Mulero v. Thompson

• Decision Date: 07 February 2012
• Docket Number: No. 10–3875.,10–3875.
• Citation: 668 F.3d 529
• Parties: Marilyn MULERO, Petitioner–Appellant, v. Sheryl THOMPSON, Warden of the Dwight Correctional Center, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

668 F.3d 529

Marilyn MULERO, Petitioner–Appellant,

v.Sheryl THOMPSON, Warden of the Dwight Correctional Center, Respondent–Appellee.

No. 10–3875.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 2011.Decided Feb. 7, 2012.

Justin Brooks (argued), Alexander Simpson, Attorneys, California Innocence Project, San Diego, CA, for Petitioner–Appellant.

Gopi Kashyap (argued), Attorney, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.

Before BAUER, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge.

Marilyn Mulero was charged in Illinois with four counts of murder, two counts of conspiracy to commit murder, and one count of unlawful use of a firearm by a felon. She entered a blind plea of guilty and the counts were then merged, resulting in a state trial court entering judgment against Mulero on two counts of intentional murder. Mulero was eventually sentenced to life imprisonment—the mandatory minimum sentence for a double homicide. After exhausting her state court remedies, Mulero filed a petition for habeas relief in the district court, alleging her trial attorney provided ineffective assistance of counsel. The district court concluded that many of Mulero's ineffective assistance claims were defaulted and held that the non-defaulted claims failed on the merits. The district court then granted a certificate of appealability limited to two issues—whether Mulero's attorney was ineffective for, prior to advising Mulero concerning her desire to enter a blind plea of guilty, 1) failing to investigate witnesses, and 2) failing to obtain supporting services. Mulero presents those issues on appeal, arguing ten specific alleged failings by her attorney. We conclude that Mulero has preserved only three of these ten arguments—those she presented through one complete round of state court review. Specifically, Mulero has preserved only the questions of whether her attorney was ineffective for 1) failing to investigate witness Jackie Serrano; 2) failing to obtain psychological evidence to support an argument that Mulero's confession was involuntary; and 3) failing to recognize that witness Yvette Rodriguez had made inconsistent statements and had a motive to lie. While Mulero preserved these arguments, they all fail on the merits. Accordingly, we affirm.

I.

Nearly twenty years ago, on May 11, 1992, then–21–year–old petitioner Marilyn Mulero, 15–year–old Jacqueline Montanez and 16–year–old Madeline Mendoza, all members of the Maniac Latin Disciples gang, decided to seek revenge for the Latin Kings' murder of their friend, “Mudo.” Mulero borrowed her brother's car and one of the trio obtained a small silver automatic gun to carry out what they would later describe as a “mission” for their “nation.” As they were leaving for their mission, the threesome saw Yvette Rodriguez. Rodriguez would later testify that they invited her to go “make a hit with them and roll on some flakes,” which meant to kill or fight the Latin Kings. Rodriguez declined.

Mulero then drove Montanez and Mendoza into Latin Kings territory, where they saw two men in another car, Jimmy Cruz and Hector Reyes, whom Montanez recognized as Latin Kings. The young women invited Cruz and Reyes to “party” with them in nearby Humboldt Park. After they all arrived, Montanez went into the bathroom with Reyes and shot him in the back of the head, killing him. Montanez left the bathroom and, according to Mulero's original confession, then handed Mulero the gun and Mulero shot Cruz in the back of the head, killing him. The three then drove off.

At the time of the shooting, about 12:15 a.m. on May 12, 1992, Jackie Serrano was looking out of the window of her nearby apartment. She would later testify that she looked into the park after hearing some voices and giggling and that she saw three women, one of whom was taller than the others, and two men. She saw the taller female enter the restroom with a male, and after hearing a firecracker sound, Serrano saw her emerge from the restroom alone. Serrano then saw a shorter female go behind the second male, observed a flash behind that man, and saw him fall to the ground. This evidence was consistent with Montanez shooting Reyes and Mulero shooting Cruz, as Montanez is 5'7? and Mulero is 5'1?.

After the shooting, Rodriguez saw Mulero, Montanez, and Mendoza back in their neighborhood, and Mulero and Montanez were bragging about having murdered Cruz and Reyes. Later that evening, police arrested Rodriguez on a drug offense and Rodriguez identified Mulero, Montanez, and Mendoza as the perpetrators of Cruz's and Reyes's murders. The next day, officers arrested Mulero and Montanez, and a few days later they arrested Mendoza.

