Gomez v. Acevedo

• Decision Date: 03 February 1997
• Docket Number: No. 94-3873,94-3873
• Citation: 106 F.3d 192
• Parties: Francisco GOMEZ, Petitioner-Appellant, v. Gerardo ACEVEDO, Warden, East Moline Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 192

106 F.3d 192

65 USLW 2525

Francisco GOMEZ, Petitioner-Appellant, v. Gerardo ACEVEDO, Warden, East Moline Correctional Center Respondent-Appellee.

No. 94-3873.

United States Court of Appeals Seventh Circuit.

Argued Feb. 9, 1996. ¹

Decided Feb. 3, 1997.

Jerold S. Solovy, Edward F. Malone (argued), Jeffery D. Colman, Jenner & Block, Chicago, IL, for Petitioner-Appellant.

Arleen C. Anderson, Office of the Attorney General, Michael A. Hurst (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.

Before COFFEY, KANNE, and ILANA DIAMOND ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Francisco Gomez appeals from a district court final order that denied him a writ of habeas corpus. Gomez alleges that he is being held in the custody of the respondent at the East Moline Correctional Center in violation of the Due Process Clause of the Fourteenth Amendment. More specifically, he argues that his conviction in Illinois state court for delivery of a controlled substance was not supported by sufficient evidence to find him guilty beyond a reasonable doubt, as the Due Process Clause requires. We hold that the new § 2254(d) of Title 28 (as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218 (1996)) mandates that federal courts give deferential review to state court decisions on sufficiency of the evidence claims. We find in this case that Gomez has not met the high burden that the AEDPA now requires, and we therefore affirm the District Court's decision not to issue the writ.

I. HISTORY ²

On August 21, 1989, Petitioner Gomez's co-defendant, Arturo Martinez, sold one kilogram of cocaine to an undercover Drug Enforcement Agency (DEA) special agent at the Holiday Inn in Hillsdale, Illinois. Gomez, who is an acquaintance of Martinez, was also present at the hotel at various times with Martinez that night. Gomez was convicted of delivery of a controlled substance in a bench trial in Illinois' Cook County Circuit Court on March 19, 1991. In his habeas petition, however, Gomez protests his innocence of any involvement in the drug transaction.

Martinez and the DEA agent negotiated the drug deal over the phone during the day of August 21, 1989. That evening, the agent called Martinez to say that he was at the hotel and ready to complete the deal. Martinez told the agent that he wanted to count the money before turning over the drugs and that he would have a friend bring the drugs to the hotel only after the money was counted.

Shortly after 9 p.m., a state police officer conducting surveillance at the hotel parking lot witnessed Martinez arrive at the hotel in a Camaro. Martinez went into the hotel to the DEA agent's room where the agent let Martinez count the money. Martinez then said he would page his friend who would bring the cocaine. Martinez made a phone call from the agent's room, but when he did not receive a call back, he told the agent that his friend probably could not return the call without knowing the agent's room number at the hotel. Martinez then left the room saying he was going to page his friend from the hotel lobby. Around 9:40 p.m., a DEA agent stationed in the lobby witnessed Martinez making a phone call. Martinez then went back to the hotel room and told the agent there that the friend would arrive in 20 minutes with the cocaine. Martinez never identified Gomez as the friend.

Approximately 20 minutes later, however, the police officer in the parking lot witnessed Gomez arrive on a motorcycle and then enter the hotel. The agent in the hotel room testified that Gomez knocked on the door at about 10 p.m. and that Martinez left the room to talk with Gomez in the hallway, where the agent observed them through a peephole. (This testimony is somewhat inconsistent with that of the agent in the lobby, who testified that Martinez left the hotel around 10 p.m. and then returned to the hotel room a few minutes later with Gomez.) After talking with Gomez, Martinez came back into the room and told the agent that Martinez would exchange the cocaine outside in the parking lot. The agent, however, refused to move the deal outside. Martinez agreed to do the deal the agent's way, but Martinez and Gomez then left the hotel in Martinez's Camaro at about 10:08 p.m.

