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Viramontes v. Dorethy

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

January 14, 2020

LUIS VIRAMONTES, Petitioner,
v.
STEPHANIE DORETHY, Warden, Pontiac Correctional Center, Respondent.

          MEMORANDUM OPINION & ORDER

          MARY M. ROWLAND JUDGE

         After discovering that his wife was having an affair with a former coworker, Luis Viramontes beat his wife, and she later died from her injuries. At trial, Viramontes admitted to causing the injuries that led to his wife's death, but claimed he was seriously provoked by her infidelity, and that she willingly engaged in aggression against him. A jury convicted Viramontes of first degree murder and he was sentenced to 25 years in prison. Viramontes has now filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254, challenging his conviction. In his petition, he presents a single ineffective assistance of counsel claim and requests an evidentiary hearing. (Dkt. 1 at 1, 27) For the reasons that follow, Viramontes' petition [1] is denied, and the Court issues a certificate of appealability. The Court declines to grant an evidentiary hearing.

         BACKGROUND

         When considering habeas petitions, federal courts must presume that the factual findings made by the last state court to decide the case on the merits are correct, unless the petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012). Viramontes has not provided clear and convincing evidence to rebut the presumption of correctness here, so this factual background is taken from the state court's findings. People v. Viramontes, 2016 IL App (1st) 160984.

         1. Trial

         At trial, Viramontes testified that on January 9, 2010, he and his wife, Sandra Rincon-Viramontes, went out for dinner and drinks with family and friends to celebrate his birthday. Sandra's mother watched their two children for the evening and planned on returning the children home the next morning. The birthday festivities ended around 11 p.m. On the drive home, Viramontes noticed that Sandra received a text message, which he thought was strange given the late hour. Sandra fell asleep in the car, and when they arrived home, Viramontes carried her inside and put her to bed. When he returned to the car for their belongings, he checked Sandra's phone and saw sexually explicit text messages between Sandra and “Denise.” Viramontes testified that, unknown to him at the time, Sandra was having an extramarital affair with Andres (Andy) Ochoa, a former coworker. Sandra saved Andy's phone number in her cell as “Denise.” On the night in question, January 9, 2010, Sandra and Andy exchanged eighteen text messages. Viramontes saw that Sandra and Andy discussed meeting, and Andy requested that Sandra send him photographs. In reply, Sandra sent four or five naked pictures of herself.

         Viramontes further testified that when he saw the messages and photographs, he “felt like [his] whole life was turned upside down.” People v. Viramontes, 2016 IL App (1st) 160984, ¶ 8. He tried calling “Denise's” number to discover who Sandra had been texting, but no one answered. Viramontes testified that when he saw a text from “Denise” saying “you're making me hard, ” he knew “Denise” was a man and that Sandra was having an affair. Id.

         Viramontes then went into the house to confront Sandra about the affair. He testified that he found her in the bathroom snorting cocaine, and they argued about the drugs. Viramontes asked Sandra about the naked photographs and text messages. Sandra told Viramontes that “Denise” was Andy, they were having an affair, and they were in love.

         Viramontes testified that he was “angry” and “devastated.” People v. Viramontes, 2016 IL App (1st) 160984, ¶ 10. He hit Sandra in the face with an open hand. Sandra ran into the bedroom and locked the door. He continued to yell at Sandra, calling her vulgar names and reading the text messages aloud. Viramontes ran to the basement, grabbed a can of spray paint, and spray painted their wedding pictures and the living room and hallway walls with explicit words relating to the affair. He then sat at the kitchen table, put his head down, and cried.

         Sandra eventually came out of the bedroom. When she saw the spray-painted walls, she ran towards Viramontes screaming and swinging at him. She began to hit him in the chest, so he grabbed Sandra's shoulders, “threw her against the door, and then tossed her over the table.” People v. Viramontes, 2016 IL App (1st) 160984, ¶ 11. He told Sandra he was leaving her. She got up and ran at him again. Viramontes grabbed her by the shoulders, threw her against the refrigerator and then onto the kitchen floor, telling her “Get off me. Leave me. I'm leaving you. I'm not going to be with you no more.” Id. Viramontes began walking towards the backdoor.

