The opinion of the court was delivered by: BLANCHE MANNING, District Judge
Petitioner Jerome Murray's pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is before the court. For the
following reasons, Murray's petition is denied.
The court will presume that the state court's factual
determinations are correct for the purposes of habeas review as
Murray has not provided clear and convincing evidence to the
contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig,
283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state
court's recitation of the facts, and will briefly summarize the
key facts which are relevant to Murray's § 2254 petition.
In June of 1990, while Lisa Stokes and two of her friends were
seated on a park bench, a bearded, African-American man attempted
to engage them in conversation. When the women attempted to
leave, the man seized Stokes using a knife, dragged her deeper
into the park, and raped her. Stokes escaped and called the
police. Physical evidence, known as a "Vitullo kit," was taken
from Stokes when she was at the hospital. This kit established
that the attacker had type B blood. Murray, like 36% of the
population, had type B blood. Stokes and the two friends who were with her on the day of the
attack testified at trial and identified Murray as the offender.
In addition, the State presented two witnesses (a serologist and
a nurse) who testified about the Vitullo kit. Their description
of the kit's contents were largely but not entirely similar.
Trial counsel did not attempt to challenge the chain of custody
for the kit from the time it was assembled in the hospital to the
time it arrived at the laboratory for analysis. The defense
conceded that Stokes was raped but contended that Murray was not
the attacker and, among other things, presented witnesses who
testified that Murray's facial hair at the time of the attack did
not resemble the descriptions given by the three women.
The jury convicted Murray of aggravated criminal sexual
assault. He was subsequently sentenced to fifty-five years
imprisonment. His conviction and sentence were affirmed on direct
appeal and he did not file a petition for leave to appeal ("PLA")
with the Illinois Supreme Court for his direct appeal.
Murray did, however, file a pro se post conviction petition. In
this petition, he asserted that trial counsel was ineffective for
failing to challenge the procedures used to identify him. After
counsel was appointed, Murray filed a supplemental pro se
petition alleging that the chain of custody of the evidence used
against him was compromised and/or fabricated. Murray also filed
a complaint with the Attorney Registration and Disciplinary
Commission ("ARDC") against his appointed counsel after counsel
declined to adopt the pro se supplemental petition. In addition,
counsel filed a petition contending that: (1) trial and appellate
counsel in the direct proceedings were ineffective because they
failed to contest admission of the Vitullo kit based on problems
with the chain of custody; and (2) Murray's sentence violated the
rule set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000). The trial court dismissed all of the petitions. Murray then
filed a successive post-conviction petition which included the
claims in his original pro se post-conviction petition. After the
trial court rejected the successive petition, Murray appealed.
The Illinois Appellate Court consolidated the appeals and
affirmed across the board, finding, among other things, that: (1)
Murray had waived his argument that the Vitullo kit was
fabricated and/or doctored; and (2) the trial court properly
dismissed the chain of custody argument raised by Murray's lawyer
because the evidence against Murray was overwhelming. Murray
filed an unsuccessful PLA challenging these two holdings.
In his § 2254 petition, Murray asserts that: (1) the trial
court erred when it rejected his pro se supplemental
post-conviction petition because his conviction was based on
false evidence; (2) his due process rights were violated when the
State presented false evidence at trial; (3) the rejection of his
post-conviction ineffective assistance claim led to a denial of
due process; (4) the trial court erred when it ruled on his
post-conviction petition without first determining whether the
fact that he had filed an ARDC complaint against his appointed
counsel meant that counsel had a conflict of interest; (5) the
appellate court erred when it held that he had waived his right
to obtain an evidentiary hearing during the post-conviction
proceedings by not raising the evidentiary hearing argument on
direct appeal; and (6) his trial counsel and appellate counsel on
his direct appeal were ineffective.
The court will begin by summarizing the rules governing
exhaustion and procedural default and by recapping the standard
of review that guides this court in resolving Murray's § 2254
petition. 1. Exhaustion and Procedural Default
Before this court may reach the merits of Murray's federal
habeas claims, it must consider whether he has exhausted his
state remedies and avoided procedural default under Illinois law.
See Mahaffey v. Schomig, 294 F.3d 907, 914-15 (7th Cir. 2002).
a. Exhaustion of State Court Remedies
To exhaust state court remedies, a petitioner must give the
state courts an opportunity to act on each of his claims before
he presents them to a federal court. See O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). State remedies are exhausted
when they are presented to the state's highest court for a ruling
on the merits or when no means of pursuing review remain
available. Boerckel, 526 U.S. at 844-45, 847;
28 U.S.C. § 2254(c). Here, Murray has ...