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Santiago v. Pfister

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

January 27, 2017

Diego Santiago, M09479, Petitioner,
v.
Randy Pfister, Warden, Stateville Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          Thomas M. Durkin, United States District Judge.

         Diego Santiago was convicted after a jury trial of first degree murder and unlawful discharge of a weapon. See R. 1 at 1. He is serving consecutive prison terms of 30 and 25 years at the Stateville Correctional Center in Illinois, where he is in the custody of Warden Randy Pfister.[1] See Id. at 7. Santiago seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See R. 1. The Warden has answered the petition seeking its dismissal. R. 6. For the following reasons, Santiago's petition is dismissed and the Court declines to issue a certificate of appealability.

         Background

         I. Facts

         Epifano Santos, a gang member, was murdered on December 28, 2006. Miguel Adorno and Martin Logan, members of a rival gang, were arrested shortly thereafter and each gave statements to the police, which were videotaped. Adorno told police that he and Santiago were in the same gang, and that Santiago had an ongoing feud with Santos. On December 28, Santiago's gang and Santos's gang had been fighting. Later that day, Santiago, Adorno, Logan, and other members of their gang met at Santiago's house. Santiago received a phone call from his girlfriend, Lisa, who is also the mother of Santos's child. Adorno overheard Santiago tell Lisa, “stop putting my name in shit, bitch, ‘cuz you're going to see what's going to happen to him.” Santiago got a gun and left with Adorno, Logan and the others to find members of Santos's gang to fight with. They found Santos and another member of his gang, Rene Otero, at the corner of Armitage and Tripp. Adorno and Logan struck Santos, knocking him to the ground. Santiago then shot Santos twice in the head. The details of Logan's statement were essentially the same as Adorno's.

         Adorno and Logan both pled guilty to conspiracy to commit murder in connection with Santos's death. They both gave testimony at their plea hearings that was substantially similar to the statements they had previously given to police. At Santiago's trial, however, they testified that they could not remember their prior statements and testimony. Instead, they testified that Santiago was not present during Santos's murder and that another member of their gang named “Casper” had killed Santos. Nevertheless, Adorno's and Logan's prior statements were admitted substantively at trial.

         Another of Santiago's fellow gang members, Carlos Garcia, testified that he participated in the fight that resulted in Santos's murder. He testified that he saw Santiago during the fight in possession of a gun. He also saw Santiago walk toward Santos while Santos was on the ground. Garcia then heard gunshots but did not see the shots being fired.

         Otero also testified that he saw Santiago armed with a gun. Like Garcia, he saw Santos on the ground, and heard, but did not see, the shooting.

         II. Procedural History

         Through counsel, Santiago made two claims on direct appeal: (1) “the State's introduction of two separate prior statements by both Miguel Adorno and Martin Logan was improper because it was cumulative and unduly bolstered their statements”; and (2) evidence that Adorno and Logan pled guilty “should have been excluded because it improperly suggested to the jury” that Santiago was also guilty. R. 7-3 at i-ii. Santiago conceded that he had not preserved these issues in the trial court. Id. at 33. But he argued that the appellate court should excuse his forfeiture of these issues under Illinois's plain error rule. The appellate court stated that “[p]lain error review is warranted when the evidence is closely balanced or the unpreserved errors deprived the defendant of fundamental fairness.” People v. Santiago, 949 N.E.2d 290, 293 (Ill.App.Ct. 1st Dist. 2011) (citing People v. Herron, 830 N.E.2d 467 (Ill. 2005)). Applying that rule, the appellate court held that the evidence presented at Santiago's trial was not closely balanced, and that Santiago had not identified any error at trial. See Santiago, 949 N.E.2d at 293. Thus, the appellate court held that Santiago's forfeiture of the issues he raised on appeal should not be excused. Id. The Illinois Supreme Court denied Santiago's petition for leave to appeal. See R. 7-7.

         Santiago then filed a pro se postconviction petition in the circuit court raising multiple claims, only two of which he continued to raise in the appellate court. See R. 7-23 at 44-53. On an appeal made through counsel, Santiago's postconviction claims were reduced to the following: (1) “trial counsel was ineffective for failing to present Santiago's parents [as] alibi witnesses;” and (2) “trial counsel was ineffective for not calling witness Annette Vega[, ] [who was present during the fight, and] who failed to identify Santiago in a police lineup, ” despite referring to her in his opening statement. See R. 7-8. The appellate court held that Santiago could not establish prejudice from trial counsel's failure to call his parents as witnesses because, in light of the statements or testimony from Adorno, Logan, Garcia, and Otero that Santiago was present during the fight, there was not a “reasonable probability” that the testimony of Santiago's parents that he was with them at the time of the fight would have “changed the outcome of the proceedings.” People v. Santiago, 2014 WL 3002498, ¶ 22 (Ill.App.Ct. 1st Dist. June 30, 2014). The appellate court explained further that “there is no reasonable probability that a jury would have believed [Santiago's] assertion that he was not even at the crime scene given the substantial evidence showing, to the contrary, that he was not only at the scene, but was guilty of shooting the victim in the head.” Id.

         The appellate court also rejected Santiago's claim regarding trial counsel's failure to call Vega because Santiago “failed to include a sworn affidavit by Vega showing her potential testimony, availability, and [Santiago] did not explain his failure to attach such an affidavit, ” as is required by 725 ILCS 5/122-2. The appellate court held further that the “police report stating that Vega viewed [a] lineup and was unable to make a positive identification of the shooter is not in and of itself enough to meet the requirements” of 725 ILCS 5/122-2. Id. ¶ 23.

         Santiago's petition to this Court makes the following 18 claims:

(1) “Due Process: trial court denied motion to determine reliability of witnesses[;] State obtained grand jury indictment through perjury/fabricated testimony[;] State, at trial, made improper arguments to jury. Court denied motion to determine reliability of witnesses and prior inconsistent statements were sole evidence of Defendant's guilt at trial”;
(2) trial counsel was ineffective for failing to call ...

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