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September 17, 2004.


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.

I. Background

  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.

  II. Discussion

  A. Threshold Matters

  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 ...

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