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Villavicencio-Serna v. Melvin

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

June 19, 2019

LUIS VILLAVICENCIO-SERNA, M29511, Petitioner,
v.
MICHAEL MELVIN, Respondent.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLMEYER UNITED STATES DISTRICT JUDGE

         Armando Huerta was shot five times in the parking lot of his apartment complex during the early morning hours of Saturday, May 16, 2009. Addison police officers arrested Petitioner Luis Villavicencio-Serna on May 17 in connection with the shooting, and he was later charged with murder.[1] (Felony Complaint, Ex. A to State Court Record [9-1], 13.) Villavicencio-Serna's trial began on March 13, 2012. A DuPage County jury convicted him of first-degree murder on March 22. Through counsel, Petitioner Villavicencio-Serna filed a series of state court appeals and a post-conviction petition, all unsuccessful. (See Petition [1], at 1-3; Order, Ex. H to State Court Record [9-8].) Now serving a fifty-year sentence in state prison, Villavicencio-Serna petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks relief from his conviction on several grounds, including the alleged violation of his Fourth Amendment rights, ineffective assistance of counsel at all stages in the proceedings, the violation of his rights to due process, and the constructive denial of counsel. He also argues that the State failed to present evidence of his guilt beyond a reasonable doubt. Villavicencio-Serna's Fourth Amendment and due process claims are procedurally defaulted; the remainder of his claims are without merit. His petition is denied, but the court grants a certificate of appealability on the issue of sufficiency of the evidence.

         BACKGROUND

         I. Factual Background

         Absent clear and convincing evidence to the contrary, the court presumes the "state court's account of the facts [to be] correct." Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012) (citing 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005)). The facts below are derived from the last state court opinion on the merits, People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, and from the record itself. (See State Court Record, Exs. A-N [9].)

         In the early morning hours of Saturday, May 16, 2009, Armando Huerta, Jr. ("Huerta") and Juan Carlos Marines Rojas ("Rojas") were sitting in a car in the parking lot of their apartment complex in Addison, Illinois, drinking beer and listening to music. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 6. "They stepped out of the car to smoke. They then decided to go in for the evening."[2] Id. Around 3:30 a.m., as they walked back to the apartment building, Rojas "heard a car pass by and gunshots." Id. Multiple shots hit Huerta, who later died from his injuries. Id. at ¶¶ 6, 27.

         Addison police arrived at the scene shortly after shots were fired. Id. at ¶ 7. Officers recovered five spent .22 caliber pistol shell casings. (Goss Testimony, Ex. C [9-3], at 871:13-19, 872:14.) Those shell casings were introduced into evidence at Petitioner's March 2012 trial as People's Exhibit 8, but no weapon was ever introduced. (Goss Testimony, Ex. C [9-3], at 870:22- 871:5; id. at 874:24-875:2 ("Q. And no .22, no semiautomatic, no gun has ever been recovered from anyone? A. As far as I know.").)) An Addison detective testified at trial that he "did not know whether the shell casings were ever tested" for fingerprints or DNA, and the State presented no fingerprint or DNA evidence at trial. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 40.

         While investigating the crime, the Addison police first spoke with Rojas, who, at trial, admitted to being "a little drunk" on the night of the shooting. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 6. (See Rojas Testimony, Ex. C [9-3], at 840:13-15.) Rojas testified that he had drunk seven or eight beers over the three hours before the shooting. (Rojas Testimony, Ex. C [9-3], at 840:13-15.) He also testified that, immediately following the shooting, he told the police that he had seen a "dark blue or dark green Honda." Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 6. (See Rojas Testimony, Ex. C [9-3], at 840:16-18.) He explains that he told the officers that the car had its headlights off, and that he only briefly saw a piece of the back of the car or the rear door.[3] (Rojas Testimony, Ex. C [9-3], at 833:24-834:2, 837:3-5, 850:11-15.) A couple of hours later, Rojas went into the police station and again told officers that the car was blue or dark green. (Id. at 844:24-845:2.) At that point he had sobered up "[a] little bit." (Id. at 844:5.)

