The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Before this Court is petitioner Damen Price's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the
reasons discussed below, Price's petition is denied.
Petitioner does not challenge the statement of facts set forth
in the Illinois Supreme Court opinions affirming the judgments of
the trial court, and thus those facts are presumed correct for
purposes of the Court's review. See 28 U.S.C. § 2254(e)(1);
Ward v. Hinsley, 377 F.3d 719, 721 (7th Cir. 2004). The
Court, therefore, adopts the underlying facts set forth by the
Appellate Court of Illinois, First Judicial District, in
Petitioner's direct and post-conviction appeals. See People v.
Price, No. 1-97-3195 (1st Dist. April 5, 1999) (unpublished
order); People v. Price, No. 00-2838 (1st Dist. July 11,
2002) (unpublished order).
The evidence presented a trial established that on October 9,
1994, a four year old victim was killed in an arson fire at 743
W. 103rd Street in Chicago. The arson involved gang retaliation. The fire resulted from Molotov cocktails being
thrown into the house from an alley adjacent to a gas station
parking lot. The victim's cousin was a member of the Gangster
Disciples and was the intended victim. Petitioner was a member of
a rival street gang. At approximately 2:00 a.m., a group of men,
including Petitioner, were in the alley behind the house and
threw at least two Molotov cocktails through the kitchen window
yelling G.D.K., meaning Gangster Disciple Killer.
Following a jury trial in the Circuit Court of Cook County, the
jury found Petitioner guilty of first degree murder and
aggravated arson. The jury also found Petitioner eligible for the
death penalty, but determined that the court should not sentence
him to death. The Circuit Court thus sentenced Petitioner to
consecutive sentences of life imprisonment for first degree
murder and a 30-year prison term for aggravated arson.
Petitioner appealed his conviction to the First District
Appellate Court of Illinois. On appeal, Petitioner raised the
following issues: 1) he was denied a fair trial because the
prosecutor told the jury that defense counsel did not believe
Petitioner's testimony; 2) the court erred in sentencing
Petitioner without ordering a pre-sentence report and because the
parties did not agree to the imposition of a particular sentence;
and 3) the trial court abused its discretion when it sentenced
Petitioner to natural life imprisonment because the trial court's
sentence was unduly severe. (R. 15-1, Ex. A.) On April 5, 1999,
the Illinois Appellate Court, First Judicial District, affirmed
the Circuit Court. (Id. Ex. C.)
Next, Petitioner filed a petition for leave to appeal to the
Illinois Supreme Court. In his petition, he raised the same
issues that he presented in his direct appeal to the appellate
court. (Id. Ex. D.) On February 2, 2000, the Illinois Supreme Court
denied his petition for leave to appeal. (Id. Ex. E.)
Petitioner then filed a petition pursuant to the Illinois
Post-Conviction Hearing Act alleging that: 1) he received
ineffective assistance of trial counsel for failure to file a
motion to suppress statements; 2) he received ineffective
assistance of trial counsel for failure to adequately investigate
the crime scene; 3) he received ineffective assistance of trial
counsel for failure to call two individuals as witnesses who gave
statements after the State interviewed those witnesses; 4) he
received ineffective assistance of trial counsel for failure to
object after the trial court allowed co-defendant's statement
into evidence; 5) he received ineffective assistance of trial
counsel for failure to object when a certain State's witness
testified inconsistently from earlier testimony before the grand
jury; 6) he was denied a fair trial because the State did not
produce a witness to testify that Petitioner actually threw a
Molotov cocktail into the house; 7) he was denied a fair trial
after the trial court denied his motion for appointment of new
counsel; 8) he was denied a fair trial because the court admitted
co-defendant's written statement into evidence; 9) he was
prejudiced by the State's use of inflammatory remarks; 10) he was
prejudiced because the State failed to apprize the trial court
that one of its witnesses testified falsely; and 11) he received
ineffective assistance of appellate counsel for failure to comply
with Supreme Court Rule 341(e)(7). (Id. Ex. F). On June 20,
2000, the Circuit Court of Cook County denied Petitioner's
post-conviction petition. (Id. Ex. F.)
Shortly thereafter, Petitioner appealed the Circuit Court's
denial of his post-conviction petition to the Illinois Appellate
Court, First Judicial District. He claimed that the trial court
erred in summarily dismissing his pro se petition because it
included a non-frivolous claim of actual innocence based on an affidavit of his co-defendant, Imani
Thomas, and that his trial counsel was ineffective for failing to
present evidence that would have discredited the testimony of the
eyewitnesses. He also raised a claim based on Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Finally, Petitioner argued that the enactment of Public Act
83-942, which amended the Illinois Post-Conviction Hearing Act to
permit the dismissal of certain petitions prior to the
appointment of counsel, violated the single subject rule of the
Illinois Constitution. (Id. Ex. G.) On July 11, 2002, the
Illinois Appellate Court, First Judicial District, affirmed the
Circuit Court's summary dismissal of Petitioner's post-conviction
petition. (Id. Ex. J.) On August 1, 2002, the appellate court
denied Petitioner's petition for a rehearing. (Id. Ex. L.)
Petitioner then filed a petition for leave to appeal to the
Illinois Supreme Court arguing that: 1) his sentence violated
Apprendi; 2) the post-conviction court erred when it summarily
dismissed his pro se claims of actual innocence based on his
co-defendant's affidavit; and (3) the post-conviction court erred
because his post-conviction petition included a non-frivolous
claim that trial counsel was ineffective for failing to present
impeachment evidence. (Id. Ex. M.) On December 5, 2002, the
Illinois Supreme Court denied the petition for leave to appeal.
(Id. Ex. N.)
On February 4, 2003, Petitioner filed a successive
post-conviction petition raising the claim of actual innocence.
He again included Imani Thomas' affidavit. According to the
petition, Petitioner claimed that he misunderstood the law, and
thus was unable to adequately raise the claim in his first
petition. (Id. Ex. O.) On May 20, 2003, the Circuit Court of
Cook County dismissed the ...