Valle v. Butler
Filing
27
MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 6/13/2016: For the foregoing reasons, the Court denies Valle's petition for a writ of habeas corpus [dkt. no. 1] and directs the Clerk to enter judgment in favor of the respondent. The Court issues a certificate of appealability on claim two, Valle's claim regarding the voluntariness of his confession, and declines to issue a certificate of appealability on Valle's other claims.(pjg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ERNESTO VALLE,
Petitioner,
vs.
KIM BUTLER, Warden,
Menard Correctional Center,
Respondent.
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Case No. 14 C 4264
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In August 2008, an Illinois jury convicted Ernesto Valle of first degree murder,
and a judge imposed a prison sentence totaling forty-five years. The Illinois Appellate
Court affirmed Valle's conviction on direct appeal. After the Illinois Supreme Court
denied Valle's petition for leave to appeal, he filed a petition for post-conviction relief in
the Circuit Court of Kane County, which that court denied. The Illinois Appellate Court
affirmed the circuit court's decision, and the Illinois Supreme Court denied Valle's
petition for leave to appeal.
Valle has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, asserting five claims. Respondent Kim Butler, the warden of the prison where
Valle is incarcerated, argues that four of Valle's claims are procedurally defaulted, and
that the state courts' rulings on the fifth—a Fifth Amendment claim that his confession
was involuntary—were not unreasonable applications of federal law. For the following
reasons, the Court denies Valle's petition.
Background
A.
The interrogation of Valle
The Court draws the following facts from the state court record, and from the
Court's independent review of video footage depicting Valle's interrogation by police. A
state court's factual findings are presumed correct unless a habeas petitioner presents
clear and convincing evidence to rebut the presumption of correctness. See Schriro v.
Landrigan, 550 U.S. 465, 473–74 (2007) (citing 28 U.S.C. § 2254(e)(1)); McManus v.
Neal, 779 F.3d 634, 649 (7th Cir. 2015). After reviewing Valle's submissions and the
video recording of his interrogation, the Court finds that Valle has not satisfied that
burden, so the state court's factual findings are presumed to be accurate.
In the early morning hours of August 12, 2006, Jessie Lozano was shot and killed
while driving a friend's truck through the intersection of Kendall and Grove Streets in
Aurora, Illinois. Less than twenty-four hours later, police seized Valle at his home and
brought him in for questioning in connection with Lozano's death.
Valle was taken to an interview room at about 3:00 a.m. on August 13, 2006. He
was given a Miranda waiver, whose first line he read aloud before reading the waiver in
full and signing it. Over the course of the next two hours, pairs of officers took turns
coming and going from the room, often yelling and using profane language while
suggesting that Valle's friends had given him up and that his guilt had already been
established. On more than one occasion, officers alluded to the likelihood that by
denying that he committed the crime and received the blessing of the Latin Kings street
gang for doing so, Valle was insulting the gang and likely would incur their wrath.
Officers also told Valle that an admission that the shooting was an accident or a mistake
2
could help him to avoid a life sentence, and the officers discussed details of the crime
with one another in hopes that Valle would acknowledge them, correct mistaken
statements, or otherwise inculpate himself.
After two hours of intermittent interrogation, Valle was taken back to a cell, where
he stayed for almost eighteen hours without the ability to communicate with family,
friends, or an attorney. Valle was provided a bed, food, and water during this time, but
he claims that he neither slept nor ate due to exhaustion and the stress he felt from
being wrongly accused. Shortly after 10:00 p.m., detectives Jeffrey Parish and Robert
Wallace of the Aurora Police Department and Agent Larissa Camacho of the Federal
Bureau of Investigation resumed interrogating Valle. During this interrogation,
Camacho told Valle numerous lies to induce a confession. She showed him a compact
disc in a plastic case and told him it contained a recording, made by a federal informant
wearing a wire at the Latin Kings party Valle had attended the night of Lozano's death,
on which Valle bragged about the shooting. Camacho also said that Lozano was a
federal informant himself, which, she repeatedly explained, meant that Valle would be
prosecuted for a more serious federal crime unless he could convince the police he did
not know he had targeted an FBI informant. All of this was untrue. Lozano had not
been a federal informant, and the authorities had no recording of Valle.
Camacho told Valle that she already knew everything that had happened
because his friends had already turned on him and she had listened to the allegedly
incriminating recording. This, too, was untrue. Valle told the officers that the recording
3
must have captured him telling "a little bullshit lie . . . just trying . . . to be cool." 1 Parish
told Valle that this was one of his last chances to say that he had made a mistake, that
nobody was going to believe him, and that he was "fucked." Parish and Camacho
explained that Valle had two choices. One option was to "sit here and lie" by continuing
to maintain his innocence and await trial, at which time Camacho and her informants
would testify, the recording on the compact disc would be played for the jury, and Valle
would be "fucked" because no jury would ever believe his story. His other option, the
officers said, was to "tell the truth" and admit that he "made a mistake."
Verging on tears, Valle asked, "So what you're trying to say that, if I say 'I did it,'
it's going to be easy on me? I'm fucked no matter what, right? Like you said." Parish
responded:
PARISH:
No, dude, what I'm saying is this, ok? You've got an
opportunity right now to explain yourself. You're not going to
have that same opportunity in court later on. Do you feel
what I'm saying here? Ok. If you explain yourself now, you
know, maybe there's a legitimate reason why this
happened. . . . But can you understand—if you keep lying to
us, and then you go into court and you try to explain yourself
then, how's that going to look on you? No one is going to
believe you.
Valle offered to take a lie detector test, swearing to the officers that he had done nothing
wrong. Parish continued to push Valle to admit that he killed Lozano by mistake.