         Two days later, police officers, including one who interpreted for Rojas, took Rojas into the police station to have him identify the shooter's car. (Id. at 845:12-18 ("Q. . . . [The police] told you that they were bringing you [to the station] to identify a car; is that right? A. Yes.").) After he arrived at the station, they took him to a lot at the Addison public works building (Gonzalez Testimony, Ex. D [9-4], at 442:16-17), and Rojas identified a gray/silver Cadillac as the shooter's car, without police prompting.[4] (Rojas Testimony, Ex. C [9-3], at 848:11-19 (responding to a question on cross-examination: "Q. When the police took you to the police station, there were cars in the lot? A. Yes. Q. Did they ask you to pick out any of those cars in the lot before you saw . . . the gray car - - silver car . . . [?] A. No."); id. at 848:23-849:3 ("Q. They didn't show you a green car and ask if you had seen that before? . . . A. No.").) Officer Gonzalez, who speaks both English and Spanish, testified that when they got to the lot, Rojas "immediately said, that's the car, that's the car, in Spanish," apparently signaling the gray/silver Cadillac (Gonzalez Testimony, Ex. D [9-4], at 445:4-5.)[5] Rojas testified that he "identified [the gray/silver car] because [he] remember[ed] the back, and [the] day [of the shooting] [he] couldn't see the color because it was dark." (Rojas Testimony, Ex. C [9-3], at 838:7-9.) Rojas identified a photograph of that same car in People's Exhibit 9 during the trial.

         Following the shooting, the Addison police also interviewed Josephina Vasquez, who was 16 years old and dating Villavicencio-Serna in May 2009. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 10. Addison officer Dennis Kotlinski and his partner initially interviewed Vasquez on the evening of May 16 because her father had reported her missing. Vazquez appears to have returned home after her father made the report; her father then brought her into the police department in connection with that report. (Kotlinski Testimony, Ex. C [9-3], at 311:11-18 (explaining that Vasquez's father brought her to the police department at approximately 7:00 pm on May 16); id. at 313:9-11 ("Q. The focus of that interview was on her status as a missing juvenile run-away? A. Yes.").) "During the course of the interview, Kotlinski came to believe that Vasquez had information about a shooting that had occurred earlier that day," and the officers began to explore what Vasquez might know about the Huerta shooting. Villavicencio-Serna, 2014 IL App (2d) 120668-U at ¶ 28. (See Kotlinski Testimony, Ex. C [9-3], at 313:15-314:18.) Despite their suspicion, the officers "made no attempt to secure the clothing Vasquez was wearing . . . so that it could be tested for gunshot residue." Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 29.

         Vasquez lived in the same apartment complex as Huerta, but was dating Villavicencio-Serna at the time, and she testified at trial that Villavicencio-Serna disliked Huerta. (Vasquez Testimony, Ex. C [9-3], at 881:1-14, 909:5-9.) Huerta had called Vasquez while Vasquez was at Villavicencio-Serna's home about a week before the shooting. That call appears to have made Petitioner angry-he told Vasquez that "if [Huerta] kept on calling [her], that he was going to shoot him. . . . [T]o kick his ass, something like that. . . . [H]e said if he talks to you again, I'm going to shoot him." (Vasquez Testimony, Ex. C [9-3], at 910:17-23.) When asked if Petitioner "is jealous," Vasquez responded, "Yes, definitely he is." (Id. at 935:2-3.) See Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 12. At trial, "[t]he State also played a voicemail message [Villavicencio-Serna] left on Huerta's phone six days before the shooting. In it, defendant directs a number of expletives toward Huerta." Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 19.

         Vasquez spoke to the police at the Addison police department over the course of two days, starting on the afternoon after the shooting. (Vasquez Testimony, Ex. C [9-3], at 899:2-4.) During that encounter, Vasquez initially told the police that Villavicencio-Serna "[d]id not do it." (Id. at 895:20.) By the end of the two days, however, Vasquez had provided two different video-recorded versions of her story, both implicating Villavicencio-Serna.[6] Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 11. The state played those recordings for the jury. The trial transcript does not reflect the recordings' contents, and this court has no copy of the recordings. Their contents are available to this court through witnesses' testimony about what they told police, the trial transcript, and the Illinois Appellate Court opinion.

