Alvarez v. Williams

Filing 24

MEMORANDUM Opinion and Order: For the foregoing reasons, Alvarez's petition for writ of habeas corpus 1 9 is denied and his motions for a stay 12 15 are denied as moot. The Warden's motion to dismiss 13 is granted. The Court also declines to issue a certificate of appealability for any of the claims in the petition. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 3/14/2016:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LORANZO I. ALVAREZ, M16839,
No. 15 C 1625

Petitioner,

Judge Thomas M. Durkin

v.
RANDY PFISTER, Warden,
Stateville Correctional Center,
Respondent.

MEMORANDUM OPINION AND ORDER
Lorenzo Alvarez was convicted after a bench trial of first degree murder and
aggravated discharge of a firearm. See R. 1-1 at 41. He is serving a prison term of 65
years at the Stateville Correctional Center in Chest Hill, Illinois, where he is in the
custody of Warden Randy Pfister.1 See R. 1-3 at 20. Alvarez seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. See R. 1; R. 9. Alvarez has also filed two
motions for a stay. R. 12; R. 15. The Warden has moved to dismiss the petition as
untimely. R. 13. For the following reasons, Alvarez’s petition and motions are
denied, the Warden’s motion to dismiss is granted, and the Court declines to issue a
certificate of appealability.
Tarry Williams was the Warden of Stateville Correctional Center when Alvarez
filed his petition. See R. 1. Randy Pfister is now Stateville’s Warden where Alvarez
still resides. See the Stateville webpage, http://www.illinois.gov/idoc/facilities/pages/
statevillecorrectionalcenter.aspx (last visited Mar. 14, 2016). Accordingly, Warden
Pfister is substituted as the proper respondent. See Rule 2(a) of the Rules
Governing Section 2254 Cases; Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)
(“[T]he proper respondent is the warden of the facility where the prisoner is being
held.”); see also Bridges v. Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005).
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Background
I.

Facts
On December 31, 2009, Alvarez was convicted of murdering Oscar Campos, a

rival gang member. See R. 1-1. At Alvarez’s trial, David Jauregui, Joel Zapata,
Miguel Delacruz, and Ezequiel Riveria each testified that they and Alvarez were
members of the Latin Kings gang at the time Campos was murdered. See id.
Jauregui and Zapata testified that they were with Alvarez when he shot and killed
Campos after he told them he was a member of the Insane Deuces gang. See id.
Delacruz and Riveria testified that Alvarez told them he killed Campos and showed
them the gun he used. See id.
II.

Procedural History
Alvarez appealed his conviction, which was denied on July 31, 2012. See

People v. Alvarez, 2012 WL 6967065 (Ill. App. Ct. 2d Dist. July 31, 2012). Alvarez
then filed a petition for leave to appeal with the Illinois Supreme Court, which was
denied on November 28, 2012. See People v. Alvarez, 981 N.E.2d 998 (Ill. 2012).
Alvarez did not file a petition for certiorari with the United States Supreme Court.
Alvarez later filed a postconviction petition with the Kane County Circuit
Court. Alvarez dated his petition December 15, 2014, see R. 1 at 26, but the Kane
County Circuit Clerk received it on March 27, 2015. See R. 10 at 2. The petition
remains pending.
Alvarez filed his petition in this Court on February 18, 2015. See R. 1.
Alvarez’s petition is 26 pages, and is not clearly organized by separate claims. In

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general, Alvarez contends that he is innocent and that he was falsely arrested and
improperly convicted on the basis of coerced testimony. Alvarez alleges that the
detectives investigating his case told him that “if he [didn’t] cooperate they [were]
going to ‘make things up’ using false documents and false eye witnesses to ‘fix’ the
case [against] him.” R. 9 at 8. Alvarez also alleges that while he was being
questioned, “Detective Williams [and others] hit [him] in the face and grabbed [him]
by the neck choked [him] and called him a ‘mexican nigger dog’ and and
[threatened] him [that if he didn’t] confess [they] will arrest[] [Alvarez’s] loved ones
and family . . . and have [Alvarez’s] mom’s . . . children [taken] away.” Id. at 8-9.
Alvarez also argues that he was denied effective assistance of trial counsel because
trial counsel “refus[ed] to file [a] motion to dismiss the false bill of indictment and
fail[ed] to file [a] motion to quash [Alvarez’s] arrest and [a] motion to quash
wrongful false statements.” Id. at 6. Alvarez also contends that the prosecutors in
his case were aware of the coerced false testimony and participated in procuring it.
For these reasons, Alvarez argues that his sentence should be reduced to 20 years,
and that he should have been convicted of manslaughter. See id. at 19.
Alvarez’s primary claim in support of his petition is based on a purported
affidavit from David Jauregui, one of the witnesses who testified against Alvarez at
trial. This hand-written document is dated February 3, 2012, and is purportedly
signed by Jauregui, although it is not notarized. In it, Jauregui states that he
falsely testified against Alvarez at his trial. Jauregi states that he did so because
the police told him to. He says that the “state gave [him] a deal to testify,” and that