Gomez testified at trial that Martinez drove him to a gas station where Martinez made a phone call and then drove Gomez back to the hotel. Gomez denied talking with Martinez or anyone else that night about selling cocaine, and he also denied possessing cocaine at any time that night. Sometime before 11 p.m., the agent in the hotel received a call from Martinez who said that he had the cocaine and would be returning alone in 20 minutes. Both Martinez and Gomez returned to the hotel a little after 11 p.m. The officer stationed in the parking lot observed both of them leave the car and walk around the parking lot for about a minute. Gomez then walked over to the sidewalk while Martinez moved the Camaro a couple of parking spaces over. Martinez got out of the car, opened the hood, and then closed it again. The officer was unable to see what either Gomez or Martinez was doing while the hood was up. Martinez and Gomez then walked side-by-side into the hotel, and Gomez waited in the lobby while Martinez went back to the hotel room. At approximately 11:12 p.m., Martinez entered the room and gave the agent a brown paper bag containing one kilogram of cocaine. Both Martinez and Gomez were then arrested. Neither Martinez nor Gomez was ever seen carrying the cocaine into the hotel, and Gomez's fingerprints were not found on any of the contraband.

Gomez testified at trial that he was at the Hillsdale hotel on August 21 because of a $500 loan he had made to Martinez a week before. Gomez cleared only $350 per week at his job, but he said the $500 loan came from three weeks of vacation pay he received on August 14. Gomez said Martinez called him at around 9 p.m. on August 21 telling him to come to the hotel to get the loan repaid. Gomez testified that he wanted the money as soon as possible because he wanted to leave on a vacation to California with his children. The prosecution stipulated that Gomez had received the vacation pay on August 14, but the prosecution also presented Gomez's prior conviction for possession of a controlled substance as evidence relevant to his credibility.

The state trial judge convicted Gomez, stating that he did not believe Gomez's testimony and that the prosecution had proven that Martinez and Gomez were acting in concert. The trial court sentenced Gomez to 18 years in prison. Gomez appealed to the Appellate Court of Illinois on two issues: 1) whether Martinez's statements were improperly admitted at trial under the coconspirator exception to the hearsay rule, and 2) whether the evidence was sufficient to prove Gomez guilty beyond a reasonable doubt. The Appellate Court rejected both arguments and affirmed the conviction. People v. Gomez, 246 Ill.App.3d 1106, 213 Ill.Dec. 76, 658 N.E.2d 546 (1993). Gomez then petitioned for leave to appeal to the Illinois Supreme Court, but Gomez raised only the hearsay issue and not the sufficiency of the evidence claim. The Illinois Supreme Court denied the petition. People v. Gomez, 152 Ill.2d 567, 190 Ill.Dec. 898, 622 N.E.2d 1215 (1993). Gomez subsequently petitioned for a writ of habeas corpus in the U.S. District Court for the Northern District of Illinois. The District Court rejected the petition, which raised only the sufficiency of the evidence claim. Gomez v. Dobucki, No. 94 C 2161, 1994 WL 621958 (N.D.Ill. Nov.4, 1994). The District Court, however, granted Gomez a certificate of probable cause, thereby allowing Gomez to appeal to this court. ³

II. ANALYSIS

A. Exhaustion and Procedural Default

Before we reach the merits of Gomez's petition, we must first determine whether federal review is barred because either 1) Gomez failed to exhaust state remedies, see 28 U.S.C. § 2254(b); or 2) Gomez's state conviction rests on an independent and adequate state procedural ground, see Coleman v. Thompson, 501 U.S. 722, 729-32, 750, 111 S.Ct. 2546, 2553-55, 2564-65, 115 L.Ed.2d 640 (1991). Although the exhaustion and the procedural default inquiries are closely related, they nonetheless pose distinct questions.

Gomez failed to raise his sufficiency of the evidence claim either in his direct appeal to the Illinois Supreme Court or in any state post-conviction review proceeding. Regarding the exhaustion requirement, the state post-conviction review process technically remains open to Gomez. Gomez's failure to avail himself of that process is not fatal, however, because we have generally not required petitioners to exhaust that option if the effort would be futile. See Cawley v. DeTella, 71 F.3d 691, 694 (7th Cir.1995). On post-conviction review in Illinois, "[D]eterminations of the reviewing court on direct appeal are res judicata as to issues actually decided and issues that could have been raised on direct appeal but were not are waived." People v. Coleman, 168 Ill.2d 509, 214 Ill.Dec. 212, 220, 660 N.E.2d 919, 927 (1995), cert. denied, --- U.S. ----, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996). Thus, regardless of whether one views Gomez's sufficiency of the evidence claim as barred by res judicata (because the Appellate Court of Illinois adjudicated the claim) or by waiver (because Gomez did not raise the claim when petitioning the Illinois Supreme Court for leave to appeal), any attempt by Gomez to seek state post-conviction review would be futile. The exhaustion requirement therefore is satisfied.

The distinction between res judicata and waiver is relevant, however, to whether Gomez procedurally defaulted his sufficiency of the evidence claim. The State asserts that Gomez defaulted the claim by not including it in his petition to the Illinois Supreme Court. Although we have...