Regina and Margaret DeFrancisco were two
teenage girls who made national headlines for the high-profile
Chicago, Illinois murder of Oscar Velazquez, Regina's boyfriend, in
June of 2000. The two women allegedly lured Velazquez to their Pilsen
home, where he was shot to death and his body was wrapped in a tarp
and set on fire.
Following the murder, the two teenagers gained
national notoriety when they became fugitives from justice, although
they were separately apprehended in 2002 after their story was
broadcasted on Unsolved Mysteries and America's Most Wanted. They were
each convicted of first-degree murder in 2004.
On June 6, 2000, Regina DeFrancisco called her
boyfriend of three weeks, 22 year-old Oscar Velazquez, to her home.
The sisters' friend Veronica Garcia was also at their home. According
to Garcia, she had given Margaret her boyfriend's gun, a .38 caliber
semi-automatic pistol, believing that the gun was to be used for armed
robbery. Margaret reportedly used the gun to shoot Oscar Velazquez
once in the back of the head, instantly killing him.
Following the murder, Regina and Margaret
reportedly robbed the victim, Oscar Velazquez, of $600. After that,
the sisters drove Oscar's body in his Camaro Z28 to a vacant lot,
where Regina used nail polish remover which was used to ignite his
body. An anonymous caller phoned 911 to report the fire, and after
finding Oscar Velazquez's body in the fire, he called 911 again.
The sisters tried to sell the Camaro, but were
unsuccessful, so they abandoned the vehicle and set it on fire.
Regina and Margaret were immediately questioned by police as suspects
in the murder of Oscar Velazquez, but their stories did not match up.
Before the sisters could be arrested for murder, both fled from the
After almost two years spent evading police,
Margaret DeFrancisco was captured in Rockford, Illinois on March 24,
2002. An anonymous tip following a broadcast of America's Most Wanted
led to her capture at an apartment complex where she was staying with
relatives. She was arrested for and charged with the murder of Oscar
Velazquez and for unlawful flight to avoid prosecution.
On October 18, 2002, Regina DeFrancisco was
arrested in Dallas, Texas. Chicago FBI reported that she was taken
into police custody following a traffic stop and high-speed chase.
Like her sister Margaret, she was charged with murder and unlawful
flight to avoid prosecution. She was later extradited to Illinois to
stand trial for the crimes.
Regina and Margaret DeFrancisco's trial began in
July 2004. The women pled not guilty by reason of self-defense.
Veronica Garcia was the star witness for the sisters' prosecution; she
had cut a deal with prosecutors, pleading guilty to the lesser change
of concealment of a homicide in exchange for a short prison sentence
and her testimony. On the witness stand, Garcia claimed to have had no
foreknowledge of the murder, and claimed that she provided her
boyfriend's gun to the sisters, which she believed would be used in a
robbery. Garcia maintained that she did not see Margaret DeFrancisco
kill Oscar Velazquez, and testified that Velazquez was apparently
armed, although neither the murder weapon nor Velazquez's weapon were
Garcia's testimony was corroborated by prosecution
witnesses Jessica Benitez, Luciana Macias, and Maria Constantino.
Benitez testified that both sisters confessed to having killed Oscar
Velazquez, and that Margaret had kicked the victim in the head "so he
could die faster". Constantino testified that she saw Regina,
Margaret, and Veronica Garcia loading Oscar Velazquez's body in the
back of his Camaro, and stated that Regina had confessed to
orchestrating the crime.
On July 7, 2004, Margaret DeFrancisco was called to
the witness stand. She maintained that she killed her sister's
boyfriend in self-defense. She stated how Velazquez was angry because
the sisters had tricked him out of $1,000, and that she shot him to
protect Regina. Although Margaret also claimed that she did not
remember the actual shooting. She also testified that she did not tell
the initial officer's the truth because "We would've got in trouble"
and ""If I told the truth, I would've been there longer".
Regina DeFrancisco also took the stand at her
trial. She stated that after coming out of her bedroom, Velazquez was
in the living room shouting and cursing at her. She claimed that
Velazquez pulled a gun on her, and that she was curled up in the fetal
position begging for her life. She then stated that she heard a
gunshot before seeing Margaret holding a gun. Lastly, Regina testified
that it had been Veronica Garcia's idea to dispose of Velazquez's
After six-and-a-half hours of jury deliberations,
Regina DeFrancisco was found guilty of murder during an armed robbery.
However, Margaret DeFrancisco's jury was unable to convict her.
Reportedly, there was an 11 to 1 deadlock in favor of conviction, but
one juror held out for acquittal. The alleged reason was that the
juror could not believe how someone so young could commit murder. One
day after Regina's conviction, Margaret was released from custody on
bail to await retrial.
The re-trial of Margaret DeFrancisco began in
November 2004, four months after her first trial. In a repeat of
Margaret's first trial, Veronica Garcia testified for the prosecution,
giving the same testimony. However, after this trial, Margaret
DeFrancisco was convicted of first-degree murder.