1
In its decision on direct review, the Illinois Appellate Court provided a detailed account
of what it saw when it reviewed video footage of Valle's interrogation. For the sake of
completeness, the Court reviewed this footage as well. As the Court indicated above,
the appellate court's summary is presumptively accurate, and Valle has not provided
clear and convincing evidence to rebut that presumption. Indeed, the Court's review of
the footage confirms that the appellate court's summary is accurate. But in order to fully
describe the interrogation, the Court has transcribed portions of the video footage rather
than relying solely on the appellate court's summary. That is the source of this quote
and the other quotes throughout the remainder of this section of this opinion.
4
PARISH:
You did this, man, you made a mistake. Be a man and own
up to it, and explain why you did it. This is how it is, man, it
is what it is. We already know what happened. You need to
tell us why. I mean, were you out to smoke this person
because you found out he was an informant for the FBI?
Valle continued to vehemently deny that he was involved in any criminal activity.
Parish, then Camacho, then Wallace each pointed out what they viewed as
inconsistencies in Valle's story, and Wallace told Valle that their investigation had been
thorough and led directly to him. About eighteen minutes into this interrogation, the
following exchange occurred:
WALLACE: You have a couple choices. . . . We can point you out and
we can make you look like a cold-blooded murderer that
went out and did a hit on a federal informant, we can paint
you out to be the number one criminal in Aurora right now.
Or we can paint you out as some kid who's eighteen years
old, who's young and impressionable, somebody who's not
real smart when it comes to being out there on the streets
yet, hasn't really lived out in the streets too long, very
impressionable, wants to fit in, alright, and wants to go out
and impress his boys—
CAMACHO: And made a mistake.
WALLACE: —and goes out and does something stupid and shoots at the
wrong person not knowing they're a federal informant, but
just shooting somebody so you can earn your corona. If you
did that, if you made a mistake, alright, and you shot
somebody not knowing they were a federal informant, you
need to tell us because we can explain that and say, "Hey,
he's an eighteen year old kid, he don't know any better." . . .
Shit, you're barely an adult. You're barely an adult. But you
know what? We can go in a courtroom and say, "Hey, listen,
this kid's eighteen years old. He made a fucking mistake.
He was out, might have been drinking, might have been
boozing it up, might have been high, what have you, he's out
with some of his buddies, he's acting tough, he did
something stupid." That's what we think had happened.
Now, if you want us to paint it out like you put a hit out, you
took out a federal informant, if you want us to go that route
and you don't explain why this happened, and how this
5
happened, if you don't explain that to us, if you don't explain
it, and just sit there and go, "I don't know what you're talking
about," you're going to look like a complete chump when you
go up on that stand. . . . You know what you've got to do
right now? You've got to do something we call "damage
control." Damage control is this: we already know what
happened. We already know what happened. Here's a
chance for you to show some remorse and say, "I fucked up.
I screwed up, I did something stupid, by god-all means the
last thing I planned on doing was going out that night and
smoking some fucking federal informant." That's what
you've got to say. Alright? I'm not putting words in your
mouth, but I don't think you were intentionally going out there
to shoot somebody like that. If you shot somebody, you're
high, you're out there doing stupid shit, you're trying to
impress your boys, and you killed this guy or what have
you—shit happens. But if you go out there, smoke a federal
informant, it's a whole different ballgame. Do you catch what
I'm saying?
VALLE:
Yes, sir.
WALLACE: Are you feeling me right now?
VALLE:
Yes, sir.
WALLACE: Alright, so here's the scoop is, we're going to get past all this
other crap, alright? Do you feel bad about sitting here right
now?
VALLE:
Yes, sir.
WALLACE: Alright, you feel pretty bad don’t you? And you wouldn't be
looking at me like that if you didn't. And it looks like you got
something heavy on your chest right now you need to get
off. I think you better start talking, and you better start
making some sense, because I'm serious—none of this shit
is adding up, the way you're talking. We've already talked to
Hector, alright? We've already talked to him, and we've
already talked to Chris. We haven't talked to you in a while,
have we? We haven't talked to you since early this morning.
Who do you think we've been talking to?
VALLE:
To other people.
WALLACE: Exactly. We've already had the state's attorney down here
6
and had them talking to people too. Why do you think we're
coming to you last? Think about it. Because we have a
case against you right now. But here's the deal: You have a
chance to make this right for yourself, as good as you can
right now, you have a chance to say, "Hey, you know what? I
screwed up. I'm a man, I screwed up."
VALLE:
I screwed up. I screwed up.
WALLACE: Alright. Tell me how it happened.
VALLE:
I just went home, going home, and that's what happened.
WALLACE: Tell me what happened. You need to tell me what
happened. I need to hear it from you. I need to hear your
words. I need to hear it in Ernie's words. I need to hear it in
Ernesto's words.
VALLE:
It was a mistake. I thought it was someone else. I pulled the
trigger, and that's it. And we went home after.
Valle then began answering questions about the night's events. He described
meeting his friends Hector Delgado and Chris Acevedo at a party at his house before
going with them to a Latin Kings party. The group stayed at the party for a while, and
then Valle left the party as a passenger in Delgado's car with Delgado driving and
Acevedo in the back seat. Valle described grabbing from the back of the car a ninemillimeter Glock semiautomatic handgun with a chrome finish. He made intimidating
looks at the driver of a vehicle coming toward Delgado's car and then exited the car
while Delgado drove around the block. Valle claimed to have fired three shots at the
vehicle without identifying the person inside or looking to see what happened to the
driver before running to Delgado's car and driving away. Valle initially denied returning
to the party, but when Camacho challenged him on this, he agreed with her and said he
did return to the party, shaking hands with a Latin Kings lieutenant and telling the
lieutenant that he had "hit him up."
