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Moedano v. Winsor

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

September 30, 2014

MIGUEL MOEDANO (M01039), Petitioner,
ANGELA WINSOR, Warden, Big Muddy River Correctional Center, Respondent.[1]


JOAN B. GOTTSCHALL, District Judge.

On September 29, 2005, R.T., a thirty year old female, visited Miguel Moedano, whom she had met two nights earlier, at a restaurant where Moedano worked as a bartender.[2] R.T. drank a portion of a margarita and two shots of tequila and began to feel "weird." After Moedano's shift ended, R.T. and Moedano went to two other bars and, after stopping at Moedano's apartment, eventually ended up at R.T.'s apartment, where she repeatedly threw up. As she lapsed in and out of consciousness, she realized that Moedano was engaging in sexual activity with her. Following a bench trial in the Circuit Court of Cook County, Moedano was convicted of sexually assaulting R.T. while knowing she was unable to consent and was sentenced to two consecutive terms of five years of imprisonment. In Moedano's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, he challenges, among other things, the validity of his waiver of a jury trial and the sufficiency of the evidence presented at trial. For the following reasons, the petition is denied.


The following facts and procedural posture relevant to Moedano's § 2254 petition are drawn from the state court record and the Illinois Appellate Court's opinion in Moedano's direct appeal. See Dkt. 17. This court will presume that the state court's factual determinations are correct for the purposes of habeas review as Moedano neither contests them nor points to clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Kidd v. Lemke, 734 F.3d 696, 703 (7th Cir. 2013).

A. Waiver of Jury Trial

Immediately before the start of Moedano's trial, the court had a colloquy in English with Moedano about his waiver of his right to a trial by jury. After the following colloquy, the court concluded that Moedano sufficiently understood the English language to waive his right to a jury trial:

THE COURT: I understand you're prepared to give up your right to trial by jury and have the Court determine if you're guilty or not guilty. Is that, in fact, your intention?
THE COURT: Do you want to stand up and speak up. Tell me what would a jury trial be, sir.
MOEDANO: I'm sorry,
THE COURT: What - what is a jury trial?
(pause in proceedings)
DEFENSE COUNSEL: Judge, if I may have one minute with Mr. Moedano. (pause in proceedings)
THE COURT:... Sir, tell me what - what would a jury trial be?
MOEDANO: Okay. First my English is not very well.
THE COURT: What is your native language?
MOEDANO: Miguel Moedano.
THE COURT: Okay. What language do you speak?
MOEDANO: Spanish.
THE COURT: Okay. Call a Spanish interpreter.... What is a jury trial?
MOEDANO: The one the - the 15 people.
THE COURT: Do what?
MOEDANO: To judge me if I'm like.
THE COURT: They judge you?
THE COURT: Yeah. Is that what you're saying?
MOEDANO: Well, yes.
THE COURT: All right. I have observed - observed the Defendant execute a jury waiver in my presence. I find that the waiver is given knowingly and voluntarily. It shall be accepted. [Defense counsel], have you always communicated with your client in English?
DEFENSE COUNSEL: Yes.... I've only conversed with Mr. Moedano in English since the time I've known him these last two years. I think Mr. Moedano is just very nervous right now....
THE COURT: I have talked to Mr. Moedano on any number of occasions and there's never been any apparent breach or failure to communicate. Do you need the services of a Spanish interpreter, sir?
MOEDANO: In some cases I don't understand a few words.
THE DEPUTY SHERIFF: I called, Judge.
THE COURT: Okay. All right. Have a seat, sir. We'll wait for the interpreter.

Dkt. 17-3, Ex. I (Trial Tr. Part I) at Q-2-4. The trial began once an interpreter arrived.

