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August 17, 2004.

CHARLES L. HINSLEY, Warden[fn1] Respondent.

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

*fn1 Charles L. Hinsley is the current Warden as the Menard Correctional Center and is thus the proper respondent in this habeas corpus action. See Rule 2(a) of the Rules Governing Habeas Corpus cases under 28 U.S.C. § 2254. Therefore, the court substitutes Hinsley as the respondent. See Fed.R. Civ. Pro. 25(d)(1).


On August 14, 1998, following a jury trial in the Circuit Court of Cook County, Illinois, petitioner John Ebert ("Ebert") was convicted of two counts of first-degree murder and one count of armed robbery. He was sentenced to natural life in prison for the murder convictions, plus a concurrent thirty years for the robbery conviction. On March 3, 2003, Ebert filed his petition for a writ of habeas corpus with this court pursuant to 28 U.S.C. § 2254, alleging that the state presented insufficient evidence for the jury to return a guilty verdict, that he suffered from ineffective assistance of counsel and that the Illinois statute, under which he was sentenced to a term of natural life in prison, is unconstitutional. For the reasons stated below, his petition is denied in its entirety. HABEAS STANDARD

  Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), this court must deny Ebert's 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 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d); Price v. Vincent, 538 U.S. 634 (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).

  A state court's decision is an unreasonable application of clearly established Supreme Court law "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of a particular prisoner's case" or "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. 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) ("The state court decision is reasonable if it is minimally consistent with the facts and circumstances of the case.").

  Before reviewing the state courts' decisions, however, the court must determine whether Ebert 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 in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Anderson v. Cowan, 227 F.3d 893, 899 (7th Cir. 2000).


  A. Procedural History

  Ebert was originally convicted of two counts of first-degree murder and two counts of armed robbery on November 5, 1993. This conviction was overturned by the Illinois Appelate Court and remanded for a new trial on the grounds that he was denied effective assistance of counsel. Following a second jury trial, Ebert was convicted in the Circuit Court of Cook County of two counts of first-degree murder and one count of armed robbery on August 14, 1998. He was sentenced to imprisonment for his natural life for the murder convictions and thirty years for the armed robbery conviction, to be served concurrently. Ebert appealed his conviction, arguing that (1) the state did not establish his guilt beyond a reasonable doubt; (2) his purported confession was insufficient to support the jury's verdict; (3) his trial counsel's failure to attempt to suppress his purported confession amounts to ineffective assistance of counsel; and (4) the prosecution prejudiced him by making unfounded and inflammatory comments in closing argument. On February 29, 2000, the Illinois Appellate Court affirmed the judgment on direct appeal. Ebert petitioned the Illinois Supreme Court for leave to appeal, raising issues 1-3 above. The Illinois Supreme Court denied his petition on May 31, 2000.

  On April 24, 2001, Ebert filed a petition for post-conviction relief with the Circuit Court of Cook County. On May 17, 2001, the Circuit Court denied Ebert's petition and on September 23, 2002, the Illinois Appellate Court affirmed the denial. On February 5, 2003, the Illinois Supreme Court denied Ebert's petition for leave to appeal. On March 3, 2003, Ebert filed a habeas petition with this court. Because this petition was filed within one year after the conclusion of his Illinois post-conviction proceedings, this court has jurisdiction to consider Ebert's habeas petition. See 28 U.S.C. § 2244(d)(1)(A); Gray v. Briley, 305 F.3d 777, 777-78 (7th Cir. 2002).

  B. Facts

  When considering a habeas petition, the court must presume that the state courts' factual determinations are correct unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). Ebert has not presented clear and convincing evidence to rebut this presumption. Therefore, the court adopts the Illinois Appellate Court's recitation of facts in People v. Ebert, No. 1-98-3650, slip op., at 3-8, 10-12 (1st Dist. 2000) (unpublished order) (Resp. Ex. D.)

  In his confession, Ebert stated that on March 1, 1992 at about 5:00 a.m. he and James "Ike" Maynard ("Maynard") were on the street outside the second-floor apartment shared by Bobby English ("English") and the victims, Frank Svec ("Svec") and Albert Jevorutsky ("Jevorutsky"). Ebert called up to English to let him in and, after English did so, the two of them watched television while Svec and Jevorutsky slept in their bedrooms. A short time later, Maynard, who resided downstairs at the first-floor apartment with his girlfriend, Sharon Brasher, and her children, called up to Ebert and English asking to be let in as well. After he was let in, Maynard told Ebert and English that he needed money and proposed that the three of them rob Svec and, if necessary, kill him. Ebert agreed that they should rob Svec.

  Thereafter, Ebert went into Svec's room and began looking through drawers. Svec woke up and began shouting at him. At this point, Ebert chased Svec out into the main room of the apartment, whereupon Maynard began to beat Svec, knocked him to the floor and began to kick him in the head. Ebert returned to Svec's room to continue the search for money. English then entered Svec's room and took some coins he found there. Next, Ebert heard Jevorutsky screaming, stepped out of Svec's room and saw that Maynard was now in Jevorutsky's room kicking him. Ebert returned to Svec's room with English and continued the ...

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