he observed inmates gather in the halls near cells 2, 3, 18, and 19 and yell, “Folks against the
People.” He testified that the “People” and the “Folks” are the two umbrella groups of gangs in
Chicago. At the time of the offense, Torres was a part of the Spanish Cobra gang, a faction of
the Folks.

Angel Pagan (“Pagan”), former cellmate of Torres and a member of the Spanish Cobra
gang, testified that he witnessed Torres, who was carrying a homemade knife, and another
inmate, Duane Calhoun, chasing Vincent Cox into cell 18. Pagan lost sight of Torres while he
was in cell 18.

Officer Eichman testified that he saw several inmates begin to making stabbing motions
at each other, and he heard loud screaming which prompted him to make a call announcing that a
fight was in progress on his tier. Officer Eichman could not clearly see who was fighting. When
he heard an inmate screaming for help, he proceeded onto the catwalk of tier A4. He heard
inmate Edgar Hill screaming, “Get some help here immediately.” When Officer Eichman
reached cell 4-5, he observed that an inmate was bleeding profusely and screaming for help.

Officer Eichman then called for further help and arranged for medical attention. When he
and two other officers entered cell 18 they discovered Cox laying in a pool of blood. The officers
conducted cell searches but did not recover any weapons or bloody clothing. Cox died as a result
of the beating and stabbing.

Pagan testified that when Torres entered their joint cell, he saw that Torres had blood on
his pants, his hands, and on a homemade knife he was carrying. Pagan testified that after Torres

entered their cell, he removed the pants he was wearing, ripped them into pieces and flushed


B. Improper Identification

Torres argues that he was denied due process of law under the Fourteenth Amendment
because the trial court refused to suppress pre-trial photo identification evidence. Torres claims
that Pagan’s pre-trial identification was obtained by suggestive procedures because Pagan
identified approximately ten suspects, including Torres, using photos that displayed the inmates’
names.

The record is not entirely clear on this claim. It appears that, in addition to the photo
array described above, Torres was placed in a lineup presented to Hill and Horton. The Illinois
Appellate Court’s opinion describes this lineup involving Torres but fails to state whether Torres
was identified by Hill and/or Horton. In reviewing the trial court’s denial of Torres’ motion to
suppress pretrial identification evidence, the Illinois Appellate Court focused almost entirely on
this lineup identification by Hill and Horton and not on Torres’ complaint of the photo
arrangement presented to Pagan. In his answer, respondent concedes that Torres was identified
by both Hill and Horton through a lineup, but submits that Torres’ petition here focuses only on
the photo identification by Pagan. Although Torres’ petition does focus on the photo array and

not the lineup, Torres does mention being subjected to a suggestive lineup. Liberally construing

*(...continued)
directed verdict, the court acquitted him on grounds that, while Pagan incriminated Calhoun, Hill and Horton’s out-
of-court statements did not. (Tr. Rec. J-36, J-37.) Finally, in distinguishing Torres, the judge once again found that
Pagan “seemed to know Torres and his actions better than anyone else’s and seemed to keep track of his cellmate
closer during—particularly after the murder.” (Tr. Rec. 3-37.) The court also noted that in contrast to Calhoun, Hill
and Horton’s out-of-court statements incriminated Torres in the murder. €d.) Thus, the court noted that “there are
then three incriminating witnesses as to Edgar Torres, and it convinces me beyond a reasonable doubt Torres is
accountable for this murder.” (/d.) Although it is possible that one or more co-defendants were in fact guilty, thus
“wrongly” acquitted, this failure of justice has no bearing on whether the evidence against Torres was sufficient to
convict.


admitted at trial also in violation of his Fourteenth Amendment right to due process of law.
Because Torres raised his claims for relief before all three levels of the Illinois court system
during his trial and direct appeal, he has exhausted his administrative remedies under 28 U.S.C.
§ 2254(b)(1)(A). The court, therefore, examines the merits of his claims.

