The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, Chief Judge:
Petitioner Terry Williams brings this pro se action against Respondent Odie Washington, the Director of the Illinois Department of Corrections, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Williams is imprisoned for a 1986 murder conviction, and now attacks the conviction on an array of constitutional grounds. For the reasons set forth below, we deny the petition in its entirety.
At Williams's trial, the State offered evidence proving the following facts underlying the petitioner's murder conviction. On June 7, 1985, Williams was drinking at the Dew Drop Inn, a bar in Summit, Illinois. At around 4 p.m., Brenda Brooks, the bar's manager, and her husband, John Brooks, who occasionally served as the bar's "bouncer," arrived at the Dew Drop. At that time, the Brookses saw that Williams was arguing with Jimmy Loy, a regular Dew Drop customer. At around 5 p.m., Williams and Loy escalated the argument into a fistfight outside the bar. After the fight, the combatants returned to the bar and continued to argue. John Brooks repeatedly ordered the two combatants to be quiet, but finally Brooks escorted Williams from the bar at around 6 p.m.
Williams returned to the bar thirty minutes later. Brenda Brooks told a customer, Jimmy Meyers, that she thought Williams might be carrying a gun in his pants. Trial Transcript ("Tr.") at 15. Meyers informed John Brooks, who moved behind Williams and grabbed the gun. Brooks gave the gun to Meyers and told Pamela Thorn, a server at the Dew Drop, to phone the police. At that time, Williams and Loy began to fight again; Brooks separated them and ordered Williams to leave. Williams asked for his gun, but Brooks replied that the gun would be returned in a few days if Williams "sobered up." Tr. at 17. As Williams departed, he announced, "I will be back." Tr. at 17. In a few minutes, Williams returned with a shotgun. Williams pointed the shotgun at John Brooks, who raised his hands in the air and said, "Let's talk about this." Tr. at 64. But Williams fired, reloaded, and fired again; the first shot killed Brooks.
According to Brenda Brooks, Meyers, and Thorn, John Brooks never threatened Williams. Tr. at 28-29, 67, 236. But Williams's testimony reported a different story. Williams testified that he started drinking at the Dew Drop around 2:30 or 3 p.m. By 6 p.m., he had drank between seven and nine cans of beer. Tr. at 159. At around 6:30 p.m., he scuffled with Jimmy Loy; twenty to thirty minutes later, Williams left the bar. Williams then returned to the Dew Drop at around 8 p.m., purportedly in order to meet a friend who wished to use Williams's van. Tr. at 164. In the next ninety minutes, Williams bought a round for the bar and drank another three beers.
But at around 9:25 p.m., Williams testified, Loy struck Williams on the head and knocked him to the floor. Tr. at 167-68. According to Williams, John Brooks then "all of a sudden . . . came out of nowhere and tried to put a boot to my head and sent me back to the floor, breaking my glasses and cutting me right about the eye." Tr. at 168. Brooks then purportedly took Williams's wallet, wristwatch, and knife. Tr. at 168-69. Williams testified that Brooks also obtained Williams's pistol; according to Williams, Brooks said "he wanted to see does this thing work" and pointed the gun at Williams's forehead. Tr. at 170. Brooks allegedly pulled the trigger, but Williams had the pistol set on an empty chamber. Tr. at 170. After Brooks refused to return Williams's property, Williams left the bar, went to his car, and retrieved his shotgun. Tr. at 172. Williams testified that he reentered the Dew Drop from the back entrance, and demanded that Brooks return the pistol. Tr. at 174. According to Williams, Brooks made a "quick motion" towards the bar, which Williams construed as reaching for the pistol; Williams related that the quick motion caused him to "jump" and "the gun went off." Tr. at 174-75. Williams testified that people jumped up and ran towards him--one person wielded a pool cue--and Williams fired again, thinking that he was firing into the ceiling. Tr. at 175-76.
On December 29, 1986, Williams was found guilty of murder after a bench trial. Tr. at 250. After unsuccessfully pursuing a direct appeal and post-conviction relief, Williams filed this petition for a writ of habeas corpus, raising the following issues: (1) insufficient evidence supported a conviction for murder, rather than voluntary manslaughter; (2) ineffective assistance of counsel at trial; (3) ineffective assistance of counsel on appeal; and (4) various actions by the prosecution violated his right to due process. The respondent moves for denial of the writ, arguing that Williams procedurally defaulted his claims, and that the petitioner's claims are meritless in any event. Although we find that procedural default does not preclude us from considering Williams's claims, we deny habeas relief on the merits.
The State argues that Williams failed, in the post-conviction proceedings, to file a timely petition for leave to appeal to the Illinois Supreme Court. The State points out that the appellate court affirmed the denial of post-conviction relief on March 21, 1994; because Williams filed a notice of intent to file a petition for leave to appeal on April 4, 1994, he obtained 35 days from March 21, 1994, pursuant to Ill. S. Ct. R. 315(b), to file the petition. The State reasons that, because Williams did not file the petition for leave to appeal until May 31, 1994, Williams procedurally defaulted his claims.
It is generally true that a habeas petitioner's "failure to present constitutional claims before the highest state court will result in a procedural default unless the petitioner can show cause and prejudice." Mason v. Gramley, 9 F.3d 1345, 1347-48 (7th Cir. 1993). However, the record discloses that Williams did indeed file a timely petition for leave to appeal to the Illinois Supreme Court. As the respondent points out, Williams filed a notice of intent to file a petition for leave to appeal on April 4, 1994; but, on April 20, 1994, Williams apparently also filed a motion for extension of time to file a petition for leave to appeal. Pet.'s Request to Admit Evidence, Ex. 3 (R.23, docketed Apr. 20, 1995). According to Williams, and unrebutted by the State, the motion was granted. Indeed, Williams proffers a letter, dated a few days after Williams filed his petition for leave to appeal, from the Clerk of the Illinois Supreme Court. The letter stated that the Clerk "has filed your petition for leave to appeal" and "your petition will be presented to the Court for its consideration." Pet.'s Request to Admit Evidence, Ex. 3. In addition, the Illinois Supreme Court "denied" the petition for leave to appeal, rather than dismiss it as untimely. Pet.'s Mot., Ex. 11 (unpublished order) (No. 95-77322, Oct. 6, 1994). In light of the record, and the respondent's failure to reply to Williams's assertions, we conclude that Williams did not procedurally default by filing an untimely petition for leave to appeal during his post-conviction proceedings.
We observe, however, that the State entirely fails to argue that the petitioner procedurally defaulted claims that he failed to raise on direct appeal. See State's Answer at 5-6. In support of its procedural default position, the State only advances the (unsuccessful) argument that Williams failed to file a timely petition for leave to appeal in the post-conviction proceedings. However, it appears that Williams failed to raise on direct appeal most of the claims that he presents now; indeed, on direct appeal, the petitioner solely argued that the evidence was insufficient to support a murder conviction, rather than voluntary manslaughter. See Pet.'s Mot., Ex. 2. Williams would have been procedurally barred in post-conviction and federal habeas proceedings from raising those claims that could have been brought on direct appeal. Cruz v. Warden of Dwight Correctional Center, 907 F.2d 665, 670 (7th Cir. 1990) (citing Gornick v. Greer, 819 F.2d 160, 161 (7th Cir. 1987)). But the respondent fails to make this argument, and thus "waived ...