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Hernandez v. Harrington

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

August 29, 2016

ANTHONY HERNANDEZ, Petitioner,
v.
RICHARD HARRINGTON, Warden, Menard Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          Robert W. Gettleman United States District Judge.

         Petitioner Anthony Hernandez filed an amended petition (doc. 47) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his trial counsel was ineffective for failing to impeach one of the government's witnesses with a prior inconsistent statement (Ground One) and for failing to investigate and call a potential alibi witness (Ground Two). Petitioner also alleges that his appellate counsel was ineffective for failing to raise his Ground Two claim on direct appeal (Ground Three). Having reviewed the supplemental briefing, the court now denies the habeas petition.

         BACKGROUND

         I. Facts

         The facts of this case are discussed at length by the Illinois Appellate Court in its November 16, 2006, order on direct appeal.[1] People v. Hernandez, No. 1-04-3368 (Ill.App.Ct. Nov. 15, 2006). Petitioner was convicted at a bench trial of murdering Joey Arroyo (the “victim”), who was shot and killed in the early morning hours of June 28, 2000. Petitioner's fellow Spanish Cobras gang member, Brian Stein, testified at petitioner's trial that on the evening of June 27, 2000, he and another gang member, Omar Rodriguez, stole a burgundy Toyota Camry. Around midnight, Stein and Rodriguez came across several members of the Royals gang, including the victim. Stein and Rodriguez told the group of Royals that they were also Royals, at which time the victim invited them to join other Royals at Legion Park. Stein testified that he and Rodriguez spent about 15 minutes at the park, subsequently leaving to meet other members of the Cobras gang at Gompers Park.

         Stein testified that petitioner, who was the leader of the Cobras at the time, was at Gompers Park with a group of other Cobras. According to Stein, Rodriguez stated that the group of Cobras should “go get” the group of Royals at Legion Park. Thereafter, the group of Cobras drove in three vehicles to Legion Park. Stein testified that he and Jason Piurkowski rode in the stolen burgundy Camry that was driven by Rodriguez, and that Robert Gomez drove a gray station wagon with petitioner in the back seat and petitioner's girlfriend, Cassandra Rivera, in the front passenger seat. Two other Cobras, Richard Cardenas and “White Boy” rode in a red Acura driven by “Gill.” Stein testified that as they arrived at Legion Park, he heard two gunshots as the vehicle he was riding in passed a group of Royals who were on his right side. According to Stein, a red car driven by the Royals then crashed into Gomez's gray station wagon and into Gill's red Acura. Rodriguez subsequently ran the vehicle he was driving into the Royals' vehicle, after which Stein saw Cardenas trying to pull one of the Royals out of the car. Stein testified that he then saw petitioner approach the driver's side of the Royals' vehicle, reach his arm through the window, and then heard two gunshots and saw two flashes of light. Stein testified that at the time he heard the two gunshots, petitioner was the only person at the Royals' vehicle and Rodriguez was running towards Gill's vehicle.

         Malysa Riordan-Korner, the victim's girlfriend, testified that she was in Louis Tirado's vehicle when it crashed into Gomez's gray station wagon. Korner testified that she was in the front passenger seat, Tirado was driving, and the victim was between the two of them. According to Korner's testimony, after the collision, the victim hunched over her, trying to protect her. Korner testified that she felt people struggling in the car and then heard “maybe” two gunshots coming from very close by. Thereafter, Korner saw two pairs of arms reach inside the car, one of which was trying to pull the victim out of the vehicle. After climbing out of the driver's side window, Korner testified that a dark-colored vehicle drove up and someone inside told her it was “Cobras' world.” Korner subsequently identified petitioner in a lineup as the individual who made this statement to her.

         Cardenas, who pled guilty to conspiracy to commit murder and was serving a six and one-half year sentence at the time of petitioner's trial for his part in the victim's death, testified that on the night of the incident he was with Gill and another individual at Jenson Park. Cardenas testified that he was in Gill's Acura when he saw Rodriguez in a Camry and Gomez, along with petitioner and his girlfriend, in a gray station wagon. Cardenas testified that he heard two shots, but could not tell where they came from. He testified that upon exiting the vehicle, a “big red car” crashed into Gomez's station wagon. Cardenas testified that he approached the red vehicle, reaching through the driver's side window, and tried to pull the driver out of the vehicle. While trying to pull the driver out of the red vehicle, Cardenas testified that he heard a gunshot from behind him and to the right, but did not see anyone standing to his right.

