United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE.
2010, a judge convicted Ashur Hidou of first-degree murder
and accordingly sentenced him to 35 years in the Illinois
Department of Corrections for stabbing Israel Moreno eight
times in the back and chest. After an unsuccessful direct
appeal and postconviction challenge in the Illinois state
courts, he petitioned this Court for a writ of habeas corpus
under 28 U.S.C. § 2254 (Dkt. 1). Hidou alleges that his
state court conviction and sentence violate his rights under
the Fifth, Sixth, and Fourteenth Amendments, raising
seventeen distinct claims of ineffective assistance of
counsel and three due process claims. Hidou also requests an
evidentiary hearing. Because Hidou already had one bite at
the apple in the state courts, and the resulting decisions
are neither contrary to nor an unreasonable application of
federal law, the Court denies his petition and request for an
evidentiary hearing (Dkt. 1).
federal habeas petitioner is in custody pursuant to a
judgment of a state court, the federal court presumes the
state court's factual findings are correct unless the
petitioner rebuts that presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Thompkins v.
Pfister, 698 F.3d 976, 983 (7th Cir. 2012). Because this
was a bench trial, the judge acted as the finder of fact. The
Court has reviewed the record and confirms that it supports
the state court's factual findings. Therefore, the Court
primarily draws the following facts from the Illinois
Appellate Court's opinion on collateral review. See
People v. Hidou, 1-14-3903, 2016 WL 5243931 (Ill.App.Ct.
2016) cert. denied 138 S.Ct. 198 (2017). The Court takes
facts not mentioned in the opinion from the transcripts of
the state court proceedings and from the court's opinion
on direct appeal. Id.
a bench trial in the Circuit Court of Cook County, a judge
convicted Hidou of first-degree murder and sentenced him to
35 years' imprisonment for the 2008 killing of Israel
“Kiki” Moreno. People v. Hidou, at
¶ 4. Hidou and Moreno knew each other from living in the
same neighborhood but were in rival gangs. Id.
¶¶ 4, 28. In the early morning of July 14, 2008,
Hidou stabbed Moreno multiple times in the chest and back
following an altercation in the street. Moreno died at the
hospital later that night from his injuries. Id.
Claudio (“Vanessa”) testified for the State at
trial. Id. ¶ 5. On the night of July 13, 2008,
Hidou was at the Claudio family home. Id. ¶ 7.
Vanessa was 18 years old at the time and had previously dated
both Hidou and Moreno. Following her breakup with Hidou, the
two remained close and Hidou often spent time
“hang[ing] out” at the Claudio's.
Id. ¶ 6. At approximately 5:00 p.m. on July 13,
Hidou showed Vanessa and her parents a large knife that he
had recently purchased. Id. ¶ 7. A few hours
later, more friends came to the residence. Id.
Vanessa was in her bedroom with Hidou and a few others when
she heard Moreno yelling for her from the street.
Id. After Vanessa ignored him, she saw Moreno walk
away with his friend, Gregory Latson. Id. She stated
that Hidou “looked a little mad, but not really.”
15 to 20 minutes later, Hidou announced he was leaving
because his sister had arrived to pick him up. Id.
¶ 8. As Hidou was walking out of the house, he told
Vanessa's younger brother that he was going to talk to
the guys that were “messing with” one of her
brothers and was “going to get them.”
Id. After Hidou left the house, Vanessa heard people
yelling and screaming in the street and ran outside.
Id. When she got outside, she saw Moreno lying in
the street and heard Latson say, “[Hidou] has a knife,
” although she did not see it. Id. Moreno was
pale, bleeding, and gasping for air. Id. When
Vanessa eventually left Moreno's side and returned home,
she saw Hidou in the laundry room of her apartment building.
Id. ¶ 9. She stated he was “really
bloody” and his eyes were swollen shut. Id.
also testified to previous violent encounters with Moreno,
including an incident that took place a week before his
death. Id. ¶ 10. Moreno had become angry when
she tried to ignore him after he called her name and he
responded by grabbing her face. Id. Her father and
brothers became involved, but Moreno kept trying to get in
the building and was “hitting everyone.”