On September 9, 2004, Regina DeFrancisco was
sentenced to 35 years in prison. On December 14, 2004, Margaret
DeFrancisco was sentenced to 46 years in prison. Both women are
incarcerated at the Dwight Correctional Center. Each has filed
appeals, but all have been unsuccessful.
For her role in the murder, Veronica Garcia was
sentenced to 5 years. She served her time and was released.
Sister convicted of murder must serve 46 years
By Jeff Coen - ChicagoTribune.com
December 15, 2004
A Cook County
judge spared Margaret DeFrancisco certain death behind bars Tuesday
for a 2000 slaying but imposed a sentence that ensures she would be a
senior citizen if she ever leaves prison.
Schreier sentenced DeFrancisco, 20, to 46 years in the Illinois
Department of Corrections for the murder of Oscar Velazquez, a man who
had dated her sister. She must serve the entire sentence.
her sister, Regina, were convicted earlier this year in separate
trials for the shooting death of Velazquez, a local truck driver the
pair robbed and whose body they tried to burn with nail-polish
DeFrancisco was sentenced to 35 years in prison by Schreier in
September. Margaret DeFrancisco was eligible for between 45 years and
life in prison as the shooter in the case.
Her lawyer, Ed
Genson, had argued that the shooting was a terrible choice Margaret
made as a 16-year-old.
The pair lured
Velazquez to their Pilsen home and shot him in the basement. Defense
lawyers had argued the shooting was in self-defense.
"This is one day
in a little girl's life," Genson said, as his client wiped tears from
her eyes. He had urged Schreier to allow DeFrancisco, who worked as a
nurse's assistant, to have time with her young child, a girl "she will
have to leave now for her entire adult life."
veteran of the Criminal Courts Building, called the DeFrancisco
"I have never
from beginning to end come across a stranger murder case," the judge
said. "A rather simple, amateurish plan but a professional execution.
A single, mortal shot to the back of the unsuspecting victim's head in
her own basement."
remains were then dumped and set ablaze as if he were something less
than a human being, the judge said.
possibly possessed her or influenced her to be of the mind to end a
life and desecrate the body afterward?" Schreier asked. "We'll never
The pair fled
Chicago after the killing, and their case was featured on the
"America's Most Wanted" television show. Margaret DeFrancisco carved a
tattoo from her abdomen to avoid being recognized.
State's Atty. Fabio Valentini called the slaying an "unspeakable act"
Tuesday, saying the sisters plotted the crime and carried it out
A statement from
the victim's mother, Maria Rios Velazquez, described how her family
was decimated by his death.
1 jury finds sister guilty of murder
By Jeff Coen - ChicagoTribune.com
July 9, 2004
A Cook County
jury late Thursday found one of two sisters guilty of first-degree
murder in the killing of one of their boyfriends after a trial in
which the prosecutors portrayed the young women as lying murderers and
their lawyers called them irrational teenagers.
The verdict in
the case of Regina DeFrancisco came after 6 1/2 hours of deliberation.
DeFrancisco, who could get life
in prison, showed no emotion when the verdict was read, but her
sister, Margaret DeFrancisco, burst into tears and had to be led out
of the courtroom by sheriff's deputies.
"All I can say
is I'm not happy with the verdict, and we'll go forward to an appeal,"
said John DeLeon, Regina DeFrancisco's lawyer.
The jury in the
case against Margaret DeFrancisco, which has not yet reached a
verdict, was to resume deliberating on Friday.
Regina DeFrancisco were accused of luring Oscar Velazquez, 22, to
their home in the 700 block of West 21st Street to rob him on June 6,
2000, shooting him in the head and disposing of the body. At the time
Margaret was 16, and her sister was 17.
nail-polish remover to set the body on fire in a vacant lot, the
prosecution said. Both eventually fled the Chicago area and later were
seen on the "America's Most Wanted" TV show. They now say Velazquez
pointed a gun at Regina first and was shot by Margaret to save her.
DeFrancisco's jury began deliberating Thursday at 3:45 p.m. and her
sister's jury at 7:30 p.m.
sequestered by Circuit Judge James Schreier, the jurors in the case
against Margaret DeFrancisco were to return to the Criminal Courts
Building Friday morning.
the victim was a "patsy" unwittingly conned by the sisters, who were
bent on taking him for whatever money they could. They plotted the
killing, putting plastic on the floor of their basement and shooting
Velazquez when he was standing on it, prosecutors said.
attorneys said Velazquez was upset about giving the girls $1,000 when
they falsely told him they needed bail money, and he was shot to save
testified during the weeklong trial. On Wednesday, Margaret
DeFrancisco calmly described how she fired the fatal shot at
Velazquez, saying he had aimed a gun at her sister. Regina DeFrancisco
took the stand Thursday and sparred with Assistant State's Atty. Cathy
Sanders in combative testimony.
