United States District Court, N.D. Illinois, Eastern Division
AMY J. ST. EVE, District Judge.
Before the Court is Petitioner Ruben Silva's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254(d). For the following reasons, the Court denies Silva's 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 Silva 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. Silva, No. 1-09-0601 (1st Dist. Sept. 24, 2010) (unpublished) and People v. Silva, No. 1-11-3358 (1st Dist. May 6, 2013) (unpublished).
I. Factual Background
Silva and his co-defendant Dariel Webber ("Webber") were tried simultaneously before separate juries for the murder of Guadalupe Ramirez ("Ramirez") and the attempted murder of Juan Rodriguez ("Rodriguez") based on a shooting that took place on June 25, 2007, in the vicinity of 89th Street and Commercial Avenue in Chicago, Illinois. Silva's jury trial commenced on January 13, 2009.
Prior to the selection of Silva's jury, the Circuit Court of Cook County judge asked Silva's attorney whether she wanted the court to ask the potential jurors "any questions about the possibility of Ruben Silva not testifying." Counsel indicated that she did not. The court then conducted voir dire. First, the judge informed the approximately 50 potential jurors of the nature of the proceedings, their duties if called to serve as jurors, and the court's role in the trial. The trial court then told the venire that it would ask them 15 or 16 questions related to their qualifications to serve as jurors. The judge instructed the venire as follows:
If the question applies to you... you'll raise your right hand. We'll not talk about it now, however. We'll talk about it if you wind up in the jury box at some point this afternoon. At that point, we'll ask you did you raise your hand before any question I asked earlier today. If you did, tell me the question you raised your hand about. If I forget to ask, remind me.... [s]o one way or another we'll talk about it if you raised your hand for a question.
Thereafter, the court asked the venire the following questions as a group:
There are certain things that apply, certain principles that apply in this case that apply in all cases of a criminal nature all around the United States. The one principle is the defendant, Mr. Ruben Silva[, ] is innocent of the charges against him, and that presumption remains with him throughout every stage of the trial and is not overcome unless by your verdict, you come to the conclusion that the State has proven guilt beyond a reasonable doubt.
Is there anybody who has any difficulty or quarrel with the principle that the accused person, in this case, Mr. Silva, is innocent of the charge against him, the State must prove guilt beyond a reasonable doubt?
[T]he State... ha[s] the burden of proving guilt beyond a reasonable doubt, and that burden stays on the [S]tate throughout the entire case. The defendant is not required to prove to you that he's innocent of the charges against him. Does anybody have any difficulty or quarrel with the principle that the State must prove guilt beyond a reasonable doubt and the defense must prove nothing to you?
Again, no response.
The trial court then randomly selected 30 potential jurors and alternates and questioned them individually. Among other questions, the judge asked each potential juror- "Did you raise your hand before for any question I asked earlier today"-to which some of the potential jurors responded affirmatively. The jurors' questions, however, did not pertain to the questions highlighted above. Following the additional questioning, the parties and the judge selected 12 individuals to serve as jurors and two individuals as alternate jurors.
During the first day of Silva's jury trial, the following exchange occurred between counsel and the Circuit Court judge regarding a photograph:
Assistant State's Attorney ("ASA"): It came to my attention after speaking with [defense counsel] today about her client, that there's... one sentence in a police report, by the detectives, indicating that they told her client that there was a photograph of him in the area of 89th and Commercial. I went through my file twice, could not find anything.... There was no photograph inventoried. I asked the detective to look. He in fact did have a still photo, it's the back of a person on a bike in a tank top shirt.
The court: Taken supposedly when?
ASA: About 6:50 on the 25th of June, 2007. I indicated to him that we would not be using that photograph, we would not be questioning him about that because we never had it, never tendered it. I let [defense counsel] know. So that if she questions him about the photograph, he's going to say he hasn't-but again, the [S]tate does not intend to use that in any way, shape or form.
Defense counsel: That photograph you said was taken from the rear, is that correct?
ASA: From the rear. You can see a face on the person and it's a grainy photograph. And he doesn't know why it was not included in the [file].
At Silva's January 2009 jury trial, shooting victim Rodriguez testified that at about 6:30 p.m. or 6:40 p.m. on June 25, 2007, the decedent Ramirez and he were at a restaurant at 89th Street and Commercial Avenue. While Ramirez was inside the restaurant ordering food, Rodriguez waited outside. At that time, Silva walked past and said that Rodriguez was not supposed to be on that block and then left. Rodriguez had seen Silva on previous occasions in front of James Bowen High School where members of the Latin Kings congregated. Rodriguez knew Silva's nickname was "Saigon" and that Silva was a Latin King. After Silva left, Rodriguez went inside of the restaurant and told Ramirez that they should leave, but they waited until Ramirez got his food.
Rodriguez further testified that ten to fifteen minutes later he left the restaurant and looked down the street, where he saw Silva riding up on a bicycle. Silva stopped and told Rodriguez that he should not be on the block, asked him what he was doing there, and then ask him where his friend was. Silva also told Rodriguez that he was a Latin King, his name was Saigon, and that he "ran" the block. Further, Rodriguez testified that Silva then pulled out a silver automatic gun from his waistband and pointed the gun at him. Ramirez then exited the restaurant and Silva pointed the gun and began firing at Ramirez. At that time, Silva was approximately three to four feet away from Rodriguez and Ramirez.
As Silva began firing his gun, his co-defendant Webber walked up and Silva told him to fire at Rodriguez. Rodriguez testified that he had seen Webber at Bowen High School in the past and that Webber was known as "Twin" because he has a twin brother. At that time, Webber pulled out a small, black revolver and started shooting at Rodriguez, after which Rodriguez attempted to run around Ramirez's truck parked nearby. Also, Rodriguez testified that when he went around Ramirez's truck, he saw Webber firing his gun while Webber was running northbound. Silva also fled on foot.
After Silva and Webber fled, Ramirez ran to the driver's side of his truck and Rodriguez ran for the passenger side. After they both got into the truck, Ramirez told Rodriguez that he had been shot. Ramirez began to drive toward a fire station on 93rd Street. At 91st Street, Ramirez told Rodriguez he could no longer drive because of his gunshot wounds. They exited the truck to switch drivers, but Ramirez fell to the ground after which Rodriguez called for an ambulance. During the call, police began to arrive and then the ambulance arrived. Rodriguez gave the police the shooters' nicknames and described what they were wearing. The ambulance took Ramirez to the hospital, where he later died. Rodriguez went to Area 2 headquarters and identified both Silva and Webber in a photo array. Later that night, Rodriguez identified Webber in a line-up and gave a handwritten statement to the ASA.
On cross-examination, Rodriguez answered questions about what Silva was wearing on ...