         In the first recording, Vasquez states that she stayed at Petitioner's house on the night of the shooting and went to bed at 2 a.m. Petitioner then left, and came back around 5 a.m., telling her that he "had taken care of business." Id. (See Vasquez Testimony, Ex. C [9-3], at 907:23- 908:17.) Vasquez stated on the video that she thought Petitioner had murdered Huerta. (Vasquez Testimony, Ex. C [9-3], at 914:7-9 ("Q. You told the police on that first video, that you thought the defendant murdered Armando? A. Yes, I did.").)

         In the second recording (which is "actually a series of exhibits" and lasts for several hours), Vasquez "states that she drove to Addison with [Petitioner] and that [Petitioner] shot Huerta." Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶¶ 11, 18. (Vasquez Testimony, Ex. C [9-3], at 904:23-905:4.) In that version of her statement, Vasquez implicates Michael Daddio as the driver of the car, Donald Rogers as a front-seat passenger in the car, and herself and Petitioner as the occupants of the back seat. Id. at ¶ 19. She states in the video that Petitioner had a gun in his waistband. Id.

         At trial, Vasquez confirmed the details of these video recordings, but she explicitly recanted the second recorded version of her story, the one where she accompanied Villavicencio-Serna during the shooting. (See, e.g., Vasquez Testimony, Ex. C [9-3], at 944:6-7 ("Q. Did you say that on the video? A. Because they told me [to, ] I said that on the video.").) Vasquez did not directly recant the first version of her story, in which Villavicencio-Serna left her in his apartment and returned after "taking care of business." She testified at trial that she remained at Petitioner's apartment throughout the entire night in question. (See, e.g., Vasquez Testimony, Ex. C [9-3], at 947:12, 950:7-8.) She explained that she fell asleep at Petitioner's house on the night of the murder, and that "when [she] fell asleep, he was with [her]." (Vasquez Testimony, Ex. C [9-3], at 972:1.) She also testified that she "w[o]ke up like around early in the morning, and he had his jeans on for some reason and his clothes." (Id. at 950:22-24.)

         Throughout her testimony at trial, Vasquez asserted that she felt pressured into making the recorded statements and that the police "told [her] what [she] had to say" in them. Id. (modifications in original). (See, e.g., Vasquez Testimony, Ex C [9-3], at 939:2-4 (Q. On the video did you say that you were sitting behind in the backseat behind the driver? A. [The police] told me I was sitting there.").) Vasquez explained that she "felt like [she] was getting threatened by [the police] to tell them that [Petitioner] shot [Huerta]." Id. at ¶ 11. (Vasquez Testimony, Ex. C [9-3], at 886:1-3; see also Id. at 935:16-18 ("The first time when I first got [to the police station], that was the truth. And then [the officers] started harassing me telling me all this other stuff."); id. at 891:21-24 (testifying that the interrogating officers told her that she "need[ed] to tell the truth," and that "if [she didn't] . . . that [she] was going to go to jail.").) The second recorded statement, particularly, "shows Vasquez in a room by herself for a time, crying," and the "jury [ ] view[ed] portions where she is seen crying and throwing up." Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶¶ 11, 18. "Vasquez testified" at trial "that she [had] wanted to speak with her father," who had accompanied her to the police station, "but was not allowed to do so" during the questioning. Id. at ¶ 13. Finally, she testified that she called "a telephone number the police had given her to complain about the way she was treated" a few days after she was questioned. Id. at ¶ 13.

