The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court
MEMORANDUM OPINION AND ORDER
On January 19, 1996, an Illinois jury convicted Petitioner Alfred Martin (the "Petitioner") of first degree murder. Petitioner was sentenced to fifty years imprisonment. His direct appeal and post-conviction petition were unsuccessful and on October 2, 2001, Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court denied Petitioner's habeas petition on January 7, 2003. Presently before the Court is Petitioner's Motion for Issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253. For the following reasons, Petitioner's motion is granted in part and denied in part a
CERTIFICATE OF APPEALABILITY
In order to appeal a district court's denial of habeas relief, a state prisoner must seek and obtain a certificate of appealability (a "COA"). 28 U.S.C. § 2253 (c)(1)(A) a A district court may issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). In Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), the Supreme Court set forth the methodology to be used in evaluating a request for a COA. Where a district court has rejected a petitioner's constitutional claims on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. at 484. Where a district court has rejected a petitioner's constitutional claims "on procedural grounds without reaching the prisoner's underlying constitutional claim[s], a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. The Supreme Court, in Miller-El v. Cockrell, 123 S.Ct. 1029 (2003), recently cautioned that a "COA does not require a showing that the appeal will succeed," Id. at 1039, and explained that "a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail," Id. at 1040.
Petitioner seeks a COA as to the following issues: (1) whether Petitioner was denied his Sixth Amendment right to effective assistance of appellate counsel; (2) whether the trial court erred in allowing the State to disclose a crucial witness on the eve of trial without granting the defense a continuance; (3) whether the trial court abused its discretion when it permitted the State, on cross-examination of Petitioner, to ask questions about other crimes that the State could not prove; (4) whether the trial court abused its discretion by allowing the weapon from an earlier incident involving Petitioner and the victim to go to the jury during deliberations; (5) whether the State committed prosecutorial misconduct when the prosecutor knowingly introduced and argued perjured testimony at trial to establish intent; (6) whether the State committed prosecutorial. misconduct when the prosecutor told the jury how it should weight the evidence at trial, which had a burden-shifting effect on the defense; (7) whether Petitioner was denied his Sixth Amendment right to effective assistance of counsel at trial; and (8) whether Petitioner's fifty-year sentence was excessive.
Ineffective Assistance of Appellate Counsel
Petitioner argues that he was denied his Sixth Amendment right to effective assistance of counsel when counsel on direct appeal failed to raise several claims of merit and failed to present all of the relevant facts in the issues that were raised. To establish ineffective assistance of counsel, Petitioner must show, under the standards articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), that (i) his "counsel's representation fell below an objective standard of reasonableness," Id. at 688, and (ii) "there is a reasonable probability that, but for counsel's professional error, the result of the proceeding would have been different," Id. at 694.
Petitioner's appellate counsel raised three issues on direct appeal; (1) the trial court erred in allowing the state to disclose a crucial witness on the eve of trial without granting the defense a continuance; (2) the first degree murder conviction should be reduced to involuntary manslaughter; and (3) Martin's fifty-year sentence was excessive and should be reduced. In his post-conviction petition, Petitioner raised a total of eleven claims, five of which the post-conviction court determined had been waived when Petitioner failed to raise them on direct appeal. As a result of the post-conviction court's finding, this Court also found that those five claims were procedurally defaulted and denied habeas relief on those claims.
While this Court found that the decision of Petitioner's appellate counsel to limit the direct appeal to three issues did not satisfy the Strickland test, it concedes that reasonable jurists could find its assessment "debatable or wrong." Slack, 529 U.S. at 484. As a result, the Court grants Petitioner's request for a COA as to this claim.
Procedurally Defaulted Claims
This Court turns next to Petitioner's request for a COA on claims three through seven, as they are related to his request for a COA on his ineffective assistance of appellate counsel claim. As discussed above, this Court found that claims three through seven were procedurally defaulted because Petitioner had failed to raise them on direct appeal. Petitioner, however, asserts that the ineffective assistance of his appellate counsel caused this procedural default. It is well accepted that "[a]ttorney error that constitutes ineffective assistance of counsel is cause to set aside a procedural default." Franklin v. Gilmore, 188 F.3d 877, 883 (7th Cir. 1999) (citing Coleman v. Thompson, 501 U.S. 722, 753-54 (1991)). Therefore, by granting a COA on the ineffective assistance of appellate counsel claim, this Court must also grant a COA as to whether these claims were procedurally defaulted.
Petitioner's second habeas claim is that the trial court abused its discretion when it permitted the State to disclose a critical witness, Shannon Carr, on the eve of trial and then refused to grant a continuance to the defense so that it could prepare for her testimony. A state trial court's failure to grant a continuance is usually only cognizable on federal habeas if the error caused the trial to be fundamentally unfair, in violation of a federal constitutional right. Search v. Greer, 768 F.2d 906, 912 (7th Cir. 1985). This Court found that Petitioner's claim failed to meet this standard and was, therefore, noncognizable on a petition for federal habeas relief. The Court based its finding on the fact that the State had timely informed the defense that it would call a witness, Officer Mullins, to testify about the same events testified to by Shannon Carr, and on the fact that the defense was provided an opportunity to interview Shannon ...