A. Insufficient Evidence

Torres argues that he was denied Due Process because the evidence introduced at his trial
was insufficient to prove his guilt beyond a reasonable doubt. According to Torres, the evidence
was insufficient because the trial judge relied on the same evidence to convict him that the judge
concluded was insufficient to convict his co-defendants. Torres claims that the evidence
introduced by the prosecution was circumstantial, unreliable, and based on witnesses who gave
inconsistent accounts of the offense. Specifically, Torres says that Pagan’s testimony cannot be a
rational basis for his murder conviction.

The Due Process Clause is violated when a defendant is convicted at trial despite the fact
that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 324 (1979). In applying this standard, the reviewing court
must give deference to the trier of fact and will not reweigh the evidence, make credibility
determinations, or substitute judgments. See Ford v. Ahitow, 104 F.3d 926, 938 (7th Cir. 1997);
United States v. Mejia, 909 F.2d 242, 245 (7th Cir. 1990). Torres claims that the evidence
presented against him was unreliable because it was based on the testimony of three “jail house
snitches.” However, “[t]he Jackson inquiry does not focus on whether the trier of fact made the
correct guilt or innocence determination, but rather whether it made a rational decision to

convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402 (1993) (emphasis in original).


them down the toilet. Torres also washed the blood off his hands and the knife. Torres and the
other inmates involved threw their knives into a vent.

Torres and five other inmates were arrested for the death of Cox, All were tried together
in a bench trial. Torres made motions to quash his arrest and suppress pre-trial identification
evidence. At the hearing on the motions, Detective Joseph Waish testified that on June 1, 1995,
he, his partner, and Assistant State’s Attorney Joe Alesia conducted three lineups at Cook County
Jail. Torres was included only in one such lineup and was selected. Detective Richard
Chernikovich testified that on June 6, 1995 he met with Pagan and showed him approximately
thirty black and white photographs of inmates from tier A4, each marked with the inmate’s name.
Pagan pointed out approximately ten individuals who may have been involved in the murder,
including Torres. Pagan knew Torres a month before the incident and was his cellmate for one
day before the murder. After hearing all of the evidence, the trial court denied both the motion to
suppress evidence and the motion to suppress identification. The judge found that the
identification procedures did not violate any of Torres’ constitutional rights.

After the bench trial Torres was found guilty. Four of his co-defendants, Demetrius
Green, Reginald Guice, Marvin Hicks and Robert Munoz, had their motions for directed findings
granted after the prosecution’s case. The only other remaining co-defendant, Duane Calhoun,
was found not guilty by the trial court at the conclusion of the evidence.

DISCUSSION

Torres’ petition for habeas relief contains two claims: (1) the evidence presented at trial

was insufficient to support his conviction, in violation of his Fourteenth Amendment right to due

process of law; and (2) the identification evidence obtained by suggestive procedures was


and Torres. Horton had previously given a statement stating that he had seen Hicks, Green,
Guice, Munoz and Torres pushing Cox into a cell and all were carrying large knives.

The Illinois Appellate Court evaluated the sufficiency of the evidence in Torres’ case
under the standard in Jackson and explicitly deferred to the factual determinations made by the
trial judge because he was in a position to hear the evidence and observe the witnesses. The
court recognized that the trial judge was persuaded by Pagan’s testimony and the two written
statements made by Hill and Horton. Moreover, the Illinois Appellate Court recognized that the
trial court was in a position to disbelieve Hill and Horton’s testimony at trial and to credit their
pretrial statements. The Illinois Appellate Court also acknowledged that Pagan’s testimony had
briefly changed when he spoke with defense counsel before trial but, once again, deferred to the
trial court’s belief as to why Pagan had changed his version of the events.

Viewing the evidence in the light most favorable to the prosecution, the Illinois Appellate
Court found that “any rational trier of fact could have found that the essential elements of the
crime had been proven beyond a reasonable doubt and that the defendant was one of the
offenders in this case.” People v. Torres, No 1-98-4536, 19-20 (II. App. Ct. Aug. 14, 2001).
That decision was not contrary to or an unreasonable application of the Jackson standard. This

claim, therefore, is denied.”

