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ENOCH v. GRAMLEY

August 22, 1994

WILLIE E. ENOCH, PLAINTIFF,
v.
RICHARD B. GRAMLEY, DEFENDANT.



The opinion of the court was delivered by: McDADE, District Judge.

        ORDER

Before the Court is Willie E. Enoch's ("Petitioner") Petition for a Writ of Habeas Corpus [Doc. # 3] filed pursuant to 28 U.S.C. § 2254. Respondent in his Answer, requests that the Petition be denied and dismissed.*fn1

FACTUAL BACKGROUND*fn2

Sometime in the late hours of April 22 or early hours of April 23, 1983, Armanda Kay Burns was brutally murdered. The body of Ms. Burns was found in her basement apartment. Ms. Burns' hands had been bound with a coat hanger behind her back, her jacket and shirt pulled down around her arms, and her clothing below the waist removed. The victim's bra was slightly raised from its normal position. A cloth covered her face. Ms. Burns had been stabbed several times in the face, back and chest, and her throat had been slashed. Ms. Burns' chest and abdominal cavities were laid open by a knife wound which extended from her sternum to her pubic bone. Ms. Burns' brutalized corpse was discovered by her boyfriend, Derek Proctor, and her brother and sister-in-law, Tyrone and Caroline Burns, at approximately 2:15 a.m. on April 23, 1983.

Armanda Burns was, at the time of her murder, twenty-five years old and employed as a supervisor in the housekeeping department of Methodist Medical Center ("Methodist") in Peoria, Illinois. Ms. Burns lived by herself in a basement apartment located approximately one block from Methodist Medical Center. On April 22, 1983, Ms. Burns spent from 12:00 p.m. until 2:40 p.m. with Derek Proctor. Derek Proctor ("Proctor") was Ms. Burns' boyfriend of eight months. During their time together that afternoon, Ms. Burns and Proctor met Caroline and Tyrone Burns and arranged to meet them late that evening at approximately 12:30 a.m. Sometime between 3:00 and 3:15 p.m., Ms. Burns reported for work. Ms. Burns worked the 3:00 p.m. to 11:45 p.m. shift at Methodist Medical Center.

At 11:30 p.m. on the evening of April 22, 1983, Ms. Burns and several members of the Methodist housekeeping staff congregated in her office. Three of these staff members testified at trial that Petitioner entered Ms. Burns' office and inquired as to the whereabouts of his brother who was an employee at Methodist. These witnesses testified that Petitioner and Ms. Burns carried on a conversation. Petitioner was clothed in a blue pin stripe suit and what was described as a "dingy" white shirt. Ms. Burns "punched out" of Methodist at approximately 11:47 p.m. and, accompanied by Petitioner, began walking toward her apartment. Petitioner and Ms. Burns were last seen walking together approximately 100 feet from Ms. Burns' apartment.

Pursuant to the plans Ms. Burns and Proctor had made earlier that day, Proctor arrived at Ms. Burns' apartment sometime between 11:50 p.m. and 12:00 a.m. on the evening and early morning hours of April 22 and 23, 1983. Proctor rang Ms. Burns' doorbell repeatedly, but received no response. Having failed to find Ms. Burns in her apartment, Proctor sat outside the apartment and waited for Ms. Burns to return. Proctor waited in vain for five to ten minutes for Ms. Burns and then walked to Methodist believing that Ms. Burns might still be at work. At approximately 12:10 a.m., Proctor arrived at Methodist and met Winston Ragon, a Methodist security officer. Proctor told Mr. Ragon that he was looking for Ms. Burns and requested that Mr. Ragon telephone the housekeeping office to check if Ms. Burns was still in the office. Mr. Ragon placed the call and informed Proctor that he received no answer. Mr. Ragon testified that Proctor then said that he was just at Ms. Burns' apartment, there was a window broken, he saw a man running from the apartment, and there was no response to his ringing of the doorbell. Mr. Ragon noted that Proctor's clothing was neat in appearance. Proctor concluded his conversation with Mr. Ragon at approximately 12:20 a.m. and walked to the lobby to call Ms. Burns' apartment. Proctor received no response to his telephone call.