         Michael Daddio and Donald Rogers, the alleged driver and passenger in the car, also testified at Petitioner's trial.[7] The Addison police questioned Daddio on Sunday, May 17. Daddio owned a silver 1993 Cadillac DeVille in May 2009, [8] and he, like Vasquez, gave a recorded video statement. Id. at ¶ 20. That statement lasted approximately twenty minutes and was played at trial for the jury. (Daddio Testimony, Ex. D [9-4] at 185:7-11.) People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 36. Daddio testified that for several hours before the recording was made, he told officers that he was not involved in the shooting. (Daddio Testimony, Ex. D [9-4], at 169:15-22, 174:7-13.) On camera, however, he told the police that on the night of Friday, May 15, he picked up Villavicencio-Serna and Vasquez with Rogers already in his car (id. at 147:17-22.); that Petitioner told him to drive around Addison, and then to go to Vasquez' apartment building[9] (id. at 148:12-18); that they arrived at the apartment building around 3:15 a.m. to 3:30 a.m. (id. at 149:22-150:4); that he heard four or five shots from the back seat of the car (id. at 150:24-151:2); and that after the shots, Villavicencio-Serna told him to drive away, and then directed Daddio to drive to Villavicencio-Serna's home. (Id. at 151:3-10; 154:8-10.)

         Daddio's trial testimony about the early morning of May 16 differed greatly from the contents of his recorded statements. He testified that he could not recall what he was doing over the course of that Friday night and Saturday morning. People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 20. He also testified that he was "never there" at the scene of the shooting, and that Villavicencio-Serna did not shoot Huerta. (Daddio Testimony, Ex. D [9-4], at 150:9, 151:11- 13.) He stated that he "was not with [Villavicencio-Serna] or Vasquez at any point on that day," People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 22, and he testified that the police "forced [him] to lie" on the video recording. (Daddio Testimony, Ex. D [9-4], at 139:11.) He testified, "[t]he police told me they would put me under arrest; they would - - they told me lots of things. They would take me away from my family. . . . And lots of other stuff; emotional stuff that was, like, very heartbreaking." (Id. at 193:13-21.) People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 20. He also testified that the police told him that "[t]hey were going to take me under arrest if I wouldn't help them close the case. They told me if I'd just cooperate they'd label me down as a witness, not an accomplice." (Daddio Testimony, Ex. D [9-4], at 162:24-163:3.)[10]

         At two points during his questioning on May 17, Daddio got into a car with officers to visit separate locations. (Id. at 161:7.) On the first occasion, officers took Daddio to the apartment building where Huerta was shot. There, they asked him questions about the early morning of May 16. (Id. at 137:12-15.) On the second occasion, Daddio showed the officers to the home of Donald Rogers on the northwest side of Chicago. (Id. at 137:24-138:4 ("Q. Did you lead them to a location in Chicago? A. Yes, I led them to someone's house in Chicago. Q. Whose house did you lead them to? A. Donald Rogers.").) When the state asked Daddio on direct examination why he had taken the police to Rogers' home, Daddio testified:

[The police] were telling me a little bit about the case, and they just had me there for hours telling me that I was part of the case, that they needed to put it together; they needed me to point out a second person that was also there. . . . I was there for hours with them until I finally, like, couldn't take it anymore. I just pointed someone out.

(Id. at 138:19-139:4.)[11] In reality, Daddio testified, he did not see Rogers until later on Saturday, May 16, when Daddio sold his Cadillac to someone off Craigslist. Id. at ¶¶ 20, 22. (Daddio Testimony, Ex. D [9-4], at 142:8-9.)

         The Addison police picked up and interviewed Rogers on the night of May 17. (Rogers Testimony, Ex. D [9-4], at 239:10 (testifying that he was picked up around his uncle's house); Wadsworth Testimony, Ex. D [9-4], at 352:17-353:1 (stating that the police picked up Rogers "from his residence" around 9:05 p.m. on May 17).) In that interview, Rogers initially "denied being at Vasquez' apartment complex on May 16, 2009." People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 26. But later, while being recorded at the police station, he told the officers that he was with Daddio on the evening of May 15. (Rogers Testimony, Ex. D [9-4], at 240:5-8.) He told them that he and Daddio picked up Petitioner and Petitioner's girlfriend, that Villavicencio-Serna told Daddio where to drive, that they entered an apartment complex alley, that Villavicencio-Serna began arguing with another man, and that eventually he heard "boom, boom, boom, boom, boom." (Id. at 240:19-243:1.) People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 37. Rogers also told the Addison officers that Villavicencio-Serna threatened to shoot him if he told anyone about the shooting, and that Daddio took him home after the shooting. (Id. at 243:12-15, 245:7-16.) The prosecution played Rogers' recorded statement for the jury at trial. People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 37.

