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Tijerina v. Lashbrook

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

April 6, 2017

RAUL TIJERINA, Petitioner,
v.
JACQUELINE LASHBROOK, [1] Respondent.

          OPINION AND ORDER

          SARA L. ELLIS United States District Judge

         Petitioner Raul Tijerina, who is currently incarcerated at Menard Correctional Center, is serving a sixty-year sentence for first degree murder and a consecutive forty-year sentence for intentional homicide of an unborn child. Tijerina has petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that the prosecutor's comments during rebuttal argument deprived him of a fair trial and that he received ineffective assistance of counsel because his trial counsel failed to argue for suppression of his post-arrest statements based on his alleged invocation of the right to counsel. Because Tijerina has not shown that the state court's decisions on these issues were contrary to or an unreasonable application of clearly established federal law, the Court denies Tijerina's petition and declines to issue a certificate of appealability.

         BACKGROUND

         The state court's factual findings are presumed to be correct for the purposes of habeas review, as Tijerina has not presented clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); McManus v. Neal, 779 F.3d 634, 649 (7th Cir. 2015). The Court begins by summarizing the following facts relevant to Tijerina's petition, as drawn from the state court record.

         I. Pretrial Proceedings

         On July 9, 2000, Sonya Garcia, who was fourteen years old and visibly pregnant, was found dead in the apartment she shared with Tijerina. Tijerina was arrested on June 4, 2004 in Texas by Chicago police detective Richard Milz, who was accompanied by three other Chicago police officers and Cook County Assistant State's Attorney Lou Longhitano. After his arrest, Tijerina was taken to the courthouse in Dimmit County, Texas, where in three separate interviews, he confessed to hitting, biting, and choking Garcia. The third statement was videotaped. When the officers and Longhitano returned to Chicago, they learned that the video had failed to record sound. They then returned to Texas on June 17, 2004 to obtain another videotaped statement from Tijerina. Before providing both the June 4 and June 17 videotaped statements, Tijerina signed forms consenting to the videotaping of the statements.

         Prior to trial, Tijerina's counsel moved to suppress the post-arrest statements. In the written submission, counsel argued, among other things, that Tijerina did not receive Miranda warnings; that, due to his physical, mental, educational, and psychological state and capacity, he could not appreciate and understand the full meaning of his Miranda rights; that Tijerina had asserted his right to remain silent and/or consult with an attorney prior to making the statements; and that the detectives obtained the statements using physical, psychological, and mental coercion. But at the hearing on the motion to suppress, Tijerina's counsel proceeded only on the issue related to physical coercion, indicating that “ethically I'm only allowed to bring up those issues my client brings up, deal[ing] specifically with hitting in the face.” Ex. N at ¶ 3.[2]

         At the suppression hearing, Milz testified that after arresting Tijerina and taking him to the courthouse, the detectives advised Tijerina of his Miranda rights and placed him under arrest. Milz also testified that during a second conversation led by Longhitano, Longhitano again advised Tijerina of his Miranda rights, with Tijerina indicating he understood those rights. Milz testified that when he returned to Texas on June 17 with Longhitano and Detective Michael Mason, they again reintroduced themselves and advised Tijerina of his Miranda rights. He stated Tijerina indicated he understood his rights and agreed to provide another statement to the authorities. Milz testified that at no time did he or any of the others with him physically touch or otherwise coerce Tijerina into making a statement. After reviewing the video of the June 17 statement, the trial court denied Tijerina's motion to suppress, agreeing with the state that no force or threats were used against Tijerina to coerce the statements. The trial court further found that Tijerina was informed of his rights before making any statements.

         II. Tijerina's Trial and Conviction

         Tijerina proceeded to a jury trial in Cook County, Illinois. The evidence at trial showed that Tijerina and Garcia shared an apartment on the second floor of a building in which much of his family lived. In the early morning hours of July 9, 2000, Teresa Morgan, who lived on the first floor of the building, heard a female voice, which she identified as Garcia's, screaming “stop hitting me” and then Morgan heard Tijerina yelling “bitch” and “whore” in Spanish. Ex. A at 2. Morgan also made out sounds of someone being hit. Hearing this, Morgan went down to the block to the pay phone to call the police. When the police arrived and knocked on Tijerina's door, Tijerina refused to open the door for Chicago police officer Hackett, who, hearing no indications of a disturbance, left the scene. Officer Hackett also testified consistently about the response to the 911 call.

         Several hours later, Tijerina woke up his sister Deana, who also lived in the building, to tell her something was wrong with Garcia. Deana testified that Tijerina told her that he had smacked and shaken Garcia because she was acting strangely and he wanted to know who gave her drugs. Tijerina claimed that Garcia fought back. Entering Tijerina's apartment, Deana found Garcia on the bed, purple and with her face swollen. She went with Tijerina to call 911 from the pay phone down the block, but after dialing 911, she turned around to find that Tijerina had disappeared.

