Contreras v. Butler

SALVADOR CONTRERAS, Petitioner, v. KIM BUTLER, Warden, Respondent.

13 C 7306

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 9, 2015

Judge Feinerman

MEMORANDUM OPINION AND ORDER

Petitioner Salvador Contreras, who is serving a lengthy sentence in Illinois state prison for the first degree murder of Octavio Guzman and the criminal concealment of his death, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. Contreras seeks habeas relief on the grounds that a prosecutor made improper statements during closing arguments, that the trial court made various errors in instructing the jury, and that his trial attorney was constitutionally ineffective for failing to put on testimony that Guzman was a violent person. Contreras's petition is denied, as are his requests for an evidentiary hearing and appointment of counsel. Contreras also is denied a certificate of appealability.

Background

A federal habeas court presumes correct the state courts' factual findings unless they are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012) ("We give great deference to state court factual findings. After AEDPA, we are required to presume a state court's account of the facts correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence.") (internal quotation marks omitted); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir.2010); Conner v. McBride, 375 F.3d 643, 652 (7th Cir. 2004). The Appellate Court of Illinois is the last state court to have adjudicated Contreras's case on the merits. See People v. Contreras, 2012 IL App (1st) 100704-U (Ill. App. June 8, 2012) (reproduced at Doc. 38-9); People v. Contreras, No. 1-06-2952 (Ill. App. Aug. 22, 2008) (reproduced at Doc. 38-1). The following sets forth the facts as that court described them, as well as the procedural background of the state criminal and post-conviction proceedings.

A. Killing of Guzman

Contreras shot Guzman to death on November 3, 2003. Doc. 38-1 at 2. The two men were in a van, along with Jose Gonzalez, Mauro Trejo, and Israel Ramirez. Ibid. Contreras and Gonzalez are cousins, Gonzalez and Trejo are cousins, and Ramirez is Trejo's uncle. Ibid. Guzman, who was not related to any of the other four men, worked with Gonzalez, Trejo, and Ramirez growing marijuana in Wisconsin. Id. at 2-3.

Gonzalez, Trejo, and Ramirez suspected Guzman of stealing thirty pounds of marijuana. Id. at 3. They and Ramon Licona, another associate, armed themselves with handguns and drove the van to Guzman's house. Ibid. They ushered Guzman inside the van and then drove around for an hour, questioning him and drinking beer. Id. at 4. At one point Licona pistol-whipped Guzman and accidentally fired his gun, but no one was shot. Ibid. The men drove to Contreras's home and Licona and Contreras switched places; Licona gave Contreras his gun, and then Contreras drove Licona to his car, returned to his house, and took Licona's spot in the van. Id. at 4-5. The group started driving again. Id. at 5.

Sometime later Contreras and Guzman began to argue, then to scuffle. Ibid. Guzman grabbed Contreras's jacket and may also have grabbed his throat. Id. at 5-8. Contreras shot Guzman five times, killing him. Id. at 8, 13. Then Contreras and the other three men dumpedGuzman's body in an alley and stashed the van and the guns in Gonzalez's brother's garage. Id. at 8-9.

B. Trial

The authorities eventually traced the shooting to Contreras, id. at 9-10, 12, and he was indicted in state court for: (1) first degree murder (with an enhancement for using a firearm, see 730 ILCS 5/5-8-1(a)(1)(d)(iii)), in violation of 720 ILCS 5/9-1(a); (2) concealment of a homicidal death, in violation of 720 ILCS 5/9-3.1(a) (codified as amended at 720 ILCS 5/9-3.4(a)); (3) aggravated unlawful restraint, in violation of 720 ILCS 5/10-3.1(a); and (4) aggravated unlawful use of a weapon, in violation of 720 ILCS 5/24-1.6(a). Doc. 38-14 at 27-57. He pleaded not guilty and the case headed to a jury trial.

Contreras's main theory at trial was that he shot Guzman in self-defense. Doc. 38-1 at 2. The prosecutor stated during closing arguments that "[t]here was no evidence whatsoever about self-defense, none." Doc. 38-31 at 58. Contreras's lawyer did not object. Ibid. Soon afterwards the prosecutor said that for Contreras to have killed Guzman in self-defense, Contreras had "to take a punch." Id. at 59. Contreras's lawyer did object to that remark, but the trial judge overruled the objection. Ibid.