Having failed to reach Ms. Burns by telephone, Proctor returned to her apartment and again rang her doorbell. Again, Proctor received no response. Proctor then walked across the street to Glen Oak Towers, bought a pack of cigarettes, and returned to Ms. Burns' apartment. Proctor again rang the doorbell. He received no response and sat down outside the apartment to wait for Ms. Burns. Proctor testified that at approximately 12:45 a.m. to 12:50 a.m., he heard Ms. Burns' door open. Proctor further testified that he turned and saw a black man dressed in a dark blue, pin-striped suit carrying an off-white shirt in his hands exiting Ms. Burns' apartment. Proctor identified this man as Petitioner. Proctor testified that Petitioner bumped into him on the way out of the apartment and stated in response to Proctor's question concerning Ms. Burns' whereabouts that she was inside the apartment. Proctor rang the doorbell and received no response. Proctor testified that he then turned, ran up the street, and saw Petitioner running across a field and on to Kumpf Street. Proctor testified that he then lost sight of Petitioner.

Proctor returned to Ms. Burns' apartment, rang the doorbell, and knocked on the apartment's windows. Again, Proctor received no response. Proctor testified that he then went across the street to Glen Oak Towers and attempted unsuccessfully to telephone Ms. Burns' mother. Proctor testified that he then returned to Ms. Burns' apartment, again rang the doorbell, and again received no response. Proctor testified that he then went downtown to several bars in search of Petitioner. Proctor failed to locate Petitioner and at approximately 2:00 a.m. went to the home of Tyrone and Caroline Burns. Proctor, accompanied by Tyrone and Caroline Burns, went to Ms. Burns' apartment. Upon arriving at Ms. Burns' apartment, Proctor pushed in a window, peered into the apartment from outside, and made the grisly discovery of Armanda Kay Burns' slain body. The Peoria police were immediately notified and were the first to enter the apartment.

Officer Richard Ledbetter of the Peoria Police Department was the first police officer to arrive at the scene of the murder. Officer Ledbetter met Proctor outside Ms. Burns' apartment. Officer Ledbetter testified that Proctor's appearance was neat and that he was crying. As additional members of the Peoria police department arrived, the investigation of the murder of Ms. Burns began. The police recovered near the crime scene a white shirt which appeared to have blood on it. In addition, a kitchen type knife with a brown wooden handle was discovered in the field across which Proctor stated that Petitioner had fled. Police observed blood in the entrance way, living room, and bedroom areas of Ms. Burns' apartment. No blood was observed in the kitchen area.

Acting upon information provided by Proctor and members of Petitioner's family, Officers Hoskins and Cannon of the Peoria Police Department began searching for Petitioner at the home of his girlfriend, Louise Pate ("Pate"). The officers found Petitioner at Pate's home, placed him under arrest, and took him to the Peoria Police Department. At the police department, Petitioner stated that on the night of Ms. Burns' murder, he had seen and spoken to her at Methodist, walked with her to within one block of her home, and given her some cocaine in a matchbook cover. In response to the officers' statement that Ms. Burns was a victim of murder, Petitioner stated "No, not Kay Burns, Kay Burns."

At the time of Ms. Burns' murder, Petitioner was living with Louise Pate. Pate testified that on April 22, 1983, Petitioner left her home at approximately noon dressed in blue, baggy pants, a vest, a blue, pin-striped suit coat, a white shirt, and black shoes. Pate further testified that Petitioner returned to her home at some time in the early morning hours of April 23, 1983. Pate testified that upon his return, Petitioner went into the bathroom and ran the water. Petitioner, according to Pate's testimony, then stated that he wanted a cigarette and that he was going to go to his sister's nearby apartment to get one. Pate testified that Petitioner returned to her apartment after a couple of minutes at which time she turned on a light and discovered that Petitioner was wearing her pants. Pate testified that Petitioner then told her that he had just killed Kay Burns and that he had cut her throat and heart out. Petitioner stated to Pate that he had gone to the hospital, met Ms. Burns, pretended that he had cocaine, went with Ms. Burns to her house, took his coat off, and cut Ms. Burns' throat while she was in the kitchen. Pate testified that Petitioner stated that Ms. Burns' boyfriend had seen him leaving the apartment and that he had killed Ms. Burns because she was trying to get his brother fired from his job at Methodist and because of cocaine and a gang named the Disciples. Petitioner then told Pate that he had burned his blue baggy pants in the incinerator.