Id. Vanessa testified that she unsuccessfully tried
to hold him back, but he hit her mother's friend, who
fainted. Id. The police arrived and arrested Moreno.
Moreno's best friend, also testified for the State.
Id. ¶ 11. He testified that on the night of
June 13th, 2008, he and Moreno had been at Moreno's home
drinking beer from about 10:30 p.m. to 2:00 a.m. Id.
¶ 11. At about 2:00 a.m. on June 14th, Latson
and Moreno went for a walk and ended up across the street
from Vanessa's apartment. Id. Latson testified
that Moreno had yelled for Vanessa, but when she did not
respond, the two of them started to walk away. Id.
¶¶ 11-12. Moreno stopped and said, “Well, who
is this walking in the middle of the street?”
Id. ¶ 12. When Latson turned toward a man
dressed in black whom he had never seen before, Moreno said,
“Oh, it's just Ashur.” Id. ¶
12. Latson and Moreno kept walking, but then heard Hidou say,
“What's up, bitch?” as he quickly closed the
distance between himself and Moreno. Id.
saw Hidou pull out a large knife at the same time Moreno
swung an arm toward him. Id. ¶ 13. Latson saw
Hidou stab Moreno on his left side, after which the two of
them fell backwards and collapsed on the ground. Id.
Hidou was on the bottom stabbing Moreno, who was on top
“flailing his arms.” Id. Latson
estimated that Hidou stabbed Moreno five or six times.
Id. Latson grabbed Hidou and tried to get the knife
out of his hands, then started kneeing Hidou in the face as
Moreno got up and tried to walk away. Id. ¶ 14.
Moreno testified that he heard Hidou yell “king love,
” which signaled allegiance to the Latin Kings gang.
Id. ¶¶ 14, 22. As Hidou and Latson
struggled over the knife, the blade cut Hidou's hand.
Id. ¶ 14. Soon after, Latson testified that
Vanessa and her father arrived on the scene, saw Moreno
profusely bleeding, which prompted Vanessa to yell, “Oh
my God, Kiki's dying.” Id. ¶ 15.
Maldonado was another witness for the State. Id.
¶ 16. He was best friends with one of Vanessa's
brothers and had been drinking at a separate party earlier in
the night but ended up back at the Claudio home. Id.
He was in Vanessa's bedroom with her when they saw Moreno
and Latson walking in the street and heard Moreno yell for
Vanessa. Id. He testified that, at that time, he
also observed Hidou in the street, first walking in the
opposite direction of Moreno and Latson but then noticed
Hidou switch directions. Id. Maldonado did not see
the beginning of the fight but ran outside after he heard the
scuffle and saw Moreno collapsed on the ground with
“his insides hanging out.” Id.
Maldonado's sisters came to pick him up and they even
offered to take Hidou to the hospital, but Hidou told them he
could not go, so they took him home to see his mother.
Id. ¶ 17.
The Claudio Family
mother testified for the defense, stating that her whole
family feared Moreno because he was always threating them.
Id. ¶ 18. Vanessa's brother, Anthony, also
testified for the defense about Moreno's violent
tendencies. Id. ¶ 19. His testimony about the
stabbing and the circumstances surrounding it was consistent
with that of the State's witnesses. Id. ¶
19. He added that Hidou had previously told him he was a
member of the Latin Kings and that he heard Hidou yell
“king love” after the stabbing. Id.
¶ 19. Vanessa's father, Angelo, also testified for
the defense. Id. ¶ 21. While he affirmed the
rest of the family's testimony that Moreno had been
tormenting them, he also said that he heard Hidou yelling
“Kiki, I hope you die, ” during the struggle
between Hidou and Moreno. Id. at 21.
took the stand and testified on his own behalf. Id.