DeFrancisco said she agreed to help hide the body and then ran away to
Texas because she thought her sister Margaret "was going to go to jail
DeFrancisco appeared to be agitated when Sanders pressed her on
details of what happened and why she fled if her story were true.
"I was going to
run away forever so Margaret wouldn't go to jail forever," she told
Sanders, then, reacting to the questioning, said "God, you're evil."
DeFrancisco testified about removing Velazquez's silver chain, saying
it was taken so the body could not be identified. Sanders asked if she
saw that Velazquez had been shot in the head when she unhooked the
"I wasn't trying
to look, ma'am," DeFrancisco said.
DeFrancisco's lawyer, acknowledged his client's demeanor on the stand.
"This isn't a
trial about whether or not my client was a little snippy," DeLeon
said, adding that prosecutors "did not shake her story."
DeFrancisco is not a cold-blooded murderer, he said. "No one plans a
robbery in their own basement," DeLeon argued.
the final argument in Regina's case, saying it was laughable to call
the defendant's hostile testimony "snippy."
"Thank God we
were here in [court] and not in a basement with plastic on the floor,"
Sanders said. "I wouldn't turn my back on her."
Sanders said it
defies logic to think the shooting would be in self-defense and Regina
DeFrancisco would flee to Texas.
Margaret DeFrancisco, defense lawyer Ed Genson called the pair "little
The case was a
tragedy, and they reacted badly, Genson said.
He urged jurors
to separate themselves from what he called "stupid" attempts to hide
the body and consider whether there was enough evidence to show that
an armed robbery had been planned. The prosecution based that
allegation on the testimony of witness Veronica Garcia, who was with
the sisters during the shooting but testified against them in exchange
for a 5-year prison term on a charge of concealing a homicide.
that Garcia never used the word "rob" to describe what happened; she
testified that Margaret wanted a gun to scare Velazquez.
The sisters were
teens who didn't act like police or prosecutors wanted them to act,
saying they panicked after the self-defense shooting, Genson said.
Velazquez did arrive at the sisters' home with a gun, and both sides
agree he had a dispute with Regina over $1,000 the sisters had tricked
him out of
State's Atty. Fabio Valentini said Margaret DeFranscisco's story was
built on lies and her defense has changed over the years.
UNITED STATES 1DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
United States ex rel Defrancisco
EX REL. REGINA DEFRANCISCO, PETITIONER,
MARY SIGLER, WARDEN, DWIGHT CORRECTIONAL CENTER RESPONDENT.
March 17, 2010
The opinion of the court was delivered by:
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Regina DeFrancisco's
("DeFrancisco") petition for a writ of habeas corpus pursuant to 28
U.S.C. Section 2254(d)(1). DeFrancisco has also moved to amend her
petition to add further grounds for federal habeas relief and to stay
this case pending resolution of state court proceedings. For the
following reasons, the Court denies DeFrancisco's (1) Motion to Amend,
(2) Motion to Stay, and (3) habeas petition.
The Court adopts the underlying facts set forth by
the Illinois Appellate Court in People v. Defrancisco, No. 1-04-2777
(Ill. App. Ct. 2006) (affirming jury trial verdict against petitioner
on direct appeal) because DeFrancisco does not present clear and
convincing evidence challenging those facts. See 28 U.S.C. §
2254(e)(1); see also Virsnieks v. Smith, 521 F.3d 707, 714 (7th
I. Factual Background
A jury convicted DeFrancisco of felony murder
predicated on armed robbery for the killing of Oscar Velasquez and she
was sentenced to thirty-five years of imprisonment. (R. 21, Ex A at
C6-7). It all began in June, 2000, when, after going on a date with
Oscar, DeFrancisco falsely informed him that she was going to jail.
(R. 21, Ex B at 10). At DeFrancisco's instruction, her sister Margaret
DeFrancisco ("Margaret") told Oscar that she needed $1,000 to bail out
DeFrancisco. (R. 21, Ex B at 6). After Oscar loaned Margaret the
money, he discovered the sisters had been lying and called repeatedly
demanding the return of his $1,000. (R. 21, Ex B at 10). The evidence
at trial showed that Oscar made 24 phone calls to DeFrancisco's
residence between May 30, 2000 and June 4, 2000. (R. 21, Ex B at 12).
On June 6, 2000, Margaret called Veronica Garcia
("Veronica") and asked to borrow a gun.