Pate testified that she never again saw the white shirt Petitioner was wearing when he left her apartment on April 22, 1983. In addition, Pate testified that Petitioner regularly carried with him a steak knife owned by Pate which had a wooden, black/brown handle and a smooth blade. Pate testified that she had not seen her knife since April 22, 1983. Pate also testified that the knife discovered in the field close to Ms. Burns' apartment looked similar to her knife except that the handle on her knife was darker, her knife was sharp, and a piece was not missing from her knife's handle.

On cross-examination, Pate stated that prior to her statements to police, she was told by the police that if she were to lie to the police, she could go to jail. Pate believed that if she were to go to jail, her child would be taken from her. Pate stated that she went to the home of Octavia Burchett and told her that her testimony before the grand jury in this case was untrue. Pate wanted to know what would be the consequences of changing her grand jury testimony. Pate's testimony before the grand jury was substantially the same as her testimony at trial.

On redirect, Pate testified that she considered changing her testimony because she did not want to testify against Petitioner and, possibly, be responsible for his being executed. Pate testified that it was Petitioner's idea that she contact Ms. Burchett, a woman who Petitioner said knew the law, and tell her that Pate's grand jury testimony was a lie. Pate testified that she did not lie to the grand jury or in her testimony at trial and that she was not threatened with arrest if she did not testify in a certain way. Instead, Pate testified that she lied when she told Ms. Burchett that she had lied to the grand jury.

Petitioner was charged with attempt rape, aggravated kidnapping, armed robbery, and felony murder based upon armed robbery and murder. At trial, the above evidence was put forth as well as scientific and past crimes evidence. Diane Schneider, a forensic scientist for the Illinois Department of Law Enforcement, testified that hair fragments taken from the head of Petitioner were compared to hair fragments found on the body of Ms. Burns. Ms. Schneider testified that the hair fragments were consistent. However, Ms. Schneider testified that she could not state definitively that the hair taken from the body of Ms. Burns was from Petitioner. Ms. Schneider also testified that she examined a pair of shoes and a ring taken from Petitioner. Although these items tested positive for the possible presence of human blood, the amounts were too small to type or otherwise identify. Indeed, Ms. Schneider testified that the test she conducted only indicated that blood might be present on the items. Ms. Schneider also testified that the blood on the shirt discovered outside Ms. Burns' apartment was of the same type as both Petitioner and Ms. Burns.

Also adduced at trial was the testimony of Louella Burnside and Marilyn McClain. Ms. Burnside testified that in the early morning hours of March 6, 1983, she was attacked by Petitioner. Ms. Burnside testified that she was walking down the street in front of her house when Petitioner approached her and asked if he could walk with her. She did not know Petitioner, but Petitioner stated that his name was Willie. Petitioner stabbed her in the lower back, forced her into a garage, ordered her to disrobe, and told her that he would cut her throat if she did not do as he ordered. Petitioner raped her and tore up her jacket. Petitioner tied her hands behind her back with pieces of her torn jacket, gagged her, and threatened her with death if she reported the incident to the police.

Ms. McClain testified that on the evening of March 30, 1983, she was attacked by Petitioner. Ms. McClain testified that she was at home that evening when Petitioner knocked on her door and asked if she knew where his brother lived. She told Petitioner that she did not know his brother. Petitioner asked for a glass of water. Ms. McClain got Petitioner a glass of water, returned the glass to the kitchen, and then returned to the living room. Petitioner entered the house and locked the door behind him. Petitioner brandished a knife and stated that he would kill her if she said anything. Petitioner tore up a towel, tied her hands behind her back, and gagged her with the towel fragments. Petitioner asked her if she was "in [her] period" and repeatedly stated "shut up, bitch, I will kill you." While Petitioner was attempting to locate Ms. McClain's purse, she freed her hands and ran toward the front door of her apartment. Petitioner fought with Ms. McClain as she attempted to flee, but fled when she screamed for her neighbor. Ms. McClain later discovered that Petitioner had cut her in the stomach area with his knife.

Petitioner was convicted by a jury of attempt rape, aggravated kidnapping, and murder, but was found not guilty of armed robbery and felony murder. Petitioner waived jury consideration of sentencing issues and elected instead to have the court decide the issues. In the first phase of sentencing, the court found beyond a reasonable doubt that Petitioner was eligible for the imposition of the death penalty. In the second phase of sentencing, the court heard testimony that Petitioner had been previously been convicted of the rape and armed robbery of four women. The court also heard evidence from Adelean Byrd, Petitioner's mother, and Louise Pate in mitigation of Petitioner's prior criminal behavior. The court found that the murder was exceptionally brutal and heinous and indicative of wanton cruelty, that the murder was premeditated, that Petitioner would be a clear and present danger as an inmate, and that no mitigating circumstances existed. The court sentenced Petitioner to death.

