United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
Before the Court is Petitioner George Fernandez's amended petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254(d). For the following reasons, the Court denies Fernandez's amended habeas petition and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
When considering habeas petitions, federal courts must presume the factual findings made by the last state courts to decide the case on the merits are correct unless the habeas petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Ford v. Wilson, 747 F.3d 944, 947 (7th Cir. 2014). Where Fernandez has not provided clear and convincing evidence to rebut this presumption of correctness, the following factual background is based on the Illinois Appellate Court's factual findings in People v. Fernandez, No. 1-01-1810 (1st Dist. Sept. 24, 2002) (unpublished) and People v. Fernandez, No. 1-04-2864 (1st Dist. Nov. 7, 2005) (unpublished).
I. Factual Background
Following a 2001 trial, a jury convicted Fernandez of aggravated vehicular hijacking in the Circuit Court of Cook County, after which the Circuit Court judge sentenced him to 18 years in prison. Evidence at trial established that at approximately 10:30 a.m. on January 3, 1999, Jesus Lopez was standing next to the open driver's side door of his car, which was running, while he was on North Spaulding Avenue in Chicago. Lopez testified that a man, whom he later identified as Fernandez, spoke Spanish to him, put a gun to Lopez's chest, and demanded money. After Lopez gave Fernandez his money, Fernandez then told Lopez he wanted his car. Fernandez then entered the car and drove away. In addition, Lopez testified that the encounter lasted about three to five minutes giving him adequate time to view Fernandez's face. Lopez further testified that he called the police and gave a description of Fernandez to them. On the next day, Lopez went to the police station where he viewed a line-up and identified Fernandez. Chicago police detective Allen Pergande also testified at Fernandez's jury trial stating that on January 4, 1999, Lopez came to the police station, viewed a lineup, and identified Fernandez as the individual who took his car and money.
Chicago police officer Pamela Davis also testified at Fernandez's 2001 jury trial. She stated that on January 4, 1999, she saw Fernandez disobey a stop sign while he was driving. When she activated her emergency lights, Fernandez drove through another stop sign. Officer Davis further testified that she then saw Fernandez drive on the wrong side of the street and pass cars while he was speeding. Shortly thereafter, Fernandez stopped and Officer Davis parked behind him, after which she entered the car's license plate number into her computer revealing that Fernandez was driving Lopez's car. In addition, Officer Davis testified that she saw Fernandez exit the car and walk toward her. She then radioed for assistance. Fernandez ran past Officer Davis, but other Chicago police officers pursued him in their squad car. Officer Davis also testified that she saw one of the police officers chase Fernandez on foot and arrest him. The States' Attorney charged Fernandez with armed robbery and aggravated vehicular hijacking.
II. Procedural Background
The jury found Fernandez guilty of aggravated vehicular hijacking, but not guilty of the armed robbery charge. On April 24, 2001, the Circuit Court judge sentenced Fernandez to a term of 18 years imprisonment. On May 2, 2001, Fernandez filed a pro se notice of appeal. On June 26, 2001, defense counsel appeared before the Circuit Court stating that Fernandez's case was on the court's motion call due to a request to reconsider Fernandez's sentence. Counsel informed the court that because Fernandez filed a pro se notice of appeal, the Circuit Court did not have jurisdiction to do anything except perfect the appeal. The Circuit Court agreed and entered an order removing Fernandez's case from the court's call.
On direct appeal to the Illinois Appellate Court, First District, Fernandez, by counsel, argued that his defense counsel was constitutionally ineffective for erroneously arguing that the Circuit Court did not have jurisdiction to reconsider his sentence. The Illinois Appellate Court concluded that defense counsel was not constitutionally ineffective. Thereafter, Fernandez did not file a petition for leave to appeal ("PLA") to the Supreme Court of Illinois.
On November 15, 2002, Fernandez filed a pro se petition for post-conviction relief in the Circuit Court of Cook County pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., that counsel later supplemented. The supplemental petition contained an ineffective assistance of trial counsel claim based on counsel's failure to (1) call a non-family witness to testify that Fernandez did not speak Spanish; (2) cite legal authority in support of the request that Fernandez be permitted to display his tattoos to the jury; and (3) object to the Illinois pattern jury instruction on eyewitness identification testimony. Furthermore, the supplemental post-conviction petition contained an ineffective assistance of appellate counsel claim based on appellate counsel's failure to raise the tattoo display and jury instruction issues on direct appeal. On May 13, 2004, the Circuit Court dismissed Fernandez's first post-conviction petition.