((R. 21, Ex B at 6). Veronica agreed, and she
brought the gun to DeFrancisco's family residence where Margaret and
DeFrancisco were discussing how to get more money from Oscar. (R. 21,
Ex B at 6, 10). At trial, DeFrancisco testified that she never told
anyone she intended, or planned, to rob or kill Oscar. (R. 21, Ex B at
11, 12). Oscar's phone records, which were admitted into evidence at
trial, showed that a call was made from DeFrancisco's phone to Oscar's
phone on June 6, 2000, at 7:06 p.m. (R. 21, Ex B at 8). Shortly
thereafter, Oscar arrived at DeFrancisco's residence and Margaret
greeted him while DeFrancisco waited in the basement. (R. 21, Ex B at
6). Margaret asked if anyone knew he was there, and Oscar replied that
nobody did. (R. 21, Ex B at 6, 8). Oscar proceeded downstairs to see
DeFrancisco, and Margaret followed with the gun concealed behind her
back. (R. 21, Ex B at 6). Veronica testified that she heard a gunshot,
saw Margaret ascend the stairs with the gun and saw Oscar on the
basement floor bleeding from his ears. (R. 21, Ex B at 7).
DeFrancisco and Margaret took Oscar's cell phone,
keys, gun, chain, and wallet, containing at least $600. (R. 21, Ex B
at 8, 9). Margaret and DeFrancisco split the money and later tried to
sell both Oscar's car and his gun. (R. 21, Ex B at 8, 11).
At trial, DeFrancisco testified. She stated that
(1) she had come out of her bedroom to find Oscar in the living room,
(2) Oscar followed her downstairs and began screaming and cursing at
her, and (3) he pulled out a gun. (R. 21, Ex B at 10-11). DeFrancisco
further testified that she curled up on the floor and begged Oscar not
to kill her before hearing a gunshot and looking up to see Margaret
holding a gun and Veronica at her side. (R. 21, Ex B at 11).
DeFrancisco testified that Veronica urged them to get rid of Oscar's
body and any identification, so they wrapped his body in clear plastic
and a comforter, carried it to his white Camaro, and disposed of it in
an alley in Veronica's neighborhood. (R. 21, Ex B at 11). After
receiving a report of a body on fire, Chicago Police Detective Timothy
O'Meara ("O'Meara"), an expert in fire investigations, examined the
body which was later identified as Oscar Velasquez. (R. 21, Ex B at
3). O'Meara concluded that a flammable liquid had been applied to the
body before it was burned, and he found an empty bottle of nail polish
remover in the vicinity. (R. 21, Ex B at 3). Dr. Albert Fusaro
conducted an autopsy on Oscar's body and concluded that Oscar had died
as a result of a gunshot wound and the burning occurred post-mortem.
(R. 21, Ex B at 3).
Jessica Tellez Benitez ("Jessica") testified that
on June 7, 2000, she went to DeFrancisco's residence where there was a
big stain near the door that looked like blood, and that DeFrancisco
was mopping the basement stairs. (R. 21, Ex B at 8). Jessica asked
about the stain and DeFrancisco said "we killed a guy." (R. 21, Ex B
at 8). DeFrancisco told Jessica that they had called Oscar over to
return the $1,000 he loaned them, but they never intended to return
it. (R. 21, Ex B at 8).
DeFrancisco further stated that they put plastic
down in the basement where Oscar was shot before he arrived. (R. 21,
Ex B at 8). Jessica testified that DeFrancisco had recounted being
surprised to find Oscar carrying a gun because he was not a violent
person. (R. 21, Ex B at 9). Jessica testified that DeFrancisco and
Margaret split the $600 in Oscar's wallet. (R. 21, Ex B at 9).
DeFrancisco admitted talking to Jessica but testified she had not said
anything to Jessica about a plan to rob or kill Oscar. (R. 21, Ex B at
Maria Constantino ("Maria"), a neighbor who lived
upstairs from DeFrancisco's residence, testified that she saw
DeFrancisco, Margaret, and another girl load a large plastic-wrapped
object into a white Camaro on June 6, 2000. (R. 21, Ex B at 5). Maria
further testified that about a week after seeing this incident
DeFrancisco came to her door crying and said "we killed him." (R. 21,
Ex B at 5). DeFrancisco described to Maria how Margaret shot Oscar
from behind when he stepped on some plastic and how the three girls
dumped the body and burned it. (R. 21, Ex B at 5). DeFrancisco told
Maria that they did it for the money, about $600. (R. 21, Ex B at 5).
DeFrancisco was ultimately arrested on October 17, 2002, after a high
speed police chase. (R. 21, Ex B at 12).
II. Procedural Background
On July 8, 2004, a jury in the Circuit Court of
Cook County convicted DeFrancisco of felony murder predicated on armed
robbery. (R. 21, Ex A at C6). On September 9, 2004, the trial judge
sentenced DeFrancisco to 35 years of imprisonment. (R. 21, Ex B at
C7). On direct appeal to the Illinois Appellate Court, DeFrancisco
argued that: (1) trial counsel was ineffective (a) for failing to
request jury instructions on self-defense and theft, a lesser included
offense of felony murder predicated on armed robbery, and (b) for
failing to request that the trial court ask the jury for clarification
regarding its specific source of confusion with respect to armed
robbery; (2) the trial court abused its discretion in allowing the
State to dismiss the intentional and knowing murder charges after the
defense rested; (3) the trial court committed prejudicial error in
allowing admission of gruesome photographs of the deceased victim; and
(4) pervasive prosecutorial misconduct occurred. (R. 21, Ex C at 1).