7
After a break in the interrogation, detectives asked Valle to repeat his story.
Valle could not tell the detectives where the shooting took place, but he gave them a
more precise timeline of events. He claimed that he, Acevedo, and Delgado left his
house at about 9:30 or 10:00 p.m. and went to "Spooky Lou and Chauny's" house,
where they stayed for about an hour before leaving in Delgado's car. Delgado told Valle
there was a semiautomatic handgun behind the seat, which Valle took with him when he
got out of the car. Delgado drove the car around the corner to wait. When Valle saw a
car come toward him, he shot three times from a distance and then ran around the
corner and got into Delgado's car. They drove to a party, where Valle said he saw Latin
Kings lieutenant Enrique Torres and told him he had "hit someone up." Valle stayed at
the party for less than thirty minutes, and then Delgado drove him home.
B.
Trial court proceedings
In October 2006, Valle was charged by indictment with two alternative counts of
first degree murder. Valle moved to quash his arrest as unsupported by probable
cause, but his trial counsel withdrew the motion before the court held a hearing. Valle
also moved to suppress the inculpatory statements he made during the interrogation,
arguing that a combination of factors made his statements involuntary. Specifically,
Valle contended that his statements were involuntary because police engaged in
coercion and deception to which he was particularly susceptible as a result of (1) the
police depriving him of sufficient food, water, and sleep; (2) his consumption of several
alcoholic beverages in the hours leading up to his arrest and interrogation; and (3) his
personal intellectual limitations.
8
The trial court judge watched video of Valle's interrogations and determined that
the prosecution had provided enough evidence to shift to Valle the burden to show his
statements were made involuntarily. Valle testified that he was eighteen years old at
the time of his arrest and interrogation. He testified that he had never been arrested,
taken to a police station, or interrogated by police. He also testified that he had
graduated from high school, but had been enrolled in special education classes
throughout high school because he "had trouble understanding."
The trial judge denied Valle's motion to suppress. The judge found that the
police and agent Camacho employed somewhat aggressive and deceptive tactics but
that they did not induce an involuntary confession. The judge observed that the officers
had suggested to Valle that admitting to the murder might lead him to receive a lighter
sentence but determined that under Illinois law, a confession given under such
circumstances is generally admissible unless coupled with the promise of some specific
benefit. The trial judge also noted that Valle was articulate and responsive during both
the interrogation and his testimony during the suppression hearings, belying his claims
that he lacked the intellectual acumen to give a voluntary confession under the pressure
of accusatorial and sometimes deceptive questioning. Finally, the judge determined
that the interrogation was not excessively long and that the police did not err in
choosing not to re-administer Miranda warnings after every break in interrogation. The
judge also concluded that Valle was not deprived of his right to counsel; rather, he was
informed of his rights, effectively waived them, and did not at any subsequent time
attempt to affirmatively invoke them.
9
The case proceeded to trial by jury. The prosecution first called Armando
Gallegos, Lozano's younger brother. He testified that on the night of Lozano's death,
Lozano had been home with Armando and their other brother Andres, and a group had
gathered at the house for a party to celebrate Andres's birthday. Armando said that
Lozano had backed a friend's blue pickup truck out of the driveway so a guest whose
car was blocked in could leave. When the guest did not come to move his vehicle,
Lozano drove off in the pickup truck.
The prosecution then presented testimony from John Burch, who testified that
sometime shortly before 3:00 a.m. on August 12, 2006, as he was preparing for his
early shift at work, he heard five "very deep-sounding" gunshots and the squealing of
tires. Fifteen to twenty seconds later, he opened his front door, peered outside, and
saw a blue pickup truck slowly going in reverse down his street toward his house. The
truck began to angle toward Burch's driveway, and when it neared the vehicles parked
there, the glow of a streetlight revealed a hole in the driver's-side window and a person
"slumped over" in the driver's seat. Burch ran to the truck and opened the driver's door.
The driver was bloody and appeared badly wounded, but Burch felt a pulse when he
touched the driver's neck. Burch asked his wife to call 911 for an ambulance. The
driver's foot was apparently still on the gas pedal, so Burch reached over and shifted
gears to put the truck in park. He then heard the driver gasp and knew "he was gone."
Burch felt no pulse when he checked a second time. Burch testified on crossexamination that he saw no other vehicle and never saw an assailant, either in a vehicle
or on foot.
10
Other prosecution witnesses provided additional details regarding the crime
scene. Sergeant James Boatman, a patrol officer, described arriving at Burch's
property to find a blue pickup truck with a shattered driver's-side window. The truck's
driver was seated in the driver's seat with significant injuries and no pulse. Peter
Wullbrandt, another patrol officer, testified that he secured the crime scene with tape
and kept a crime log, and that he had to adjust the crime scene tape upon discovering
five .45 caliber shell casings in the middle of the intersection of Grove Street and
Kendall Street. Armando Montemayor, a police evidence technician, testified that five
spent .45 caliber shell casings were discovered in the intersection of Grove and Kendall.
One was metallic gray and the other four were gold, but Montemayor testified that it was
possible for one firearm to have discharged all five casings.
Dr. Bryan Mitchell, the forensic pathologist who conducted Lozano's autopsy,
testified concerning Lozano's three gunshot wounds. One bullet entered Lozano's head
through his left temple, passing through his frontal and temporal lobes and exiting
through the right temporal area of his skull. Another entered between his jawline and
the base of his neck on his left side, severing his spinal cord as it progressed from the
front of his body toward the back, left to right, and downward. Dr. Mitchell found the
large caliber bullet that caused this injury lodged in Lozano's body. A third bullet
entered Lozano's body on the left side of his back near his waist and was also
recovered from inside his body, deformed as a likely result of passing through
something hard like a car door. Dr. Mitchell testified that no gunpowder was found on
Lozano's skin, so the shots were probably fired from a range of more than twenty-four
inches.