PROCEDURAL POSTURE

On November 22, 1983, Petitioner was convicted by a jury of murder, aggravated kidnapping, and attempt rape in the Circuit Court of the Tenth Judicial Circuit in Peoria, Illinois. Petitioner was sentenced to death for his crimes. Petitioner's conviction was, by operation of Illinois law, appealed directly to the Supreme Court of Illinois. Petitioner raised seventeen grounds on direct appeal.*fn3 The Supreme Court of Illinois affirmed both Petitioner's conviction and Petitioner's sentence of death. People v. Enoch, 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988).

In affirming Petitioner's conviction and sentence, the Illinois Supreme Court stated that because Petitioner had failed to comply with the statutory requirement of filing a post-trial motion, the court's review would be limited to constitutional issues which had been properly raised at trial and which could be raised later in a post-conviction hearing petition, sufficiency of evidence, and plain error. Accordingly, the Illinois Supreme Court addressed only Petitioner's grounds which claimed that: 1) admission of custodial statements made by Petitioner violated his Miranda rights; 2) there was insufficient evidence to sustain a conviction for aggravated kidnapping; 3) there was insufficient evidence to sustain a conviction for attempt rape; 4) the trial court erred when it failed to sua sponte instruct the jury on the lesser included offense of unlawful restraint; 5) Rose's failure to file a post-trial motion and his failure to preserve trial error for review constituted ineffective assistance of counsel; 6) the Illinois death penalty is unconstitutional because it limits the death penalty to classes of defendants who do not require special assistance for trial; and 7) the Illinois death penalty is unconstitutional because it does not require the prosecution to prove beyond a reasonable doubt that the death penalty is appropriate, it does not provide adequate safeguards, and it fails to ensure adequate appellate review. The Illinois Supreme Court held that the remaining grounds were waived. The Illinois Supreme Court then addressed Petitioner's grounds which were properly before it and found them to be without merit. The Supreme Court of the United States denied Petitioner's subsequently filed writ of certiorari. Enoch v. Illinois, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 263 (1988).

In April of 1989, Petitioner filed a pro se petition for post-conviction relief with the state circuit court. Subsequently, the law firm of Kirkland & Ellis was appointed to represent Petitioner and, in March of 1990, an amended petition for post-conviction relief was filed on behalf of Petitioner. Petitioner's amended petition raised four grounds for relief. First, Petitioner argued that his trial counsel, Mark Rose, suffered a per se conflict of interest which rendered him ineffective, and the trial court failed to conduct an adequate hearing regarding the conflict. Second, Petitioner argued that his trial counsel, Mark Rose, was actually ineffective as a result of trial counsel's failure to investigate, to develop Petitioner's defense theory, to call witnesses, to properly cross-examine Proctor, and to preserve objections and errors for appeal, and that appellate counsel Seeder was ineffective for failing to raise the issue of Rose's conflict of interest. Third, Petitioner argued that the retroactive application by the Supreme Court of Illinois of Ill.Rev.Stat., ch. 38, ¶ 116-1 denied Petitioner his constitutional right of appeal. Fourth, Petitioner argued that the Illinois death penalty statute is unconstitutional because it precludes consideration of mercy by the sentencer and, therefore, does not allow the sentencer to make an individualized choice as to whether to impose the death penalty and operates so as to divest the sentencer of discretion. The circuit court dismissed Petitioner's petition.

The Supreme Court of Illinois affirmed the decision of the circuit court and dismissed Petitioner's petition for post-conviction relief. People v. Enoch, 146 Ill.2d 44, 165 Ill.Dec. 719, 585 N.E.2d 115 (1992). In so doing, the Supreme Court of Illinois addressed the merits of Petitioner's grounds claiming ineffective assistance of counsel and improper retroactive application of the statute requiring the filing of a post-trial motion. The Supreme Court of Illinois held, however, that Petitioner had waived his claim that the Illinois death penalty unconstitutionally deprives a sentencer of discretion because Petitioner could have, but did not, raise the claim on direct appeal. Petitioner now seeks habeas relief in this Court.