The appellate court rejected each of DeFrancisco's
arguments and affirmed her conviction and sentence. (R. 21, Ex B at
2). The appellate found that under the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), trial counsel
was within her discretion on all counts. (R. 21, Ex B at 13-20). The
appellate court found that a jury instruction on self defense was not
necessary because under Illinois law self-defense is not defense in
felony-murder. (R. 21, Ex B at 17). The appellate court did not
address the viability of an ineffective counsel claim with respect to
the jury instructions on the lesser-included offense of theft because
the question was not of record and had to be raised in a collateral
proceeding. (R. 21, Ex B at 17-18). The appellate court analyzed
DeFrancisco's ineffective counsel claim for failure to clarify the
jury's confusion with respect to armed robbery under the standard set
forth by the Illinois Supreme Court in People v. Childs, 159 Ill. 2d
217, 228-229. The appellate court rejected this claim because there
was nothing in the record to suggest that the jury's question about
armed robbery was not answered. (R. 21, Ex B at 19-20). The appellate
court found the trial court had not abused its discretion in allowing
the State to nol-pros the intentional and knowing murder charges
citing previous cases finding that a defendant suffered no prejudice
having intentional and knowing murder charges dismissed after jury
instructions, leaving only felony murder. (R. 21, Ex B at 21-23). The
court noted that DeFrancisco had testified in her defense that she did
not intend or plan to rob Oscar, which would have been a defense to
felony murder if the jury had believed her. (R. 21, Ex B at 23).
The appellate court found the trial court within
its discretion in allowing the jury to view photographs of Oscar's
body, which were admitted to prove the nature and extent of his
(R. 21, Ex B at 24). Lastly, the court rejected
DeFrancisco's claim that pervasive prosecutorial misconduct occurred,
finding that the trial court's instructions to the jury and rulings on
objections were sufficient to cure any error caused by the State's
comments during the trial. (R. 21, Ex B at 29). DeFrancisco filed a
petition for leave to appeal (PLA) to the Illinois Supreme Court,
raising only the claim that her rights to due process and to present a
defense were violated when the trial court allowed the State to nolle
presequi the intentional and knowing murder charges. (R. 21, Ex. F at
10-16). On September 27, 2006, the Illinois Supreme Court denied the
PLA. (R. 21, Ex. G at 1). DeFrancisco filed a petition for writ of
certiorari in the United State Supreme Court that was denied on
October 1, 2007. (R. 21, Ex H at 1).
DeFrancisco filed a pro se post-conviction petition
in the Circuit Court of Cook County on September 7, 2007 claiming: (1)
ineffective counsel on numerous grounds, (2) the trial court abused
its discretion in allowing admission of gruesome photographs, (3) the
State engaged in prosecutorial misconduct, and (4) appellate counsel
was ineffective. (R. 21, Ex I). The trial court denied the
post-conviction petition on November 30, 2007. See Pet. (Doc. 8) at 3.
After failing to file a timely appeal, on June 10, 2008 DeFrancisco
filed a motion in the state appellate court for leave to file a late
notice of appeal, stating she had not received notice of the trial
court's ruling until May 23, 2008. (R. 21, Ex J). The appellate court
denied DeFrancisco's motion. (R. 21, Ex K at 1).
DeFrancisco then sought leave to file a late PLA in
the Illinois Supreme Court, which the court denied on January 27,
2009. (R. 21, Ex. M).
DeFrancisco concurrently filed a mandamus complaint
in the state trial court alleging that she did not receive timely
notice that her post-conviction petition had been denied and seeking
to compel the clerk of the court to show proof of notice. (R. 21, Ex.
N). The trial court denied DeFrancisco's mandamus complaint on
September 17, 2008. (R. 21, Ex. O). DeFrancisco also filed a petition
for relief from judgment pursuant to 735 ILCS 5/2-1401 on December 8,
2008, alleging that three of the witnesses who testified for the State
gave false testimony after police detectives threatened them. (R. 21,
Ex. P). The trial court denied the petition on December 15, 2008 and
DeFrancisco filed a timely notice of appeal. (R. 21, Ex. R).
On November 10, 2008, DeFrancisco filed the present
petition for a writ of habeas corpus in this Court pursuant to 28
U.S.C. § 2254, asserting the following claims: (1) the trial court
abused its discretion in (a) allowing the State to introduce gruesome
photographs depicting the victim's burned body, (b) denying the
admission of Veronica Garcia's taped confession; (2) appellate counsel
was ineffective for failing to argue that DeFrancisco's sentence was
inappropriate because she was sentenced to thirty-five years despite
her lack of prior criminal convictions, while her co-defendant, the
"trigger-man" was only sentenced to twenty-one years; (3) the State
engaged in prosecutorial misconduct by (a) eliciting gang evidence,
(b) waiting until the close of evidence to nolle prosequi the knowing
and intentional murder charges, and (c) making improper comments at
trial; and (4) ineffective assistance of counsel. (R. 8 at 10-11).