11
The prosecution also introduced the testimony of Aurora police officer Jason
Russell. Russell testified that in the early morning hours of August 13, 2006, he and
approximately six other officers gathered at 509 Columbia Street to arrest Valle. Just
after 1:00 a.m., Russell received a radio communication that another officer had
observed a subject matching Valle's description running towards the back of the house.
Russell and his partner then drove a block west and made their way to the rear of the
house. Seeing movement through an upstairs window, Russell shined his flashlight at
the window and saw someone peer out before ducking behind a wall. Another officer
used the loudspeaker in his squad car to instruct the residents of the house to exit.
Russell identified the first person exiting the house as Valle, who he also identified as
the person he had seen peering out the window. Valle was not wearing Latin Kings
colors when he came out of the house. Russell testified that up to that point, nobody
had told Valle why he was being arrested or announced the reason for the arrest over
the loudspeaker. Nonetheless, Russell stated that when police called out to direct
Valle's brother to exit the house, Valle told the officers, "That's my brother. He's got
nothing to do with this."
Russell also offered expert testimony concerning the structure and practices of
the Latin Kings gang organization. The prosecution laid a foundation establishing that
Russell had significant training and experience identifying and profiling gang activity and
membership rites, and had studied the organizational structures of gangs including the
Latin Kings. Defense counsel did not challenge Russell's qualifications to offer such
testimony. Russell explained that non-members of the Latin Kings who associate with
the gang are called "shorties," and that shorties become full-fledged members of the
12
gang (in gang parlance, they "get their crown") by shooting someone. He further stated
that the Latin Kings have a written manifesto that sets forth an organizational system
and set of rules. Under these rules, the gang's leader, the "Inca," decides who may be
admitted into the gang. Shorties may not know the identities of ranking members, but
they may know the identities of "enforcers," the lieutenants who serve as liaisons
between shorties and gang leadership. If a shorty fails to follow an enforcer's orders, an
enforcer might order a "violation," an act of physical brutality against the shorty, as
punishment. Russell testified that the Aurora police department keeps track of known
gang members, associates, and other affiliates. According to Russell, Lozano was
known to the police department as a self-admitted gang member; Valle and Acevedo
were classified as gang associates; Delgado was not classified; and Enrique Torres was
classified as an enforcer.
The prosecution's case centered on Valle's confession and the testimony of
Acevedo, who was not charged with any crime in connection with Lozano's death, and
Delgado, who had already pleaded guilty to conspiracy to commit murder under an
agreement to testify against Valle. Acevedo testified that he, Valle, and Delgado left a
party at Valle's house to go to a Latin Kings party, where Valle talked with Torres and
was given a gun. Feeling sick, Acevedo went to Delgado's car to sleep in the back seat.
He awoke to the sound of gunshots and the sight of Valle running toward the car with a
gun in his hand. He stated that as Valle climbed into the car, he said, "'I got the nigga,'
something like that." The three returned to the party and Valle bragged about getting
his crown. The prosecution and the defense stipulated that Acevedo made substantially
different statements prior to his testimony, at one point denying involvement entirely and
13
at another point claiming the shooting took place earlier in the evening, on the way from
Valle's house to the Latin Kings party.
Delgado provided a similar account of events. He stated that on the night of the
shooting, Delgado drove Valle and Acevedo from a party at Valle's house to a Latin
Kings party on Coolidge Avenue, where he saw Torres talk with Valle and another
person hand Valle a black semiautomatic handgun. Later, Valle told Delgado they
should drive to another party to find women. Delgado drove and Valle sat in the
passenger seat giving directions. They drove by a place where, based on the large
number of cars going in and out of the driveway, it appeared to Delgado that a party
was going on. Valle asked Delgado if he had seen "that truck" or "that SUV," and
Delgado then started looking for a place to park. Valle instructed Delgado to pull over,
and the two sat talking about women for a short while. Delgado saw the truck coming
toward them and asked Valle if it was the truck they had seen before. Valle exited the
car with the gun, ran toward the truck, and began shooting when he got to the
intersection of Kendall and Grove. Delgado said he heard "three to five" or "four to five"
rapidly fired shots, and he saw the muzzle flash out of the front of the gun. Acevedo
then woke up in the backseat and Valle ran back to the car, saying that he "got him" and
explaining that the truck's driver had been "snitching" on the Latin Kings. The group
returned to the party, where Valle told Torres that he got him and Torres said they were
shorties who had "come home." About thirty minutes later, Delgado took Valle home.
Delgado and Acevedo both admitted on cross examination that they gave prior
accounts of the night that significantly differed from their testimony at trial. Defense
counsel also presented testimony from Torres that contradicted Delgado's and
14
Acevedo's descriptions of the Latin Kings party: Torres claimed that the party had
largely died down by the time Acevedo and Delgado claimed to have returned to the
party. The defense then presented alibi witnesses who testified that Valle was asleep in
his bed at the time of the shooting. Jose Salgado testified that he attended a gettogether at the Valles' house on the night of the shooting. He claimed that at the time of
the shooting, as he was being helped to bed at the Valles' house, he saw Valle lying in a
bed. Salgado admitted that the reason he was being helped to bed was that he was so
highly intoxicated that his friends would not let him go home. Ricardo, Valle's brother,
testified that while helping Salgado at the time of the shooting, he also saw Valle at
home in bed.