On post-conviction appeal, Fernandez argued the same ineffective assistance of trial counsel claims that he brought in his post-conviction petition. He also argued that appellate counsel was constitutionally ineffective based on appellate counsel's failure to raise the tattoo display and pattern jury instruction issues. On November 7, 2005, the Illinois Appellate Court affirmed the Circuit Court concluding that Fernandez had not established constitutionally ineffective assistance of trial or appellate counsel. In his counseled post-conviction PLA to the Supreme Court of Illinois, Fernandez argued that his trial counsel was constitutionally ineffective for failing to (1) call a non-family witness to testify that he did not speak Spanish; (2) cite legal authority in support of the request that he be permitted to display his tattoos to the jury; and (3) object to the Illinois pattern jury instruction on eyewitness identification testimony. Fernandez also argued that his post-conviction counsel failed to provide reasonable assistance of counsel and mentioned that appellate counsel was constitutionally ineffective for failing to understand that there was a legal basis for allowing Fernandez to display his tattoos to the jury and failing to object to the Illinois pattern jury instruction on eyewitness identification. On May 24, 2006, the Supreme Court of Illinois denied Fernandez's post-conviction PLA.
On January 27, 2005, while his first post-conviction petition was on appeal, Fernandez filed a second post-conviction petition raising claims that he did not bring in the present amended petition for a writ of habeas corpus. The Circuit Court denied Fernandez's second post-conviction petition on February 2, 2006. Fernandez's second post-conviction appeal was unsuccessful, and the Supreme Court of Illinois denied his second post-conviction PLA on September 30, 2009.
III. Habeas Petition
On March 22, 2007, Fernandez filed a pro se habeas petition pursuant to 28 U.S.C. § 2254(d). On August 20, 2007, the Court granted Respondent's motion to stay due to Fernandez's failure to exhaust his habeas claims. See Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). On December 2, 2009, the Court granted Fernandez's motion to lift the stay. On December 8, 2009, the Court granted Fernandez's motion for appointment of counsel and appointed the attorneys who presently represent Fernandez.
In February 2010, Fernandez's appointed counsel filed a motion for a fitness examination for the purposes of determining whether Fernandez was mentally competent to assist and direct counsel in the present habeas proceeding. Thereafter, on April 11, 2011, the Court held a competency hearing and, on July 14, 2011, the Court concluded that Fernandez was not competent to assist his counsel in this matter. In July 2012, the Court granted Fernandez's unopposed motion for appointment of his father, Alberto Fernandez, as guardian ad litem pursuant to Federal Rule of Civil Procedure 17(c). The Court appointed Alberto Fernandez as guardian ad litem for purposes of directing the present habeas litigation. In the summer of 2013, a psychologist re-evaluated Fernandez, after which counsel filed a status report with the Court that contained an August 2013 report from the psychologist. The report concluded that Fernandez is not capable of assisting counsel in his habeas case and that there is no reasonable hope of restoration of competence. In light of Fernandez's continuing incompetence, appointed counsel consulted with Alberto Fernandez, as guardian ad litem, in drafting Fernandez's amended habeas petition filed on April 28, 2014.
In his amended habeas petition, Fernandez brings the following claims: (1) his trial counsel was constitutionally ineffective for (a) failing to call an independent witness on the issue of whether he spoke Spanish, (b) failing to object to the Illinois pattern jury instruction on eyewitness identification testimony, and (c) failing to provide case law showing that displaying Fernandez's tattoos to the jury would have been proper non-testimonial evidence; and (2) his appellate counsel was constitutionally ineffective for failing to argue that (a) the eyewitness testimony pattern jury instruction was improper, and (b) Fernandez should have been allowed to display his tattoos to the jury.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the Court cannot grant habeas relief unless the state court's decision was contrary to, or an unreasonable application of federal law clearly established by the Supreme Court. See Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Ruhl v. Hardy, 743 F.3d 1083, 1091 (7th Cir. 2014). In Williams, the Supreme Court explained that 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 this 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." See id. at 405; see also Kamlager v. Pollard, 715 F.3d 1010, 1015 (7th Cir. 2013) ("A state court decision is contrary to' federal law if it applies the wrong legal standard established by Supreme Court precedent or decides a case differently than the Supreme Court on materially indistinguishable facts.").
Under the "unreasonable application" prong of the AEDPA standard, a habeas petitioner 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 Williams, 529 U.S. at 407. The state court's application of federal law must be more than incorrect, it must be "objectively unreasonable." Ford v. Wilson, 747 F.3d 922, 952 (7th Cir. 2014); see also Williams, 529 U.S. at 410 (" unreasonable application of federal law is different from an incorrect application of federal law") (emphasis in original). To be considered objectively ...