DeFrancisco alleges ineffective assistance of
counsel on five separate grounds: (1) failing to request a jury
instruction on self-defense and theft; (2) failing to request that the
trial court ask the jury to clarify the specific source of its
confusion regarding the armed robbery charge and failing to provide
them with an adequate response; (3) failing to object to the State's
decision to nolle prosequi the intentional and knowing murder charges
after the defense rested its case; and (4) failing to obtain Oscar's
criminal background. (R. 8 at 11-14).
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA") provides that habeas relief cannot be granted unless
the state court's decision was contrary to, or an unreasonable
application of, federal law clearly established by the Supreme Court.
See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362,
403 (2000). Under the "contrary to" prong of this standard, a habeas
petitioner must show that "the state court confront[ed] facts that are
materially indistinguishable from a relevant Supreme Court precedent
and arrive[d] at a result opposite [to the Court's]." Williams, 529
U.S. at 405. Under the "unreasonable application" prong, a habeas
petitioner must show that although the state court identified the
correct legal rule, it unreasonably applied the controlling law to the
facts of the case. See id. at 407. "This reasonableness determination
is quite deferential, such that a state decision may stand as long as
it is objectively reasonable, even if the reviewing court determines
it to be substantively incorrect." Barrow v. Uchtman, 398 F.3d 597,
602 (7th Cir. 2005); see also Williams, 529 U.S. at 410 (an
unreasonable application of federal law is different from an incorrect
application of federal law) (emphasis in original). A state court's
decision must lie "well outside the boundaries of permissible
differences of opinion" to be found objectively unreasonable. Watson
v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009) (citation
omitted); see also Simpson v. Battaglia, 458 F.3d 585, 592 (7th
Cir. 2006) (to be reasonable, a state court's decision must be "at
least minimally consistent with the facts and circumstances of the
I. Exhaustion and Procedural Default
Before bringing a habeas claim in federal court, a
petitioner must exhaust all remedies available to him in state court.
See Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009). "Where
state remedies remain available to a habeas petitioner who has not
fairly presented his constitutional claim to the state courts, the
exhaustion doctrine precludes a federal court from granting relief on
that claim." Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004).
Moreover, a "habeas petitioner who has exhausted
his state court remedies without properly asserting his federal claim
at each level of state court review has procedurally defaulted that
claim." Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004); see
also Crockett v. Hulick, 542 F.3d 1183, 1192 ( 7th Cir. 2008).
Procedural default prevents a federal habeas court from considering
the merits of a claim where: "(1) that claim was presented to the
state courts and the state-court ruling against the petitioner rests
on adequate and independent state-law procedural grounds, or (2) the
claim was not presented to the state courts and it is clear that those
courts would now hold the claim procedurally barred." Perruquet, 390
F.3d at 514. To avoid the latter type of default, a petitioner must
invoke "one complete round of the state's established appellate review
process" by presenting claims both to the Illinois Appellate Court and
to the Illinois Supreme Court. See O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). Here, DeFrancisco has only brought one claim from
her direct appeal through a complete round of the Illinois review
process -- the claim that the trial court erred in allowing the State
to drop the intentional and knowing murder charges at the close of the
defense's case. (R. 23, Ex. F). All of DeFrancisco's other claims
raised in the present petition are procedurally defaulted: the
remaining claims on direct appeal were not included in her PLA and she
failed to timely appeal the denial of her post-conviction petition.
II. Excusing Procedural Default
This Court may still hear DeFrancisco's
procedurally defaulted claims if she can demonstrate both cause for
and prejudice resulting from the procedural default, or that a
fundamental miscarriage of justice would occur if this Court refused
to hear her claims because she is actually innocent. See House v.
Bell, 547 U.S. 518, 536 (2006).
a. Cause and Prejudice
A petitioner can demonstrate cause sufficient to
excuse a procedural default by identifying "some objective factor
external to the defense [that] impeded counsel's efforts to comply
with the State's procedural rule." Murray v. Carrier, 477 U.S. 478,
488 (1986). To establish prejudice, a petitioner "must shoulder the
burden of showing, not merely that the errors at [her] trial created a
possibility of prejudice, but that they worked to [her] actual and
substantial disadvantage, infecting [her] entire trial with error of
constitutional dimensions." See Perruquet v. Briley, 390 F.3d 505, 515
(7th Cir. 2004) (emphasis in original).