Although Moedano had an interpreter at his trial, the transcripts for the pre-trial proceedings do not reflect the use of an interpreter. Cf. id. at Q-4 (swearing the interpreter at the start of trial). The record shows that at one of the pre-trial status hearings, Moedano's attorney failed to appear. Id. at M-3. Moedano had a brief discussion in English with the trial court:

THE CLERK: Miguel Moedano.
PROBATION OFFICER: I don't know why it's on the call.
THE COURT:... Did you put the case on the call?
MOEDANO: I'm supposed to have Court today. I called my lawyer. I don't have you today.
THE COURT: Mike is your lawyer.
PROBATION OFFICER: I checked the records, I don't know why it's up today.
THE COURT: Your lawyer is not coming today?
MOEDANO: No, he's not here. If I call him, maybe because he's close, he can come. I need to find out what the next day in Court is.
THE COURT:.... Come back on February 9th, sir.
MOEDANO: Thank you very much.


B. Moedano's Trial and Sentencing

1. Opening Statements

In his opening statement, defense counsel told the court that "this case is about one thing and one thing only, whether Mr. Moedano had a reasonable belief that the complainant in this case consented to these sex acts." Id. at Q-7. Counsel reviewed what he believed the evidence would show and explained that [Moedano's] "defense was that this was all entirely consensual, that Mr. Moedano at all times had a reasonable belief that the victim - that the complaining witness was consenting to these various sex acts." Id. at Q-8-9. Finally, he concluded, "Judge, we believe that the evidence will show that Mr. Moedano reasonably believed that all - all of what occurred here was consensual. At no time did the complaining witness struggle.... At no time did the complaining witness have to fend herself off any forceful advance." Id. at Q-9.

2. The Evidence

a. Medical Testimony

The State's first witness was an attending physician who worked at the emergency room at Illinois Masonic Hospital on September 30, 2005. R.T. arrived at the emergency room at 1:40 p.m. on September 30, 2005. The doctor testified that he found three lacerations and bleeding in R.T.'s vaginal area consistent with rigorous or forceful penetration.

He also testified that GHB is an abbreviation for gamma hydroxybutric acid or gamma hydroxybutyrate. GHB generally "causes an altered state of mentation, causes depressed levels of consciousness and impaired memory as well as can cause nausea and vomiting." Id. at Q-22. Traces of GHB can be detected via urinalysis for up to twelve hours. According to the doctor, urinalysis did not reveal the presence of GHB, colloquially known as a "date rape drug, " in R.T.'s system. He testified, however, that the negative result did not exclude the possibility that she had been drugged because test results can be affected by a victim's body weight, the passage of time, and the number of times an individual urinates between ingesting GHB and taking a urine test.

Finally, the doctor testified about Rohypnol, a form of benzodiazapine that can cause symptoms similar to GHB. He noted that R.T. took prescription Xanax, which is another type of benzodiazapine. Given her prescription for Xanax, R.T. was not tested for the presence of benzodiazapine.

b. R.T.

R.T. testified that on September 29, 2005, she visited Moedano, whom she had met two nights earlier, at a restaurant in the Lake View neighborhood on the north side of Chicago where he worked as a bartender. Moedano served R.T. a margarita and two shots of tequila. After she started to drink the margarita, R.T. "felt kind of weird" in a way that was different than she "usually had when [she] drank so [she] just stopped drinking it." Dkt. 17-3, Ex. I (Trial Tr. Part I) at Q-42. After Moedano's shift ended, he and R.T. went to two nearby bars and drank alcohol. At this point, R.T. had "difficulty concentrating" and felt "very, very strange" and "unusually comfortable around" Moedano even though she was normally suspicious of people she had just met. Id. at Q-42-43.

R.T. agreed to go to Moedano's apartment to retrieve some CDs. After he gave her a glass of water to drink, she felt "horrible." Id. at Q-44. She became "sick to [her] stomach" and "[e]verything started to go cloudy" as she became "very, very dizzy." Id. When R.T. tried to leave, Moedano told her that "he couldn't let her leave in that condition" and followed her out the door and into a taxi. Id. at Q-45. The cab driver told R.T. to let him know if she needed him to pull the cab over so she could throw up. During the cab ride, R.T. repeatedly asked Moedano if he had put something in her drink. He responded "that he just put love in ...

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