United States District Court, N.D. Illinois, Eastern Division
MARIO L. RODRIGUEZ, Petitioner,
LYNN DEXHEIMER, Respondent.
OPINION AND ORDER
JOAN H. LEFKOW, District Judge.
Mario L. Rodriguez filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2009 state convictions for criminal sexual assault and unlawful restraint. (Dkt. 1.) Rodriguez alleges that his constitutional rights were violated in the criminal proceedings against him. Specifically, Rodriguez argues that he was denied due process because there was insufficient evidence against him; he was denied the right to confront and cross-examine a witness; and his trial counsel was ineffective. (Dkt. 1 at 8-14.) For the reasons stated below, his petition is denied.
On May 8, 2009, Rodriguez was convicted of criminal sexual assault and unlawful restraint. (Exh. I at 10.) The state trial court sentenced him to five years of imprisonment on September 9, 2009. ( Id. at 11.) On June 6, 2011, the Illinois Appellate Court affirmed his conviction, rejecting Rodriguez's argument that the evidence against him was insufficient. (Exh. A at 17.) The Illinois Supreme Court denied Rodriguez's subsequent petition for leave to appeal on November 30, 2011, which reiterated his claim of insufficient evidence and also contended that he was denied the right to confront the victim during cross-examination. (Exh. C; Exh. B at 22-23.) Rodriguez did not file any post-conviction petitions in state court or a petition for a writ of certiorari with the United States Supreme Court. (Dkt. 1 at 3; Dkt. 33 at 5.)
On January 31, 2012, Rodriguez timely filed this pro se petition pursuant to 28 U.S.C. § 2254. (Dkt. 5.) Rodriguez raises four claims: (1) he was denied due process because the evidence presented was insufficient to find him guilty beyond a reasonable doubt ("claim one") (dkt. 1 at 12); (2) his trial counsel was ineffective for failing to raise consent to the sexual assault as an affirmative defense ("claim two") (dkt. 1 at 10); (3) the trial court violated his right to confront the victim by limiting the scope of her cross-examination ("claim three") (dkt. 1 at 8); and (4) his trial counsel was ineffective for failing to request an instruction on the lesser-included offense of criminal sexual abuse ("claim four") (dkt. 1 at 14). Rodriguez admits that he did not raise these last three claims in the state appellate court on direct review, but he attributes this failure to ineffective assistance of appellate counsel. (Dkt. 1 at 8, 10, 14.) On March 19, 2013, this Court denied the respondent's motion to dismiss the petition as unexhausted because Rodriguez's time to exhaust his claims in state court had expired. (Dkt. 26.)
Rodriguez was paroled on December 18, 2012 and deported to Mexico on January 2, 2013. (Dkt. 33 at 1; Exh. H.) The respondent argues that Rodriguez's petition is moot because, as a deportee, Rodriguez faces no collateral legal consequences of his conviction. (Dkt. 33 at 7-11.) Alternatively, the respondent argues that three of Rodriguez's claims are procedurally defaulted and the remaining claim fails on the merits. (Dkt. 33 at 12-16.)
A petitioner is entitled to habeas relief only if the state court's rejection of his claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d (2000).
A state court decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] 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 [it]." Williams, 529 U.S. at 405.
A state court unreasonably applies Supreme Court precedent "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of a particular state prisoner's case" or "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. A state court's application of Supreme Court precedent is unreasonable only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedent." Harrington v. Richter, 131 S.Ct. 770, 786, 178 L.Ed.2d 624, 562 U.S. 86 (2011).
I. Rodriguez's Petition is Not Moot
Before addressing the merits of Rodriguez's claims, this court must determine whether his petition is moot. United States v. Larson, 417 F.3d 741, 747 (7th Cir. 2005). The party asserting mootness has the burden of proving that the petition is moot. Smith v. Bezy, 141 F.Appx. 479, 480 (7th Cir. 2005). A petition becomes moot when "it no longer present[s] a case or controversy under Article III, § 2 of the Constitution." Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). There is a live case or controversy if the petitioner suffers a concrete and continuing injury. Id. A petition is not mooted by a prisoner's release if there are adverse collateral legal consequences of the challenged conviction, other than the preceding incarceration or parole. Spencer, 523 U.S. at 7; see also Phifer v. Clark, 115 F.3d 496, 500 (7th Cir. 1997).
In order to satisfy the case-or-controversy requirement, the adverse collateral legal consequences must be statutory disabilities, not consequences that are contingent on the petitioner's future misconduct and thus within the petitioner's power to avoid, such as a sentencing enhancement following the commission of another crime. Spencer, 523 U.S. at 13-15; see also Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (finding the petition was not moot because ...