24s for Torres’ claim that the trial court, essentially, acquitted the other co-defendants while finding him
guilty based on the same evidence, the court disagrees. In denying the motion for a directed finding as to Torres, the
trial court noted that there was the statement of Pagan, who as the judge noted was Torres’ cellmate and “seemed to
have more detailed awareness of Torres’ actions, alleged actions during this incident than anybody else.” (Tr. Rec.
at J-7.) The court also noted that the out-of-court statements of Hill and Horton further implicated Torres. The court
found that a directed finding was appropriate in favor of co-defendants Hicks, Guice, Green and Munoz because
Pagan never implicated or even placed these other four defendants at the crime scene. (Tr. Rec. at I-8, I-13.)
Moreover, the court noted that the out-of-court statements of Hill and Horton, standing alone, were not sworn
testimony sufficient for conviction. (Tr. Rec. I-14, I-15.) And as for Calhoun, after denying his motion for a

(continued...)


‘Minute Order Form (06/97)

. ANS aN United States District Court, Northern District of Mlinois

Name of Assigned Sitting Judge if
Judge or Magistrate Joan H. Lefkow Other than
Judge Assigned Judge
CASE NUMBER 03 C 522 DATE 6/4/2004
CASE Torres vs. Briley
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state bricfly
MOTION: the nature of the motion being presented.]
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
@) Oo Answer brief to motion due. . Reply to answer brief due. :
(4) oO Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] {set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) o Trial[set for/re-set for] on at
(8) O (Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
COFRCP4(m) CLocal Rule 41.1 OCOFRCP41(a)(1)  FRCP41(a)(2).
do i [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in the
Memorandum Opinion and Order, petitioner’s petition for habeas corpus relief is denied and the Court
concludes that the petitioner is not entitled to habeas relief. All other pending motions are denied as moot. Case
is terminated.
ab ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court. "Document
2 Uc
No notices required, Nuinber.
aunber of notices
o | Notices mailed by judge’s staff.
Notified counsel by telephone. JUN OF 2004
Docketing to mail notices.
v Mail AO 450 form. dockeling écpuly initials
Copy to judge/magistrate judge.
6/4/2004
date mailed notice
courtroom
MD deputy’s MD
initials
TM Date/time received in a
central Clerk’s Office mailing deputy inate



their constitution and composition are not suggestive in my mind to bring about a

mis-identification, to unfairly and unconstitutionally single out any of the

petitioners.

So, these lineups could have been better, but they are certainly in my

judgment adequate and not violative of any of the defendants’ constitutional rights

to a fair identification procedure.
(Tr. Rec. at A-102.) After reviewing the evidence in this case the court cannot call the Illinois
Appellate Court’s decision that the lineup was not suggestive unreasonable. To a large degree
the Illinois Appellate Court deferred to the trial court’s findings of fact. The trial court was in the
best position to gauge the suggestiveness of the lineups because it was presented with the actual
photographs of the lineups themselves. Thus, Torres’ claim for relief on this ground is denied.

As for the photo array presented to Pagan, while the Illinois Appellate Court first stated
that the photo array was not unnecessarily suggestive, it nevertheless did consider the five factors
articulated in Neil for determining reliability of an identification procedure. Those factors
include: “The opportunity of the witness to view the criminal at the time of the crime, the
witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the
level of certainty demonstrated by the witness at the confrontation, and the length of time
between the crime and the confrontation.” Jd. at 199-200. The court also considered the witness’
relationship with the suspect prior to the crime. Applying these factors, the Illinois Appellate
Court determined that the trial court did not abuse its discretion by denying Torres’ motion.

The Illinois Appellate Court’s decision was reasonable for two principal reasons. First,
Pagan knew both Torres and Cox prior to the date of the murder. Indeed, Torres served as

Pagan’s cellmate immediately prior to the murder, even if it was for only one day. The names on

the photographs could not have been impermissibly suggestive to Pagan since he was familiar

i


his pro se petition the court will consider whether the June 1, 1995 lineup involving Torres was
unconstitutional.

