Cortez v. Harrington et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 12/5/2013:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HECTOR CORTEZ (#R66371),
Petitioner,
v.
RICK HARRINGTON, Warden, Menard
Correctional Center,
Respondent.
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Case No. 13 C 5591
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Before the Court is pro se Petitioner Hector Cortez’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254(d). For the following reasons, the Court denies Cortez’s habeas
petition and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
BACKGROUND
Cortez does not present clear and convincing evidence challenging the statement of facts
in the last state court decisions addressing his arguments on the merits, and thus the Court
presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1);
Bolton v. Akpore, 730 F.3d 685, 687 (7th Cir. 2013). The Court therefore adopts the underlying
facts as set forth by the Illinois Appellate Court in People v. Cortez, 402 Ill.App.3d 468, 931
N.E.2d 751, 341 Ill.Dec. 854 (1st Dist. 2010), and People v. Cortez, No. 1-11-027 (1st Dist. June
29, 2012) (unpublished).
I.
Factual Background
The State of Illinois prosecuted Cortez for murder in relation to the death of Joshua
Siguenza, also known as “Tun Tun.” The victim was found in Ronan Park on Chicago’s North
Side in the early morning of July 26, 2002. At trial, Chicago Police Officer Jeremy Gomez
testified that he was the first to arrive on the scene at Ronan Park and that he and his partner
determined that the victim was dead. Officer Gomez further testified that Ronan Park was
known turf of the Lawrence and Kedzie faction of the Latin Kings street gang.
In addition, Marie “Vicki” Adame and her sister Vilma “Veronica” Adame testified for
the State at trial. Both testified that at the time of the shooting, they were associated with the
Latin Kings, and that on July 25, 2002, they went to a liquor store with Ruby Castillo and
purchased liquor. They later met up with an individual named Gordo, as well as Tun Tun, and
then walked to Ronan Park. While they were sitting at a picnic table, Cucuy (Antonio Martinez)
and Tetoz (Cortez) approached, after which the sisters got up to walk away. At that time, Vicki
saw that Cortez was twirling a gun around. As she walked away, she heard the men arguing and
then she heard gunshots. After that, she then turned and saw sparks near Cortez. She heard four
or five shots as she ran away. Veronica testified that she did not see Cortez with a gun, but saw
a white t-shirt wrapped around his right hand. When Veronica heard a gunshot, she turned and
saw Cortez standing on the picnic table with Martinez beside him and Tun Tun under the table.
Unlike Vicki, Veronica did not see sparks, but did hear four or five shots.
Several days later, Cortez called Vicki and told her to keep the incident at Ronan Park to
herself. Indeed, neither Vicki nor Veronica went to the police to report what they saw, but
police officers picked them up later and took them to a police station for questioning. There,
both Vicki and Veronica Adame identified photographs of Cortez and Martinez.
At trial, Paulscha Joseph testified that he was a former Latin King and became a
government informant following an arrest. On October 8, 2002, Joseph met with several high
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ranking members of the Latin Kings, including Martinez. The high ranking members assigned
Joseph to dispose of two guns for the gang, one of which was the murder weapon in the Tun Tun
shooting. Thereafter, on October 15, 2002, Joseph went to Martinez’s uncle’s house, where
Martinez handed over the gun. In a recorded conversation published to the jury, Joseph asked
Martinez who was shot with the gun to which Martinez responded, “Tun Tun.” Joseph asked
Martinez if he was the one who “smoked” him and Martinez responded “yeah.” When Joseph
asked why, Martinez responded that he “had problems with this motherfucker.” Joseph left with
the gun and then gave it to federal agents.
On October 17, 2002, Joseph drove Cortez home from a gang meeting. During the ride,
the conversation turned to Tun Tun’s shooting. Joseph recorded the conversation, which was
subsequently played for the jury. During the conversation, Joseph asked Cortez who “did it” and
Cortez replied “me, bro” because Tun Tun was “talkin shit.” Further, Joseph asked how many
times Cortez shot Tun Tun and Cortez said “five.” Joseph then asked Cortez, “you shot him all
five times?” and Cortez replied, “yeah.” Cortez indicated that he “left him in the park.” Shortly
after this conversation, Chicago police arrested Cortez and Martinez.
