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December 15, 2005.

BLAIR LEIBACH, Respondent.

The opinion of the court was delivered by: MARK FILIP, District Judge

Gregory Williamson ("Williamson" or "Petitioner"), has filed a petition for a writ of habeas corpus ("Petition") against Blair Leibach, the warden of Danville Correctional Center in Danville, Illinois. Petitioner challenges the constitutionality of the state court conviction and judgment under which he is incarcerated. For the reasons explained below, Williamson's Petition for a writ of habeas corpus is respectfully denied.


  Williamson is imprisoned pursuant to a judgment of the Illinois courts. Following a jury trial, he was convicted of first-degree murder and was sentenced to 30 years imprisonment, with no good-time credits available. (D.E. 13, Ex. C at 1.)*fn1 On November 11, 1995, Williamson and Fairleigh Jones ("Jones"), both members of the "Gangster Disciples" street gang, asked an acquaintance of Williamson's, Antwon Stepney ("Stepney"), to drive them to a "guy's house to get some money." (Id. at 2.) The "guy" was Joseph Gilchrist ("Gilchrist"), who lived at an apartment complex in Joliet, Illinois, and who owed a $600 drug debt to Jones. (Id.; see also id., Ex. A at 5, 14.) During the drive to Gilchrist's apartment, Williamson and Jones both stated that if Gilchrist did not have the money, they would have to "beat him down." (Id., Ex. C at 2.) During this time, Stepney did not see any weapons. (Id.) Upon arriving at the apartment, Petitioner and Jones asked Stepney to wait outside, and Stepney complied. (Id.)

  Petitioner and Jones "were gone approximately seven minutes." (Id.) The exact sequence of events that transpired during those seven minutes is unknown. Williamson made conflicting statements to several individuals, in which he variously admitted that he murdered Gilchrist and also claimed that Jones was the killer. (E.g., id., Ex. N at 2 (court of appeals explaining that Williamson "made conflicting statements to several individuals, in which defendant variously admitted that he had killed Gilchrist or placed blame on Jones"); id, Ex. O at 3-4 (stating that after the attack on Gilchrist, "Williamson told Jones that, `you know, when that dude fell, he was breathing his last breath'" (quoting trial testimony of Stepney)).) One thing is for certain: someone "beat down" Gilchrist, who was stabbed to death and left lying in a pool of blood on the landing of his apartment building. (Id., Ex. A at 5.)

  When Williamson and Jones returned to the car, they had Stepney drive them to a shoe store to return a pair of shoes. (Id., Ex. C at 2.) During this ride, Stepney saw Williamson pull a knife out of his pocket or sleeve and slip the knife under the console between the seats. (Id.) Williamson exhorted Jones not to "tell on" him; Jones replied that he would not say anything. (Id.) Williamson and Jones had Stepney drive them to a few other stops, during which time Williamson and Jones were in a celebratory mood, flashing gang signs and stating that they had "handled" the person they had seen. (Id.) During a stop at the home of Williamson's aunt, Stepney looked to see if the knife was still under the console while Petitioner was inside the house; the knife was gone. (Id.) At some point while driving Jones and Williamson around, Stepney also learned that Jones was supposed to pay Williamson $60 and give him some cocaine for helping Jones "handle" Gilchrist. (Id. at 2-3.)

  After Gilchrist's corpse was discovered in the landing of his apartment building, the police investigation zeroed in on Williamson as the principal suspect; Petitioner was subsequently arrested and tried for Gilchrist's murder.*fn2 (Id. at 1.) Stepney was the State's witness at trial. (Id. at 1-2.) Among other evidence, the State also presented Randy Green, a "jailhouse informant" who testified that Williamson had made incriminating statements while they were cellmates at the Will County detention facility. (Id., Ex. A at 9.) His testimony appears to have been consistent, as to various details at least, with that of Stepney. (D.E. 16, Ex. R at 525.)

  The prosecutor, in closing argument, argued that Williamson's post-stabbing actions spoke louder than did his various conflicting accounts about who was the killer and what had occurred. (See, e.g., id, at 493-96.) The argument included the following passage: Look, every version he [Williamson] gives there is little bit more evidence against him, he is trying to explain it away, but he has never given you the entire version in any of these statements. . . . In fact, when you look at what's probably the most likely statement, what's closest to the truth, look at how he [Williamson] was acting right after the event took place because he wasn't thinking right away that the police were on to him, he wasn't charged with anything, he was celebrating, he was happy for what he accomplished, he and Fairleigh Jones. He was happy about stabbing Joseph Gilchrist, because you know what, that made him a GD [Gangster Disciple] to the bone.

