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November 17, 2004.

SHELTON FREY, Defendant.

The opinion of the court was delivered by: CHARLES KOCORAS, District Judge


This matter comes before the court on a petition for habeas corpus by Marcus Hunter,*fn1 filed pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.


  According to evidence adduced at trial, Hunter was one of five men involved in an armed robbery in a South Side Chicago nightclub in December 1984. Three main witnesses testified regarding Hunter's involvement. The first, Wade Curry, recalled seeing Hunter point a gun at the head of a woman who worked at the club. Keeping Curry and the woman at gunpoint, Hunter took them into the basement of the club. He then left them there with two of his compatriots, William Glover and Marvin Bryant, while he went back upstairs in search of Eddie Morris, the club's owner. After Hunter departed, Glover took money and jewelry from Curry and another man who was in the basement. Curry's version of the events in the basement was corroborated by three other witnesses, one of whom was shot during the exchange.

  Rosalind Morris, the woman whom Curry saw, is the wife of Eddie Morris. She testified that Hunter took cash and jewelry from the couple's bedroom while holding them at gunpoint. Eddie's testimony about the events of that night was substantially the same as Rosalind's. Police later recovered a gun that witnesses identified as the one Hunter held.

  A jury convicted Hunter of armed robbery, home invasion, and aggravated battery on September 10, 1985. Because of several prior convictions for armed robbery, he was sentenced to natural life imprisonment and a concurrent term of 10 years. He appealed his sentence (though not his conviction) on constitutional grounds, but the Illinois Court of Appeals rejected his challenge and affirmed his sentence. People v. Glover, 527 N.E.2d 968, 971-73 (Ill.App.Ct. 1988). Thereafter, he petitioned the Illinois Supreme Court for leave to appeal the question of whether his sentence violated the Illinois and United States Constitutions. In his petition, Hunter argued that he was not subject to the enhanced sentences mandated by the Illinois recidivist statute, 720 ILCS 5/33B-1, because he had pled guilty to his prior felony offenses rather than having his case tried to a jury. Hunter also claimed that the robbery at the club should not be considered a violent act because he had not shot anyone. The petition was denied. People v. Glover, 535 N.E.2d 405 (Ill. 1988).

  Hunter then filed three postconviction petitions. The first, filed March 21, 1989, alleged that postconviction relief was appropriate for three reasons. First, Hunter claimed that Eddie Morris told Hunter's initially appointed counsel that Hunter was not involved in the robbery. Next, Hunter asserted that his second appointed attorney did not meet with him prior to trial, and thereafter rendered ineffective assistance at trial because he did not cross-examine Morris on the statement allegedly made to Hunter's former attorney and did not argue the effect of an inconsistent identification by one of the testifying witnesses. Lastly, Hunter claimed that his appellate counsel was ineffective because he argued only the constitutionality of Hunter's sentence, rather than addressing multiple issues that Hunter wished to bring before the court of appeals.

  On August 22, 1991, Hunter filed an amendment to his 1989 filing, bringing additional grounds for relief. Specifically, he claimed that his attorney did not contact or interview any of the witnesses Hunter identified in his favor, did not call any witnesses at trial on Hunter's behalf, and did not confer with Hunter prior to trial. He again asserted that his appellate counsel did not address issues that he wanted brought before the appellate court. Neither petition was ruled upon.

  Almost five years later, Hunter filed another postconviction petition, which was ultimately treated as an amendment of the 1991 petition. In this petition, Hunter averred that his trial counsel was ineffective for failing to interview certain witnesses and to inform him that those witnesses would not testify at trial, for ineffectively cross-examining a witness, for failing to object to an allegedly prejudicial comment by another defense attorney, for concealing evidence, and for failing to request a jury instruction. In addition, Hunter claimed that his conviction was invalid because he believed the state had used perjured testimony and withheld evidence, that the evidence presented was not sufficient to prove guilt beyond a reasonable doubt, and that the court had abused its discretion in rendering certain evidentiary rulings and giving particular jury instructions. Lastly, Hunter averred that postconviction relief was warranted because the clerk of the circuit court did not keep records that would allow Hunter to investigate whether the courts were applying criminal law uniformly.

  In October 1998, before the state court had ruled on his second postconviction petition, Hunter filed his first federal petition for a writ of habeas corpus. After a year of proceedings in this court and the Seventh Circuit, Hunter failed to respond to a motion to dismiss the petition on the ground that he had not exhausted his state court remedies. As a result, the motion was granted without prejudice.

  Meanwhile, in the state case, the prosecution moved to dismiss the postconviction petition.*fn2 After conducting an evidentiary hearing on Hunter's claims, the court granted the motion. Hunter appealed, but before his appeal could be decided, he filed a third petition for postconviction relief. The last petition was denied in July 2001, and the subsequent appeal was consolidated with that of the second petition. In a 34-page opinion, the appellate court affirmed the denial of postconviction relief, and the Illinois Supreme Court denied Hunter's petition for leave to appeal that decision in March 2004. People v. Hunter, 809 N.E.2d 1289 (Ill. 2004).

  Shortly thereafter, Hunter*fn3 successfully reinstated his federal petition and moved for appointment of counsel. Respondent Shelton Frey ("Warden Frey"),*fn4 warden of the Tamms Correctional Center where Hunter is incarcerated, has answered the petition, and the time is finally ripe for us to consider whether Hunter is entitled to relief under 28 U.S.C. § 2254.


  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a prisoner in state custody may petition a district court for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The AEDPA further dictates that a prisoner in state custody cannot be granted habeas relief "unless the state court decision `was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or `was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Schaff v. Snyder, 190 F.3d 513, 521 (7th Cir. 1999) (quoting 28 U.S.C. §§ 2254(d)(1), (2)). For a state court decision to be "contrary to" clearly established federal law, it must be "substantially different" from relevant Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519 (2000). This situation arises if the state court either applies a rule that contradicts the governing law as set forth by the Supreme Court or confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and still arrives at a different result. Id. at 405-06. A state court decision involves an ...

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