On August 29, 2008, the jury found Valle guilty of first degree murder and found
that he discharged the firearm that was used to kill Lozano. Valle filed a post-trial
motion challenging the circuit court's decision to admit his confession into evidence.
The court denied the motion and sentenced Valle to a total of forty-five years
imprisonment, including twenty years for first degree murder and a twenty-five year
firearm enhancement.
C.
Appeal and post-conviction proceedings
Valle appealed his conviction to the Illinois Appellate Court, arguing that his
inculpatory statements to police were involuntary and should have been suppressed.
The appellate court observed that the courts of some states have shown "a concern
with empirical evidence of what police tactics make confessions unreliable. That
concern [has] led those courts to place a much greater weight on the use of deception
and implications of leniency than has any Illinois decision of which we are aware."
15
People v. Valle, 405 Ill. App. 3d 46, 61, 939 N.E.2d 10, 22 (2010). Because Valle had
failed to show any special susceptibility to the tactics the police had employed, the
appellate court held that the circuit court did not err in admitting Valle's statements.
Valle filed a petition for leave to appeal to the Illinois Supreme Court, arguing that
he was arrested without probable cause and that his confession was involuntary. This
petition was denied, and Valle did not petition the Supreme Court of the United States
for a writ of certiorari.
In April 2011, Valle filed pro se a post-conviction petition in the circuit court
pursuant to 725 ILCS 5/122–1. Valle argued that trial counsel was ineffective on five
grounds: (1) counsel's failure to argue "correctly" that Valle was arrested without a
warrant or probable cause; (2) counsel's failure to argue effectively that Delgado's deal
with the prosecution and the prosecution's decision not to charge Acevedo motivated
them to testify falsely; (3) counsel's failure to challenge the admission of Acevedo's prior
inconsistent statements under 725 ILCS 5/115–10.1 on the ground that Acevedo's
claimed loss of memory rendered him unavailable for cross-examination about his prior
statements; (4) counsel's failure to argue the insufficiency of the evidence; and (5)
counsel's failure to challenge officer Russell's allegedly incorrect identification of Valle at
the time of his arrest. Valle also argued that his appellate counsel had been ineffective
for "failure[] to file these issues" on direct appeal, and that his sentence was excessive.
See Post-Conviction Pet., dkt. no. 11-12, at 2.
The circuit court dismissed the petition as frivolous or patently without merit.
People v. Valle, No. 06 CF 2062, dkt. no. 11-13 (Ill. Cir. Ct. July 20, 2011). The court
first ruled that Valle had waived all claims for relief based on ineffective assistance of
16
trial counsel by failing to raise them on direct appeal. The court then ruled that it was
not unreasonable for appellate counsel not to raise these points on appeal. The court
concluded that trial counsel's choice to file a motion to quash Valle's arrest and then
withdraw it indicated a strategic choice rather than a failure to render effective
assistance, and because the underlying ineffective assistance of trial counsel claim was
without merit, it was not error for appellate counsel to elect not to raise the issue. The
court similarly determined that Valle's other claims of ineffective assistance of trial
counsel were without merit and thus appellate counsel's decision not to raise them on
direct appeal did not prejudice Valle.
Valle appealed to the Illinois Appellate Court, asserting an ineffective assistance
claim for his appellate counsel's failure to challenge sufficiency of the evidence on direct
appeal. The appellate court held that Valle had forfeited this claim and that he could not
raise it on appeal because it was not presented in the initial post-conviction petition.
People v. Valle, 2013 IL App (2d) 110756-U, 2013 WL 1798500.
Valle then filed a pro se petition for leave to appeal to the Illinois Supreme Court
in which he argued five points. First, he argued that admitting gang expert testimony
rendered his trial unfair. Second, he argued that the evidence was insufficient to
support his conviction. Third, he argued that trial counsel was ineffective for a variety of
reasons, including counsel's choice not to pursue its motion to quash his arrest, failure
to move to suppress certain statements by Delgado and Acevedo, and failure to
challenge officer Russell's identification of Valle. Fourth, he argued the prosecution
relied on false testimony in order to secure a conviction. Fifth, he argued appellate
counsel was ineffective for failing to raise insufficiency or ineffective assistance of trial
17
counsel on direct appeal. The Illinois Supreme Court denied Valle's petition.
D.
Valle's habeas corpus petition
Valle filed a timely petition for a writ of habeas corpus in June 2014. He asserts
five claims for relief. First, he argues that trial counsel was ineffective for failing to
pursue the motion to quash his arrest. Second, Valle challenges his confession as
involuntarily given. Third, he claims he was denied due process because the admission
of gang expert testimony made his trial unfair. Fourth, he asserts that he was denied
due process because Delgado and Acevedo testified "pursuant to massive deals that
created an overwhelming incentive to lie." Fifth, he claims that the evidence was
insufficient to support his conviction.
In response, respondent argues that four of Valle's claims are procedurally
defaulted and the fifth (the voluntariness of his confession) lacks merit. In his reply
brief, Valle concedes that he "did not properly exhaust [four of his claims] because
although he attempted to raise [them], he did not pursue [them] through one complete
cycle of state court litigation as required by the AEDPA." He argues, however, that
ineffective assistance of appellate counsel was the reason he failed to assert the claims
in state court, and that this ineffective assistance prejudiced him because a challenge to
his conviction on any of these grounds would have been successful.
Discussion
A petitioner is entitled to a writ of habeas corpus "only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States." 28
U.S.C. § 2254(a). A federal court may issue a writ of habeas corpus on a claim that
was adjudicated on the merits in state court proceedings only if the state court's
18
decision (1) was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States; or
(2) was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. Id. § 2254(d); see also Hanson v. Beth, 738
F.3d 158, 162 (7th Cir. 2013). This is a "highly deferential standard for reviewing claims
of legal error by the state courts." Burt v. Titlow, 134 S. Ct. 10, 15 (2013).