DeFrancisco only included in her PLA from the
direct appeal of her conviction the claim that the trial court abused
its discretion in allowing the State to nolle pros the intentional and
knowing murder charges. DeFrancisco argues that ineffective appellate
counsel is cause sufficient to excuse her procedural default of her
other claims raised on direct appeal. (R. 24 at 3). In certain
circumstances, ineffective assistance of counsel resulting in
counsel's failure to preserve issues for review can constitute cause
to excuse procedural default. See Murray, 477 U.S. at 488-89. Such
claims of ineffective assistance of counsel, however, must be
adequately presented to the state courts before they may be used to
establish cause for procedural default. See id.
Here, DeFrancisco's claim of ineffective assistance
of appellate counsel cannot serve as a cause that excuses her
procedural defaults because she did not properly present her claims
for ineffective assistance of appellate counsel before the state
courts. In DeFrancisco's post-conviction petition, filed almost a year
after the Illinois Supreme Court denied her PLA, she included a claim
that appellate counsel was ineffective for failing to argue on appeal
that co-defendant, the actual shooter, was only sentenced to
twenty-one years while DeFrancisco was sentenced to thirty-five years.
(R. 21, Ex. I at ) DeFrancisco failed to include any claim in this
post-conviction petition with respect to appellate counsel's PLA to
the Supreme Court. Thus, DeFrancisco's claim of ineffective appellate
counsel is itself procedurally defaulted and cannot serve as cause to
excuse her other procedurally defaulted claims. See Smith v. Gaetz,
565 F.3d 346, 352 (7th Cir. 2009) (finding that petitioner could
not raise ineffective assistance of appellate counsel as "cause"
excusing other procedural defaults when that claim itself was
b. Actual Innocence
A petitioner may also overcome procedural default
if declining to hear her claims would result in a fundamental
miscarriage of justice. See Schulp v. Delo, 513 U.S. 298, 327-329
(1995). This exception to procedural default is limited to the
extremely rare and "extraordinary case where a constitutional
violation has probably resulted in the conviction of one who is
actually innocent." Id. at 321. To meet this high standard, a
petitioner must present "new reliable evidence-whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence-that was not presented at trial." Id. at
324. A petitioner must demonstrate actual innocence so convincingly
that no reasonable jury could convict, which requires "documentary,
biological (DNA), or other powerful evidence: perhaps some
non-relative who placed him out of the city, with credit card slips,
photographs, and phone logs to back up the claim." Hayes v. Battaglia,
403 F.3d 935, 938 (7th Cir. 2005). This type of powerful
evidence is rarely available, and the vast majority of actual
innocence claims are not successful. See Schulp, 513 U.S. at 324.
DeFrancisco presents limited additional evidence: two affidavits and
part of her trial transcript that attempt to show that detectives
threatened Luciana Macias, Veronica Garcia and Jessica Tellez into
giving testimony unfavorable to DeFrancisco (R. 22 at 2, 7-11). The
testimonial evidence introduced by DeFrancisco does not meet the high
standard for this narrow exception to procedural default. DeFrancisco
has failed to present new reliable evidence of her actual innocence,
and the Court will not consider her procedurally defaulted claims. See
Schulp, 513 U.S. at 327-329.
III. Preserved Ground
DeFrancisco's only preserved ground for relief is
her contention that the trial court erred in allowing the State to
drop intentional and knowing murder charges at the close of defense's
case. This ground for relief was presented through a complete round of
state court review. (R. 22, Ex. G). Respondent, however, asserts that
this claim too is procedurally defaulted because DeFrancisco presented
it in state law, and not federal law terms in state court. (R. 20 at
14). If DeFrancisco had presented the issue in state law terms it
would be non-cognizable on federal habeas review. See Estelle v.
McGuire, 502 U.S. 62, 68 (1991); McCloud v. Deppisch, 409 F.3d 869,
874 (7th Cir. 2005). The Court need not address this distinction,
however, because DeFrancisco's claim is without merit.
The Illinois appellate court rejected this claim
for relief on the merits in a decision that was not contrary to or an
unreasonable application of federal law. See Williams, 529 U.S. at
(R. 22, Ex. B at 20-23). Petitioner has failed to
present any Supreme Court case that challenges the broad discretion
that a trial court has to dismiss charges. This Court recognizes the
"unique difficulties encountered by pro se inmate litigants and [is]
well aware of a court's obligation to liberally construe" this
petition. Jones v. Hamelman, 869 F.2d 1023, 1026 (7th Cir.
1989). However, DeFrancisco faces a high burden of showing that the
state appellate court was not only incorrect in its application of
federal law, but objectively unreasonable. See Yarborough v. Gentry,
540 U.S. 1, 5 (2003).
Here, DeFrancisco had notice of the felony murder
predicated on armed robbery charge, and her own testimony at trial, if
believed, would have provided a defense against the charge. The
appellate court noted that "[i]f the jury had believed that [DeFrancisco]
and Margaret did not plan or intend to rob Oscar . . . then the jury
would have been required to find [DeFrancisco] not guilty of felony
murder based on armed robbery." (R. 21, Ex. B at 22-23). The appellate
court came to the sound conclusion that DeFrancisco, who testified on
her own behalf that she did not intend to rob or kill Oscar, was not
prejudiced by the State's nol-prossing of the intentional and knowing
murder charges after the defense rested. (R. 22, Ex. B at 20-23).
