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January 5, 2004.

United States of America ex rel. ANTWAN GREEN, Petitioner,
STEVEN C. BRYANT, Warden, Graham Correctional Center,[fn1] Respondent

The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

*fn1 Steven C. Bryant is listed as the Warden for Graham Correctional Center, where petitioner currently is in custody, and thus is the proper respondent in this habeas action. See Rule 2(a) of the Rules Governing Habeas Corpus Cases under 28 U.S.C. § 2254. This court hereby substitutes Steven C. Bryant as respondent. See Fed.R.Civ.P. 25(d)(1).


In a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner Antwan Green (hereinafter referred to as "Antwan," "defendant" or "petitioner") challenges his conviction for first-degree murder entered in the Circuit Court of Cook County, Illinois. Petitioner contends that his conviction was the result of constitutional error. Petitioner raises the following claims in his habeas petition: (1) prosecutorial misconduct; (2) ineffective assistance of trial counsel; and (3) insufficient evidence to prove petitioner's guilt beyond a reasonable doubt. For the reasons stated below, the court denies petitioner's claims.


  Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), this court must deny a petition for a writ of habeas corpus with respect to any claim adjudicated on the merits in the state court unless the state court's decision "was contrary to, or involved an Page 2 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." See 28 U.S.C. § 2254(d); Price v. Vincent, ___ U.S. ___, 123 S.Ct. 1848, 1852 (2003). A state court's decision is contrary to clearly established Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [it]." Williams v. Taylor, 529 U.S. 362, 405 (2000). In order for a state court decision to be considered "unreasonable" under this standard it must be more than incorrect, it must lie "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) (reasonable state court decision must be at least minimally consistent with the facts and circumstances of the case).

  Before reviewing the state courts' decisions, however, the court must determine whether the petitioner fairly presented his federal claims to the state courts, as any claim not presented to the state's highest court is deemed procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Moreover, "[a] federal court will not review a question of federal law decided by a state court if the decision of the state court rests on a state procedural ground that is independent of the federal question and adequate to support the judgment." Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002). A federal court may not grant habeas relief on a defaulted claim unless the petitioner 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 claim will result Page 3 in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Anderson v. Cowen, 221 F.3d 893, 899 (7th Cir. 2000).


  When considering a habeas petition, this court must presume that any state court's factual determinations are correct unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). Although the court mostly agrees with the Illinois Appellate Court's summation of the facts, it also relies on the state court record where necessary.

  In early 1995, the State charged petitioner and Dwayne McKinzie ("McKinzie") with first-degree murder of Orlando Owens. McKinzie pled guilty and received a sentence of 24 years imprisonment. (Resp. Ex. F, Circuit Court of Cook County, Illinois, Post-Conviction No. 95 CR 6108, Order of Jan. 25, 1999, at 2.) Petitioner was tried by a jury, where he was represented by counsel. Unless otherwise specified, the following is a recitation from the Illinois Appellate Court's direct review of petitioner's conviction (Resp. Ex. B, Appellate Court of Illinois, First Judicial District, Case No. 1-96-1220, Order of Apr. 24, 1998 at 2-9):

  During the State's case-in-chief at petitioner's trial, Detective George Karl ("Detective Karl") testified that petitioner gave a statement after Detective Karl informed petitioner of his constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966), in the early morning hours of his arrest on January 31, 1995. Petitioner told Detective Karl that he and McKinzie drove his tan Chevy to 83rd and Kingston where they met the victim. The victim entered petitioner's car and opened a bottle of beer, then the victim and McKinzie began fighting. Petitioner stated that he pulled into the alley at 9016 Burley and told the victim and McKinzie to exit the car. After Page 4 they exited, petitioner said he heard gunshots. When petitioner exited his car, he saw McKinzie holding a weapon. The victim was shot, crawling into the gangway. He and McKinzie followed the victim into the gangway. Then McKinzie gave petitioner the gun and told him to shoot the victim in the head. McKinzie took the gun back and said, "Let's finish this Motherf***ker off." Petitioner said McKinzie began choking the victim, and petitioner kicked the victim in the head two or three times. Petitioner said that he and McKinzie then returned to petitioner's car, drove a short distance, and McKinzie exited. Petitioner drove to 90th Street and Baltimore, where he parked the car, exited, and walked. He was soon picked up by the police.

  According to Detective Karl, Assistant State's Attorney Cory Pollack ("ASA Pollack") re-administered petitioner's Miranda rights, and petitioner repeated his statement to ASA Pollack. Petitioner declined to reduce his statement to writing or have it transcribed by a court reporter.

