U.S. ex rel. Rivera v. Sheriff of Cook County, 97 C 3581.
| Decision Date | 17 February 1998 |
| Docket Number | No. 97 C 3581.,97 C 3581. |
| Citation | 8 F.Supp.2d 763 |
| Parties | UNITED STATES of America ex rel. Edwardo RIVERA, Petitioner, v. SHERIFF OF COOK COUNTY, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Frederick F. Cohn, Chicago, IL, for Petitioner.
Terry L. McDonald, Renee Goldfarb, Cook County State's Attys., Chicago, IL, Romano D. DiBenedetto, Dakoff and DiBenedetto, Niles, IL, for Respondent.
REVISED MEMORANDUM OPINION
Before the court is Edwardo Rivera's petition for a writ of habeas corpus based on the Double Jeopardy Clause. For the reasons explained below, the petition is granted.
On March 30, 1993, Weydowing LaPorte, Jacqueline Vicario and Samuel Ponte were driving home from a movie around midnight when a car pulled up behind them and shone bright lights into their car. The second car then pulled alongside them, and a man with a mustache and goatee fired gun shots into their car, killing LaPorte. One month later, petitioner was arrested and charged with the crime. Petitioner was tried before a judge rather than a jury. The main evidence presented against him was the testimony of Jacqueline Vicario.
At trial, petitioner's attorney elicited testimony from Vicario that indicated the bright light adversely affected her vision during the crime. About 35 days after the crime, Vicario viewed a photographic spread and, that evening, she was shown a line-up. Tr., 38-39. Her testimony also implied that the line-up procedures were suggestive. For example, Vicario identified petitioner out of a line-up in which he was the sole person with a mustache and goatee.
Transcript of the Proceedings, Oct. 5, 1994(Tr.), 39. Vicario also stated that she only picked petitioner out of the line-up after having seen his photograph and having been told that that very person would be in the line-up.
Tr., 38-39. Vicario also admitted at trial that she told private detectives — who she thought were police officers — that she was unsure about the identification she had made.
Q: Well did they, let me ask you this question: Let me ask you what, were these questions put to you and did you give these answers.
Question: `If you were sworn under oath in a Court of law before a judge or jury and they said is this the man who shot [the victim] in front of you, could you positively say it was or absolutely say it was him?'
Answer: `No.'
`Are you sure?'
Answer: `Yes.'
Question: `No way?'
Answer: `No.'
Were those questions and answers put to you?
The other witness in the car stated that the petitioner resembled the assailant, but only offered a tentative identification. See Respondent's Ex. H, at 5. Petitioner testified that he did not commit the crime. On November 10, 1995, the trial judge found petitioner guilty of murder, attempted murder and aggravated discharge of a firearm. He permitted petitioner to remain free on bond until sentencing.
Petitioner filed a motion for a new trial, arguing that Vicario's identification was insufficient evidence on which to convict him. On January 13, 1995, after hearing oral arguments, the trial judge granted the motion for a new trial.
The Court: This being a single witness identification case in essence the law is a single witness must convince the trier of fact beyond a reasonable doubt of that identification.
Next going over the transcripts and listening to arguments the Court is of the opinion that the Court could have made a mistake in this case.
And this being a murder case I am not going to take the chance of my mistake leading this man to be wrongfully convicted.
I am going to grant his motion for me to reconsider. I will vacate the finding of guilt, reinstate his plea of not guilty. And I am going to order that he be back here to stand trial before another Judge in this courtroom on February 6th.
Transcript of the Proceedings, Jan. 13, 1995, 6-7. Petitioner filed a motion for double jeopardy discharge before the new judge, but the motion was denied. Remaining free on bond,1 petitioner appealed that decision. The Illinois Appellate Court affirmed the judgment, and the Illinois Supreme Court denied a Petition for Leave to Appeal.
A federal court may grant a writ of habeas corpus when, under a state court judgment, a person is held in custody in violation of the United States Constitution. 28 U.S.C. § 2254 (1996); Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.1996). Before a federal court will consider the merits of a habeas petition, the applicant must exhaust the remedies available to him in state court. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Jones v. Washington, 15 F.3d 671, 674 (7th Cir.1994). The applicant also must fairly present any federal claims in state court first, or risk procedural default. Verdin v. O'Leary, 972 F.2d 1467, 1472-73 (7th Cir.1992).
Under the federal habeas statute, a State court's findings of fact are presumptively correct. 28 U.S.C. § 2254(e)(1).2 A petitioner may challenge them, but the facts are rebutted only by clear and convincing evidence. Id. As to legal issues, this court may grant a writ of habeas corpus only when the lower court's holding is "contrary to" or an "unreasonable application of" United States Supreme Court precedent. 28 U.S.C. § 2254(d)(1) & (2).3
Petitioner argues that the second trial subjected him to double jeopardy and thus, violated his rights under the Fifth and Fourteenth Amendments. See U.S. Const. amend. v. & XIV. He relies on Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), for the proposition that when a trial court grants a motion for a new trial on the basis that there may be reasonable doubt of the defendant's guilt, the Double Jeopardy Clause mandates that the defendant cannot be retried. It is undisputed that petitioner has exhausted his state court remedies.
Respondent argues that the Double Jeopardy Clause does not bar retrial because the trial judge's order was not an acquittal. First, the judge may have ordered the new trial in order to correct procedural errors that occurred during the first trial. For example, in petitioner's written motion for a new trial, he argued that the evidence was insufficient to sustain a conviction, that hearsay testimony was erroneously admitted, and that admission of other evidence denied him due process. If trial errors were the basis for ordering the new trial, the Double Jeopardy Clause does not bar retrial. See Tibbs v. Florida, 457 U.S. 31, 40, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) ().
Petitioner replies that the only issue he orally argued before the trial court was whether the evidence, in particular Vicario's hesitant identification of petitioner, was sufficient to sustain his conviction. Transcripts of the proceeding support this contention. See Respondent's Ex. H. The trial judge's statement, made immediately following oral arguments, referred only to the sole witness testimony and the need to be convinced of the identification beyond a reasonable doubt. The judge stated that he had reviewed the transcripts — a fact that suggests evidentiary review — and considered the oral arguments. At that point, he expressed his concern that he had made an error and that petitioner could have been "wrongfully convicted." Petitioner argues that the phrase "wrongful conviction," implies innocence, not a case where proof of guilt had been sufficient but a new trial was necessary because of trial defects. At no time did the judge even suggest that a trial error was the reason for granting the new trial. We find clear from the record that the judge vacated the conviction because, in light of the evidence, he was not convinced beyond a reasonable doubt of petitioner's guilt.
Respondent next argues that even if the judge was unconvinced by the evidence, that does not necessarily signify an acquittal barring retrial under the Double Jeopardy Clause. Relying heavily on Tibbs v. Florida, respondent says there is a distinction between ordering a new trial because the evidence is insufficient to convict and ordering a new trial because the weight of the evidence is unconvincing to the judge. In the former case, the Double Jeopardy Clause precludes retrial because it means that no reasonable fact finder could have voted to convict the defendant. Hudson, 450 U.S. at 44-45, 101 S.Ct. 970 (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)) see also Tibbs, 457 U.S. at 40-41, 102 S.Ct. 2211. Such a finding has the force of an acquittal.4
However, the result is different when the judge grants a new trial because he personally weighs the evidence,...
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