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Green v. Garnett

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

September 11, 2017

YARMO GREEN, Petitioner,
JASON GARNETT [1], Respondent.



         Before the Court is petitioner Yarmo Green's Amended Petition for Habeas Corpus Relief [52]. Although it appears that a myriad of issues plagued Green's conviction for attempted murder, none rise to the level of constitutional infirmity and this Court lacks the authority to order a new trial under these circumstances. For the reasons set forth below, the amended petition is denied.

         I. Background

         A. Trial and Direct Appeal

         On September 12, 1995, following a bench trial, petitioner Yarmo Green was convicted of attempted first degree murder of Alfonso Briseno, and aggravated battery of Tito Lopez. The trial judge, Hon. Fred Suria, sentenced Green to an extended-term of 40 years in prison for the attempted first degree murder and a concurrent 3-year term for aggravated battery.

         On direct appeal, Green argued that the State failed to prove him guilty beyond a reasonable doubt of attempted murder, and that the trial court erred in imposing an extended-term sentence. The Illinois Appellate Court affirmed the conviction by Rule 23 Order. Illinois v. Green, No. 1-96-0161 ( Ill. App. Ct., 1st Dist. Aug. 18, 1998).

         The following recitation of the facts is derived from the Illinois Appellate Court's Rule 23 Order affirming the denial of the supplemental postconviction petition. Illinois v. Green, No. 1-12-3456, 2014 IL App (1st) 123456-U (Mar. 17, 2015). The state court findings are presumed correct, and petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Brumfield v. Cain, 135 S.Ct. 2269, 2282 n.8 (2015). Petitioner presents no evidence to rebut the state court findings.

         In the early morning hours of December 26, 1994, Claudia Marchan, Natalie Perez, Tito Lopez, and Alfonso Briseno were moving furniture out of an apartment at 2501 North Washtenaw in Chicago. Briseno remained in the apartment while Marchan, Perez, and Lopez, moved some tables to a van parked in a nearby alley. As they were walking toward the van, Marchan saw a car drive by, stop, reverse, and then block the van in the alley. Green and Green's co-defendants, Juan Cardenas and David Robles, who Perez and Lopez recognized from the neighborhood, got out of the car and walked toward the van. Perez and Lopez testified that Green and Cardenas were members of a rival gang.

         Green approached the driver's door of the van. Marchan and Perez hid in the back of the van and Lopez was holding the van door shut as he attempted to start the van. Cardenas opened the sliding door, removed one of the tables and struck Lopez in the face. Cardenas then dragged Lopez into the back of the van where he and Green continued to hit him. Green struck Lopez with his fists, knees and elbows more than 10 times and told Lopez, “[y]ou're going to die, motherfucker. You're coming with us.” Cardenas and Robles also struck Lopez. Green attempted to light Lopez's shoes on fire but Lopez was able to kick the lighter out of his hand. Green tried to pull Lopez out of the van but Lopez resisted. Green then told Lopez to get out of the van and fight one of them one-on-one. Lopez said he would fight Robles if they promised to let him go. Lopez testified that he chose Robles because he was closest to his size. Cardenas promised Lopez “on his gang's nation” that if Lopez fought Robles, they would let him go.

         Robles got out of the van first. A minute later Cardenas and Green, followed by Lopez and Marchan got out of the van. Marchan and Lopez testified that when they stepped out of the van, they saw Briseno lying face down on the ground, bleeding from the head. He appeared to be unconscious. Green picked Briseno up by the back of his shirt and said, “[o]h, this motherfucker is dead.” Then, Green dropped Briseno to the ground and kicked him in the groin. Cardenas also kicked Briseno several times while he was lying on the ground.

         Natalie Perez testified that she saw Briseno walking from the apartment toward the van and saw someone strike him on the head. Initially, she was reluctant to state the name of the person who she saw strike Briseno because she had received threats from several gang members. The following day, the State recalled Perez and she testified that she observed Green strike Briseno on the forehead with his hand. She testified that she thought Green had something in his hand when he struck Briseno, but she was uncertain what the object was.

         Robles and Lopez were fighting during this time. After the fight ended, Lopez ran away. When Marchan was able to get the van started, Green said, “[y]ou're lucky bitch.” The three men then walked to their car and drove away.

