United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey United States District Judge.
Carl Whitehead brings a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, challenging his
convictions entered in the Circuit Court of Cook County.
After a 2008 jury trial, Petitioner was convicted of the
first-degree murder of Ramiro Aguirre, home invasion,
residential burglary, and attempted armed robbery. He was
sentenced to a term of natural life. For the following
reasons, the Court denies the Petition, and declines to issue
a certificate of appealability.
The Underlying Offense
Calderon was asleep in her home in Chicago, Illinois in the
early morning of November 22, 2005. [21-17] at 24, 28.
Calderon, who was pregnant, shared the home with her husband,
Ramiro Aguirre. Id. at 24, 26. That morning, Aguirre
was in the couple's bedroom while Calderon slept in the
nursery the couple built in anticipation of their child.
Id. at 28-29.
awoke when she heard glass breaking and the home's
security alarm beeping. Id. When she got up to
investigate the sounds, she encountered a man who put a gun
to her head and his hand over her mouth. Id. at 30.
Shortly after, Aguirre emerged from the bedroom and, upon
seeing his wife in danger, began to struggle with the
intruder. Id. at 31. During the struggle, the gun
fired into Aguirre's chest and he fell to the ground.
Id. at 31-32. The intruder turned to Calderon and
demanded that she tell him where she kept money in the house.
Id. Calderon responded that she did not have any
money in the house, and the man left. Id. at 32.
Calderon called 911 and tended to her husband. Id.
at 33. Aguirre died by the time emergency personnel arrived.
jury selection for the petitioner's criminal case, the
Cook County Circuit Court conducted voir dire. [21-16] at 22.
The court asked the jurors in groups of three if they
understood that the defendant was presumed innocent, that the
State must prove guilt beyond a reasonable doubt, and that
the defendant had a right to remain silent and, should he not
testify, his silence could not be held against him.
Id. at 38. All jurors answered, “Yes.”
trial, the State called Marcus Griffin, who was also charged
with first-degree murder in Aguirre's death. [21-20] at
200-01. Griffin took a plea deal in exchange for identifying
Petitioner as the murderer. Id. at 203-04. While
testifying, however, Griffin denied taking part in the crime
at Aguirre's home, meeting Petitioner there, and seeing
Petitioner there with a gun. Id. at 207-09. Griffin
also denied hearing gun shots at the home and seeing
Petitioner leaving the residence. Id. at 213-14.
Finally, Griffin denied that Petitioner threatened him and
that he acted as a lookout while Petitioner robbed
Aguirre's home. Id. at 214.
Griffin testified, the State played a videotaped interview
that Chicago Police conducted with Griffin in May 2006.
[21-21] at 11. During the interview, Griffin told detectives
that, shortly before the murder, there was a fire in the
garage behind Aguirre's home. [21-15] at 107, 110.
Griffin said he was watching the fire department extinguish
the fire when an acquaintance, Sedale Miller, told Griffin
that Calderon told firefighters that she kept a large sum of
money in the garage. Id. at 110-12. Griffin told
detectives that Miller and Petitioner planned to rob the
home. Id. at 112-13.
the interview, Griffin also reported that Miller later talked
about Petitioner describing the murder. Id. at
127-28. Griffin further stated that he had sold drugs for
Petitioner and had seen Petitioner beat up other people.
Id. at 113- 14, 121. Griffin told detectives that an
acquaintance told him that Petitioner was responsible for an
earlier shooting on Parkside Avenue. Id. at 121-22.
addition to Griffin, the State called Tenisha Gibbs. [21-18]
at 5. Gibbs lived across the street from Aguirre and had been
in a relationship with Petitioner before the murder.
Id. at 12-13. The State asked whether she became
pregnant with Petitioner's child; Gibbs denied being
pregnant. Id. The trial court sustained objections
to the State's subsequent questions about whether Gibbs
aborted the pregnancy and whether Petitioner paid for the
abortion. Id. at 13-14. The State later revisited
this issue and asked whether Gibbs remembered making
statements regarding her pregnancy and abortion to the
police. Id. at 19-21. Gibbs testified that her
previous statements to police were untrue and coerced.
Id. Petitioner's attorney did not object.
prosecution elicited testimony about the abortion twice more
without Petitioner's attorney objecting. First, the State
called Detective James Gigler, who testified that Gibbs told
him during a police interview that she became pregnant with
Petitioner's child and that Petitioner paid for an
abortion. [21-20] at 97-98. Second, the State called
Assistant State's Attorney (ASA) Donna Norton, who read a
statement she took from Gibbs in 2006. Id. at 36-37.
In the statement, Gibbs said she held a gun for Petitioner in
the summer of 2005, and that Petitioner impregnated her and
then paid for her to have an abortion. Id. at 40-42.
Gigler testified that police recovered a shell casing from
the scene of Aguirre's murder that was tested by forensic
science personnel. Id. at 65-66. The casing matched
one taken from the scene of a 2004 shooting on Parkside
Avenue in Chicago, Illinois (the Parkside shooting).
