the court has already rejected Puente's ineffective assistance of trial counsel claim based on the use of a misidentification defense on the merits. See Mem. Op. and Order, Nov. 8, 2013 (Dkt. 169). As detailed below, all of Puente's remaining ineffective assistance of trial counsel claims are procedurally defaulted because Puente failed to present them through a complete round of state court review or they are barred by the independent and adequate state ground doctrine and no exceptions to procedural default are applicable.
1. Failure to Move to Suppress Suggestive Identification Evidence - Claim 1(a)
Puente first takes issue with trial counsel's failure to move to suppress evidence related to an allegedly suggestive live line-up. He argues that, at the line-up, he wore a black baseball cap (like the shooter reportedly wore) and the other participants wore yellow, blue, or white baseball caps, was the only clean shaven participant (as the shooter reportedly was), was the only participant with a visible tattoo, was the shortest person by one to three inches, was the oldest person by five to nine years, was wearing dirty clothing while the other participants wore clean clothing, and was wearing black shoes while the other participants wore white tennis shoes. Memo. in Support of Amended Pet. at 50. Puente also contends that a police photo array was unduly suggestive because he was Hispanic, 41 years old, 165 pounds, and was clean-shaven, while the other photographs depicted a man without a shirt, a young man with a mustache, a heavy set man with a mustache, and at least one Caucasian man. Id. at 50-51. On a related note, Puente argues that his trial counsel was ineffective because he did not object to the use of the photographs at trial. Id. at 51.
Generally, a line-up or photo array can be unnecessarily suggestive and unfairly prejudicial to a suspect if the participants do not have a similar appearance. See Bolton v. Akpore, 730 F.3d 685, 697 (7th Cir. 2013) (citing United States v. Wade, 388 U.S. 218, 232-33 (1967)). When considering whether the decision to refrain from filing a motion to suppress based on a suggestive line-up or photo array constitutes ineffective assistance of counsel, the court must determine if the decision was strategic and the petitioner has shown prejudice. Gilbert v. Merchant, 488 F.3d 780, 789-90 (7th Cir. 2007) (line-up); United States ex rel. Nichols v. Hardy, No. 11 C 2059, 2011 WL 4585577, at *8 (N.D. Ill. Sept. 30, 2011) (photo array). First, however, the court must determine if Claim 1(a) - Puente's ineffective assistance claim based on trial counsel's failure to file a motion to suppress - survives the hurdle of procedural default. For the following reasons, the court concludes the claim is procedurally defaulted and that no exceptions to procedural default are available.
a. Procedural Default - Claim 1(a)
A petitioner must present his claims to all levels of the Illinois courts to avoid procedural default. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Thus, the court must determine if Puente presented Claim 1(a) to the state trial court, the Illinois Appellate Court, and the Illinois Supreme Court in either his direct or state post-conviction proceedings. See Castille v. Peoples, 489 U.S. 346, 349 (1989) (failure to present claim to state intermediate court means it is procedurally barred); O'Sullivan, 526 U.S. at 844 (failure to present claim to state's highest court means it is procedurally barred).
Puente concedes that he did not raise Claim 1(a) in his brief filed with the Illinois Appellate Court on direct appeal. Reply at 2. Thus, he did not present this claim through ...