         At trial, Rogers recanted the recorded statements.[12] He testified that he was with his girlfriend at her house from 10 p.m. to 4:30 a.m. during the night and morning of Huerta's shooting. Id. at ¶ 25. By 5:00 a.m., Rogers says, he was "at [his] house sleeping." (Rogers Testimony, Ex D. [9-4], at 231:12-14.) He testified that he slept until "[a]round 12:00 or 1:00 in the afternoon" on May 16, then he "relaxed at [his] house with [his] mom, and watched movies with [his] mom." (Id. at 234:24-235:3.) Rogers' girlfriend at the time, however, testified that she was not with Rogers on the evening of May 15, 2009, nor was she with him on May 16. (Williams Testimony, Ex. D [9-4], at 452:23-453:13.) She also testified that Rogers never stayed at her house past 2:30 a.m. because she helped her father deliver newspapers. (Id. at 453:23-454:19.) On cross-examination, she could not remember the specific schedule for newspaper delivery. (Id. at 457:22-24.)

         Rogers, like Vasquez and Daddio, testified that he made the recorded statements, later recanted, because he was afraid of the police. (Rogers Testimony, Ex D. [9-4], at 259:9-11 ("[T]he cops were telling me I was going to get 35 years because I was telling them I was with my girlfriend at the time."); id. at 261:16-17 ("[T]hey started yelling and hitting the desk."); id. at 261:23 (testifying that one of the officers "took [Rogers'] glasses off [Rogers'] head" during the questioning).) Rogers' mother was suffering from cancer at the time, and he was concerned about the officers' warnings that he would never see her again. People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 25 (noting that the officers "asked him if he wanted to see his mother again"). Rogers also testified that the officers brought Daddio and Vasquez into a room with him at the police station, and both Daddio and Vasquez "pointed at [him]" and said he was in the car. (Rogers Testimony, Ex D. [9-4], at 260:5-6.) Daddio nevertheless denied that the police told him what to say on tape. Instead, "he stated that he made up" his recorded statements "by himself." People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 26.

         More than a month later, on June 26, 2009, Rogers returned under his own will to the police station with his girlfriend "to provide additional information." Id. at ¶ 25. He testified at trial that the police again told him they were going to arrest him after he arrived. (Rogers Testimony, Ex D. [9-4], at 267:10-13 ("Q. So after you willingly went to the Addison police department, they told you they're going to arrest you? A. Yes.").) There is no suggestion the police had obtained a warrant, however, and having come to the station apparently of his own volition, Rogers was presumably free to leave. (See Id. at 266:2-13.) He instead gave another recorded statement, telling the police that Villavicencio-Serna had threatened to shoot him if he told anyone what had happened. (Id. at 265:16-22, 267:23.) He did not recant any of the prior statements he had made to the police. It does not appear from the record that this second video of Rogers was played for the jury; but Rogers testified at trial that he agreed to have his statements to the police recorded (id. at 266:15-19), and he testified consistently with the information he provided that day. (Id. at 264:16-20, 265:1-5, 265:16-22, 267:18-23.)

         The prosecution presented the testimony of a host of police officers, including Sergeant Goss, who responded to and investigated the crime scene, People v. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶¶ 7-9; Detective Pope, who interviewed Vasquez, id. at ¶ 15; Detective Maranowicz, who was assigned to "act on behalf of" Vasquez while she was questioned due to her juvenile status, id. at ¶ 16; Detective Selvik, who had briefly spoken with Vasquez and participated in the questioning of Daddio, id. at ¶¶ 23-24; Officer Kotlinski, who had also interviewed Vasquez, id. at ¶ 28; Officer Bjes, who took Rojas to identify the vehicle used in the shooting, as well as officer Gonzalez, who translated in English and Spanish for Bjes and Rojas, id. at ¶ 31; Officer Gilhooley, who participated in the questioning of Vasquez and who overheard statements made by Petitioner when he was charged with murder, [13] id. at ¶ 34, (see Gilhooley Testimony, Ex. D [9-4], at 536:14-549:13); and Detective Brant, who was involved in the questioning of Rogers.[14] (Brant Testimony, Ex. D [9-4] at 377:16-385:12.) All officers denied subjecting Vasquez, Daddio, or Rogers to coercion, or knowing of any such tactics being used by their fellow officers. See also Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 30.