The Due Process Clause is violated when a conviction is based on eyewitness
identification that “was so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” Simmons v. United States, 390 US 377, 384 (1968).
Initially, if the procedure was unnecessarily suggestive, the court must consider whether under
the totality of the circumstances the identification was reliable. Neil v. Biggers, 409 U.S. 188,
199 (1972). Only if the procedure was impermissibly suggestive and unreliable would there be a
Due Process violation. See id.

Concerning Torres’ lineup identification, the Illinois Appellate Court held that Torres
failed to demonstrate that the lineup was improperly suggestive due to age, height, weight, dress,
complexion and other distinguishing characteristics of the participants. Moreover, the Illinois
Appellate Court further noted that Torres had failed to establish (1) that the various witnesses
were allowed to make their identification of the accused in the presence of each other or were
allowed to discuss their identification of the defendant during the identification process; (2) that
the police failed to take the reasonable and necessary precautions to prevent an accidental
witness-suspect confrontation; or (3) that the emotional or physical condition of the witness was
such as to impair his ability to make a fair and rational identification of the offender.

Furthermore, the trial judge, who heard the evidence at the motion to suppress and was
presented with the photographs of the lineup, stated as follows:

Secondly, after viewing the lineups, I would also say they could have been better,

but, these three lineups are better than most. They do pass the constitutional
mustard /sic]. They do satisfy basic due process, and the grounds of fairness, and

10



Torres raised this claim on direct review, and the Illinois Appellate Court affirmed his
conviction. The appellate court noted that the trial court found three pieces of evidence
persuasive in convicting Torres: (1) the in-court testimony of Pagan; (2) a prior written statement
by Edgar Hill; and (3) a prior written statement by DeAngelo Horton.

Pagan, who was Torres’ cellmate at the time of the murder in question, testified at trial
that he saw Torres and Calhoun chasing Cox into cell 18. Pagan further testified that when
Torres entered their joint cell, he had blood on his pants, hands, and on the shank he was holding.
Pagan stated that after Torres entered their cell he removed the pants he was wearing, ripped
them up, and flushed the pieces down the toilet. Pagan also observed Torres washing blood off
of his hands and the shank.

As for Hill, he initially refused to testify at trial. He stepped down from the witness stand
but was later recalled to testify again. At this time his testimony was that he did not remember
anything that happened at or around the time of the May 1995 killing. Similarly, Horton testified
that while he remembered that Cox had died, he did not see him get stabbed. Thereafter,
Assistant State’s Attorney Joe Alesia was called to the stand. Alesia read handwritten statements
previously given by Hill and Horton.' Hill had previously indicated that he had seen Cox being

beaten with a broom stick and stabbed with shanks being held by Reginald Guice, Robert Munoz

'These statements were admitted pursuant to 725 ILCS 5/115-10.1, That statute provides, in pertinent part,
that a statement made by a witness is not made inadmissible by the hearsay rule if

(a) the statement is inconsistent with his testimony at the hearing or trial, and

(b) the witness is subject to cross examination concerning the statement; and

(c) the statement~

ore

(2) narrates, describes, or explains an event or condition of which the witness had persona!
knowledge, and

(A) the statement is proved to have been written or signed by the witness... .

7


affirmed his conviction and sentence. People v. Torres, No. 1-98-4536 (Ill. App. Ct. Aug. 14,
2001) (Resp. Ex. D.)

Torres filed a pro se petition for rehearing in the Appellate Court. He argued his first two
claims but not that his sentence was excessive. The Illinois Appellate Court denied the petition.
People v. Torres, No. 1-98-4536 (Ill. App. Ct. Oct. 11, 2001) (Resp. Ex. F.) Torres then filed a
pro se petition for leave to appeal to the Illinois Supreme Court in which he raised the three
issues that he presented in his initial appeal to the Illinois Appellate Court. (Resp. Ex. G.) The
Ilkinois Supreme Court denied Torres’ petition on February 6, 2002. People v. Torres, No.
92743 (Ill. 2002) (Resp. Ex. H.) Torres filed this habeas petition on January 22, 2003. Because
his petition was filed within one year after the conclusion of his direct review in the Illinois
courts, this court has jurisdiction to consider the habeas petition. See 28 U.S.C. § 2244(d)(1)(A);
Gray v. Briley, 305 F.3d 777, 778 (7th Cir. 2002).