The parties stipulated to a portion of a handwritten statement Martinez made to a Cook
County Assistant State’s Attorney on November 3, 2002. In his statement, Martinez explained
that when Joseph asked him who killed Tun Tun, Martinez told Joseph that he killed Tun Tun
because he wanted to be the “big man” and to be “respected” and “feared” by Joseph. Also, the
parties stipulated to the admission of the autopsy photographs and to the foundation for three
bullets that the medical examiner would testify he recovered from Tun Tun’s body during the
examination. At trial, a police detective testified that a forensic scientist specializing in firearm
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identification determined that the bullets recovered from the victim’s body were fired from the
gun recovered from Martinez. Furthermore, the trial court admitted the autopsy report, including
a toxicology report on the victim, over Cortez’s objection.
II.
Procedural Background
After hearing all of the evidence, a jury found Cortez guilty of first degree murder while
personally discharging a firearm in October 2007. The Circuit Court sentenced him to 45 years
in prison. Cortez appealed his conviction to the Illinois Appellate Court, First District, arguing
that the Circuit Court violated his right to confront witnesses when the court admitted into
evidence (1) Martinez’s repudiation of his prior confession, and (2) the autopsy report. On June
22, 2010, the Illinois Appellate Court affirmed Cortez’s conviction. Cortez filed a petition for a
rehearing on July 6, 2010, that the Illinois Appellate Court denied on July 19, 2010.
Cortez then filed a petition for leave to appeal (“PLA”) in the Supreme Court of Illinois
arguing that the Circuit Court violated his right to confront witnesses when it admitted into
evidence (1) Martinez’s repudiation of his prior confession, and (2) the autopsy report. On
November 24, 2010, the Supreme Court of Illinois denied Cortez’s PLA. Cortez did not file a
petition to the United States Supreme Court for a writ of certiorari.
On October 12, 2010, Cortez filed a pro se post-conviction petition pursuant to 725 ILCS
5/122-1, et seq., in the Circuit Court of Cook County raising the following claims: (1) his trial
counsel was constitutionally ineffective for failing to (a) move to quash his arrest and/or to
suppress his audio-recorded statement based upon a lack of probable cause, (b) argue that the
introduction of his inculpatory statements recorded by a police informant — Paulscha Joseph —
violated his Fifth Amendment rights, (c) argue that Joseph’s testimony was biased, and (d) argue
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that Vicki and Veronica Adame’s prior inconsistent statements were inadmissible and/or that
their statements were unreliable because they were inconsistent with one another; (2) his
appellate counsel was ineffective for failing to raise the issues asserted above; and (3) his
sentence violated the Proportionate Penalties Clause of the Illinois State Constitution.
The Circuit Court summarily dismissed Cortez’s pro se post-conviction petition as
frivolous and patently without merit. Cortez, by counsel, appealed to the Illinois Appellate
Court arguing that the post-conviction trial court had failed to review his Proportionate Penalties
Clause argument within the statutorily mandated ninety-day time frame, rendering the summary
dismissal void. The Illinois Appellate Court, First District, affirmed the Circuit Court’s
summary dismissal and concluded that the Circuit Court complied with the procedural
requirements set forth in the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq.
On August 2, 2012, Cortez filed a pro se PLA with the Supreme Court of Illinois arguing
that: (1) there was insufficient evidence to convict him; and (2) Vicki and Veronica Adame’s
prior inconsistent statements were inadmissible under state procedural law, namely, 725 ILCS
5/115-10.1. The Supreme Court of Illinois denied Cortez’s post-conviction PLA on September
26, 2012.
III.
