United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
M. ROWLAND JUDGE
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  is denied, and the Court issues
a certificate of appealability. The Court declines to grant
an evidentiary hearing.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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
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. 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.
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
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 ...