Because the appellate court's rejection of this claim was neither
contrary to nor an unreasonable application of clearly established
federal law under § 2254(d)(1), DeFrancisco is not entitled to federal
habeas relief on this claim.
IV. Motion to Stay
DeFrancisco also moves the Court to stay her habeas
proceedings. It is within the Court's discretion to stay a mixed
habeas petition and hold it in abeyance while a petitioner exhausts
state claims. Rhines v. Weber, 544 U.S. 269, 277 (2005).
However, "if employed too frequently, [abeyance] has the potential to
undermine" the purposes of the AEDPA to reduce delays in the execution
of sentences, encourage petitioners to initially seek collateral state
court relief, and incentivize petitioners to exhaust all their claims
in state court before filing their federal petition. Rhines at 277. In
Rhines, the Court held that district courts should only use stay and
abeyance where: (1) there is good cause for the petitioner's failure
to exhaust state claims; (2) the unexhausted claims are not plainly
meritless; and (3) the petitioner has not engaged in dilatory
litigation tactics. Id. at 277-78. A motion to stay is sometimes
appropriate when a petitioner presents a mix of exhausted and
non-exhausted claims. Rhines at 278. However, the Court will only
grant a stay if there is "good cause for the petitioner's failure to
exhaust his claims first in state court." Id. at 277. A petitioner can
show good cause if she filed her federal habeas petition while state
claims were pending merely "to ensure that [the petitioner] does not
miss the one-year deadline." Dolis v. Chambers, 454 F.3d 721,
725 (7th Cir. 2006).
Here, DeFrancisco has neither a pending direct
appeal nor a pending petition for post-conviction relief. (R. Ex. G,
Ex. M). Instead, DeFrancisco moves to stay her federal habeas petition
pending resolution of her petition for relief from judgment filed
pursuant to 735 ILCS 5/2-1401 in the Circuit Court of Cook County. (R.
19 at 1). Under the Illinois Code of Civil Procedure, Section 2-1401,
litigants, including criminal defendants, can challenge the facts
underlying a final judgment. See People v. Pinkonsly, 802 N.E.2d
236, 241 (Ill. 2003). Specifically, "[a] section 2-1401 petition
for relief from a final judgment is the forum in a criminal case in
which to correct all errors of fact occurring in the prosecution of a
cause, unknown to the petitioner and court at the time judgment was
entered, which, if then known, would have prevented its rendition."
People v. Haynes, 737 N.E.2d 169, 182-83 (Ill. 2000) (emphasis
added). However, petitions for relief from judgment under 735 ILCS
5/2-1401 are not relevant to a federal court's exhaustion and
procedural default analyses, which are limited to direct appeals and
post-conviction proceedings. See Lewis, 390 F.3d at 1025 ("petitioner
[must] assert his federal claim through one complete round of
state-court review, either on direct appeal of his conviction or in
post-conviction proceedings."); see also, United States ex rel.
Giampaolo v. Anglin, No. 07 C 2612, 2008 WL 4133383, at *3 (N.D. Ill.
Aug. 20, 2008) (St. Eve, J.) (post-conviction act provides different
statutory relief than Section 2-1401); People v. Vincent, 871 N.E. 2d
17, 24 (Ill. 2007) (same). This is because Section 2-1401 only
addresses factual issues--not legal or constitutional ones--and thus
serves a different purpose than the Illinois Post-Conviction Hearing
Act, 725 ILCS 5/122-1, et seq. See People v. Bramlett, 806 N.E. 2d
1251, 1254 (Ill.App.Ct. 2004); see also People v. Welch, 877 N.E. 2d
134, 140 (Ill. App. Ct. 2007). Because DeFrancisco's only pending
state court proceeding is a petition for relief from judgment the
Court denies DeFrancisco's Motion to Stay.
V. Motion to Amend
DeFrancisco has also moved this court to amend her
petition for federal habeas relief. (R. 22). The proposed amendment
presents DeFrancisco's additional ineffective assistance of appellate
counsel claim alleging her appellate counsel was ineffective for
failing to include all of her directly appealed claims in the PLA. As
discussed above, this claim itself is procedurally defaulted because
DeFrancisco failed to bring it along with the other ineffective
appellate counsel claim in her pro se post-conviction petition. Gaetz,
565 F.3d at 352. Therefore, DeFrancisco's Motion to Amend is denied.
CONCLUSION AND ORDER
For the reasons stated, DeFrancisco's petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1) is denied.
The Court also denies DeFrancisco's Motion to Amend and Motion to
Virginia M. Kendall, United States District Judge
Northern District of Illinois