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he and the other witnesses against Alvarez were put in the same cell so they would
have an opportunity to “get our story straight.” R. 9-1 at 2-3.
Alvarez also claims that he received a letter from Miguel Delacruz, another of
the witnesses against him, stating, “the police scared me and made me say a bunch
of lies about ‘you.’ I’m going to get it taken care of.” R. 16 at 5. This letter is not
notarized and is dated November 19, 2008, which was prior to Delacruz’s trial
testimony against Alvarez which took place in December 2009.
Analysis
I.

Timeliness
The Warden argues that Alvarez’s petition is untimely. Under 28 U.S.C. §

2244(d)(1), a “1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.”
This limitation period runs “from the latest of”:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
Id.
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Alvarez’s conviction became final when the time for seeking review by the
United States Supreme Court expired. See Gonzalez v. Thaler, 132 S.Ct. 641, 653
(2012). The Illinois Supreme Court denied Alvarez’s petition for leave to appeal on
November 28, 2012, and his time for seeking review by the United State Supreme
Court expired 90 days later on February 26, 2013. See Sup. Ct. R. 13. The statute of
limitations for Alvarez to file a petition under § 2254 expired one year later on
February 26, 2014. Alvarez did not file his petition until February 18, 2015, so it is
untimely.
Proper filing of a postconviction petition in state court tolls the statute of
limitations. See 28 U.S.C. § 2244(d)(2); Wilson v. Battles, 302 F.3d 745, 747 (7th Cir.
2002). The Kane County Circuit Clerk received a postconviction petition from
Alvarex on March 27, 2015, which Alvarez had dated December 15, 2014. See R. 1 at
26. Even using the earlier date as the filing date, Alvarez filed his postconviction
petition more than nine months after the one year statute of limitations expired on
February 26, 2014. Thus, Alvarez’s state court postconvition petition did not toll the
statute of limitations.
A.

Jauregui’s Affidavit

Alvarez argues that Jauregui’s affidavit stating that his testimony was false
and coerced is “newly discovered evidence” such that the statute of limitations
should run from that date. But Jauregi’s affidavit is dated February 20, 2012. See R.
9-1 at 3. This is prior to February 26, 2013, the date on which Alvarez’s conviction

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became final. Thus, the date of Jauregui’s affidavit does not help extend the statute
of limitations for Alvarez’s habeas petition.
Jauregui’s affidavit is also insufficient—even when considered along with the
letter from Delacruz stating that the police coerced his testimony—for Alvarez to
invoke the actual innocence exception to the statute of limitations. See McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928 (2013). Even without testimony from Jauregui and
Delacruz, there was sufficient evidence for a reasonable jury to convict Alvarez.
Zapata testified that he saw Alvarez shoot Campos, and Riveria testified that
Alvarez told him he shot Campos and showed him the gun he used. A reasonable
jury could convict Alvarez based on this evidence alone. Thus, the actual innocence
exception to the statute of limitations is not available to Alvarez.
B.

Alvarez’s Attempt to File a Postconviction Petition

Alvarez also contends that he tried to file a postconviction petition (which
might have tolled the statute of limitations) as early as 2012, but that he was
unsuccessful because he attempted to file it in DuPage County rather than in Kane
County where he was convicted. Alvarez contends further that the statute of
limitations should be tolled because he was “misled” into filing in DuPage County
because the caption on the appellate court decision denying his direct appeal
incorrectly stated that his appeal was from the Circuit Court of DuPage County. See
R. 16 at 6, and that this circumstance constitutes an “impediment . . . created by
state action” sufficient to satisfy the tolling provision in 28 U.S.C. § 2244(d)(1)(B).