In his habeas petition, Petitioner raises fifteen grounds for relief. They are: (1) Petitioner's rights under the Fifth and Fourteenth Amendments were violated by the admission at trial of his custodial statements; (2) Petitioner is actually innocent of the crimes of which he was convicted; (3) evidence of dissimilar crimes was incorrectly admitted at trial; (4) Petitioner was denied a fair trial by the prosecutor's opening remarks; (5) Petitioner's trial counsel suffered from a conflict of interest which rendered him ineffective; (6) the trial court failed to conduct an adequate hearing as to the conflict of interest of Petitioner's counsel; (7) Petitioner's trial counsel was ineffective under the Strickland standard because trial counsel's preparation and presentation of Petitioner's defense was deficient; (8) Petitioner was improperly convicted of aggravated kidnapping; (9) Petitioner was improperly convicted of attempt rape; (10) Petitioner was denied a fair trial because the trial court refused to give a circumstantial evidence instruction; (11) Petitioner's death sentence was improperly based upon the trial court's finding that Petitioner was a "clear and present danger" in prison; (12) Petitioner did not knowingly and intelligently waive his right to be sentenced by a jury; (13) the Illinois Supreme Court's retroactive application of a new waiver rule denied Petitioner a fair trial; (14) the Illinois death penalty statute is unconstitutional because it prohibits an individualized determination that death is an appropriate sentence in a particular case; and (15) Petitioner is actually innocent of the death penalty. Since Respondent argues that Petitioner has waived many of his claims due to procedural default, the Court shall first address these arguments and determine which, if any, grounds have been procedurally defaulted by Petitioner.

PROCEDURAL DEFAULT

Procedurally defaulted claims in which a petitioner failed to follow an applicable state procedural rule in raising the claims may not be reached on the merits by a court unless cause and prejudice or miscarriage of justice are shown. Sawyer v. Whitley, ___ U.S. ___, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Coleman v. Thompson, the Supreme Court discussed procedural default in the context of federal habeas corpus review and stated:

    We now make it explicit: In all cases in which a
  state prisoner has defaulted his federal claims in
  state court pursuant to an independent and
  adequate state procedural rule, federal habeas
  review of the claims is barred unless the prisoner
  can demonstrate cause for the default and actual
  prejudice as a result of the alleged violation of
  federal law, or demonstrate that failure to
  consider the claims will result in a fundamental
  miscarriage of justice.

501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).

Illinois treats any claim which could have been presented to a reviewing court on direct appeal as barred under the doctrine of waiver. Reese v. Peters, 926 F.2d 668, 671 (7th Cir. 1991); People v. Silagy, 116 Ill.2d 357, 107 Ill.Dec. 677, 680, 507 N.E.2d 830, 833 (1987); People v. Burns, 75 Ill.2d 282, 26 Ill.Dec. 679, 682, 388 N.E.2d 394, 397 (1979). In addition, Illinois treats claims of substantial denial of constitutional rights as waived if they are not raised in the original or amended post conviction petition. Reese, 926 F.2d at 671; Ill.Rev.Stat. 725 ILCS 5/122-3. Finally, Illinois treats the failure to raise an issue in a written motion for a new trial as constituting a waiver of that issue. Ill.Rev. Stat. 725 ILCS 5/116-1; People v. Shum, 117 Ill.2d 317, 111 Ill.Dec. 546, 553, 512 N.E.2d 1183, 1190 (1987); People v. Szabo, 113 Ill.2d 83, 100 Ill.Dec. 726, 730, 497 N.E.2d 995, 999 (1986); People v. Porter, 111 Ill.2d 386, 95 Ill.Dec. 465, 470, 489 N.E.2d 1329, 1334 (1986); People v. Caballero, 102 Ill.2d 23, 79 Ill.Dec. 625, 629, 464 N.E.2d 223, 227 (1984); People v. Pickett, 54 Ill.2d 280, 282, 296 N.E.2d 856 (1973). With these rules and principles in mind, the Court shall address Respondent's procedural default arguments seriatim.