         Sandra got up from the floor, threw her wedding rings at Viramontes, and said she did not want to be married. She also told him, “I don't want to have no more kids with you, that's why I killed your baby. I had an abortion and killed your baby.” People v. Viramontes, 2014 IL App (1st) 130075, ¶ 15. Viramontes testified he thought he had facilitated the abortion because he drove her to a doctor's appointment he thought was related to her cancer diagnosis. He testified he “lost it” and “couldn't control [himself] after that.” People v. Viramontes, 2016 IL App (1st) 160984, ¶ 12. Viramontes grabbed Sandra and threw her into the refrigerator, causing her to hit her head hard. He then threw her on the floor, where she hit her head again. On the floor in the fetal position, Sandra tried to cover herself as Viramontes hit her in the face with his hands four or five times.

         At trial, Viramontes testified that although he hit and threw Sandra, he was not trying to kill her. He noted that he was close to potential weapons, including kitchen knives, but did not use any because, as he put it, “I wasn't trying to kill her.” People v. Viramontes, 2016 IL App (1st) 160984, ¶ 13. Viramontes went outside to calm down and texted “Denise, ” who did not answer. Around 2:30 a.m., he called his brother Fernando and asked him to come over.

         When Viramontes went back in the house, Sandra was in bed. He asked her if she was alright. She responded, “Babe, I'm sorry, ” to which he replied he was sorry too. People v. Viramontes, 2016 IL App (1st) 160984, ¶ 14. Viramontes testified that she asked him to lie next to her and he did. He claimed she hugged him and told him she loved him. Viramontes testified that he tried to comfort her and then she went to sleep.

         Viramontes' brother, Fernando, testified he arrived at the house shortly after 3 a.m. He looked in the bedroom and saw Sandra sleeping. He maintained that she did not look hurt and he thought she was sleeping off her intoxication. He did not notice her breathing unusually and did not believe she needed medical attention. When Fernando asked Viramontes what happened, Viramontes seemed confused and repeated the same phrase over and over: “I trusted her, I trusted her.” People v. Viramontes, 2016 IL App (1st) 160984, ¶ 15. Viramontes told Fernando that he hit Sandra with his hands. Fernando testified he suggested Viramontes lie down with Sandra and comfort her. Fernando slept in a separate bedroom.

         Viramontes woke Fernando around 7:30 a.m. and told him that Sandra was breathing differently. Sandra's breathing was heavy and she was mumbling. Fernando noticed redness on her face, shoulders, and chest, and he saw blood on the mirror and bed sheet. Viramontes told Fernando to call an ambulance, which he did.

         Sandra was taken to the hospital by ambulance. In the emergency room, she was unable to communicate. Photographs were taken of her injuries and extensive bruising. Sandra had no fractures or injuries to her internal organs, other than her brain. The toxicology reports were positive for a high level of cocaine.[1] Sandra was put on life support and remained in a coma. After doctors informed her family that she would not recover, her family removed her ventilator. Sandra died on January 31, 2010. Viramontes turned himself into the police on January 13, 2010.

         Before trial, the State argued a motion in limine, asking the court to allow testimony from two witnesses who said they saw Viramontes hit Sandra on other occasions and saw her with black eyes. The motion was denied with respect to the black eyes as there was evidence that Sandra had been involved in a car accident in the same period of time. But the motion was granted with respect to the alleged hitting for the limited purpose of showing intent. At trial, the State presented only one of their witnesses, Liliana Almazan. Almazan had a child with Sandra's brother. She described her relationship with Sandra as that of a sister. A year before Viramontes and Sandra were married, Almazan attended a party at their home and was sitting in front of the house with Sandra when Viramontes walked down the stairs and “slapped her upside the head.” People v. Viramontes, 2016 IL App (1st) 160984, ¶ 20. Almazan testified that Viramontes did not say anything to Sandra but he looked upset.

         Before Almazan testified, defense counsel sought to introduce photographs during cross-examination showing injuries Viramontes' niece, Crystal Viramontes, sustained during a fight with Almazan. The State acknowledged Almazan had a misdemeanor conviction related to the fight but objected to it being raised on cross-examination. When asked about the relevance of the fight, defense counsel said, “It goes to show her motives to lie. The fact that she's engaging in the battery of a member of the defendant's family. You have to understand the context of this. [Almazan] has a child with the brother of the alleged victim in this matter and both sides have been very hostile toward one another. This will go right to her motive and bias to ...


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