Habeas Petition
On August 1, 2013, Cortez filed the present pro se habeas petition. Construing his pro se
allegations liberally, see Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013), Cortez brings the
following claims: (1) his trial counsel was constitutionally ineffective for failing to (a) move to
quash his arrest and/or to suppress his audio-recorded statement based upon a lack of probable
cause, (b) argue that the introduction of his inculpatory statements recorded by a police
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informant, Paulscha Joseph, violated his Fifth Amendment rights, (c) argue that Joseph’s
testimony was biased, (d) argue that Vicki and Veronica Adame’s prior inconsistent statements
were inadmissible and/or that their statements were unreliable because they were inconsistent
with one another; (2) his appellate counsel was ineffective for failing to raise the issues asserted
above; (3) his sentence violated the Proportionate Penalties Clause of the Illinois State
Constitution; and (4) the post-conviction trial court improperly dismissed his post-conviction
petition without addressing one of his six claims within the statutorily required ninety-day time
period.
LEGAL STANDARDS
I.
Habeas Relief
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), habeas
relief cannot be granted unless 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); Warren v. Baenen, 712 F.3d 1090,
1096 (7th Cir. 2013). In Williams, the Supreme Court 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.” See id. at 405; see also Kamlager v. Pollard, 715 F.3d 1010, 1015 (7th
Cir. 2013) (“A state court decision is ‘contrary to’ federal law if it applies the wrong legal
standard established by Supreme Court precedent or decides a case differently than the Supreme
Court on materially indistinguishable facts.”).
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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. See Williams, 529 U.S. at 407; see also
Taylor v. Grounds, 721 F.3d 809, 817 (7th Cir. 2013). “The state court’s application of federal
law must not only be incorrect, but ‘objectively unreasonable.’” Rann v. Atchison, 689 F.3d 832,
835 (7th Cir. 2012); see also Williams, 529 U.S. at 410 (“unreasonable application of federal
law is different from an incorrect application of federal law”) (emphasis in original). To be
considered objectively unreasonable, a state court’s decision must be “well outside the
boundaries of permissible differences of opinion.” Kamlager, 715 F.3d at 1016 (citation
omitted).
II.
Exhaustion and Procedural Default
“A state petitioner seeking a writ of habeas corpus in federal court must first exhaust the
remedies available to him in state court, 28 U.S.C. § 2254(b)(1)(A), ‘thereby giving the State the
‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.’”
Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (citations omitted). In particular, a habeas
petitioner must fully and fairly present his federal claims through one full round of state court
review before he files his federal habeas petition. See O’Sullivan v. Boerckel, 526 U.S. 838, 845,
848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Mulero v. Thompson, 668 F.3d 529, 536 (7th Cir.
2012). “[W]hen a petitioner has exhausted his state court remedies and failed to properly assert
his federal claims at each level of review those claims are procedurally defaulted.” Woods v.
Schwartz, 589 F.3d 368, 373 (7th Cir. 2009). Procedural default precludes federal court review
of a petitioner’s habeas claims. See Mulero, 668 F.3d at 536.
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A habeas petitioner may overcome procedural default by demonstrating cause for the
default and actual prejudice or by showing that the Court’s failure to consider the claim would
result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536, 126 S.Ct.
2064, 165 L.Ed.2d 1 (2006); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991). The Supreme Court defines cause sufficient to excuse procedural default as
“some objective factor external to the defense” which prevents a petitioner from pursuing his
constitutional claim in state court. See Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91
L.Ed.2d 397 (1986); Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). Prejudice means
actual prejudice infecting the “entire trial with error of constitutional dimensions.” Murray, 477
U.S. at 494 (citation omitted). A fundamental miscarriage of justice occurs when a habeas
petitioner establishes that “a constitutional violation has probably resulted in the conviction of
one who is actually innocent.” Id. at 496.
ANALYSIS
Cortez has procedurally defaulted all of his habeas claims because he did not fully and
fairly present them through one full round of state court review. See Boerckel, 526 U.S. at 845,
848; Mulero, 668 F.3d at 536. To clarify, although Cortez brought his first three habeas claims
in his October 12, 2010 pro se post-conviction petition, he did not appeal these claims to the
Illinois Appellate Court or in his PLA to the Supreme Court of Illinois. Meanwhile, Cortez
brought his fourth habeas claim in his post-conviction appeal, but did not bring this claim in his
PLA to the Supreme Court of Illinois — nor did he bring it in his pro se post-conviction petition
in the first instance. Therefore, he has procedurally defaulted all of his habeas claims, and thus
the Court cannot consider the merits of his claims unless he establishes cause and prejudice or
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the fundamental miscarriage of justice exception. See House, 547 U.S. at 536 Murray, 477 U.S.
at 492-96.