         When they left, Marchan got out of the van to look for Lopez, but Lopez was gone. She told Briseno to get up but he was nonresponsive. Marchan and Perez put Briseno in the van and drove around the block to look for Lopez. When they were unable to find him, they drove to Perez's house where they called the police. Shortly thereafter, an ambulance arrived and took Briseno to the hospital.

         The parties stipulated that Briseno was admitted to the hospital on December 26, 1994, and was immediately taken into surgery for an “evacuation subdural hematoma and drainage” and an “external ventricular drain.” Briseno was discharged from the hospital on January 5, 1995, and was transferred to a rehabilitation hospital where he remained until February 16, 1995. Briseno was unable to walk, talk or respond to questions for over a month after the incident.

         Green was ultimately convicted of attempted first degree murder and two counts of aggravated battery, one count as to each victim. Green was sentenced to an extended term sentence of 40 years' imprisonment.

         B. Postconviction Proceedings

         Green filed a pro se postconviction petition on December 1, 1998, arguing: (1) ineffective assistance of trial counsel for failure to verify the physical condition of the victim, and for failing to raise the sentencing issue in a motion to reconsider sentence; (2) he was prevented from cross-examining a therapist who Briseno's mother made reference to in her testimony; (3) his sentence was excessive; and (4) ineffective assistance of appellate counsel for failure to raise the issue of trial counsel's ineffectiveness. On November 9, 1999, Green supplemented his postconviction petition with a brief. The State filed a timely motion to dismiss Green's petition that was granted by the court after arguments. On January 12, 2007, the Illinois Appellate Court affirmed the dismissal of Green's postconviction petition. Illinois v. Green, 369 Ill.App.3d 1047, 932 N.E.2d 1220, 342 Ill.Dec. 759 (1st Dist. 2007) (unpublished order under Supreme Court Rule 23).

         On February 4, 2009, Green requested leave to file a supplemental postconviction petition in the circuit court. Petitioner attached a May 14, 2008, affidavit of Adelaide Cornell, who testified at trial using the name Natalie Perez. For the sake of clarity, Natalie Perez is referred to as Cornell from this point on.

         In her affidavit, Cornell acknowledged that she testified under the assumed name of Natalie Perez at Green's trial and that the police officers knew her real name but allowed her to testify under her assumed name. She stated that Green was innocent and that he was talking to her during the entire incident. She stated that despite her testimony at trial, she never saw Green hit Briseno. She stated her testimony at trial was false and that the police and prosecution told her to testify against Green rather than Green's co-defendants Robles or Cardenas. She also stated that she had been threatened by the prosecution between the first and second day of trial; that her daughter would be taken away if she did not testify against Green. She further averred that she had been paid “a nominal amount of case money by the prosecution” to testify against Green and after that she testified that she saw Green hit Briseno in the head.

         The court denied the State's motion to dismiss, allowed Green leave to file and advanced the supplemental petition for a third stage evidentiary hearing.

         At the evidentiary hearing, Cornell stated that she testified at trial under the assumed name of Natalie Perez because she was a ward of the Department of Children and Family Services (DCFS) at the time, had run away and had a baby on November 14, 1994, and the State was looking for her. She was 15-years-old. Cornell stated that Officer Kirschner, one of the officers in the district where she was questioned, knew her real name. Although Officer Kirschner was not involved in the investigation, he “hinted” to Cornell during her questioning that she should pick Green. “Like he didn't like them because they were just a piece of shit because they gang bang a lot, you know.” None of the officers actually told her to say that Green did it but told her to just stick with what she had previously told them which was Green hit Briseno with a rock. Cornell testified that what she had told the officers was not true. She stated that she was forced to lie by her friends and the other gang, in addition to being pressured by the police and being afraid that her baby would be taken away.

         Cornell explained that she spoke with the prosecutor before she testified at Green's trial. During that conversation, a male prosecutor, whose name she could not remember, told her that she needed to be honest, to remember what happened and to do the right thing or her baby would be taken away by Department of Children and Family Services. Assistant State's Attorney (“ASA”) Robert Heilingoetter testified that he prepared Cornell for trial, but did not threaten her, tell her to identify Green, or offer her any money. After she testified at trial, a male police officer told her she did a good job and gave her money. The police officers testified that ...

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