Becerrill v. Sternes

29 F. App'x 362
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 28, 2001
DocketNo. 01-2424
StatusPublished

This text of 29 F. App'x 362 (Becerrill v. Sternes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Becerrill v. Sternes, 29 F. App'x 362 (7th Cir. 2001).

Opinion

ORDER

Armando Becerrill was convicted in Illinois state court of armed violence, unlawful possession of a controlled substance with intent to deliver, and controlled-substance trafficking, and was sentenced to forty years’ imprisonment. After exhausting his state-court remedies, Becerrill petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, claiming, among other things, that the admission at trial of certain out-of-court statements violated his confrontation rights under the Sixth Amendment. The district court, while agreeing with Becerrill that his confrontation rights had been violated, concluded that the error was harmless and denied the petition. At the same túne, the court granted a certificate of appealability on the confrontation claim only. We affirm.

The undisputed facts as found by the Illinois appellate court are as follows: In May 1992 Becerrill was riding in a car driven by codefendant Jose Salazar when they were stopped by police officer Daniel Gillette for speeding. As Salazar pulled the car over, Gillette saw Becerrill reach under the passenger seat and then adjust his cap. Gillette questioned each man separately regarding their destination, and Becerrill responded that they were going [363]*363to Chicago. Salazar, however, responded that they were traveling from California to New York, where Becerrill would stay for about fifteen days and then drive back alone to California. Both men had valid California driver’s licenses, and registration documents indicated that the car belonged to a Curtis Lee Sessa of Tustin, California.

Noticing a heavy odor of air freshener, Gillette, with Salazar’s consent, proceeded to search the car. A second officer, David Spahn, watched Becerrill and Salazar while Gillette performed the search. Spahn later testified at trial that during the search Becerrill repeatedly reached up toward his hat and had to be told to keep his hands at his sides.

In the trunk of the car, Gillette found two bags of men’s clothing and a large number of rolled-up fifty-dollar bills. Gillette also noticed that there was seemingly unused space where the spare tire should have been. At that time a third officer, Craig Graham, arrived with a drug-trained dog who reacted positively to the presence of drugs in the rear of the vehicle. Gillette and Graham then checked under the car and saw fresh undercoating and some packages through a small hole in the underbody. Suspecting that the car had a hidden compartment, Graham drilled a hole into the underbody. White powder, which field-tested positive for cocaine, fell from the hole and also covered the drill bit.

Becerrill and Salazar were arrested and searched. Under Becerrill’s cap the officers found a loaded semi-automatic pistol. A second semi-automatic weapon was found in the hidden compartment, along with a box of ammunition and forty-five kilograms of cocaine worth approximately ten-million dollars. The car contained no tools that could have been used to access the secret compartment, and the fingerprints on the cocaine packages did not match those of Becerrill or Salazar.

After the trials were severed, Becerrill moved in limine to exclude certain statements made by Salazar during the traffic stop. (Salazar did not testify at Becerrill’s trial.) The trial court granted the motion in part, holding that the state could not introduce statements made by Salazar that Becerrill lived with Salazar’s cousin in California, that the cousin owned the car and had loaned it to the two defendants jointly, that the car had no drugs or weapons in it, and that Salazar did not know how to access the secret compartment. The court did, however, admit Salazar’s statements that he had been visiting California and that he and Becerrill were traveling to New York, where Becerrill would stay for about fifteen days before returning alone to California. On appeal the state appellate court affirmed, holding that Salazar’s statements were admissible under Illinois’s coconspirator exception to the hearsay rule.

In his § 2254 petition, Becerrill claims that the state trial court erred in admitting hearsay statements that tended to exonerate Salazar and inculpate Becerrill. The district court concluded that Becerrill was attempting to raise a confrontation claim under the Sixth Amendment, and construed the petition accordingly. But it appears that Becerrill never presented the constitutional argument to the Illinois appellate court — the state-court briefs attached to Becerrill’s § 2254 petition make no mention of the Confrontation Clause, and the appellate court’s opinion, while analyzing the admissibility of Salazar’s statements under Illinois’s evidentiary rules, does not address the question as a matter of federal constitutional law. Ordinarily, failure to present a federal claim to the state courts will result in a procedural default of that claim. Chambers v. [364]*364McCaughtry, 264 F.3d 732, 737-38 (7th Cir.2001). On the other hand, where a petitioner has asserted the federal claim “in terms so particular as to call to mind a specific constitutional right” or has alleged “a pattern of facts that is well within the mainstream of constitutional litigation,” default may be avoided. Verdin v. O’Leary, 972 F.2d 1467, 1473-74 (7th Cir.1992) (quotations omitted). In any event we need not decide the question in this case because the state has not argued procedural default. Cossel v. Miller, 229 F.3d 649, 653 (7th Cir.2000); Hernandez v. Cowan, 200 F.3d 995, 997 (7th Cir.2000). We shall therefore proceed to the merits.

The standard for admissibility of coconspirator declarations under the Confrontation Clause is the same as that under Federal Rule of Evidence 801(d)(2)(E). Bourjaily v. United States, 483 U.S. 171, 182-184, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); United States v. Dugan, 902 F.2d 585, 589-90 (7th Cir.1990); see also Garlington v. O’Leary, 879 F.2d 277, 280 (7th Cir.1989) (in habeas corpus case, if state court’s ruling on admissibility of coconspirator statements would have satisfied Rule 801(d)(2)(E), it will also satisfy constitutional requirements). For Salazar’s statements to be admissible under Rule 801(d)(2)(E), the state had to show by a preponderance of the evidence that a conspiracy existed, that Becerrill and Salazar were involved in the conspiracy, and that the statements were made diming the course and in furtherance of the conspiracy. Garlington, 879 F.2d at 280.

In his briefs on appeal, Becerrill maintains that the state failed to prove the first two elements — that a conspiracy existed and that he was a member of it. But as the state notes, Becerrill did not present these arguments to the district court. Accordingly, he has waived his right to make them on appeal. Perry v. Sullivan,

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Bourjaily v. United States
483 U.S. 171 (Supreme Court, 1987)
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United States v. Michael T. Dugan, II
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Juan Verdin v. Michael O'Leary and Neil F. Hartigan
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United States v. Jose Dominguez Lim, Jr.
984 F.2d 331 (Ninth Circuit, 1993)
United States v. Cleo D. Stephens, Sr.
46 F.3d 587 (Seventh Circuit, 1995)
Ramiro Hernandez v. Roger D. Cowan, Warden
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207 F.3d 379 (Seventh Circuit, 2000)
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229 F.3d 649 (Seventh Circuit, 2000)
Lavelle Chambers v. Gary R. McCaughtry Warden
264 F.3d 732 (Seventh Circuit, 2001)

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Bluebook (online)
29 F. App'x 362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becerrill-v-sternes-ca7-2001.