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Hidou v. Lamb

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

July 2, 2019

ASHUR HIDOU, Petitioner,
v.
NICHOLAS LAMB, Warden, Lawrence Correctional Center; and JOHN R. BALDWIN, Acting Director, Illinois Department of Corrections, Respondents.

          MEMORANDUM OPINION AND ORDER

          VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE.

         In 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).

         BACKGROUND

         When a 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.

         I. Facts

         Following 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. ¶ 6.

         A. Vanessa Claudio

         Vanessa 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.” Id.

         About 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.

         Vanessa 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. Id.

         B. Gregory Latson

         Latson, 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.

         Latson 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.

         C. Ray Maldonado

         Ray 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.

         D. The Claudio Family

         Vanessa's 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.

         E. Ashur Hidou

         Hidou 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.

         According 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 stomach. Id.

         Hidou's 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. Id.

         F. Dr. Ron and Dr. Jones

          Dr. 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, [1] 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.

         The 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.

         II. Procedural History

         Following 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.

         A. Direct Appeal

         Hidou 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.[2] 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.

         The 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 objection. Id.

         B. Collateral Attack

         Hidou 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.

         The 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.

         The 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.

         Turning 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. Id.

         The 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. ¶ 73.

         Hidou 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.

         Hidou 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.

         The 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 hearing.

         STANDARD OF REVIEW

         The 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 ...


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