Additionally, a habeas corpus petitioner must "give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are presented to
the federal courts." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This means a
petitioner must have "invoked one complete round of the State's established appellate
review process." Id. "In Illinois, which has a two-tiered appellate review system, a
petitioner must present a claim at each level of the state court system, either on direct
appeal or in post-conviction proceedings." McDowell v. Lemke, 737 F.3d 476, 482 (7th
Cir. 2013). If a claim is procedurally defaulted, a federal court will not address its merits
unless the petitioner can demonstrate both cause for and prejudice from the default or
that a miscarriage of justice will occur if the court fails to address the merits. See, e.g.,
Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009).
A.
Valle's claim of ineffective assistance of appellate counsel
asserted as an excuse for procedural default of certain claims
Respondent contends that all of Valle's claims to relief except for his
voluntariness challenge are procedurally defaulted because Valle did not present them
on direct appeal to the Illinois Appellate Court. Valle concedes that the claims were not
presented on direct appeal but asks the Court to excuse the default on the ground that
his appellate counsel rendered ineffective assistance by failing to assert the claims.
19
A claim of ineffective assistance of appellate counsel asserted as cause for
procedural default itself may be procedurally defaulted if not properly raised in state
court. See Edwards v. Carpenter, 529 U.S. 446, 451–53 (2000) (holding that ineffective
assistance of counsel claims themselves must "be first raised in state court" and are not
immune from procedural default); Lee v. Davis, 328 F.3d 896, 901 (7th Cir. 2003)
(Edwards "established that the assertion of ineffective assistance as a cause to excuse
a procedural default in a § 2254 petition is, itself, a constitutional claim that must have
been raised before the state court or be procedurally defaulted."). Thus, in order for the
Court to consider Valle's contention that he received ineffective assistance from his
appellate counsel, Valle must first have raised the ineffective assistance claim in "one
complete round of the State's established appellate review process." O'Sullivan, 526
U.S. at 845.
1.
Claim of trial counsel's failure to pursue motion to quash arrest
Valle argues that trial counsel rendered ineffective assistance by failing to pursue
a motion to quash his arrest due to lack of probable cause. Valle concedes that he
procedurally defaulted this claim by failing to assert it on direct appeal but contends that
the default should be excused because his appellate counsel rendered ineffective
assistance by failing to assert the claim. But although Valle asserted in his postconviction petition that appellate counsel rendered ineffective assistance by failing to
raise this issue, he abandoned that contention on appeal to the Illinois Appellate Court.
Valle therefore procedurally defaulted the claim of ineffective assistance of appellate
counsel that he asserts as cause for the default of his claim of ineffective assistance of
trial counsel. The record provides no basis on which Valle's default of the claim of
20
ineffective assistance of appellate counsel may be excused. The Court therefore
dismisses claim one.
2.
Claim regarding failure to challenge gang expert's testimony
In his third claim, Valle argues that the trial court should not have permitted
officer Russell's expert testimony concerning the Latin Kings gang's organizational
structure, leadership, and activities because the testimony was unfairly prejudicial. It is
unclear from Valle's petition and reply whether he is arguing that trial counsel rendered
ineffective assistance by failing to object to the expert testimony or that the trial court
erred by not barring the testimony sua sponte. Regardless, Valle procedurally defaulted
the claim because he did not raise it on direct appeal.
Valle contends that the procedural default was the result of his appellate
counsel's ineffective assistance. But this ineffective assistance claim is procedurally
defaulted as well. The only time Valle ever raised any issue related to Russell's
testimony before an Illinois court was in his petition for leave to appeal to the Illinois
Supreme Court following the appeal of the dismissal of his post-conviction petition.
Because the record provides no basis on which Valle's procedural default of this claim
may be excused, the Court dismisses claim three.
3.
Insufficiency of the evidence
The Illinois Appellate Court determined on Valle's post-conviction appeal that
Valle forfeited any argument that he received ineffective assistance of appellate counsel
by failing to assert it in his post-conviction petition. See Valle, 2013 IL App (2d) 110756U ¶ 15, 2013 WL 1798500, at *3. In his post-conviction petition, Valle listed eight claims
for relief, stating:
21
Petitioner's constitutional rights were violated by[:]
1) Counsel's failure to argue PROBABLE CAUSE "CORRECTLY"
DENIED DEFENDANT OF A FAIR TRIAL.
2) Counsel's failure to argue motive to testify falsely denied
defendant of a fair trial.
3) Counsel's failure to argue MOTION 115–10.1 denied defendant
of a fair trial.
4) Counsel's failure to argue REASONABLE DOUBT denied
defendant of a fair trial.
5) Counsel's failure to file a MOTION of LIMINIE [sic] denied
defendant of a fair trial.
6) Counsel's failure to argue identification denied defendant of a fair
trial.
7) Appellate counsel's failures to file these issues denied defendant
of a fair trial.
8) Unconstitutional statute and violation of due process denied
defendant of a fair trial.
Resp.'s Ex. L, dkt. no. 11-12, at 1–2.
After his petition was summarily dismissed, Valle appealed, but he did not pursue
any of his claims pertaining to the ineffectiveness of trial counsel. He instead argued on
appeal only that his petition should be interpreted as challenging appellate counsel's
failure to raise sufficiency of the evidence on direct appeal, which the appellate court
ruled his petition "cannot reasonably be read to say." Valle, 2013 IL App (2d) 110756-U
¶ 15, 2013 WL 1798500 at *3. Put differently, the appellate court found that on postconviction appeal, Valle did not argue that his appellate counsel rendered ineffective
assistance by failing to argue that trial counsel should have challenged sufficiency of the
evidence or by failing to argue insufficiency of the evidence on direct appeal.
