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Zuniga v. Chandler

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

December 15, 2017

Richard Zuniga B37419, Petitioner,
v.
Nedra Chandler, Warden, Dixon Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN Z. LEE United States District Judge

         Petitioner Richard Zuniga, currently in state custody at the Dixon Correctional Center, brings this habeas corpus petition pursuant to 28 U.S.C. § 2254. Zuniga was convicted of two murders following a 1992 trial in the Circuit Court of Cook County. His petition asserts that his trial counsel, Nicholas DeJohn, provided ineffective assistance in violation of the Sixth Amendment under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, Zuniga states that DeJohn: (1) failed to comprehend the importance of eyewitness testimony that a shotgun used in one of the murders was carried into the apartment under Zuniga's coat; (2) had no discernible trial strategy; (3) was frequently absent from trial; (4) failed to obtain fingerprint testing on the shotgun; (5) failed to obtain a ruling on Zuniga's motions to suppress; and (6) conceded Zuniga's guilt. See Pet. Writ Habeas Corpus ¶¶ 69-101.[1] For the reasons set forth below, Zuniga's petition is denied.

         I. Factual Background[2]

         Zuniga, along with his codefendant, Joe Bravieri, was convicted of murdering Joann Gasic and Carmine Sarlo. State R., Ex. A, at 1. Sandra Ault, who lived with Gasic, witnessed the murders occur. Id. at 2.

         On the day of the murders, Ault returned to the apartment that she shared with Gasic after work at 3:30 a.m. Id. at 2. At that time, Gasic was the only other person in the apartment. Id. Ault went to sleep and awoke at 7:00 a.m. Id. When she awoke, she witnessed Zuniga, Bravieri, Sarlo, and Gasic in the apartment. Id. Ault noticed that Bravieri was carrying Zuniga's coat by the collar out in front of him, id., but she could not recall whether Zuniga and Bravieri had entered the apartment together. Id. at 3-4. She stated that she never saw Zuniga with any sort of weapon at the time of the murders. Id. at 4.

         Gasic went into the apartment's living room to lie down while Zuniga, Bravieri, Sarlo, and Ault played cards in a separate dining room. Id. at 2. During the game, Bravieri provided the card players with cocaine, which they all consumed. Id. Soon thereafter, Bravieri stood up and went to the living room. Id. Ault then heard a loud noise. Id. From the dining room, Ault witnessed Bravieri holding a shotgun in the living room. Id. She heard him state, “You got to go, [Gasic]. You just got to go.” Id. Bravieri then shot twice in Gasic's direction. Id.

         Bravieri walked back into the dining room and pointed the shotgun at Ault. Id. at 2-3. Bravieri fired at her, but she dropped to the floor and eluded the shot. Id. Zuniga and Sarlo then ran to a doorway between the apartment's kitchen and living room. Id. at 3. Sarlo said, “Oh, we need to get out of here.” Id. Bravieri responded, “No, you got to go, [Sarlo]. You got to go, too.” Id. Ault then heard what sounded like the three men wrestling in the living room. Id.

         Soon thereafter, Bravieri re-entered the dining room and discovered Ault was still alive. Id. He agreed to let her leave the apartment after she promised to tell the police she had seen nothing. Bravieri then walked into the kitchen. Id. Immediately thereafter, Ault heard someone going through the kitchen's silverware drawer . Id. She heard Bravieri tell Zuniga, “You got to shoot him in the head, Ricky.” Id. Upon hearing this, Ault fled out the back door. Id. As she fled, she saw a dark silver handgun on a bar. Id. Ault had not seen anyone put the gun on the bar-and had not seen Zuniga with the gun that day-but had previously witnessed Zuniga with the gun several times. Id. Upon exiting the apartment, Ault called the police. Id. at 2. She told an officer that “Joey” and “Ricky” were shooting people at the apartment. Id.

         According to another trial witness, Zuniga and Bravieri left the scene of the murders and went to a separate residence. Id. at 4. When they arrived, the witness observed blood on Bravieri's pants. Id. Zuniga and Bravieri changed clothes. Id. Soon after, the police arrived. Id. They served arrest warrants on Zuniga and Bravieri and recovered clothing from a garbage bag. Id.

         Zuniga was questioned at the police station following his arrest. Id. at 5. He reportedly told the police that “he and Bravieri were partners, that they did it together, and that if Bravieri was going down, he was going down too.” Id. Zuniga then related a story consistent with Ault's account of the events. He admitted that he and Bravieri left the apartment and went to a house to change clothes, and that the clothes the police recovered were the clothes he and Bravieri had been wearing during the murders. Id. Zuniga also acknowledged that he carried a .38 caliber pistol for protection and would place the gun on the bar at Gasic's house whenever he was there.Id. Zuniga stated that he did not know Bravieri's motive for shooting Gasic, but he suggested it was drug-induced. Id.

         In a later statement, Zuniga added that he was in the bathroom when he heard the first of two shotgun blasts. Id. When he came out, he saw Bravieri and Sarlo struggling with the shotgun. Id. at 5-6. Bravieri fell to the floor, and Sarlo pointed the shotgun at him. Id. at 6. Zuniga admitted that he then shot Sarlo several times in the chest with his handgun.[3] Id. After Zuniga shot Sarlo, Bravieri placed the shotgun in the kitchen sink, and they left the apartment. Id. On their way to change clothes, Zuniga threw his handgun in a river. Id.

         At the apartment, police discovered the bodies of Gasic and Sarlo in the living room. Id. at 4. They also recovered a shotgun from the kitchen sink, several knives, various ammunition, an ammunition clip, and pieces of a pistol grip. Id. at 6. The shotgun was not examined for fingerprints, and no fingerprints were lifted from the gun grips or knives. Id. at 6-7. The kitchen, living room, and bathroom were dusted for fingerprints, and blood standards were also taken. Id.