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The problem with this argument is that § 2244(d)(1)(B) applies only to
impediments to the filing of a petition under § 2254 in federal court. By contrast,
Alvarez contends that the erroneous caption on the appellate court’s decision
impeded him from filing a postconviction petition in state court. He does not contend
that this error “prevented” him from filing a habeas petition in federal district
court. See Moore v. Battaglia, 476 F.3d 504, 506 (7th Cir. 2007) (“whatever
constitutes an impediment must prevent a petitioner from filing his petition”). Nor
could he, as the erroneous caption in the appellate decision is irrelevant to his
ability to file a petition under § 2254.
Moreover, the Seventh Circuit has held that if a convicted defendant faces
impediments to filing a postconviction petition or other collateral review in state
court, the proper course is not to wait until that process is resolved, but to file a
“protective” petition under § 2254 and seek a stay from the district court until the
defendant has fully exhausted his remedies in state court. See Powell v. Davis, 415
F.3d 722, 728 (7th Cir. 2005) (“As the Supreme Court recognized in Pace, a prisoner
seeking state postconviction relief in circumstances where the operation of the
limitations period is unclear may file a ‘protective’ petition in federal court and ask
the federal court to stay and abey the federal habeas proceedings until state
remedies are exhausted.” (citing Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)).
Although the erroneous caption may have stymied or delayed Alvarez’s
postconvition proceedings in state court, it did nothing to prevent him from filing a
habeas petition in this court. See United States ex rel. Mueller v. Lemke, 20 F. Supp.

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3d 659, 666-67 (N.D. Ill. Feb. 20, 2014) (“While it is unfortunate that the Clerk
provided misinformation, that misinformation did not prevent habeas counsel from
timely filing the Petition.”). Thus, the erroneous caption did not create an
impediment to Alvarez filing his habeas petition under § 2244(d)(1)(B), so that
statute does not provide a basis to toll the statute of limitations.
C.

Other Impediments to Filing and Equitable Tolling

Alvarez also contends that the following circumstances constitute statecreated impediments sufficient to toll the statute of limitations: (1) he has a low
level of education and difficulty speaking English; (2) his family and friends could
not afford a lawyer to assist him; (3) the prison does not provide him with
employment that enables him to afford an attorney; (4) he is not permitted access to
the internet to do legal research; (5) the Stateville library destroyed a number of
legal texts; (6) the Stateville law clerks would not assist him; (7) the Stateville
library does not stock typewriter ribbons; (8) the Illinois Department of Corrections
will not employ “jailhouse lawyers”; (9) lockdowns prevented him from accessing the
law library; (10) “no one from the law library would help him”; and (11) his
typerwriter was confiscated. See R. 22 at 4-7. None of these circumstances
constitute constitutional violations, and as such they cannot constitute state-created
impediments under § 2244. See Arroyo v. Brannon, 2015 WL 4554758, at *3 (N.D.
Ill. July 28, 2015) (citing cases); U.S. ex rel. Vidaurri v. Hardy, 2012 WL 1068735, at
*11 (N.D. Ill. Mar. 29, 2012) (citing cases).

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To the extent that Alvarez also argues that he is entitled to equitable tolling,
the Court rejects that argument as well. “A petitioner is entitled to equitable tolling
only if he shows (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.”
Socha v. Boughton, 763 F.3d 674, 683 (7th Cir. 2014). Alvarez’s conviction became
final on February 26, 2013, but he did not filed this petition until February 18,
2015. This does not evince diligence. Additionally, none of the circumstances
Alvarez has raised in his papers can rightly be described as “extraordinary.” Thus,
Alvarez is not entitled to equitable tolling.2
II.

Certificate of Appealability
Lastly, the Court declines to issue a certificate of appealability pursuant to

28 U.S.C. § 2253(c)(2). Rule 11(a) of the Rules Governing § 2254 Cases provides that
the district court “must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” See Gonzalez, 132 S.Ct. at 649 n.5. To obtain a
certificate of appealability, a habeas petitioner must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This demonstration
“includes showing 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.”
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); see also Lavin v. Rednour, 641 F.3d

Alvarez also argues that the statute of limitations in § 2244 is unconstitutional.
That argument is baseless, as the Supreme Court has consistently enforced the
statute of limitations for § 2254 petitions.
2

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830, 832 (7th Cir. 2011). Here, the Court’s denial of Alvarez’s petition as untimely
rests on application of well-settled precedent. Accordingly, certification of any of
Alvarez’s claims for appellate review is denied.
Conclusion
For the foregoing reasons, Alvarez’s petition, R. 1; R. 9, is denied, and his
motions for a stay, R. 12, R. 15, are denied as moot. The Warden’s motion to
dismiss, R. 13, is granted. The Court also declines to issue a certificate of
appealability for any of the claims in the petition.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: March 14, 2016

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