22
Respondent argues that Valle procedurally defaulted both claims.
The Court agrees that Valle has procedurally defaulted his claim that appellate
counsel rendered ineffective assistance by failing to argue that trial counsel was
ineffective for inadequately raising sufficiency of the evidence. When he appealed the
denial of his post-conviction petition, Valle abandoned his argument that appellate
counsel was ineffective for failing to raise trial counsel's ineffective assistance, and thus
he defaulted that aspect of his ineffective assistance claim. Rather, Valle focused on
his contention that appellate counsel should have argued insufficiency on appeal.
The Illinois Appellate Court concluded that Valle's post-conviction petition did not
include a claim of ineffective assistance of appellate counsel for failure to challenge the
sufficiency of the evidence. Id. The Court is not so sure. Courts are required to
liberally construe the filings of pro se litigants. In his pro se petition for post-conviction
relief, Valle argued that his trial counsel failed him by not arguing reasonable doubt.
The logical reading of this is that Valle was arguing that his trial counsel should have
challenged his conviction based on insufficiency of the evidence. Valle then argued that
appellate counsel rendered ineffective assistance by failing to raise "these issues" on
appeal. The appellate court determined that by "these issues," Valle could only have
meant his ineffective assistance of trial counsel claims. But the logical reading of Valle's
reference to "these issues" is that it included the issues he believed his trial counsel
should have argued, including sufficiency of the evidence. Read this way, Valle's
petition for post-conviction relief included a claim of ineffective assistance of appellate
counsel for failure to argue sufficiency of the evidence. He included the claim again in
his petition for review before the Illinois Supreme Court, which was ultimately denied.
23
For these reasons, the Court concludes that Valle did not procedurally default his claim
that his appellate counsel rendered ineffective assistance by failing to challenge the
sufficiency of the evidence on direct appeal. This contention is therefore available as a
potential excuse for Valle's procedural default of his sufficiency-based claims in his
federal habeas corpus petition.
To establish an ineffective assistance of counsel claim, a petitioner must show
both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). Deficient performance is that which falls below "an objective standard of
reasonableness," considered "under prevailing professional norms." Id. at 688. Courts
must be "highly deferential" when scrutinizing counsel's performance, which is subject
to a "strong presumption" that it "falls within the wide range of reasonable professional
assistance." Id. at 689. As for prejudice, "[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694.
There is not a reasonable probability that the outcome of Valle's appeal would
have been different had appellate counsel squarely argued the insufficiency of the
evidence. In light of Valle's confession and the eyewitness testimony given by Acevedo
and Delgado, the evidence presented at trial was sufficient for a reasonable jury to find
Valle guilty of the crime charged. Acevedo and Delgado may have had some incentive
to lie, but neither was so unbelievable as to render his testimony not credible as a
matter of law. See United States v. Thomas, 286 F. App'x 932, 933 (7th Cir. 2008)
(citing United States v. Griffin, 493 F.3d 856, 863 (7th Cir. 2007) and Hayes v. Battaglia,
24
403 F.3d 935, 938 (7th Cir. 2005)). Acevedo's and Delgado's accounts of the night in
question also did not differ from one another so drastically as to render it impossible that
a rational trier of fact "could find the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In sum, Valle was
not prejudiced by his appellate counsel's failure to raise sufficiency of the evidence on
direct appeal.
As a result, Valle has not shown cause and prejudice sufficient to overcome the
procedural default of his claims that he was deprived of his right to a fair trial due to the
state's main witnesses having an incentive to lie (claim 4) and the prosecution failing to
prove its case beyond a reasonable doubt (claim 5). The Court therefore dismisses
Valle's fourth and fifth claims.
B.
Voluntariness of confession
In his second claim, Valle maintains that the trial court's admission of his
confession violated his Fifth Amendment rights because the confession was not
voluntary. He argues that the inculpatory statements he gave to the Aurora police and
FBI agent Camacho were given involuntarily as a result of the combined effects of his
interrogators' deceptive and aggressive tactics, the conditions under which he was
confined and interrogated, his physical and mental state at the time of his interrogation,
and a number of personal characteristics including his age, intellect, and experience
with the legal system. Respondent acknowledges that Valle did not procedurally default
this claim but contends that it lacks merit.
The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254,
dictates the standard by which the Court reviews this claim for relief. Under section
25
2254(b), a court may not grant a writ of habeas corpus "with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of the
claim . . . resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States." 28 U.S.C. §2254(d). A state court's decision is contrary to the
Supreme Court's clearly established precedent "if it applies a rule that contradicts the
governing law set forth in [the Supreme Court's] cases, or if it confronts a set of facts
that is materially indistinguishable from a decision of [the Supreme Court] but reaches a
different result." Brown v. Payton, 544 U.S. 133, 141 (2005) (citations and quotation
marks omitted).
"An unreasonable application of clearly established federal law occurs when the
state court correctly identifies the governing legal principle from Supreme Court
decisions but unreasonably applies it to the facts of the particular case." McManus v.
Neal, 779 F.3d 634, 649 (7th Cir. 2015) (internal quotation marks omitted). This
objective reasonableness standard "exceeds even the clear-error standard of review."