         Gasic's autopsy showed that she died from close-range shotgun wounds. Id. at 8. Sarlo's autopsy revealed extensive injuries to his head and face, as well as multiple stab and gunshot wounds to his chest and back. Id. The doctor, who performed the autopsy, testified that the pistol clip found in the apartment contained an outline similar in size and shape to the wounds Sarlo suffered to his head and face. Id. In addition, Sarlo suffered extensive bleeding on both sides of the brain, a knife wound to the heart, and gunshot damage to his liver, spleen, and kidney. Id. at 9. The doctor opined that Sarlo was alive during the infliction of most of his injuries and that the beating took place within a ten- to fifteen-minute period. Id. The stab wounds, gunshot wounds, and blunt trauma were each so serious that any could have been fatal.

         Id. Finally, the doctor concluded that the number of injuries inflicted and weapons used were not consistent with a struggle. Id.

         A forensic analyst testified that strands of Sarlo's hair were found on the pistol grip, clip, and knives. Id. at 7. A lab technician also testified that Sarlo's blood was found on Zuniga's shirt, socks, and coat. Id. Sarlo's blood was found on three different knives, while Zuniga's, Bravieri's, and Gasic's blood was not. Id. Blood found in the living room was consistent with Gasic's and Sarlo's, but also could have been Zuniga's. Id. There was insufficient blood on the shotgun handle to make a comparison. Id.

         A police firearms examiner testified that the police had recovered three shotgun shells fired from the shotgun in the kitchen. Id. A bullet recovered from Sarlo's body was a .38 caliber bullet that could have been fired from a Colt .38 caliber pistol. Id. The clip and grip were from a Colt .38 caliber pistol. Id.

         II. Procedural Background

         Zuniga was convicted of two counts of first degree murder after a bench trial that had been severed from, but conducted simultaneously with Bravieri's bench trial. Id. at 1. Zuniga directly appealed to the Illinois Appellate Court, asserting in pertinent part that his trial counsel, DeJohn, was constitutionally ineffective on three grounds: (1) DeJohn had failed to secure a hearing on motions to suppress concerning Zuniga's statements to police; (2) DeJohn had conceded Zuniga's guilt at trial; and (3) DeJohn had failed to develop a consistent trial strategy. Id., Ex. B, at 11-14. The appeal was denied. Id., Ex. A, at 14-20. Zuniga then filed a Petition for Leave to Appeal (PLA) before the Supreme Court of Illinois, again asserting that DeJohn had been constitutionally ineffective for failing to secure a hearing on the motions to suppress and by making statements that conceded Zuniga's guilt. Id., Ex. F, at 7-19. Zuniga did not, however, present the additional claim regarding DeJohn's purported failure to develop a consistent trial strategy. The PLA was denied. Id., Ex. E.

         Following denial of the PLA, Zuniga filed a petition in state court for post-conviction relief, raising in part a new claim that DeJohn was frequently absent from Zuniga's trial and therefore constitutionally ineffective. Id., Ex. V, Pt. 1, at 26-27. The trial court summarily dismissed the petition. Id., Ex. G, at 17. On appeal, however, the Illinois Appellate Court reversed the trial court's dismissal and remanded with instructions for the court to further consider two of Zuniga's claims, including the claim based on DeJohn's purported absences during trial. Id., Ex. G, at 27. The trial court did so and again dismissed the petition. Id., Ex. J, at 2. On appeal, the Illinois Appellate Court again reversed in part, instructing the trial court to hold an evidentiary hearing on the question of DeJohn's claimed absences. Id., Ex. J, at 15-16.

         In advance of the evidentiary hearing, the trial court made two preliminary rulings. First, the court denied Zuniga's request for discovery to conduct a fingerprint analysis of the shotgun (under the theory that the results might exculpate Zuniga and, therefore, provide further evidence that DeJohn was ineffective for failing to obtain the results). Id., Ex. N, at 7-8. Second, the court granted the government's request to limit the scope of the evidentiary hearing to the question of DeJohn's absenteeism and excluding evidence that Zuniga had sought to introduce detailing the lack of trial experience of one of DeJohn's associates. Id., Ex. N, at 8. At the evidentiary hearing, the trial court found that DeJohn was not frequently absent from trial and denied Zuniga's request for post-conviction relief. Id., Ex. W, at 328.[4]

         Zuniga appealed to the Illinois Appellate Court, arguing that the trial court's preliminary rulings were erroneous and challenging the court's finding that DeJohn was not frequently absent from trial. Id., Ex. O. The court affirmed on all grounds. Id., Ex. N. In a subsequent PLA to the Supreme Court of Illinois, however, Zuniga limited his arguments to the trial court's preliminary rulings-i.e., denying Zuniga the ability to perform fingerprint analysis on the shotgun, and excluding evidence of DeJohn's associate's qualifications-and did not present the separate, broader arguments that DeJohn had been constitutionally ineffective because he had not pursued fingerprint testing of the shotgun and because of his frequent absences from trial. Id., Ex. S, at 12-17. The court denied the PLA. Id., Ex. R. Zuniga then filed the federal petition now before this Court.

         III. Petitioner's Claims

         A. Procedurally Defaulted Arguments

         Zuniga contends that his trial counsel, DeJohn, was ineffective because he: (1) failed to comprehend the importance of Ault's testimony that the shotgun had been carried into the apartment under Zuniga's coat; (2) had no discernible trial strategy; (3) was frequently absent from trial; (4) failed to obtain fingerprint testing on the shotgun; (5) failed to obtain a ruling on Zuniga's motions to suppress; and (6) conceded Zuniga's guilt.[5] Respondent ...


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