¶ 22. He admitted that he had a knife that he had shown
to the Claudio family on the night of July 13, 2008.
Id. He denied that he was a member of the Latin
Kings gang and denied knowing what “king love”
meant, but admitted he had some “good friends”
who were Latin Kings. Id. Hidou testified that on
the night of the incident he left the Claudio home because
his sister was going to pick him up. Id. ¶ 23.
When he got outside and did not see his sister, he started
walking towards a convenience store so that his sister could
pick him up there instead. Id.
to Hidou, as he was walking to the convenience store, he saw
Moreno with Latson and was afraid that they would kill him.
Id. ¶ 24. As he was looking back and forth at
Latson and Moreno during the altercation, he described that
“it all happened so fast.” Id. He
testified that Moreno trapped him, so he could not run or hit
him; then, he was “grabbed from behind” and
“slammed” to the ground. Id. Hidou
blacked out for some part of the incident, but remembers
getting hit in the face, dragged, kicked, and punched.
Id. He pulled out his knife to get Moreno and Latson
off him, then he “just started swinging [his knife]
wildly.” Id. Hidou testified that there was a
struggle for the blade as it came close to his chest and
testimony about the period after the stabbing aligned with
that of the State's witnesses. See Id. ¶
25. He admitted that he did not see Moreno with any weapons.
Id. He testified that, after the altercation, he did
not stay to tell the police that he had been defending
himself, but instead left the area with his friends.
Id. He also confirmed that he did not make any
efforts to call the police after he stabbed Moreno.
Dr. Ron and Dr. Jones
Ron treated Hidou's injuries from the fight. Id.
¶ 26. The parties stipulated that, if called to testify,
Dr. Ron would state that when Hidou arrived at the hospital,
he gave the name “Ashy Hidy, ” a birth date of
July 3, 1989,  and told the doctor that he had been
“jumped.” Id. The stipulation also
described Hidou's injuries as they had been diagnosed at
the hospital. Id. The parties stipulated that Dr.
Tera Jones was an expert in forensic pathology and performed
the autopsy on Moreno. (Dkt. 6 at 290.) Dr. Jones's
testified at trial that Moreno had three stab wounds to his
chest and abdomen and five stab wounds in the back.
Id. at 291. Dr. Jones's concluded that
Moreno's cause of death was multiple stab wounds.
Id. at 308.
court found Hidou guilty of first-degree murder. People
v. Hidou, at ¶ 28. In so finding, the court
determined that Hidou was not credible, but that the
State's witnesses were. The court emphasized that the
stabbing had not been merely a gang rivalry, but instead was
“very personal” between Moreno and Hidou.
Id. Finally, the court noted that it understood that
it could have find Hidou guilty of second-degree murder but
asserted that the facts merited a finding of first-degree
murder instead. Id.
his conviction for two counts of first-degree murder, Hidou
hired new counsel to represent him in the sentencing, direct
appeal, and postconviction proceedings. Id. ¶
29. After the trial judge sentenced him to thirty-five years
in the Illinois Department of Corrections, Hidou filed a
post-trial motion asserting that his trial attorney did not
effectively assist him in defending his case. Id.
The court denied the motion. Id.
appealed his convictions, arguing that: (1) the evidence was
insufficient for first-degree murder; (2) the trial court
violated his rights to a fair trial and due process because
it failed to consider the offense of second-degree murder;
and (3) trial counsel was ineffective. Id.
¶ 30; Dkt. 5 at 4-54. To support his ineffective
assistance claim, Hidou contended that his counsel failed to:
(1) appreciate the distinction between first-degree murder,
second-degree murder, and self-defense; (2) properly move to
admit evidence of Moreno's propensity for violence; (3)
effectively cross examine witnesses, including Latson; (4)
object to improper witness evaluation and irrelevant
evidence, including testimony from Dr. Tera Jones; (5)
stipulate to Hidou's use of false information at the
hospital; (6) prepare witnesses to testify; and (7) preserve
the record regarding “tension and animosity” in
the courtroom. Id. ¶ 30; Dkt. 5 at 4-54.