         Several officers also testified on behalf of Petitioner, essentially confirming the absence of various forms of physical evidence tying Petitioner to the scene of the murder. Detective Brant testified that he was unable to obtain any camera evidence from red light cameras, toll booths, or any other source that would place a "silver Cadillac in the relevant area on May 16, 2009." Id. at ¶ 39. Detective Reba testified that he did not know "whether the shell casings" found at the scene of the murder "were ever tested" for fingerprints or DNA. Id. at ¶ 40. Detective Hostetler testified that he tested the Cadillac for gunshot residue. Id. at ¶ 41. Though he never so explicitly stated so at trial, it appears from his testimony that no residue was found in or on the car. (Hostetler Testimony, Ex. D [9-4] at 778:18-781:6.) Hostetler explained, however, that a residue test could be ineffective if a car were cleaned, or if "the car had been driven with the windows open." Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 41. The parties stipulated that another forensic scientist had tested "residue samples taken from [Petitioner's] hands and from the interior of the Cadillac," and that "either a firearm was not discharged by [Petitioner] in the Cadillac or the residue had somehow been removed." Id. at ¶ 42.

         Villavicencio-Serna's theory of defense at trial was that another car entered the apartment complex parking lot during the early morning of May 16, and that the shooting occurred as a result of an altercation between Huerta, Rojas, and the occupants of that car. Petitioner presented evidence in support of this theory through the cross-examination of Officer Kotlinski and through his own witness, Maria Marines. Kotlinski testified that, as part of his investigation, he had learned of another car near the parking lot of the apartment complex around the time of the shooting. (Kotlinski Testimony, Ex. D [9-4] at 328:1-4.) That car had four occupants: Paul Alvarado, Daniel Garcia, David Vargas, and Maritza Padilla. Villavicencio-Serna, 2014 IL App (2d) 120668-U, ¶ 29.

         Padilla lived in the apartment complex, and the car-a dark green Pontiac Bonneville-was dropping her off there around 3:30 a.m. Id. The police requested that all four come to the police station, but only Alvarado, Garcia, and Padilla complied. Kotlinski later located and spoke with Vargas as well. Kotlinski "did not test any of these individuals for gunshot residue because they were honest and forthcoming and had already left the scene when the shooting took place." Id.

         Cesar Padilla, Maritza Padilla's father, testified at trial that his daughter had "arrived home at about 3 a.m., though he did not know the exact time. He heard gunshots a short time after Maritza came home." Id. at ¶ 30.

         Marina Marines was the last witness to testify at trial. She is Rojas' sister and also lived in the same apartment complex as Vasquez and Huerta. Id. at ¶ 43. Huerta was her nephew, and she was awake at the time of the shooting. Id. The appellate court summarizes her testimony:

She heard a car pull up and stop. She also heard voices. Marines did not recognize a man who spoke, but she did recognize the voice of Maritza Padilla. Marines then heard what she described as "a bang towards the car," by which she meant a sound "like when you hit a car." She then heard Maritza yell. She then heard tires squeal and the car drive off. At the same time she heard the tires squeal, she heard a number of gunshots, "one after the other." There were "more than five" shots. She ran to a window and heard her brother yelling. She did not observe any other cars in the area while she was standing at the window.

Id. Marines testified that she chose to testify at trial, despite the fact that Petitioner's trial counsel had told her that she did not have to. Id. at ¶ 44. She was renting "an apartment from Vasquez's father" at the time of trial. Id. She was interviewed by the Addison police after the shooting and appears to have given the same information to which she testified at trial. Id. at ¶ 45.

         After hearing testimony, the jury convicted Villavicencio-Serna of ...


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