It wasn't until after people started investigating him that he came up with this other stuff, it wasn't me, I have to come up with self-defense then. Now I got to get out of this. Look at what he was doing right after and how he was acting right after, and that's probably the closest indication you are going to have from him as to what actually happened. And in the way he is acting, it's clear that he had a heck of a lot more to do in this than laying down at the bottom landing as he watched Fairleigh Jones stab Joseph Gilchrist. You look at the way he was acting, he was the one doing the stabbing.
(Id., at 495-96; see also D.E. 1 at 5 (citing D.E. 16, Ex. R. at 496 (quoting one sentence of argument)).)
  In the defense closing, defense counsel argued that the evidence showed that "Fairleigh Jones killed the man [Gilchrist]." (D.E. 16, Ex. R at 502.) The defense did not question that Williamson was present at the killing, nor that Williamson "went there to collect some money for Fairleigh Jones, to help Fairleigh collect some money, from a man who weighed 130 pounds." (Id.) The defense argued that Stepney was "a liar" (id. at 503), as were Green and other State witnesses. (E.g., id. at 504-09.) The defense also rhetorically asked the jury:
Where is Fairleigh? We know Fairleigh talked to the police and gave a taped statement. He was in custody that day and released, not to be heard from again. He is not here to tell you what happened. He is the only other man in this world that can tell you what happened at 300 Union. But he is not here. He is not here to explain why there is blood on his shoe. He is not here to explain why there is blood on his pants. [. . . .] He is not here to explain away what he said or didn't say to Antwon Stepney on the 12th to intimidate him. He is not here to say Gilchrist owed me 600 bucks for drugs. He is not here to say what happened at the top of those stairs when he knocked on the door. He is not here to tell you that he got his pound of flesh. He is the man who murdered Joseph Gilchrist. (Id., at 513-14.) The defense also told the jury to make the State "explain where Fairleigh Jones is." (Id. at 514.)
  The State began its rebuttal by stating that "[t]he Defense made great points," and then the State began to attempt to rebut them. (Id., at 518.) The prosecution explained that Jones would take Williamson to "do a beat down" on a 130-pound man (a question the defense had raised) because both Jones and Williamson were cowards. (Id.) The prosecution added that "we will never know exactly what happened," because the only person who could truthfully tell the jury what happened the night of the murder was Gilchrist, and Williamson had foreclosed that possibility by killing him. (Id.; see also D.E. 13, Ex. N at 2 (discussing trial arguments).) The prosecutor said that Petitioner was willing to tell the police anything to get out from under the charge, but the truth came from the witnesses who testified in court, including people like Stepney, who lived in a neighborhood controlled by Gangster Disciples and showed courage by coming forward to testify against one of the gang members. (D.E. 16, Ex. R at 518; see also, e.g., id. at 522, 527.) Finally, the prosecutor stated that even if Williamson did not stab Gilchrist, he was responsible under Illinois accountability principles for Jones's actions in any event on the evidence adduced in the case. (Id., Ex. N at 2-3.) The jury received an instruction on the defendant's right not to testify; it also received an instruction on Illinois's accountability principles. (Id. at 3.) After deliberation, Williamson was found guilty and received a thirty-year prison sentence. (Id. at 1.)

  On direct appeal, Petitioner argued that he received ineffective assistance of trial counsel when his attorney did not request an accomplice instruction regarding Stepney's testimony and that Illinois's truth-in-sentencing law (making petitioner ineligible to receive good-time credits) was unconstitutional due to Illinois's legislation-single-subject rule. (Id., Ex. A) The appellate court affirmed Petitioner's conviction, finding that there was no ineffective assistance of counsel for failing to ask for the instruction because the evidence made clear that Stepney was not an accomplice and therefore "it would have been improper to give an accomplice-witness instruction to the jury." (Id., Ex. C at 5.) Further, the appellate court, applying People v. Reedy, 708 N.E.2d 1114 (Ill. 1999), and accepting a State concession on the issue, modified Petitioner's sentence to allow good-time credits against his 30-year term. (D.E. 13, Ex. C at 5.) Petitioner sought leave to appeal to the Illinois Supreme Court; he was denied leave to appeal on April 5, 2000, in an unpublished summary order. See People v. Williamson, 729 N.E.2d 503 (Ill. 2000).*fn3

  On August 24, 1998, while his direct appeal was pending, Williamson filed a pro se motion for relief from judgment under 735 ILCS 5/2-1401, which was subsequently converted into a petition for post-conviction relief. (D.E. 13, Ex. D.) After the court appointed him counsel, Williamson was granted leave to file an amended petition. (Id., Ex. G.) In response to the prosecution's motion to dismiss (id., Ex. 1), Williamson filed his second amended petition, which substantially mirrored the claims raised in the first amended petition. (Id., Ex. H.) Specifically, Williamson raised three ineffective assistance of counsel (trial and appellate)*fn4 claims: (1) failure to object to alleged defects in the physical evidence (id. at 2-4); (2) failure to object to several of the prosecutor's comments during closing argument and rebuttal (id. at 4-5); and (3) failure to investigate and interview potential witnesses. (Id. at 5.) While Williamson's pro se petition identified Strickland v. Washington, 466 U.S. 668 (1984), his second amended petition did not identify a federal or state constitutional basis for his claims.

