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United States ex rel. Navarro v. Atchison

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

September 24, 2014

MICHAEL ATCHISON, Warden, Menard Correctional Center, Respondent

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Mauricio Navarro, United States of America ex. rel., Plaintiff, Pro se, Menard, IL.

For Mike Atchinson, Defendant: Jean Godfrey, LEAD ATTORNEY, Office Of The Illinois Attorney General, Chicago, IL.

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Rubén Castillo, Chief United States District Judge.

Mauricio Navarro, a pro se prisoner, is serving an 80-year sentence for a murder and related offenses committed in Cook County, Illinois. He filed a petition pursuant to 28 U.S.C. § 2254 (the " Petition" ) challenging his conviction. (R. 19, Pet.) For the reasons stated, the Petition is denied.


Following a jury trial, Navarro was convicted of the murder of Israel Lucena, the attempted murder of Fernando Escobedo, and aggravated discharge of a firearm. On direct appeal, the Illinois Court of Appeals set forth the facts underlying Navarro's conviction as follows:

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At trial, Fernando Escobedo testified that about 10:30 a.m. on March 15, 2005, he drove to a cell phone store near Diversey and Laramie Avenues on the northwest side of Chicago with Israel Lucena. He parked his car directly across the street from the store and went inside, leaving Lucena in the car. Escobedo noticed two members of the Ashland Vikings street gang inside the store, and then observed Adam Garcia, whom Escobedo knew as " Gordo," enter the store, speak with a clerk, then exit and drive away in a van.
Escobedo further testified that the store had glass doors and windows, and when he looked out of them at his car, he saw [Navarro] standing near the rear passenger side of the vehicle. Escobedo went outside and looked at [Navarro], whom he described as 5'6" tall, with a medium build, wearing a red top with white stripes, blue jeans, and " some red on his head too." After their eyes met, [Navarro] walked to the rear of his car, and stepped behind a van out of sight. [Navarro] then emerged from behind the van with a gun, pointed it at Lucena, and fired several shots. Escobedo ran to the car, and saw that Lucena was bleeding, and then looked up at [Navarro], who was about four or five feet away. [Navarro] turned around and ran, and Escobedo chased him into a parking lot where [Navarro] turned and fired two shots at him, forcing Escobedo to drop to the ground. [Navarro] then ran into an alley, entered a van, and drove away.
Escobedo was taken to a police station where he viewed a photo array and stated that one of the pictured individuals resembled the shooter. He also identified Garcia, and told the police that he saw him in the store. That night, Escobedo viewed a lineup at the station and did not identify anyone. On March 25, 2005, however, Escobedo viewed another photo array and identified [Navarro] as the shooter. On cross-examination, Escobedo stated that just after the shooting, he described the shooter to police as wearing a jacket and a red hoodie, but that at the time of trial, he was unsure about what was on his head, except that it was red.
Daniel Datil testified that about 10:30 a.m. on March 15, 2005, he was walking on Diversey Avenue near Laramie, when he saw [Navarro] emerge from the front of a van and lean against the door, holding something in his hand. [Navarro] was facing Datil and wearing a red jacket with white stripes and a red baseball cap. Datil, who was about 30 to 35 feet away from [Navarro] at this time, continued walking towards him. When Datil got within seven or eight feet, he could see that [Navarro] had a gun pressed up against his left leg, and then made eye contact with him for two seconds at a distance of four or five feet. Shortly after Datil passed [Navarro], he heard gunshots from behind and to his left, and started running. As he ran, he looked back and saw [Navarro] pointing a gun at a car.
Datil viewed a photo array at the police station after the shooting, and identified someone that looked similar to the shooter. He later viewed a lineup with that person in it, but did not identify anyone. On April 18, 2005, Datil was called back to the police station to view another lineup, and identified [Navarro] as the shooter. Datil remarked that [Navarro] had more hair at that time than he did at trial.
On cross-examination, Datil stated that when he first observed [Navarro], he could not see his face because he was looking down and it was covered by the bill of his cap. He also acknowledged

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his grand jury testimony, where he stated that [Navarro] looked at him for a quick second, and responded that he could not remember exactly how much time passed while he and [Navarro] looked at each other.
Adam Garcia testified that about 10:30 a.m. on March 15, 2005, he drove to a cell phone store on Diversey and Laramie Avenues with [Navarro]. At that time, [Navarro] was wearing blue jeans, a red coat, and a red cap, and, like Garcia, was a member of the Latin Styler street gang. When Garcia entered the store, there were three people inside, including two members of the Ashland Vikings, a rival gang to the Latin Stylers.
When Garcia returned to his van, he drove into a nearby alley at [Navarro's] direction. [Navarro] then told him to wait there and exited the vehicle. Garcia lost sight of [Navarro], and within seconds, heard seven or eight gunshots. He jumped out of the vehicle to see what was going on, and saw [Navarro] running towards him. He also saw one of the individuals who had been inside the cell phone store, but whom Garcia did not recognize as an Ashland Viking, chasing him.
[Navarro] was holding a black handgun, and Garcia saw him point it at the man chasing him and fire two shots. Garcia and [Navarro] both re-entered his van, and Garcia drove for a short distance down the alley before [Navarro] told him to stop and jumped out of the vehicle. Later that day, Garcia learned that the police were looking for him and were interviewing his child and the child's mother, so he turned himself in.
Garcia testified that several days later, he spoke with [Navarro] about the incident, and asked him what he was thinking. [Navarro] responded " that he didn't care. That he'd rather be in prison with his brother." Garcia explained that [Navarro's] brother was a member of the same gang and was on trial for the murder of an Ashland Viking at the time. [Navarro] said that he was worried that his brother might receive a lengthy sentence.
Officer David Luciano testified that about 10:30 a.m. on March 15, 2005, he responded to a call regarding a shooting at Diversey and Laramie Avenues. He spoke with Escobedo and prepared a report in which the offender was described as 5'6" tall with black curly hair.
Officer Zbigniew Niewdach, a forensic investigator with the mobile crime lab, testified that he collected seven cartridge cases at the scene of the shooting, and two more in a nearby alley. He also recovered a security video containing footage taken by an outdoor camera from a nearby restaurant.
Officer Leo Goduto testified that between March 22 and March 25, 2005, he received about four phone calls from [Navarro], with whom he had previously spoken on a number of occasions. On March 27, 2005, Officer Goduto again received a call from [Navarro], and advised him to turn himself in because he was a person of interest in the Lucena homicide, to ...

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