Illinois Appellate Court affirmed Hidou's conviction.
Id. at ¶ 30. The court noted that the decision
to pursue a certain theory of defense is a reasonable trial
strategy and that nothing in the record showed that counsel
was unaware of the distinctions between first-degree murder,
second-degree murder, and self-defense. Id. The
appellate court also pointed to the trial court's
statement that it “was cognizant of the fact that [it]
could find defendant guilty of second-degree murder”
but felt that first-degree murder was appropriate after
considering the evidence. Id. Further, the court
found that substantial evidence demonstrated Moreno's
propensity for violence, and that the decision not to
cross-examine Latson was reasonable trial strategy.
Id. Finally, the appellate court did not view the
stipulation regarding Dr. Tera Jones as deficient
representation, given that she was qualified to give her
opinions and the trial court would have overruled any
subsequently filed a petition for postconviction relief under
725 ILCS 5/122-1, contending that counsel was ineffective
for: (1) failing to conduct any investigation to discover
additional witnesses and present those witnesses at trial,
2016 IL App (1st) 143903-U at ¶ 39; (2) stipulating to
Dr. Ron's Testimony, id. ¶ 59; (3) failing
to challenge Dr. Jones's opinion as to cause of death,
id. ¶ 61; (4) failing to object to evidence of
gang involvement, id. ¶ 64; (5) failing to
investigate all legal defenses, including a theory of
second-degree murder, id. ¶ 66; (6) failing to
review discovery with defendant, id. ¶ 68; (7)
failing to communicate with the defendant and prepare him for
trial, id. ¶ 70; (8) coercing the defendant
into choosing a bench trial, id. ¶ 72; (9)
charging excessive fees in proportion to counsel's
deficient level of representation, id. ¶ 74;
and (10) advising the defendant to falsely testify,
id. ¶ 76. Furthermore, Hidou alleged that his
rights to due process and a fair trial were violated because
gang members watched the trial to intimidate and influence
vital witnesses. Id. ¶ 79.
trial court found that each of Hidou's claims failed
because of res judicata, were not supported by the necessary
affidavits, or qualified as reasonable trial strategy in
dismissing his postconviction petition without an evidentiary
hearing. People v. Hidou, at ¶ 31, 35; Dkt. 5
at 601. The Illinois Appellate Court affirmed, agreeing that
calling witnesses, cross-examination, and impeachment were
all matters of trial strategy that did not support
Hidou's assertion that his counsel was ineffective for
failing to investigate or discover additional witnesses and
present them at trial. Id. ¶¶ 40, 82. The
court also noted that Hidou failed to demonstrate prejudice
arising from his counsel's decision not to call certain
witnesses because none of the proposed witnesses could negate
the “overwhelming evidence to convict defendant of
first-degree murder, ” nor change the outcome of the
trial. Id. ¶ 57.
appellate court evaluated each of the alleged ineffective
assistance claims and found each claimed deficiency was
reasonable trial strategy, nonprejudicial to Hidou, or both.
Specifically, in considering the trial attorney's
stipulation to Dr. Ron's Testimony, the appellate court
reasoned that because the stipulation related only to the
information in the hospital's medical report from the
night of the stabbing, even if counsel had called its own
doctor to introduce an alternative medical opinion about
Hidou's injuries, this would not have changed the outcome
of the trial and therefore did not establish ineffective
assistance. Id. ¶ 60.
to Hidou's claim that counsel was ineffective for failing
to challenge Dr. Jones's opinion as to the cause of
death, the court explained that the evidence supported a
finding that Hidou's actions (stabbing Moreno eight
times) were likely to cause death, did in fact cause
Moreno's death, and Hidou did not present enough evidence
in his postconviction petition to rebut this finding.
Id. ¶ 63. As to Hidou's claim that counsel
failed to object to evidence that defendant was involved in a
gang, the court viewed this choice as a reasonable trial
strategy, attempting to minimize the evidence of gang
affiliation instead of highlighting it with an objection.