GROUND TWO

Ground Two of the Petition claims that Petitioner is actually innocent of the crimes of which he was convicted. Subsequent to Petitioner's filing of his Petition, however, the Supreme Court decided the case of Herrera v. Collins, ___ U.S. ___, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), which, seemingly*fn4, held that a claim of actual innocence is not a free standing constitutional claim upon which habeas relief can be granted. Petitioner, in his Memorandum in Support of Petition filed after the Supreme Court's decision in Herrera, appears to concede that actual innocence is not a free standing claim cognizable in federal habeas review and has apparently abandoned his claim made in Ground Two. Petitioner now contends instead that his claim of actual innocence serves as a gateway through which the federal courts may review his procedurally defaulted claims. Petitioner does, however, refer to the possibility that the Supreme Court may, in the context of a death penalty case, recognize a free standing constitutional claim of actual innocence. As such, the Court shall analyze Petitioner's argument of actual innocence made in Ground Two in the context of a free standing constitutional claim. Petitioner's argument of actual innocence as an exception to the rule barring federal habeas review of procedurally defaulted claims shall be addressed infra in the portion of this Order discussing the miscarriage of justice exception.

Respondent argues that Petitioner has procedurally defaulted his claim made in Ground Two or, in the alternative, the claim is without merit. Despite first citing Herrera, a case in which the Supreme Court explicitly differentiates the claims of insufficiency of the evidence and actual innocence, Respondent continues on to cite Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and appears to analyze the claim as one alleging insufficiency of the evidence.*fn5 ___ U.S. at ___, 113 S.Ct. at 861. Respondent's analytical approach is, quite clearly, incorrect. An insufficiency of the evidence claim argues legal innocence where as an actual innocence claim argues factual innocence. Sawyer, ___ U.S. at ___, 112 S.Ct. at 2519 citing Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986).

At first glance, the Supreme Court in Herrera appears to have held that the claim of actual innocence is not a free standing constitutional claim. Thus, under existing Supreme Court precedent, a free standing claim of actual innocence does not exist. The Court notes, however, that a majority on the Supreme Court appears to be willing to hold that it would be unconstitutional to execute an innocent person. Herrera, ___ U.S. at ___, ___, 113 S.Ct. at 869, 870 (O'Connor concurring, joined by Kennedy), ___ U.S. at ___, 113 S.Ct. at 875 (White concurring), ___ U.S. at ___, 113 S.Ct. at 876 (Blackmun dissenting, joined in relevant part by Stevens and Souter), But See ___ U.S. at ___, 113 S.Ct. at 874 (Scalia concurring joined by Thomas); Milone v. Camp, 22 F.3d 693, 700 (7th Cir. 1994). Indeed, Chief Justice Rehnquist, the author of Herrera, assumed for the sake of argument that "a truly persuasive demonstration of 'actual innocence' made after trial" would make the execution of a defendant unconstitutional. Herrera, ___ U.S. at ___, 113 S.Ct. at 869. Accordingly, the Court shall assume arguendo for the sake of deciding this case that a free standing claim of actual innocence in the context of a case in which the death penalty has been imposed is cognizable under federal habeas review.*fn6

Petitioner's claim of actual innocence fails for at least two reasons. First, Petitioner did not present this claim to the state courts of Illinois and, therefore, the claim has been procedurally defaulted. Reese, 926 F.2d at 671. Second, if Petitioner's actual innocence claim was considered to be apparent from his state court petitions or were found to be excusable under one of the exceptions to the rule barring federal habeas review of procedurally defaulted claims, our Supreme Court stated that a petitioner's threshold evidentiary showing for this assumed constitutional claim would be "extraordinarily high." Herrera, ___ U.S. at ___, 113 S.Ct. at 869. The Court finds that the evidentiary showing made by Petitioner falls far short of meeting this assumed claim's extraordinarily high threshold.

The Supreme Court in Herrera did not set forth the precise burden of proof applicable in an actual innocence claim. The Court finds, however, that to be entitled to relief based upon actual newly discovered or newly presented evidence and the record as a whole, he is probably innocent.*fn7 Although the Court feels that the burden of proof should be higher, the use of this relatively minimal standard comports with a majority of those justices who appear willing to recognize this assumed claim. Herrera, ___ U.S. at ___, 113 S.Ct. at 882. As such, the Court deems this the appropriate standard to be used until that time when the Supreme Court explicitly recognizes a claim of actual innocence and explicitly sets forth its accompanying burden of proof.