The trial court based the jury instructions on the Illinois Pattern Criminal Jury Instructions (4th ed. 2000) ("IPI Criminal 4th"). The court issued IPI Criminal 4th No. 2.03A, which concerned the first degree murder charge and the interplay between first degree and second degree murder:

The defendant is presumed to be innocent of the charges against him of first degree murder. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that he is guilty.

The State has the burden of proving that the defendant is guilty of first degree murder, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.

If the State proves beyond a reasonable doubt that the defendant is guilty of first degree murder, the defendant then has the burden of proving by a preponderance of the evidence that a mitigating factor is present so that he is guilty of the lesser offense of second degree murder and not guilty of first degree murder. In deciding whether a mitigating factor is present, you should consider all of the evidence bearing on this question.

Doc. 38-31 at 67. Contreras's lawyer did not request, and the court did not give, IPI Criminal 4th No. 2.03, which instructs that the defendant is presumed innocent of every charge:

The defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict and is not overcome unless from all the evidence in this case you are convinced beyond a reasonable doubt that he is guilty.

The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.

Doc. 38-1 at 43.

Contreras's lawyer did ask the judge to give IPI Criminal 4th No. 7.03, which would have directed the jury to convict Contreras of second degree rather than first degree murder if it found that he killed Guzman because of a "serious provocation" by Guzman: "A mitigating factor exists so as to reduce the offense of first degree murder to the lesser offense of second degree murder if, at the time of the killing, the defendant acts under a sudden and intense passion resulting from serious provocation by the deceased. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person." Doc. 38-31 at 7. The court refused that request, id. at 9, but it did give IPI Criminal 4th No. 7.05, which instructed the jury to convict of second degree rather than first degree murder if it found that Contreras killed Guzman because he unreasonably believed it was necessary to save his own life:

A mitigating factor exists so as to reduce the offense of first degree murder to the lesser offense of second degree murder if at the time of the killing the defendant believes that circumstances exist which would justify the deadly force he uses, but his belief that such circumstances exist is unreasonable.

Id. at 69-70.

The jury convicted Contreras of first degree murder, the firearm enhancement, and concealment of a homicidal death. Doc. 38-1 at 16-17. The court sentenced him to fifty-five years' imprisonment. Id. at 17.

C. Direct Appeal and Post-Conviction Review

Contreras appealed his conviction, arguing that: (1) the trial court should have suppressed various pieces of evidence; (2) the prosecutor's statements during closing arguments were improper; (3) the court should have given IPI Criminal 4th No. 7.03, the instruction on the provocation theory of second degree murder; (4) the court should have given IPI Criminal 4th No. 2.03, the general presumption of innocence instruction; and (5) the court's giving of IPI Criminal 4th No. 2.03A unconstitutionally shifted the burden of proof to Contreras. Doc. 38-2. The Appellate Court of Illinois affirmed. People v. Contreras, No. 1-06-2952 (Ill. App. Aug. 22, 2008) (reproduced at Doc. 38-1). Contreras then filed a petition for leave to appeal ("PLA") with the Supreme Court of Illinois, pressing only the second, third, and fourth claims. Doc. 38-4. The PLA was denied. People v. Contreras, 900 N.E.2d 1120 (Ill. 2008).

Contreras then filed a post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. Doc. 38-16 at 58-100. His petition argued that his trial attorney was ineffective for failing to interview six people who could have testified at trial that Guzman was a violent person. Id. at 69. Contreras appended to his petition affidavits of eight people (those six people, plus Ramirez and Gonzalez) who stated that they knew that Guzman was "violent" and "ag[g]ressive." Id. at 85-100. The state trial court dismissed the petition,People v. Contreras, No. 03-CR-26188 (Cir. Ct. Cook Cnty. Jan. 29, 2010) (reproduced at Doc. 38-16 at 102-10), and denied Contreras's motion to reconsider, Doc. 38-9 at ¶ 16. Contreras appealed and pressed the same ineffective assistance argument, but the state appellate court affirmed. People v. Contreras, 2012 IL App (1st) 100704-U (Ill. App. June 8, 2012) (reproduced at Doc. 38-9). That court denied Contreras's petition for...