United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, UNITED STATES DISTRICT COURT JUDGE.
Petitioner Nelson Calderon filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 21, 2013. He subsequently amended the petition on October 7 and December 10 of that year. Calderon is currently incarcerated in the Pontiac Correctional Center serving a natural life sentence for aggravated kidnapping. For the following reasons, the Court denies Calderon’s petition.
The Court presumes that the facts established by the state court are true unless rebutted by clear and convincing evidence, which Calderon has not attempted to do. See 28 U.S.C. § 2254; Bolton v. Akpore, 730 F.3d 685, 687 (7th Cir. 2013). Unless otherwise noted, the Court relies on Exhibit C to Dkt. No. 33, which is an opinion of the Appellate Court of Illinois, First Judicial District, for the facts in this section. The opinion is also published at 911 N.E.2d 1115 (Ill.App. Ct. 2009) (hereinafter Calderon I).
A. The Crime
On the afternoon of June 21, 2001, David Vasquez, Calderon’s victim, parked at a gas station at 47th Street and Archer Avenue on Chicago’s southwest side. While Vasquez was inside the gas station purchasing cigarettes, Calderon opened the passenger door to Vasquez’s car and sat in the passenger seat. When Vasquez returned to his car, Vasquez saw Calderon in the front seat and told Calderon to “get out.” Calderon replied that Vasquez should get in the car, suggesting that Calderon’s friends in a nearby Chevy Suburban would hurt Vasquez if he failed to comply. Vasquez got in the car. Once inside, Calderon told Vasquez that he believed Vasquez to be a member of a gang who had recently robbed a friend of Calderon. Calderon ordered Vasquez to show him any money that he had in his pockets; apparently the stolen money was marked in a recognizable way. Vasquez complied and Calderon determined that it was not the money that had been stolen from his friend.
Calderon instructed Vasquez to drive to an address near the intersection of 55th Street and Lawndale Avenue, about a mile south of the gas station. Vasquez had previously lived at the address and a friend of Vasquez, Moises Guzman, still lived there. The Chevy Suburban followed Calderon and Vasquez to the address. Calderon kept his hand in his pocket during the five to ten minute drive.
When Vasquez and Calderon arrived at the address, Vasquez knocked at the door and Guzman let the two men inside. Calderon told Guzman that there were men waiting outside in the Suburban who would come inside if Guzman did not comply with Calderon’s orders. Calderon then instructed Vasquez to tell Guzman “about the gang and all that.” At Calderon’s behest, Vasquez told Guzman that Calderon was searing for marked money that had been stolen. Guzman showed Calderon the money in his wallet, which did not match the stolen money. Calderon then instructed Vasquez and Guzman to give him more money and jewelry. Guzman gave Calderon an additional $100 and Vasquez gave Calderon a ring, an earring, and a bracelet. Calderon then left the house.
An Illinois grand jury indicted Calderon on five counts: (1) aggravated kidnapping for the purpose of obtaining ransom; (2) aggravated kidnapping based on the commission of a robbery against Vasquez; (3) robbery of Guzman; (4) robbery of Vasquez; and (5) residential burglary. The State dismissed the first count and Calderon proceeded to a jury trial on the remaining four. The Court limits its recitation of the facts of the trial to those pertinent to the present petition.
Prior to the trial, Calderon filed a motion to suppress a line-up identification that that was the result of what he argued was an unduly suggestive line-up. Calderon was the oldest person in the line-up and the only who wore his hair in a ponytail. The trial court denied the motion orally, reasoning that Calderon did not appear older than any other member of the line-up and that his ponytail was not visible in the photo of the line-up that had been entered into evidence. (Dkt. No. 33 Ex. B1 p. 312-13).
Calderon filed a motion in limine seeking to bar the use of prior convictions to impeach Calderon’s credibility if he chose to testify. The trial court reserved judgment on the motion unless and until Calderon actually testified. Calderon did not testify at trial.
Prior to the close of evidence, Calderon’s counsel tendered, and the Court issued, a jury instruction on unlawful restraint, which is a lesser-included offense of aggravated kidnapping. (Dkt. No. 33 Ex. A p. 95). The trial court did not conduct a colloquy on the record to determine whether Calderon personally consented to the instruction.
In addition to the unlawful restraint instruction, the court instructed the jury on the elements of aggravated kidnapping, which, among other things, required the jury to determine whether Calderon secretly confined Vasquez against his will. (Id. at 94). While the jury deliberated, it sent a note to the judge inquiring as to the “legal definition” of “detain, ” “secretly, ” and “confine.” (Id. p. 122). The court offered to provide dictionary definitions of the terms, but counsel for both the State and Calderon declined. After consulting with Calderon’s counsel and counsel for the State, the trial court instructed the jury that the jury had all the instructions in the case and that they should continue to deliberate. (Id.).
The jury returned a verdict of guilty on all four counts pursued at trial. The court sentenced Vasquez to natural life in prison.
C. Direct Appeal
Calderon appealed his conviction and raised five claims: (1) that the State failed to introduce sufficient evidence to prove him guilty of aggravated kidnapping beyond a reasonable doubt because there was no evidence that Calderon secretly confined the victim; (2) that the trial court’s decision to reserve judgment on his motion to bar his prior convictions unless and until Calderon testified prevented Calderon from making an informed and intelligent decision about whether to testify; (3) the trial court deprived him of a fair trial by failing to admonish him of his right to decide whether to offer jury instructions on the lesser-included offense of unlawful restraint; (4) the trial court erred in imposing extended-term sentences on the robbery convictions; and (5) that the mittimus did not properly reflect the convictions and sentences entered by the Court. (See Dkt. No. 33 Ex. E). The State confessed error as to Calderon’s fourth and fifth claims and the appellate court remanded for resentencing on the robbery convictions and to correct the mittimus. (Dkt. No. 33 Ex. C pp. 19-21). The appellate court otherwise affirmed Calderon’s conviction, rejecting the first three grounds for appeal on the merits.
Calderon then filed an unsuccessful petition for leave to appeal (“PLA”) to the Illinois Supreme Court. (See Dkt. No. 33 Ex. G). In the PLA, Calderon presented three arguments: (1) that the Illinois Supreme Court should provide a clear definition of the “secret confinement” element of aggravated kidnapping; (2) that the appellate court unreasonably narrowed the holding of People v. Medina, 851 N.E.2d 1220 (Ill. 2006), by requiring that a defendant be convicted of a lesser-included offense before he may claim that the trial court erred in failing to allow him to decide personally whether to instruct the jury on that lesser-included offense; and (3) that Calderon’s choice not to testify should not prevent appellate review of the trial court’s policy ...