In support of his claim of actual innocence, Petitioner first re-argues the evidence presented at trial. Next, Petitioner offers the affidavits of four persons. Affiant Linda Thorpe states that at between 11:45 p.m. and 12:00 a.m. on the night of Ms. Burns' murder she saw Ms. Burns outside of her apartment with a man who was much taller than she. Affiant Terrie Meeks (Burwell) states that at approximately 3:30 a.m. on April 23, 1983 she heard a woman scream "Oh my God, Help me." Ms. Meeks states that she actually may have heard the scream an "hour or so earlier." Affiant Steven Fehr states that he was Ms. Meeks supervisor on April 23, 1983 and that at some time between 1:30 and 3:00 she telephoned him to report a woman's screams. Affiant Greg Hunter states that although he testified at Petitioner's trial, he states again that Petitioner was wearing a blue pin-striped suit with matching coat and pants. Finally, Petitioner offers new evidence uncovered by Petitioner's court appointed investigator. This evidence consists of Ms. Burns' time card which shows that she left Methodist sometime between 11:47 and 11:48 p.m. on April 22, 1983, and that the casual walking time between the time clock and Ms. Burns' apartment is approximately four and one half minutes.

Upon reviewing the evidence presented by Petitioner as well as the record as a whole, the Court finds that Petitioner has failed to show that in light of all the evidence, he is probably innocent. In so stating, the Court first notes that it is not a forum "in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983). In addition, the Court finds that Petitioner's theory of the case is unpersuasive. Petitioner's primary argument concerning his innocence appears to be that Proctor, not Petitioner, murdered Ms. Burns. Petitioner theorizes that Proctor murdered Ms. Burns between the time she arrived home from work, approximately 11:52 p.m., and the time that Proctor appeared at Methodist and spoke to Ragon, approximately 12:10 a.m. The Court finds it unbelievable that in this eighteen minute period, Proctor could attack and subdue Ms. Burns, bind her hands and disrobe her, stab her savagely and repeatedly, remove from himself and his clothing any indication of the vicious attack, compose himself so as to appear lucid and calm, formulate a plan whereby he would go to Methodist and concoct a story that would implicate Petitioner, a person with whom Proctor was at best vaguely familiar, as Ms. Burns' murderer, and then make the walk to Methodist. Common sense simply makes such a theory untenable. Finally, the evidence offered by Petitioner does little to rebut the substantial case presented by the prosecution. The time card and walking time evidence attempts to make fine temporal distinctions in a case characterized by coarse estimations of the relevant time periods. Hunter had already testified at Petitioner's trial that Petitioner was wearing a blue pin-striped suit on April 22, 1983. Meeks' and Fehr's testimony does little if anything to establish either the identity of the woman whose scream was heard or the timing of that scream. Indeed, the timing of the scream strongly indicates that it was not Ms. Burns who Meeks heard that morning. As for Thorpe's testimony, although probative, it is by no means determinative of Petitioner's guilt or innocence. The Court finds that Petitioner, in light of the substantial showing of his guilt in the record, has failed to show that based upon the record and newly discovered or presented evidence he is probably innocent. In addition, Petitioner's showing does not rise to a level precluding any rational trier of fact from finding guilt beyond a reasonable doubt nor can it be characterized as being extraordinarily high and truly persuasive of Petitioner's innocence. Accordingly, the Court finds that, even if a free standing constitutional claim of actual innocence existed in the present context, the claim would be both procedurally defaulted and without merit. Therefore, the Court finds that Petitioner's Ground Two is without merit and is not a proper basis upon which to grant habeas relief in this case.

GROUND THREE

Ground Three of the Petition claims that evidence of dissimilar crimes was erroneously admitted, denying Petitioner a fundamentally fair trial. Respondent argues that the Supreme Court of Illinois in Enoch, 522 N.E.2d at 1129-32, found this claim to be waived for failure to file a post-trial motion as required by Ill.Rev.Stat. 725 ILCS 5/116-1, and as such, the claim has been procedurally defaulted. Petitioner does not attempt to refute Respondent's argument. The Court finds that Petitioner has procedurally defaulted this claim.*fn8 Coleman, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

GROUND FOUR

GROUND TEN

Ground Ten of the Petition claims that the trial court's refusal to give a circumstantial evidence instruction denied Petitioner a fair trial. Respondent argues that the Supreme Court of Illinois in Enoch, 522 N.E.2d at 1129-32, found this claim to be waived for failure to file a post-trial motion as required by Ill.Rev.Stat. 725 ILCS 5/116-1, and as such, the claim has been procedurally defaulted. Petitioner does not attempt to refute Respondent's argument. The Court ...


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