Lopez v. Wills

Heriberto Lopez, M-30719 Petitioner, v. Anthony Wills, ^[1] Warden, Menard Correctional Center, Respondent.

No. 3:18-cv-50255

United States District Court, N.D. Illinois, Western Division

June 28, 2021

MEMORANDUM OPINION AND ORDER

IAIN D. JOHNSTONE, United States District Judge.

Petitioner Heriberto Lopez is currently incarcerated at Menard Correctional Center, serving five consecutive sentences of ten years each on five counts of criminal sexual assault of his step-daughter. Lopez has petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. For the below reasons, this Court denies the petition for a writ of habeas corpus [1] and declines to issue a certificate of appealability.

I. BACKGROUND

The Court presumes that the factual determinations of the last state court to adjudicate the case on the merits are correct for the purpose of habeas review unless those findings 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) (“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.”). Petitioner has not pointed to clear and convincing evidence to contradict the factual findings of the Appellate Court of Illinois, which was the last state court to have adjudicated his case on the merits. People v Lopez, 2014 IL App. (2d) 121008-U (Jun. 10, 2014) (unpublished) (hereinafter “Lopez I”); People v. Lopez, 2017 IL App. (2d) 150531-U (May 15 2017) (unpublished) (hereinafter “Lopez II”). Thus, the Court thus adopts the state court's recitation of the facts and begins by summarizing the circumstances leading up to Lopez's conviction and sentencing.

A. Factual Circumstances Leading to Petitioner's Conviction in State Court

Petitioner Lopez married Melissa Levin around 1998. Lopez I, ¶ 14. Lopez became a step-father to Melissa's children from a previous relationship, including her daughters ML and KL, and her son JL. In March 2008, ML died of suicide in the bedroom she shared with KL. Id. Following ML's death, Melissa's children slept together on the living room floor, and eventually moved their beds into the bedroom Melissa shared with Lopez. Melissa began working additional hours as a nurse after ML's death, and she testified that her relationship with Lopez, including their sex life, deteriorated. Id.

On June 17, 2011, after JL saw KL and Lopez go into the bedroom and lock the door, he heard slapping and kissing and bed noises, Lopez's voice saying, “touch it, ” and KL's voice responding, “no.” Id. ¶ 13. The next day, JL called the police to report the what he heard the previous day between his sister and their step-father. Id. ¶ 4. When the police arrived, KL, who was sixteen-years-old at the time, confirmed the sexual abuse and stated that it had been ongoing approximately six to eight times per month since she was twelve-always when her mother Melissa was not home. Id.

According to KL, the first occurrence was in May 2008 when Melissa was at work and her brothers were asleep. Id. ¶ 6. KL began talking to Lopez because she couldn't sleep. Lopez then undressed her and removed his own clothes. Id. He then inserted his erect penis into her vagina. She said it hurt, but that it did not go all the way in. Lopez then dressed himself, told KL not to tell anyone, and went to bed. Id. Another time, while she was still twelve years old, KL told Lopez she did not want to go into the bedroom with him, but he punched her head, so she did as he directed. Id. ¶ 7. On other occasions, Lopez held hair clippers and threatened to shave her head if she resisted or ripped her earrings out of her ears. Id. Eventually, she stopped resisting. Id. ¶ 9.

KL explained that while the initial occurrences fell short of intercourse, within a few weeks he was fully inserting his penis into her vagina. Id. ¶ 8. At this point, Lopez never wore condoms with KL, and if he ejaculated, it was into a towel that he immediately put into the laundry. Id. Sometimes, he would give her hickeys on her neck and tell her to explain that her younger siblings were “sucking on her neck” if anyone asked. This went for more than three years, six to eight times a month. Id. ¶ 9. When KL was fifteen, she began menstruating. Id. ¶ 10. She told Lopez about this in the hopes that the sexual relations would stop. They did not stop. Lopez simply began using condoms. Id.

At one point, Melissa became suspicious of the hickeys on KL's neck. She asked both Lopez and KL if they were having sex, and both denied it. Id. ¶ 15. Lopez continued sexual relations with KL until June 17, 2011, the day before JL contacted the police.

After JL's initial report, officers searched Lopez's home and did not find any relevant evidence, but on June 21, 2011, Melissa called the detective because she found several condoms in one of Lopez's socks in a drawer-and Lopez never used condoms with Melissa. Id. ¶ 16. An arrest warrant was issued for Lopez. Id. ¶ 17. Officers eventually apprehended Lopez in Carpentersville, Illinois after he lied to them about his identity and whether he had identification on him. Id.