Following her arrest and substantial questioning, Mulero gave a court-reported statement to a Chicago detective and an assistant state's attorney. In her statement, she acknowledged her involvement as detailed above. Additionally, after she confessed to the murders, while being escorted through the police station, a television news camera captured Mulero shouting gang slogans, “KK,” which means “king killers,” and flashing gang signals with her hands.

The state charged Mulero with four counts of murder, two counts of conspiracy to commit murder, and one count of unlawful use of a firearm by a felon. On June 5, 1992, a Cook County Public Defender appeared on behalf of Mulero. The Public Defender represented Mulero until around early 1993, and during that time, among other things, the Public Defender had an investigator speak with Serrano and filed a motion to suppress Mulero's confession. Then sometime in early to mid–1993, a couple for whom Mulero used to babysit hired a private attorney, Jeremiah Lynch, to represent Mulero. Lynch apparently filed an amended motion to suppress and then argued that motion. In June 1993, the state court denied the motion to suppress Mulero's confession, finding that Mulero's statement to the police was voluntary and that there were no promises, misrepresentations, or fabrications by the police.

Two months later, in August 1993, Montanez was convicted of the murders of Cruz and Reyes and sentenced to life imprisonment. (Because Montanez was a minor, she did not qualify for the death penalty.) At Montanez's trial, the prosecution presented Montanez's court-reported statement, which was consistent with Mulero's confession, and testimony from, among others, Rodriguez and Serrano. Following Montanez's conviction, Mendoza pleaded guilty on September 22, 1993, to one count of murder of Cruz and one count of conspiracy to murder Reyes. At her change of plea hearing, Mendoza swore under oath that Montanez had shot Reyes and that Mulero had shot Cruz. Less than a week later, on September 27, 1993, Mulero pleaded guilty to all counts without the benefit of a plea agreement—this is referred to as a blind plea.

At her change of plea hearing, Mulero testified that she was pleading guilty because she knew she was guilty and that it was her idea to plead guilty. Following Mulero's guilty plea, the counts were merged, resulting in a state trial court entering judgment against Mulero on two counts of intentional murder. After pleading guilty, Mulero proceeded to the sentencing phase of the proceedings. In Illinois, the only possible sentences for two counts of intentional murder were life imprisonment without possibility of parole, or death. On November 12, 1993, a jury sentenced Mulero to death. On December 17, 1993, Lynch filed a motion for a new sentencing hearing, arguing that the trial court had erred in allowing the prosecution to argue at the sentencing hearing that Mulero was not truly remorseful for the crimes because she had filed a motion to suppress her confession. The trial court denied that motion and entered the sentence of death against Mulero.

Mulero appealed her death sentence directly to the Illinois Supreme Court. She also, on January 6, 1994, filed a pro se motion to withdraw her guilty plea. In her motion to withdraw her guilty plea Mulero argued, among other things, that Lynch had coerced her into pleading guilty. Counsel was later appointed to represent Mulero and to argue this motion. At the trial court's hearing on Mulero's motion to withdraw her guilty plea, Lynch testified at length. Lynch stated that he was hired by a family for whom Mulero used to babysit and that he took over the case from the Public Defender's office. Lynch noted that he visited the crime scene twice, reviewed discovery, and reviewed the Public Defender's file, including a statement from one of the Public Defender's investigators who had interviewed Serrano. Lynch also indicated that Serrano's statement might have implicated the taller woman (and thus not Mulero) as the shooter of the second victim outside the rest-room, but that Serrano's statement was not definitive on whether Mulero or the taller woman had done the second shooting. Lynch also testified that he had reviewed the various police reports, including reports by two different officers which contained conflicting stories from Rodriguez—one which stated that Mulero had shot one of the victims and the other which indicated that Montanez had shot both victims. Lynch further stated that the State had made no plea offer and refused to participate in a pre-trial plea conference.

Additionally, Lynch testified that when he met with Mulero in August 1993, Mulero directed him to enter a guilty plea on her behalf. Lynch stated that he was surprised by Mulero's request and told her to think about it. He also explained that he did not want to discuss a plea at that time because Mulero's request at this meeting came directly on the heels of Montanez's recent conviction and following the court's previous denial of Mulero's motion to suppress. Lynch added that he also wanted to think more about such a strategy.

When they next met, Lynch and Mulero discussed for about an hour the pros and cons of...