         The police officers who found Garcia's body noted that she had multiple abrasions on her face, her eyes were swollen shut, and blood covered her body and various items in the apartment. An autopsy identified bruises, cuts, and scrapes on Garcia's face, forehead, and arms, in addition to two bite marks on her arms. The autopsy also identified internal injuries, including bleeding into Garcia's eyes, three tongue bites, and bleeding under the scalp, over the brain, and under her skull, in addition to hemorrhages inside the back of her neck. The medical examiner concluded that Garcia died from strangulation and blunt force trauma, while her unborn child died from lack of oxygen.

         The state played Tijerina's June 4 and June 17 videotaped statements for the jury. Additionally, Milz testified about the circumstances surrounding Tijerina's arrest and in obtaining the post-arrest statements. Milz testified that, on the day Tijerina was arrested, Detective Mason gave Tijerina Miranda warnings, using his Fraternal Order of Police handbook. After this, Tijerina admitted to knowing why he was arrested and agreed to speak with them. Milz related that Tijerina explained that on the night Garcia died, he awoke to find Garcia's eyes appearing glassy, leading him to question her about taking drugs. After she denied taking drugs, Tijerina stated he slapped her numerous times but eventually fell back asleep, only to find Garcia dead when he woke up in the morning. Milz confronted Tijerina with the autopsy and medical examiner's reports, after which Tijerina expanded on his story, adding that he beat, bit, and choked Garcia as well. Milz testified that Tijerina repeated the story to Longhitano, after Longhitano again provided Tijerina with Miranda warnings, and did so again later that day for the videorecorded statement with the failed audio. Milz also testified about returning to Texas on June 17 to obtain Tijerina's second videotaped statement. Milz stated that, in the June 17 recorded statement, Tijerina repeated what he had said in the June 4 videotaped statement. Longhitano also testified. He echoed Milz as to the interviews on June 4 and June 17, including about advising Tijerina of his Miranda rights from memory on June 4.

         Tijerina testified on his own behalf. He testified that he could not read or write. He denied Garcia was his girlfriend and that the unborn child was his, claiming instead that he took Garcia in when her mother, whom he had dated, abandoned her. He testified that, on July 9, 2000, when he woke up from a nap, he found Garcia unresponsive and so slapped her to get her to respond. According to Tijerina, this caused Garcia to headbutt him several times, knocking out his teeth. Around this time, he claimed the police arrived and that he told Garcia she could open the door if she wanted but that he never refused to open the door for the police. He further testified that he left the apartment after the police left and that when he returned, he found Garcia unresponsive. He denied knowing how Garcia sustained the wounds described by the medical examiner and portrayed in photographs, claiming she was not like that when he left her. Finally, he claimed that his June 2004 statements differed from his testimony at trial because he told the detectives and prosecutor what they wanted to hear in exchange for their promise to let him go.

         During the state's rebuttal argument, the prosecutor accused Tijerina of pursuing “one diversionary tactic after another, trying to cast blame and point fingers at anybody and everything, anything and everything aside from him.” Ex. S at V-60; see also Id. at V-61 (“That's an attempt to create side issues. Diversionary tactics.”); id. at V-86 (“I would ask you to remember the defendant's defense in this case, only a three day trial, his defense in this case has changed every day.”). The prosecutor also accused Tijerina of lying, saying that “[t]o base any important decision on anything that [Tijerina] said while on trial in this case, a person would have to be a lunatic.” Id. at V-66; see also Id. (“How many different lies did he tell you yesterday?”); id. at V-66-73 (detailing the alleged lies Tijerina told); id. at V-68 (“And how many lies does someone have to tell you before you simply label them a liar and stop believing anything they tell you?”). In discussing the police response to the first 911 call to Tijerina's apartment, the prosecutor said that the jurors should not believe Tijerina's account because

[w]hat [Tijerina's] asking you to believe then is that Officer Hackett is lying about that. Think about that for a second. How stupid did Officer Hackett make himself look by going to a door after a 911 call of a domestic disturbance and then when the male answers and tells them to got [sic] lost he doesn't do anything about it. He simply leaves. How stupid did Officer Hackett look for doing that. He's not lying about that. That's the way it happened. The defendant is lying about that.”

Id. at V-71. With respect to the June 2004 statements, the prosecutor argued that the jury should believe Longhitano, the Assistant State's Attorney, over Tijerina, stating: “[Tijerina] wants you to believe the State's Attorney, a guy who apparently is going to just inexplicably take a chance and throw his license away and get this guy to simply say yes or no to whatever [questions Longhitano asked]. You want to believe that story?” Id. at V-81-82. In response to defense counsel's objections to these and other statements during the rebuttal argument, the trial court repeatedly instructed the jury that closing arguments were not evidence, that the jurors should disregard any argument not based on the evidence, and that it was the jurors' duty to determine the credibility of the witnesses.

         A jury convicted Tijerina of first degree murder and intentional homicide of an unborn child. The judge sentenced him to sixty years' imprisonment for first degree murder and forty years imprisonment' ...


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