843 F.2d 258 (7th Cir. 1988), 86-2867, Ortega v. O'Leary

Docket Nº:86-2867.
Citation:843 F.2d 258
Party Name:Daniel ORTEGA, Petitioner-Appellant, v. Michael O'LEARY, Warden, Respondent-Appellee.
Case Date:March 21, 1988
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 258

843 F.2d 258 (7th Cir. 1988)

Daniel ORTEGA, Petitioner-Appellant,

v.

Michael O'LEARY, Warden, Respondent-Appellee.

No. 86-2867.

United States Court of Appeals, Seventh Circuit

March 21, 1988

Argued March 1, 1988.

As Amended April 4, 1988.

Page 259

Howard B. Eisenberg, Southern Illinois Univ., School of Law, Carbondale, Ill., for petitioner-appellant.

William P. Pistoorius, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before CUMMINGS, WOOD and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

On November 15, 1982, Daniel Ortega was convicted by an Illinois state circuit court on two counts of indecent liberties with a child, and was sentenced to concurring terms of nine years imprisonment. On appeal, one of the counts was vacated, but the court affirmed Ortega's conviction in all respects. Ortega's subsequent appeals to the Illinois Supreme Court and the United States Supreme Court were unsuccessful. People v. Ortega, 125 Ill.App.3d 1181, 89 Ill.Dec. 820, 481 N.E.2d 371 (5th Dist.1984), cert. denied, 469 U.S. 1220, 105 S.Ct. 1206, 84 L.Ed.2d 348 (1985). A writ of habeas corpus under 28 U.S.C. Sec. 2254 was filed on October 22, 1985. After a limited hearing by a magistrate, the writ was denied on September 30, 1986. This appeal followed. We affirm.

I.

Ortega was charged with having had sexual intercourse with a fourteen-year old girl on the evening of August 4, 1982. At the trial, the prosecution introduced testimony from the victim who implicated Ortega. Other witnesses corroborated the victim's testimony in many respects. The victim's sister testified that she had accompanied her sister to Ortega's trailer that night. She stated that Ortega had admitted having intercourse with the victim, and that she had found her sister, naked and intoxicated, in Ortega's bed. Two other witnesses, including a police officer, testified that Ortega had disclosed to them that he had committed the act.

The defense presented Mary Ortega, petitioner's wife, who claimed that Ortega had been with her on that particular evening. She further testified that she and Ortega had sexual relations infrequently since the medication Ortega takes to control his epilepsy makes it difficult for him to achieve an erection. Ortega's personal physician verified that the medication might cause impotency, although Ortega had never complained to him about this problem. Another witness for Ortega, Kenneth Kohrs, said that the victim had told him and Ortega that she was seventeen years old.

After presenting these witnesses, the defense attorney, public defender Richard Brown, rested and the trial adjourned for lunch. Upon reconvening, the trial judge informed the jury that the closing arguments

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would soon begin. However, when prosecuting counsel Schuwerk began to speak, the defendant interrupted the proceedings, indicating his desire to testify on his own behalf. 1

During the prosecutor's closing remarks, Ortega interrupted for a second time. After excusing the jury, the judge directed Ortega to remain silent for the remainder of the trial. Ortega insisted that Mr. Brown had told him that the defense would continue after lunch. When the judge asked Brown if he had considered calling Ortega to the stand, the attorney stated that a joint decision had been made that Ortega would not testify. Ortega protested, stating that Brown was lying. The court denied Ortega's repeated requests to testify, and the closing arguments proceeded.

On appeal to the Illinois Appellate Court, Ortega argued that the court's refusal to let him testify was an abuse of discretion. The appellate court rejected this contention and affirmed his conviction, although it dismissed one count on other grounds. The Illinois Supreme Court denied Ortega leave to appeal and the Supreme Court of the United States denied his petition for a writ of certiorari. Having exhausted his state court remedies, Ortega filed a writ of habeas corpus, claiming that the court's denial of his testimony violated due process.

A magistrate conducted a limited evidentiary hearing to determine the merits of Ortega's claim. At the hearing, Ortega revealed the contents of the testimony he would have presented at his trial. He denied having had sexual intercourse with the victim, and noted that his epilepsy medication has made him impotent. He also stated that he had been with his wife on the evening of August 4, 1982. Ortega further declared that the victim's mother had attempted to extort $10,000 from him; if he refused...

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