         Cardenas was impeached with a handwritten statement he had given the police on July 1, 2000. In the statement, Cardenas reported that as the Cobras' three vehicles were driving he saw petitioner yell something out the window to a couple of people on the street, stick his hand out the window, and fire two shots at those people. The statement further related that following the car crash, Cardenas ran up to the Royals' red vehicle and tried to pull a man out of the car. As he did so, Cardenas wrote that he heard a gunshot fired from “very close” to his right side into the red car toward the man and woman inside. When Cardenas looked around, he saw the defendant turning away from the red car with a gun in his hand. Cardenas testified that the handwritten statement was fabricated and that the police had physically abused him and denied him food and drink prior to him giving the statement. The state rebutted this testimony with testimony from the detectives who took his written statement.

         Gomez, who pled guilty to first degree murder and attempted murder for his role in the victim's death, testified at petitioner's trial that he and Rodriguez were Spanish Cobras gang members and that petitioner was the gang's leader. Gomez further testified that on the night of June 27, 2000, he and Rodriguez were standing on the street when a red car drove by and Rodriguez spoke to the people inside the car. According to Gomez's testimony, Rodriguez told him to follow the red car, at which time he saw a passenger in the car display a “Royals sign” at a white man standing between two parked cars on the side of the street. Gomez testified that as he drove by the white man standing by the parked cars, he heard several shots. Gomez subsequently passed the red car, at which time he noticed that Rodriguez had a gun. As Gomez was ordering Rodriguez out of his car because Rodriguez had a gun, the red car “came out of nowhere” and smashed into Gomez's car. Gomez testified that when he looked up he saw Rodriguez walk toward the driver's side of the red car and fire one shot into the car.

         The state impeached Gomez with a videotaped statement he gave to police regarding the night of June 27, 2000. In the videotaped statement, Gomez reported that on the night of the incident petitioner and petitioner's girlfriend were in his vehicle as the three followed Rodriguez and another vehicle looking for Royals to fight. Gomez further stated in the video that when he turned onto a side street, petitioner fired two shots out of his car at a man standing on the street. Following the crash with the red car, Gomez stated that he saw defendant approach the red car, point a gun at the driver, and fire one shot. Gomez testified at petitioner's trial that the videotaped statement was false, and that he had been coerced into giving it. Gomez testified that defendant was not in his car on June 27, 2000, and that he did not fire the shot into the red car. The state rebutted this testimony with testimony from the detectives who took his videotaped statement.

         Rodriguez, who pled guilty to first degree murder of the victim, testified at petitioner's trial that he was driving with Stein in a stolen maroon Camry on the evening of June 27, 2000. Rodriguez testified that after joining the Royals at Legion Park, he and Stein went to Jenson Park where other Cobras were hanging out. Rodriguez testified that petitioner was not at the park. According to Rodriguez, he told the other Cobras where they could find Royals gang members, after which the group drove in three vehicles to the area where the Royals were located. Rodriguez testified that he and Stein were in the Camry, Gomez drove his gray station wagon, and that the third vehicle was red. Rodriguez testified that upon seeing the Royals he had seen earlier in the night, he heard two gunshots, after which there was a collision. Following the collision, Rodriguez ran to Gill's car, and as he was doing so, he heard a gunshot from behind him. Rodriguez testified that he looked around, but did not see who had fired the shot.

         The state impeached Rodriguez's testimony with a videotaped statement he gave to the police on June 28, 2000. In the statement, Rodriguez related that earlier in the evening on June 27, 2000, petitioner had told him he had a gun. Following the crash, Rodriguez saw petitioner approach the Royals' car with a gun and then heard shots, but did not see the shooting. Rodriguez testified that the videotaped statement was false and the result of coercion by the detectives who interviewed him. The state rebutted this testimony with the testimony of the detectives who had taken his statement.

         A Cook County Medical Examiner testified that the victim's death was consistent with a homicide and was caused by a gunshot to the victim's back. The medical examiner testified that the bullet entered the victim's back in a trajectory that was consistent with the victim having been hunched over and covering someone on the front seat of the vehicle.

         Following the bench trial, petitioner was convicted of first degree murder, two counts of attempted first degree murder, and unlawful use of a weapon by a felon. In announcing its decision, the court found that the prior inconsistent statements of Cardenas, Gomez, and Rodriguez constituted the “main thrust of the evidence, ” and admitted those statements as substantive evidence. The trial judge noted that his credibility determination was an “easy one, ” stating that he did not believe Cardenas's, Gomez's, or Rodriguez's trial testimony. The court found that the three witnesses' earlier statements consistently and fully detailed the sequence of events the night of the victim's murder.

         The court discredited the three witnesses' claims of physical abuse and coercion by the interviewing detectives, stating that their claims were not credible because each witness only recanted their earlier statements to the extent that the statement implicated petitioner, but did not recant the factual aspects of the statements. The trial court also found that the three witnesses had a much stronger motive to lie at trial than when they gave their earlier custodial statements because by the time of trial each had already been convicted and sentenced and was being brought to testify against their gang leader in his presence.

         II. ...


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