Id. (citing White v. Woodall, 134 S. Ct. 1697, 1702 (2014)). As stated at the outset of
this opinion, state courts' findings of fact also enjoy a presumption of correctness that
may only be overcome by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Valle moved to suppress the statements he made during his interrogation based
on the claim that they were involuntarily given. He claimed that he had been deprived
sufficient food, water, and sleep, and that his high susceptibility to deceptive police
tactics due to his personal intellectual limitations led him to be coerced into falsely
confessing. The trial court denied Valle's motion. As the appellate court later
26
summarized:
It found that the officers did not falsely suggest sympathy. It recognized
that the tone of the interviews sometimes became accusatorial and that
the officers "slid their chairs into defendant's space" and shook a finger at
defendant. It noted that Camacho had engaged in deception. The court
accepted the validity of the Miranda warnings. It found that defendant had
been articulate and responsive in his answers throughout the
interrogation.
Valle, 405 Ill. App. 3d at 53, 939 N.E.2d at 16.
The appellate court reviewed the trial court's decision to admit Valle's inculpatory
statements under a bifurcated standard of review, according deference to the trial
court's findings of fact and reviewing its determination of voluntariness de novo. It found
that the trial court's factual determination that Valle lacked any special susceptibility to
police tactics was not contrary to the manifest weight of the evidence. In light of this
fact, the question before the appellate court was whether "the degree of aggression and
deception involved here results in an involuntary confession absent particular
susceptibilities of the suspect's." Id. at 59, 939 N.E.2d at 20.
The court concluded that Valle's confession was not given involuntarily. Citing
People v. Westmorland, the appellate court noted that "[u]nder Illinois law a confession
may be deemed involuntary in the absence of police misconduct, based entirely on the
defendant's personal characteristics." Id. at 56, 939 N.E.2d at 18. The court found,
however, that where the defendant's personal characteristics do not render him
especially susceptible to coercion, Illinois courts require more manipulative police
tactics than law enforcement officers used when interrogating Valle. The court also
observed that the intimidating and manipulative tactics Valle's interrogators employed to
elicit his confession are the very type that some other state courts have held coercive
27
due to the likelihood that they might induce false confessions. See id. at 59–60 , 939
N.E.2d at 21; Commonwealth v. DiGiambattista, 442 Mass. 423, 433, 813 N.E.2d 516,
524 (2004); State v. Rettenberger, 1999 UT 80 ¶ 20, 984 P.2d 1009, 1015 (1999).
Illinois, however, does not currently share these states' "concern with empirical
evidence of what police tactics make confessions unreliable." Valle, 405 Ill. App. 3d at
61, 939 N.E.2d at 22.
These conclusions are not contrary to clearly established federal law as
pronounced by the Supreme Court of the United States. A confession is involuntary
when it is given under circumstances sufficient to overbear the defendant's free will.
Lynumn v. Illinois, 372 U.S. 528, 534 (1963); see also Johnson v. Pollard, 559 F.3d 746,
753 (7th Cir. 2009). Courts determine whether a defendant's will has been overborne
by looking to the totality of the circumstances surrounding the confession. Miller v.
Fenton, 474 U.S. 104, 110, 112 (1985); see also Gilbert v. Merchant, 488 F.3d 780, 791
(7th Cir. 2007). The question is whether the circumstances surrounding Valle's
confession "would have interfered with his free and deliberate choice of whether to
confess." Johnson, 559 F.3d at 753 (internal citations and quotation marks omitted).
The Supreme Court has emphasized that the totality of the circumstances must be
considered, but a police officer's false claims that exaggerate the strength of the
evidence against the defendant do not render otherwise voluntary confessions
involuntary or inadmissible. See Frazier v. Cupp, 394 U.S. 731, 739 (1969); United
States v. Montgomery, 555 F.3d 623, 630 (7th Cir. 2009); Sotelo v. Ind. State Prison,
850 F.2d 1244, 1251 (7th Cir. 1988).
Aggressive police tactics like the ones Valle's interrogators employed may indeed
28
be more likely to lead a defendant to make a false confession. The fact that these
aggressive tactics may undermine the reliability of confessions might drive state courts
to reevaluate their understanding and application of Supreme Court precedent
concerning voluntariness and coercion, reasoning that a defendant's decision to confess
falsely might signal that the defendant feels he has no choice but to confess. See, e.g.,
DiGiambattista, 442 Mass. at 439–40, 813 N.E.2d at 527–28. But the Supreme Court
has not instructed courts that to determine whether police tactics coerced a defendant
into involuntarily confessing, they must consider whether those tactics increase the
likelihood that the confession is false. This Court thus cannot say that Illinois courts are
subverting, ignoring, or misapplying Supreme Court precedent when they interpret its
Fifth Amendment case law as not requiring such an inquiry. The Illinois courts'
determination that Valle's confession was voluntary was neither contrary to, nor an
unreasonable application of, Supreme Court precedent. Valle is therefore not entitled to
relief based on claim two.
C.
Certificate of appealability
When a district court enters a final judgment that dismisses a prisoner's habeas
corpus petition, it must issue or deny a certificate of appealability (COA). "[F]ederal
courts of appeals lack jurisdiction to rule on the merits of appeals from habeas
petitioners" in the absence of a COA. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003).
To obtain a COA, the petitioner must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A court should issue a COA if it
determines 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
29
presented were adequate to deserve encouragement to proceed further." Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). When a district
court denies a claim on procedural grounds, the petitioner must show both that "jurists
of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
The Court issues a certificate of appealability on Valle's claim that the state
courts unreasonably adjudicated his claim regarding the voluntariness of his confession
(claim two) but concludes that its rulings on Valle's other claims are not fairly debatable.
Conclusion
For the foregoing reasons, the Court denies Valle's petition for a writ of habeas
corpus [dkt. no. 1] and directs the Clerk to enter judgment in favor of the respondent.
The Court issues a certificate of appealability on claim two, Valle's claim regarding the
voluntariness of his confession, and declines to issue a certificate of appealability on
Valle's other claims.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: June 13, 2016
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