Id. at 66-68. The State called various witnesses to
testify about the Parkside shooting; the first was Erwin
Marrero. [21-17] at 94. Marrero identified Petitioner as the
man whom Marrero got into a car accident with shortly before
the Parkside shooting. Id. at 96. Marrero said that
Petitioner sped away from the accident in a rage, but
returned shortly after and shot at Marrero and Marrero's
friend Eric Bowman, missing both men. Id. at 97-98.
Marrero testified that Petitioner eventually shot Bowman in
the hand. Id. at 100-02. On cross-examination,
Marrero said he did not report his account of the shooting
until police questioned him in 2006. Id. at 103-06.
State then called Bowman, who echoed much of Marrero's
testimony, but denied knowing who shot him. Id. at
110-24. Bowman testified during cross-examination that he
originally did not want to report the shooting and only
cooperated with police after they questioned him in 2006
about the incident. Id. at 131. The State also
called ASA Peter Garbis, who in 2006 took Bowman's
statement about the Parkside shooting. [21-20] at 8. Garbis
read the statement aloud. Id. at 14. In the
statement, Bowman said that he knew the man who shot him by
the man's face and learned days later that it was
Petitioner. Id. at 14-19.
trial, a juror was heard snoring during a witness's
testimony. [21-19] at 24. Petitioner's attorney then told
the court that he intended to move for a mistrial.
Id. at 51. The court responded that it would not
grant the motion because it believed the juror was awake for
the rest of the proceedings. Id. After the jury
instruction conference, the prosecution wanted to move to
remove the juror because they had seen him sleeping at other
points in the trial. [21-21] at 82. Petitioner's attorney
argued that the juror should remain because he was the only
African- American juror and merely rested his eyes while
listening. Id. at 83. The court then brought out the
juror and asked him whether he was awake throughout the
trial; the juror said he was. Id. at 84. The court
let the juror remain. Id.
closing arguments, the State described Calderon and
Aguirre's life before the shooting, including how they
prepared a nursery for their unborn child. Id. at
108. The State also argued that any claim that Petitioner was
the victim of a police conspiracy was unreasonable, as it
would have required an elaborate plot by many unrelated
actors. Id. at 133-34. The court overruled
Petitioner's objection to this argument. Id. at
134. The prosecution later argued that if the police were
going to conspire against Petitioner, they would have done a
better job by forcing more specific testimony from more
reliable witnesses. Id. at 146.
the defense's closing statement, Petitioner's counsel
argued that the police's interrogation techniques were
coercive. Id. at 118-19. Petitioner's counsel
said that police “knock you down until they get where
they need you to go.” Id.
Post-Trial and Post-Conviction Proceedings
Verdict, Sentencing, and Post-Trial Motion
jury found Petitioner guilty of first-degree murder, home
invasion, residential burglary, and attempted armed robbery.
Id. at 180-81. Petitioner subsequently filed a
motion for a new trial. [21-22] at 4. Petitioner alleged
various instances of prosecutorial and court error,
including: improperly using evidence relating to gang
activity; admitting inadmissible hearsay about the garage
fire and improper prior consistent statements; improperly
admitting evidence of the Parkside shooting; ineffective
assistance of counsel for failing to excuse the sleeping
juror; and improperly admitting testimony about Gibb's
abortion. Id. at 17, 29, 43- 44, 54. The trial court
denied the motion and sentenced Petitioner to life
imprisonment for the murder. Id. at 92, 118. The
court also sentenced Petitioner to 30 years for home
invasion, 15 years for burglary, 15 years for attempted armed
robbery, and 25 years for discharging the firearm.
Id. at 118.
direct appeal, Petitioner argued about the admission of
inappropriate evidence, specifically: (1) gang activity
discussed in Griffin's videotaped interview; (2)
Gibb's abortion; and (3) the Parkside shooting. [21-1] at
1. Petitioner also argued that: (4) the court did not follow
proper voir dire procedures pursuant to Illinois
Supreme Court Rule 431(b); (5) the State's closing
argument was improper because it discussed the loved ones
Aguirre left behind and falsely accused the defense of
arguing that the State and police engaged in a conspiracy;
(6) his trial counsel was ineffective for failing to object
to prejudicial evidence or testimony; and (7) the trial court
deprived Petitioner of his right to a fair trial by allowing
the sleeping juror to remain and refusing to hold a
post-trial hearing on Petitioner's affidavit asserting
that he wanted the juror excused for error. [21-2] at 50-65.
appellate court found that admitting the videotape was an
“invited error” because the trial court admitted
the tape based upon agreements between the parties, and
defense counsel helped redact the tape. [21-1] at 12. The
appellate court held that, because defense counsel did not
object to admitting the videotape, the issue was procedurally
defaulted and could not be raised on appeal, though the court
also noted that there was no obvious error in admitting the
appellate court also held that testimony and evidence about
Gibbs' abortion was relevant at trial because her
previous statements about the abortion contradicted her trial
testimony and thus related to her credibility. Id.
at 14. The court found that the probative value of the
abortion evidence outweighed any prejudice to Petitioner.