  On March 20, 2001, the circuit court dismissed Williamson's post-conviction petition. (Id., Ex. J.) The circuit court acknowledged Williamson's ineffective assistance of counsel claim with respect to the physical evidence (see id. at 1), in the course of summarily dismissing the entire petition because "the allegations in the petition . . . [did] not support a claim of substantial deprivation of constitutional rights." (Id. at 3.) In terms of Williamson's potential-witnesses claim, the circuit court reasoned that the decision of Williamson's counsel not to call the suggested witnesses, who would place Williamson "at the scene of a crime with the intention to commit a criminal act," was "well within bounds of appropriate representation." (Id. at 2; see also id. ("The witnesses that the Defendant alleges should have been called to testify at his trial all placed the Defendant at the scene of the crime with Jones."); id. at 3 ("All of the witnesses had Jones bringing the Defendant [i.e., Williamson] along to help him collect the drug debt.").) Finally, the circuit court rejected Williamson's improper-comments claim because the prosecutor accurately stated Illinois law with respect to accomplice liability, and the circuit court concluded by stating that the allegations in Williamson's petition did not support a claim of a substantial deprivation of a constitutional right. (Id. at 2-3.)

  On appeal from the denial of his post-conviction petition, Williamson presented his ineffective-assistance claims relating to the prosecutor's comments on Williamson's decision not to testify at trial and the prosecutor's explanation of accountability principles. (Id., Ex. K.) However, Williamson did not present his failure-to-investigate-witnesses or his failure-to-object-to-physical-evidence claims. (Id.) Williamson's brief identified Strickland v. Washington, 466 U.S. 668 (1984), as the governing standard for ineffective assistance of counsel claims. However, the reasons why counsel allegedly was ineffective were both entirely argued as issues of Illinois law; no federal cases or constitutional provisions were cited beyond Strickland. (See D.E. 13, Ex. K at 1-2 (Table of Authorities).)

  On July 19, 2002, the appellate court affirmed the denial of Williamson's post-conviction petition. (Id., Ex. N.) The appellate court explained that a person does not receive ineffective assistance of counsel when his attorney does not raise substantively meritless issues or objections. (Id. at 4 ("If the underlying issue has no merit, a defendant cannot be considered to have suffered prejudice from appellate counsel's failure to brief the issue.").) With respect to the purported comments on Williamson's decision not to testify, the court, applying state-law principles, determined that the remarks were proper because they were intended to rebut defense counsel's claims that the State's witnesses lacked credibility. (Id. at 5.) In this regard, the appellate court stated that a review of the record made "apparent that the comments in question were not designed to improperly focus the jury's attention on defendant's failure to testify, but to focus on the testimony presented at trial and to hold defendant accountable for the murder." (Id.) The appellate court rejected the Illinois-accountability-law-comments claim because "the context of the prosecutor's rebuttal comment made it clear that the agreement between [Williamson] and Jones included use of [Williamson's] `muscle' to batter the victim if he resisted collection efforts." (Id. at 5-6.) The appellate court further reasoned that Illinois's common-design rule made Williamson accountable for the murder because it was in furtherance of the intended crime of battery. (Id. at 6.) Finally, the appellate court noted that the jury received appropriate, accurate instructions on the petitioner's right not to testify and on Illinois's law of criminal accountability. (Id.) The appellate court, in summary, affirmed the rejection of Williamson's ineffective assistance claims with respect to his trial and his appellate counsel. (Id.)

  Williamson subsequently filed a pro se petition for leave to appeal to the Illinois Supreme Court. (Id., Ex. O.) Petitioner argued that defense counsel was ineffective for failing to object to the prosecutor's comments during closing argument and in not contacting certain potential witnesses. (Id.) Williamson's petition identified Strickland as a federal basis for his ineffective assistance of counsel claim and identified Griffin v. California, 380 U.S. 609 (1965), as the controlling federal case on prosecutorial comments relating to the defendant's decision to remain silent. (D.E. 13, Ex. O at 12.) The Illinois Supreme Court denied leave to appeal on December 5, 2002, without a written opinion. (Id. at 18.)

  On December 1, 2003, Williamson filed the petition for writ of habeas corpus that is before the Court. (D.E. 1.) The Petition suggests three grounds for habeas relief: (1) Williamson received ineffective assistance of trial counsel when defense counsel did not object to the prosecutor's comments allegedly referencing Williamson's decision not to testify (id. at 5); (2) Williamson received ineffective assistance of appellate counsel when appellate counsel did not argue the prosecutor's comments were plain error under Illinois law (id. at 6);*fn5 and (3) Williamson received ineffective assistance of counsel and was deprived of due process of law due to trial counsel's alleged failure to investigate, locate, and/or call potential witnesses. (Id.) DISCUSSION

  I. Standard of Review

  The grounds upon which a federal district court may issue a writ of habeas corpus for a person imprisoned pursuant to a state court criminal judgment are subject to meaningful limits. First, habeas relief can be granted "only on the ground that [a prisoner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. ยง 2254(a). The Court cannot grant habeas relief on grounds that a state court incorrectly applied state law, except to the extent that such application also violated federal law. See Dellinger v. Brown, 301 F.3d 758, 764 (7th Cir. 2002) ("Federal habeas relief is only available to a ...

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