B. Litigation, Sentencing, and Post-Conviction Appeals

Lopez retained Michael Crosby and Dennis Steeves of A Law Firm of Crosby and Associates, P.C. (ALOCA), who were also representing him in his divorce and another matter. He executed three separate representation agreements with ALOCA, and on June 21, 2011, and the agreement pertaining to this case only included representation through trial. Lopez executed a limited, durable power of attorney form, prepared by ALCOA and notarized by Michael Crosby, appointing ALCOA as his agent and attorney to “discuss, inquire, assist and transfer assets and withdraw funds from any of my accounts, in regards to helping me secure legal representation and to arrange bond.” See, e.g., Dkt. 19-14, at 296. This POA was effective until revoked by Lopez. Id.

Lopez maintained his innocence and refused to accept a plea from the government. And because ALOCA's representation agreement with Lopez was only effective through plea negotiations, not trial, Steeves filed a motion to withdraw from the case immediately after Lopez rejected the plea, citing a “breakdown in the attorney/client relationship . . . in that the terms of representation have expired.” Dkt. 19-13, at 48. Judge Engelsma denied the motion and cautioned that the practice “seem[ed] coercive” and stated that he would “not permit that kind of representation again . . . ever.” Dkt. 19-16, at 129:9-13.^[2]

The matter proceeded to trial before Judge Tobin of the Circuit Court of the Seventeenth Judicial District of Illinois, Boone County. Defense counsel Steeves argued that Petitioner was innocent and that the state failed to offer evidence beyond a reasonable doubt because there was no proof other than the victim's testimony. Though he presented no case-in-chief, evidence, or witnesses, the record shows that Steeves filed motions in limine, made objections throughout, cross- and re-cross- examined the state's witnesses, and made opening and closing arguments. Dkt. 19-14, at 129-36; dkt. 19-17, at 246, 298, 302, 350, 362, 377. The state advanced the theory that Lopez was a strict disciplinarian in the home, that KL became his victim similar to what ML must have gone through before her death, and that she never told anyone as a result of his threats. See, e.g., Lopez I, ¶ 25. Lopez argued that this was pure speculation for which the state had no evidence, other than KL's testimony.

On April 5, 2012, Lopez was convicted by a jury of five counts of criminal sexual assault. After the jury returned its verdict, Steeves filed a motion for a directed verdict or new trial. Dkt. 19-14, at 134-35. And at sentencing, Steeves secured a sex offender evaluation for Lopez, although his motion to merge counts for the purposes of sentencing was denied. Dkt. 19-14, at 96, 111-13, 135-36. On July 20, 2012, Judge Tobin sentenced Lopez to a term of fifty years' imprisonment. Lopez's motion to reconsider the sentence was denied on September 14, 2012.

On direct appeal, Petitioner was represented by the State Appellate Defender and raised one claim: whether the state's voir dire questioning denied Lopez the right to a fair trial. On June 10, 2014, the Appellate Court of Illinois affirmed the judgment of the trial court. Lopez I. On August 13, 2014, Lopez filed a pro se petition for leave to appeal (“PLA 1”) with the Illinois Supreme Court, which was denied. People v. Lopez, 21 N.E.3d 717 (2014) (table).

On April 27, 2015, Lopez filed a pro se petition for post-conviction relief, raising nineteen claims, including each of the claims raised in this habeas petition. Dkt 19-14, at 180. On May 6, 2015, Judge Tobin summarily dismissed this petition as frivolous and for failure to raise the gist of a constitutional issue. Dkt. 19-8, at 41. After filing notice of appeal, the State Appellate Defender was appointed, and Lopez appealed the dismissal of his post-conviction petition, arguing that his petition raised the gist of a constitutional claim, specifically with regard to three claims: ineffective assistance of trial counsel for misinforming Lopez of his right to testify, ineffective assistance at sentencing, and a conflict of interest at sentencing. Dkt. 19-8. The appellate court affirmed the denial of his post-conviction petition on May 15, 2017, and modified its order on August 7, 2017 after denying Lopez's petition for rehearing. Lopez II. On September 21, 2017, Lopez filed a pro se petition for leave to appeal (“PLA 2”) with the Illinois Supreme Court, arguing that his post-conviction petition did present...