The opinion of the court was delivered by: Blanche M. Manning, United States District Court Judge
Petitioner Anthony Willis, who is a prisoner in state custody, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, his request for relief under § 2254 is denied.
Unless a petitioner provides clear and convincing evidence to the contrary, this court presumes that the state court's factual determinations are correct for the purposes of habeas review. See 28 U.S.C. § 2254 (e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). Because Willis has not presented clear and convincing evidence rebutting this presumption, this court adopts the Illinois Appellate Court's recitation of the facts in People v. Willis, No. 98-1008 (1st Dist. 2000) (unpublished order).
Willis represented himself pro se at his jury trial in the Circuit Court of Cook County. On January 7, 1998, a jury found Willis guilty of possession of a controlled substance with the intent to deliver. Willis was sentenced to 30 years' incarceration on February 18, 1998. Willis appealed his conviction and sentence to the Illinois Appellate Court, making the following arguments: (1) he was not found guilty of possession of a controlled substance with intent to deliver beyond a reasonable doubt; and (2) he was denied a fair trial because of a police officer's opinion testimony that was speculative and based on assumptions not supported by the evidence. On June 23, 2000, the Illinois Appellate Court affirmed Willis' conviction and sentence. Willis' petition for rehearing was denied on August 29, 2000. On September 22, 2000, Willis filed a petition for leave to appeal to the Illinois Supreme Court bringing the exact claims he brought in his direct appeal. The Illinois Supreme Court denied Willis' petition for leave to appeal on November 29, 2000.
On December 4, 2000, Willis filed his first petition for post-conviction relief under the Illinois Post Conviction Hearing Act. Willis' only claim in his post-conviction petition was that he was denied effective assistance of appellate counsel because counsel failed to argue that the charging instrument was legally insufficient. The Circuit Court of Cook County dismissed Willis' petition on January 26, 2001, concluding that Willis' claim of the insufficiency of the charging instrument was non-meritorious, and thus, counsel's failure to raise the claim on appeal did not prejudice Willis under Strickland v. Washington, 466 U.S. 668 (1984).
Willis appealed the denial of his first post-conviction petition to the Illinois Appellate Court and his appointed appellate counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). On February 15, 2002, the Illinois Appellate Court affirmed the Circuit Court and concluded that Willis' petition had no arguable basis for collateral relief. Accordingly, the court granted appellate counsel's Finley motion.
Willis then filed a petition for leave to appeal to the Illinois Supreme Court by attaching his first post-conviction petition, counsel's Finley motion, his response to counsel's Finley motion, and the Illinois Appellate Court's February 12, 2002, order. Willis did not specifically articulate his ineffective assistance of appellate counsel claim, but did add four additional claims that are not relevant to this habeas petition. On May 13, 2002, the Illinois Supreme Court denied Willis' petition for leave to appeal his first post-conviction petition.
On June 27, 2001, Willis filed a second post-conviction petition in the Cook County Circuit Court contending that a section of the Illinois Controlled Substance Act was unconstitutional. The Circuit Court summarily dismissed this second post-conviction petition as untimely and frivolous. The Illinois Appellate Court affirmed the Circuit Court and concluded that there were no issues of arguable merit, and thus, granted defense counsel's motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987). The Illinois Supreme Court denied Willis' petition for leave to appeal his second post-conviction petition on February 5, 2003.
On November 13, 2001, Willis filed the present federal habeas petition with this court. Construing Willis' pro se habeas petition liberally, he raises the following claims: (1) he was not found guilty beyond a reasonable doubt; (2) he was denied a fair trial based on a police officer's opinion testimony; (3) he was denied effective assistance of appellate counsel based on counsel's failure to argue that the State did not disclose the testifying officer's statements; (4) he was denied effective assistance of appellate counsel because counsel failed to argue that the judge abused his discretion after learning about the discovery violation; and (5) he was denied effective assistance of appellate counsel because counsel failed to raise the issue of the prosecutor's overstatement of the amount of cocaine in question.
Because Willis filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), the AEDPA applies to his petition. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). This is Willis' first federal habeas petition and he filed it before the conclusion of his first post-conviction proceeding in the Illinois state courts. Willis' last state court post-conviction petition for leave to appeal the Illinois Supreme Court was denied on February 5, 2003. Therefore, this court has jurisdiction to consider Willis' federal habeas petition. See U.S.C. § 2244(b), (d)(1), & (d)(2); Gray v. Briley, 305 F.3d 777, 778-79 (7th Cir. 2002).
A. EXHAUSTION AND PROCEDURAL DEFAULT
Before this court may reach the merits of Willis' federal habeas claims, the court must consider whether Willis has exhausted his state remedies and avoided procedural default under Illinois law. See ...