B. Facts

When considering a habeas petition, the court must presume that the state courts’ factual
determinations are correct unless the petitioner rebuts the presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002).
Torres has not presented clear and convincing evidence to rebut this presumption. Therefore, the
court adopts the Illinois Appellate Court’s recitation of facts in People v. Torres, No 1-98-4536
(Ill. App. Ct. Aug. 14, 2001) (Resp. Ex. D.)

Torres and the victim, Vincent Cox (“Cox”), were inmates at the Cook County Jail in
1995. Officer Clark Eichman, a Cook County Sheriff Correctional Officer, testified that on

May 27, 1995 he was watching tiers A and B4 in Division 1 of the Cook County Jail. On tier A4


Supreme Court] and nevertheless arrives at a result different from [it].” Williams v. Taylor,
529 U.S. 362, 405-06 (2000).

A state court’s decision is an unreasonable application of clearly established Supreme
Court law “if the state court identifies the correct governing legal rule from this Court’s cases but
unreasonably applies it to the facts of a particular prisoner’s case” or “if the state court either
unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it
should not apply or unreasonably refuses to extend that principle to a new context where it
should apply.” Jd. at 407. In order for a state court decision to be considered “unreasonable”
under this standard it must be more than incorrect, it must lic “well outside the boundaries of
permissible differences of opinion.” Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see
also Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) (“The state court decision is
reasonable if it is minimally consistent with the facts and circumstances of the case.”) (internal
citations and quotations omitted).

BACKGROUND

A. Procedural History

Following a bench trial, Torres was convicted in the Circuit Court of Cook County of first
degree murder. He received a sixty-year sentence to be served consecutively to a thirty-year
sentence received from a prior conviction. Torres appealed to the Illinois Appellate Court
arguing (1) the evidence was insufficient to support the finding that he was guilty beyond a
reasonable doubt; (2) the trial court incorrectly denied his motion to quash his arrest and suppress

identification evidence; and (3) his sentence was excessive. The Illinois Appellate Court



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
United States of America )
ex rel. EDGAR TORRES (#B-03292), ) DOCKETED
) JUN 0 7 2004
Petitioner, )
)
vs. ) No. 03 C 0522
} Judge Joan H. Lefkow
KENNETH BRILEY, )
Warden, )
Stateville Correctional Center, )
)
Respondent. )
)

MEMORANDUM OPINION AND ORDER

In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner Edgar
Torres (“Torres”) challenges his conviction for first degree murder entered in the Circuit Court of
Cook County, Illinois. For the reasons stated below, his petition is denied.

HABEAS STANDARD

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), this court
must deny Torres’ petition for a writ of habeas corpus with respect to any claim adjudicated on
the merits in the state court unless the state court’s decision “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); Price v. Vincent, 538 U.S. 634 (2003). A state
court’s decision is contrary to clearly established Supreme Court precedent “if the state court
applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the

state court confronts a set of facts that are materially indistinguishable from a decision of [the



with Torres’ appearance. The presence or absence of a name on Torres’ picture would not
change the fact that ten days after the murder Pagan would have recognized Torres in a
photograph. Second, because the names were written on all of the pictures, Torres’ photograph
did not stand out from the array of the thirty pictures Pagan viewed. Presumably Torres knew the
names of many of the other inmates also. Therefore, the photographs that Pagan viewed were
neither impermissibly suggestive nor unreliable. Accordingly, the Illinois Appellate Court’s
decision was not contrary to or an unreasonable application of the law as articulated by the
Supreme Court in Neil. Torres’ claim, therefore, is denied.
CONCLUSION
For the reasons stated above, the court concludes that Torres is not entitled to habeas

relief. All other pending motions are denied as moot. This case is terminated.

ENTER: _ POC Kefibr
CAOAN HUMPHREY LEFKOW
United States District Judge

Dated: June 4, 2004

12