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Pulido v. Dorethy

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

October 28, 2019

ANDREW PULIDO #B57695, Petitioner,
v.
STEPHANIE DORETHY, Warden, Hill Correctional Center, [1] Respondent.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN UNITED STATES DISTRICT JUDGE

         After pro se petitioner Andrew Pulido filed his petition for a writ of habeas corpus under 28 U.S.C. § 2254(d)(1), the Court stayed this case while Pulido's state court post-conviction petitions were pending. The Court lifted the stay in January 2018, and Pulido's petition is now ready for review. For the following reasons, the Court denies Pulido's habeas petition and declines to certify any issues for appeal under 28 U.S.C. § 2253(c)(2).

         Background

         When considering habeas petitions, federal courts presume the factual findings made by the last state court to decide the case on the merits are correct unless the habeas petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Sims v. Hyatte, 914 F.3d 1078, 1095 (7th Cir. 2019). Since Pulido has failed to provide clear and convincing evidence to rebut this presumption, the following factual background is based on the Illinois Appellate Court's decisions.

         On September 10, 2002, police found Pulido's estranged wife, Dana Wolf-Pulido, strangled to death in her apartment. Police arrested Pulido in September 2003, and Pulido was charged with his wife's murder. Following a jury trial in the Circuit Court of Cook County, Criminal Division, Pulido was found guilty of first degree murder. On September 20, 2005, the Circuit Court sentenced Pulido to fifty-seven years and four months in prison.

         In November 2005, Pulido appealed his conviction and sentence to the Illinois Appellate Court arguing that the Circuit Court improperly: (1) disallowed cross-examination of the State's DNA expert concerning her theft conviction; (2) excluded evidence of a prior domestic violence incident between the Wolf-Pulido and her ex-boyfriend; and (3) considered a victim impact statement at sentencing. On May 16, 2008, the Illinois Appellate Court affirmed Pulido's conviction and sentence. Pulido then filed a pro se petition for leave to appeal (“PLA”) to the Illinois Supreme Court on September 19, 2008, raising the claims that the Circuit Court improperly excluded evidence of the prior domestic violence incident between the victim and her ex-boyfriend and considered a victim impact statement at sentencing. The Illinois Supreme Court denied Pulido's PLA on November 26, 2008.

         In May 2009, Pulido, by counsel, filed a post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. In his petition, Pulido asserted that his trial counsel was constitutionally ineffective for failing to: (1) interview prosecution and defense witnesses; (2) rebut the prosecution's DNA evidence; (3) file a motion to reconsider his sentence; and (4) consider, investigate, or present evidence of Pulido's mental state and ingestion of psychotropic drugs at the time of the murder and trial. Pulido also argued that his appellate counsel was constitutionally ineffective for failing to challenge the admissions of other crime evidence and trial counsel's inadequate performance.

         The Circuit Court dismissed this post-conviction petition at the first stage of the proceedings. Pulido then appealed to the Illinois Appellate Court, which affirmed the Circuit Court's dismissal on June 24, 2011. Pulido, by counsel, filed a PLA with the Illinois Supreme Court arguing that the lower state courts applied the wrong legal standard in dismissing his ineffective assistance of counsel claim with respect to his mental state and use of psychotropic medications. On November 30, 2011, the Illinois Supreme Court denied Pulido's post-conviction PLA.

         In May 2012, Pulido sought leave to file a successive post-conviction petition that the Circuit Court denied in September 2013. The Illinois Appellate Court affirmed the Circuit Court on August 18, 2016. Pulido did not file a PLA from the appellate court's judgment. In April 2017, Pulido requested leave to file a second successive post-conviction petition that the Circuit Court denied in May 2017. According to Pulido's letters to this Court, he is not raising any new claims in this second successive post-conviction petition, but instead is arguing that his other post-conviction proceedings were fundamentally flawed.

         Legal Standards

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court can grant habeas relief if the state court's decision was contrary to, or an unreasonable application of federal law clearly established by the Supreme Court. See Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Felton v. Bartow, 926 F.3d 451, 464 (7th Cir. 2019). The Supreme Court has explained that a state court's decision is “contrary to” clearly established Supreme Court law “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.” Williams, 529 U.S. at 405. Under the “unreasonable application” prong of the AEDPA standard, a habeas petitioner must demonstrate that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. Id. at 407.

         “[A] state prisoner must exhaust his remedies in state court before seeking [habeas] relief in federal court.” Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 2018). “Inherent in the habeas petitioner's obligation to exhaust his state court remedies before seeking relief in habeas corpus, is the duty to fairly present his federal claims to the state courts.” King v. Pfister, 834 F.3d 808, 815 (7th Cir. 2016) (citation omitted). Specifically, a habeas petitioner must fully and fairly present his federal claims through one full round of state court review before he files a federal habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). “If the petitioner fails to present a claim to the state courts, that claim is procedurally defaulted, and a federal habeas court cannot review it absent ‘cause and prejudice' or a miscarriage of justice (meaning conviction of an innocent person).” Reynolds v. Hepp, 902 F.3d 699, 705 (7th Cir. 2018).

         Discussion

         Construing Pulido's pro se habeas petition liberally, see Lund v. United States,913 F.3d 665, 669 (7th Cir. 2019), he contends that: (1) the trial court erred in granting the State's motion in limine to bar defense counsel from cross-examining the State's DNA witness about her theft conviction denying him his Sixth Amendment right to confrontation; (2) the trial court's denial of defense's motion in limine to allow questioning of Wolf-Pulido's ex-boyfriend about a prior domestic violence incident denied Pulido his right to confrontation and right to present a defense; and (3) various claims of ineffective assistance of counsel. Procedurally Defaulted Claims Pulido has procedurally defaulted several of his habeas claims by failing to properly present them through one full round of review in the Illinois courts, including in a PLA to the Illinois Supreme Court. Specifically, because Pulido did not raise his argument that the trial court erred by disallowing cross-examination of the State's DNA expert concerning her theft conviction in his direct appeal PLA to the Illinois Supreme Court, he has procedurally defaulted this claim. Similarly, all of Pulido's ineffective assistance of ...


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