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Carrion v. Butler

United States District Court, S.D. Illinois

September 15, 2014

FRANCISCO CARRION, Petitioner,
v.
KIM BUTLER, Respondent.

MEMORANDUM and ORDER

DAVID R. HERNDON, Chief District Judge.

Petitioner Francisco Carrion was convicted of first degree murder and residential burglary after a bench trial in Cook County, Illinois, in 2004. He was sentenced to concurrent terms of fifty-five and fifteen years imprisonment.

On July 29, 2013, Carrion filed a petition for writ of habeas corpus pursuant to 28 U.S.C. ยง2254, raising the following grounds:

1. The evidence was insufficient to prove the charge of residential burglary beyond a reasonable doubt.
2. The evidence was insufficient to prove the charge of first degree murder beyond a reasonable doubt.
3. The trial judge was biased and considered improper evidence at sentencing.
4. Trial counsel was ineffective in failing to ensure that petitioner understood the proceedings due to his lack of proficiency in the English language, forcing petitioner to waive a jury, and trying to get petitioner to plead guilty.
5. Petitioner was denied due process, equal protection and access to the courts because he is unable to speak, write or understand English.
6. Appellate counsel was ineffective in failing to raise the issues set forth in grounds 1 through 5 above, and in abandoning petitioner by filing a motion for leave to withdraw pursuant to Anders v. California, 87 S.Ct. 1396 (1967).
7. Postconviction counsel was ineffective in failing to raise all meritorious claims and in abandoning petitioner by filing a motion for leave to withdraw pursuant to Pennsylvania v. Finley, 107 S.Ct. 1990 (1987).

In response, respondent contends that the petition is time-barred, some of the claims are procedurally defaulted, and none of the claims are meritorious.

Relevant Facts

1. Facts of the Crime

The Appellate Court, First District, issued Rule 23 orders on both direct appeal and appeal from the dismissal of Carrion's postconviction petition. Neither order described the facts of the crime. The following summary is taken from the Anders brief filed by petitioner's counsel in his direct appeal. Doc. 17, Ex. A.

In the early morning hours of July 14, 2001, a police officer was dispatched to an apartment in Palatine, Illinois. He found the 69 year old victim, Maryanne Zymali, lying on the kitchen floor. Ms. Zymali suffered multiple stab wounds as well as other injuries. A stab wound to her abdomen caused massive internal hemorrhaging. Two knives were recovered from the scene.

Petitioner Carrion lived next door. He was 19 years old and had recently emigrated from Mexico. He had a sixth grade education and did not speak English. A Spanish-speaking officer, Detective Delgadillo, interviewed him after the incident. He denied involvement, but agreed to give fingerprints. His fingerprint and palm print were found to match the prints on one of the knives. He was interviewed again by Detective Delgadillo, and confessed. He then gave a videotaped statement to an Assistant State's Attorney, with Delgadillo acting as interpreter. In his statement, he said he did not know what he wanted to take when he entered the apartment, but he probably would have taken something if he found something.

At trial, Carrion testified that he was drunk and on his way home from a bar. He saw that Ms. Zymali's sliding glass door was open and he went inside. He said that he did not know why he went inside because he was so drunk. He said that the victim confronted him with a knife, and that she was killed as they struggled for the knife. He then jumped up onto the balcony of his second-floor apartment and went to sleep. He denied intending to steal anything.

The state sought the death penalty. Carrion waived a jury trial. The trial judge found him guilty and found him eligible for the death penalty. Defense counsel presented mitigating evidence at the sentencing hearing, and Carrion was sentenced to concurrent sentences of 55 years for ...


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