Id. ¶ 65. Moreover, the appellate court found
that it did not impact the outcome of the trial because the
trial court specifically concluded that the fight was
motivated more by personal reasons than gang affiliation.
court subsequently asserted that counsel's decision to
pursue an “all-or-nothing” defense that Moreno
was the first aggressor instead of pursuing a theory of
second-degree murder was reasonable trial strategy, thus
rejecting Hidou's claim that counsel was ineffective for
failing to investigate all legal defenses. Id.
¶ 67. The court also classified counsel's decision
not to review discovery with Hidou as a matter of trial
strategy within counsel's discretion and accordingly
dismissed that claim. Id. ¶ 69. When
considering Hidou's claims that his trial counsel failed
to communicate with him, the appellate court looked to the
record, which rebutted that assertion and revealed that
counsel did, in fact, meet with him on several occasions.
Id. ¶ 71. The appellate court next considered
Hidou's contention that counsel coerced him into choosing
a bench trial, explaining that the record not only shows that
Hidou voluntarily waived his right to a jury trial, but such
a decision is generally a matter of trial strategy not
indicative of deficient representation. Id. ¶
asserted that counsel was ineffective because the deficient
level of representation was not proportionate to the
significant amount of money Hidou had paid for counsel.
Id. ¶ 75. The appellate court stressed that
Hidou offered no legal support for the proposition that
excessive legal fees amount to a constitutional violation,
and that the claim did not pertain to the “effect
counsel's assistance had on defendant's ability to
have a fair trial” as required to show ineffective
assistance. Id. The court rejected Hidou's final
ineffective assistance of counsel claim-that his trial
counsel advised him to falsify his testimony-by pointing out
that there was nothing in the record to support it and
explaining “the fact that defendant was young and
scared does not absolve him from his obligation to testify
truthfully.” Id. ¶ 77. Finally, after
analyzing Hidou's sole due process claim that he was
denied a fair trial because gang members intimidated vital
witnesses during the trial, the court found nothing in the
record to suggest that gang members inappropriately
influenced the trial court and thus rejected the claim.
Id. ¶ 79.
petitioned for rehearing and the court denied the request.
(Dkt 5 at 892.) He subsequently petitioned the Illinois
Supreme Court for leave to appeal (“PLA”). Hidou
maintained that counsel's excessive fees created a
conflict of interest and violated the duty of loyalty (Dkt. 5
at 929) and that counsel was ineffective for: (1) stipulating
to inaccurate information related to Hidou's injuries and
the cause of Moreno's death; (2) failing to investigate
medical issues or consult with a medical expert; (3)
stipulating to medical examiner Dr. Jones's
qualifications; (4) stipulating to petitioner's use of
false information at the hospital and failing to call
petitioner's cousin George Nisan to testify that he, not
petitioner, provided the false information; (5) failing to
hire an investigator and conduct an investigation; (6)
failing to call Hi-dou's sister and other witnesses to
corroborate petitioner's testimony; (7) failing to call
Hidou's sister to testify that she purchased the knife
used to kill Moreno; (8) failing to call a friend who had
been at the Claudio residence that night; (9) failing to call
purported eyewitness Philip Rangel; and (9) failing to
properly impeach Maldo-nado.
Illinois Supreme Court denied the PLA. (Dkt. 5 at 926-35.)
Hidou petitioned the Supreme Court of the United States for a
writ of certiorari, which the Court denied on October 2,
2017. Hidou v. Illinois, 138 S.Ct 198 (2017). Hidou
timely petitioned this Court for a writ of habeas corpus
under 28 U.S.C. § 2254 and requested an evidentiary
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs judicial review of state habeas petitions. It permits
a federal court to issue a writ of habeas corpus only if the
state court reached a decision on the merits of a claim, and
that decision was either “contrary to, or involved an
unreasonable application of, clearly established Federal law,
” or “was based on ...