Although a claim of ineffective assistance of counsel can constitute “cause” to set aside a
procedural default, the ineffective assistance of counsel claim itself cannot be procedurally
defaulted. See Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010). Here, Cortez makes a
related argument. Specifically, he argues that his failure to raise his habeas claims in his postconviction appeal was due to his post-conviction appellate counsel abandoning these claims.
Although an ineffective assistance of counsel claim can constitute cause to set aside a procedural
default, see id., habeas petitioners do not have a Sixth Amendment right to counsel for state
court post-conviction proceedings. See Coleman, 501 U.S. at 752; Resendez v. Knight, 653 F.3d
445, 446 (7th Cir. 2011); Wilson v. United States, 413 F.3d 685, 687 (7th Cir. 2005).
Accordingly, post-conviction counsel’s ineffective assistance of counsel cannot establish “cause”
under the circumstances.
Next, Cortez argues that the Court should except his procedurally defaulted claims
because he did not have access to the prison law library due to a prison shutdown before he filed
his post-conviction PLA to the Supreme Court of Illinois. More specifically, Cortez maintains
that the law library was the only place he could receive legal material and advice regarding the
deadline for his post-conviction PLA. First, the deadline for his PLA is not a substantive or legal
issue requiring access to the law library. See Williams v. Buss, 538 F.3d 683, 686 (7th Cir.
2008). Moreover, Respondent does not argue that Cortez’s post-conviction PLA was untimely.
As such, Cortez does not sufficiently explain why the lack of access to the law library hindered
his post-conviction PLA. See id.
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Last, Cortez does not argue that the fundamental miscarriage of justice exception applies
to his defaulted claims. Because Cortez has not established good cause and prejudice for his
procedural default or that the fundamental miscarriage of justice exception applies, the Court
cannot reach the merits of his habeas claims. See Bolton, 730 F.3d at 696; see also Williams,
538 F.3d at 686 (“an unexcused procedural default ends the case”).
III.
Certificate of Appealability
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254
Proceedings, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Accordingly, the Court must determine whether to grant
Cortez a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) in the present order. See
Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 649 n.5, 181 L.Ed.2d 619 (2012).
A habeas petitioner does not have the absolute right to appeal a district court’s denial of
his habeas petition, instead, he must first request a certificate of appealability. See Miller-El v.
Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); Lavin v. Rednour,
641 F.3d 830, 832 (7th Cir. 2011). A habeas petitioner is entitled to a certificate of appealability
only if he can make a substantial showing of the denial of a constitutional right. See Miller-El,
537 U.S. at 336; Narvaez v. United States, 641 F.3d 877, 881 (7th Cir. 2011); 28 U.S.C. §
2253(c)(2). Under this standard, Cortez must demonstrate that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146
L.Ed.2d 542 (2000)). In cases where a district court denies a habeas claim on procedural
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grounds, a certificate of appealability should issue only if the petitioner shows that (1) jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and (2) jurists of reason would find it debatable whether the district court
was correct in its procedural ruling. See Slack, 529 U.S. at 485.
Here, jurists of reason would not debate the Court’s conclusion that Cortez procedurally
defaulted all of his habeas claims. See id. at 485 (“Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.”). Therefore, the Court declines to certify any issues for appeal.
See 28 U.S.C. § 2253(c)(2).
CONCLUSION
For these reasons, the Court denies Cortez’s petition for a writ of habeas corpus and
declines to certify any issues for appeal. See 28 U.S.C. §§ 2253(c)(2), 2254(d).
Dated: December 5, 2013
ENTERED
AMY J. ST. EVE
United States District Judge
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