  Officer Willie Harris ("Harris"), an expert in fingerprint comparison, testified that a fingerprint lifted from the right front door of petitioner's car belonged to McKinzie.

  Scott Rochowicz ("Rochowicz"), an expert in gunshot residue (GSR) analysis, testified that he tested the GSR swabs taken from petitioner and McKinzie after they were arrested. Rochowicz testified that the GSR test performed on petitioner was inconclusive. There were "elevated" amounts of barium, antimony, and lead on petitioner's hand, but he could not say that petitioner handled a weapon. The back of petitioner's right hand tested positive for antimony and lead, but was "0.96" micrograms short of the requisite level of barium for a positive GSR test result. Rochowicz also testified that McKinzie's swabs were negative for GSR. Page 5

  Deputy Medical Examiner Thamrong Chira ("Dr. Chira") testified that he performed the autopsy on the victim. Dr. Chira determined that the victim died of five gunshot wounds and that blunt trauma to the head was a significant contributing factor. Dr. Chira also found other injuries consistent with being kicked.

  Josephine Muhammad ("Muhammad") testified that on January 30, 1995, at about 2:20 a.m., she heard five gunshots from the rear of her house at 9018 South Burley. She then heard somebody fall against her bedroom window and groan, "Help me, somebody help me." She heard the voice from the front of her house, so she went to look out her living room window. She saw the victim standing in front of her neighbor's house stumbling and asking for help. Four or five people came by and told the victim they would get help. Muhammad testified that when the people left two men came from the gangway. One man stayed at the end of the gangway, while another hooded man came out, grabbed petitioner, and dragged him by his feet into the gangway. She heard the victim say, "No, don't do that to me." Muhammad then heard the men kicking the victim in the gangway and saying, "Die, motherf***er." Muhammad heard the victim scream, "Don't hurt me," then silence. The police arrived soon afterward.

  Officer Dennis Suglich ("Suglich") testified that he was on his way to the scene of the shooting in his squad car when he received the flash radio message that two black males wearing dark clothes were seen leaving the scene of a crime heading westbound. A few minutes later, Suglich saw petitioner and McKinzie, both dressed in black, running through an empty lot only one and a half blocks from the scene of the crime. Petitioner and McKinzie were the only two people on the street. When petitioner and McKinzie saw Suglich's squad car, they attempted to hide against the side of an abandoned building bordering the lot. When Suglich exited his squad Page 6 car to approach them, both petitioner and McKinzie ran off, heading eastbound toward Baltimore. Suglich ran after them for less than one block, pursuing them into a yard with a fence. Suglich was within six feet of petitioner when petitioner climbed the fence, looking back at Suglich. The yard was illuminated by lights nearby. Suglich testified that he saw petitioner's face for "a good second or two." Although petitioner escaped, Suglich succeeded in tackling McKinzie.

  Sergeant Ricardo Pina ("Pina") also testified. At approximately 3:30 a.m., Pina was on patrol in his squad car looking for the person who had fled from Suglich, a black male wearing dark clothing with a hood, as described to him an hour earlier. Pina was driving southbound at 90th Street and Houston when he saw petitioner, who was wearing dark clothes, walking through an alley behind a library. Petitioner was the only person on the street. Pina exited his squad car and asked petitioner his name, address, and where he was going. Petitioner told Pina his name and address, 8240 S. Ada, and said that he was coming from his girlfriend's house at 87th Street and Mackinaw. Petitioner, however, could not tell Pina a precise address or his girlfriend's telephone number.

  Pina radioed Suglich, who was transporting McKinzie to the station at the time, for a verification of the description of the suspect. Suglich described the suspect as a black male wearing black pants and a black coat with a hood. Pina then handcuffed petitioner, placed him in the squad car, and took him to the crime scene, where Suglich identified him as the individual who had fled from him earlier.

  Thereafter, the State rested. (Resp. Ex. L, Trial T. at O-164.) Before resting, defense counsel requested the trial court to admonish petitioner. (Id.) Petitioner stated that he agreed Page 7 with counsel's decision not to present additional evidence or to call witnesses. (Id.) Then the defense rested.

  The court then proceeded to closing arguments. During closing argument, petitioner's trial counsel stated that petitioner denied making a confession. Petitioner's counsel also pointed out that the State failed to document the existence of the confession and questioned the credibility of the State's witness, Detective Karl, who testified about the confession.*fn2 On rebuttal, the prosecutor labeled the petitioner's counsel's argument as the "26th Street shuffle," (presumably referring the Cook County Criminal Courthouse, located at 2650 South California Avenue). The prosecutor pointed out that no one testified to contradict Detective Karl's testimony about petitioner's confession and thus petitioner's counsel failed to produce evidence to refute ...

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