Id. at 16.
the Parkside shooting, the appellate court held that the
evidence about the shooting was not offered to show
propensity, but only to link Petitioner to the previous
shooting, and thus Aguirre's murder. Id. at
18-19. The court held that the probative value of the
evidence outweighed any prejudicial effect. Id.
appellate court also held that Petitioner's argument
about voir dire lacked specificity and merit;
regardless, the appellate court reviewed the record and found
no error by the trial judge. Id. at 21. As for the
sleeping juror, the appellate court held that, because
Petitioner ultimately argued for the juror to remain, he
could not later object to the “invited error.”
Id. The appellate court also held that there was no
legal basis for Petitioner's argument that the trial
court was required to consult with him directly on this
issue. Id. at 25.
Petitioner's contentions that the State's closing
arguments were improper, the appellate court held that the
trial court did not err by allowing the State's emotional
appeals about Calderon and Aguirre, because those appeals
reasonably interpreted what the murder victim's family
might feel. Id. at 27. The appellate court also held
that Petitioner invited the conspiracy argument by discussing
police motives and alluding to a conspiracy. Id. at
the appellate court applied the Strickland v.
Washington, 466 U.S. 668 (1984), test to resolve
Petitioner's numerous allegations that this trial counsel
was ineffective. Id. at 28-29. The court held that
the claims were either waived for lack of specificity or
prejudice, or were a matter of trial strategy and thus lacked
merit. Id. at 29-32.
the appellate court's ruling, Petitioner filed a Petition
for Leave to Appeal (PLA) with the Illinois Supreme Court.
[21-5] at 1. Petitioner argued that: (1) the abortion
evidence was improperly admitted; (2) the trial court did not
properly conduct voir dire; (3) trial counsel was
ineffective for not objecting to Griffin's videotaped
interview; (4) the sleeping juror denied Petitioner a fair
trial and the court erred by not holding a post-trial hearing
on Petitioner's affidavit that he wanted the juror
excused for error; and (5) the State's arguments during
closing statements were prejudicial and trial counsel was
ineffective for failing to object. Id. at 3. The
Illinois Supreme Court denied leave to appeal. [21-6].
Collateral Petition and Appeal
his direct appeal, Petitioner filed a petition for
post-conviction relief with the Cook County Circuit Court.
[21-7] at 21. Petitioner alleged ineffective assistance of
trial and appellate counsel for: (1) failing to object to
improper hearsay, opinion, and character evidence; (2)
participating in admitting and editing Griffin's
videotaped interview; (3) failing to object to improper
impeachment evidence or request a limiting instruction
regarding the evidence; and (4) failing to object to
Bowman's testimony about gang activity. Id.
Petitioner also alleged that his appellate counsel failed to
raise the above issues and failed to raise a claim that the
evidence against him was insufficient. Id. The
Circuit Court dismissed the petition in the first stage.
appeal to the Illinois appellate court, Petitioner raised all
the above issues again, and specified that the limiting
instruction that defense counsel failed to give for the
improper impeachment evidence should have been given when the
State introduced impeachment evidence. Id. at 22-42.
The appellate court held that: (1) Petitioner's claim
about Griffin's videotape was barred by res
judicata because he raised the claim on direct appeal,
[21-10] at 16; (2) admitting grand jury testimony containing
hearsay statements about Calderon's garage was justified
and thus counsel was not ineffective for failing to object to
that testimony, id. at 17-18; (3) Petitioner's
claims regarding lack of character evidence were not
supported by any authority and thus were forfeited,
id. at 18; (4) the impeachment evidence was proper
because the witnesses against whom it was used affirmatively
harmed the State's case by contradicting their own
previous statements, id. at 20-21; (5) the new
qualification about the timing of the limiting instruction
was barred because Petitioner did not raise that argument in
his original collateral petition, id. at 21; (6)
trial counsel did in fact object to gang evidence, during a
sidebar when the State wanted to ask Bowman why he would not
identify Petitioner as the Parkside shooter, to which Bowman
replied that he did not wish to become involved in
gang-related issues, id. at 22; (7) Petitioner's
other references to witnesses testifying to gang activity
were not raised in his original collateral petition and thus
were barred on appeal, id. at 22-23; and (8)
appellate counsel was not ineffective for failing to raise
every possible issue on appeal, and several issues that
Petitioner alleged that appellate counsel failed to raise
were meritless, as noted above, id. at 23.
filed a PLA with the Illinois Supreme Court and raised the
following issues: (1) the appellate court erred by holding
that hearsay accounts of Calderon's statements were
admissible, [21-11] at 10-11; (2) the appellate court did not
properly apply the law of forfeiture, id. at 12-13;
and (3) the appellate court did not correctly apply res
judicata, id. at 13-14. The Illinois Supreme
Court denied leave to appeal. [21-12].
Petitioner's Federal ...