The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge
MEMORANDUM OPINION AND ORDER
Before the Court is pro se Petitioner Thomas Evans' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the reasons discussed below, the Court denies Evans' petition.
Evans does not present clear and convincing evidence challenging the statement of facts set forth in the Illinois Appellate Court's opinions affirming the judgments of the Circuit Court of Cook County, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Ruvalcaba v. Chandler, 416 F.3d 555, 560 (7th Cir. 2005). The Court, therefore, adopts the underlying facts as set forth by the Illinois Appellate Court, First Judicial District, in Evans' direct and post-conviction appeals. See People v. Evans, No. 1-99-1875 (1st Dist. July 27, 2001) (unpublished order); People v. Evans, No. 1-02-1110 (1st Dist. Nov. 26, 2003) (unpublished order).
In 1993, a jury found Evans guilty of two counts of first degree murder. The Illinois Appellate Court reversed Evans' convictions concluding that Evans was entitled to a jury instruction on second degree murder. See People v. Evans, No. 1-94-0043 (1st Dist. Apr. 29, 1996) (unpublished order). On retrial, the Circuit Court conducted a bench trial in September 1998.
A. Police Officers' Trial Testimony
Trial evidence from the 1998 bench trial reveals that on October 9, 1990 at about 3 a.m. Chicago Police Officers were dispatched to a residence at 5701 South Damen Street in Chicago, Illinois after Evans called 911 and explained that his wife shot him and then shot herself. When the police officers arrived at the residence, they found Evans in his underclothes lying in a puddle of mud in his backyard. Evans' head and feet were bloody.
When the police officers approached the back door of the home, they saw bloodstains on the stairs leading to the second floor apartment where Evans lived with his wife and two children. When the police entered Evans' apartment, they found Evans' wife, Mary Ann Evans, lying on the floor in a pool of blood. Her left hand was resting on a revolver that was on her chest. The police also noticed a trail of blood smeared in a "dragging pattern" which extended into the apartment's dining room. Adult sized footprints were visible in the blood, as well. Also, the officers found another pool of blood in the dining room along with four shell casings and a trail of blood leading into a bedroom.
One police officer testified that she followed the trail of blood into the bedroom and found two small boys in bed. One of the boys was huddled in a corner and appeared distressed. The other child, later identified as two-year old Deandre Evans, was lying in a fetal position and appeared to be sleeping. The police officer testified that she ran her hand across Deandre's head and heard a gurgling sound. The officer noticed that blood was coming out of the child's mouth. The officer immediately called for medical assistance.
A forensic investigator also testified at trial. He testified that he found four .45 caliber cartridge casings on the dining room floor, one .45 caliber casing in the kitchen, a .38 caliber casing in the attic, and a discharged bullet under Mary Ann Evans' body. The forensic investigator performed gunshot residue tests on both Mary Ann Evans and Thomas Evans.
Another police officer testified that she talked to Evans on the morning of the murders when he was in the backyard. Evans stated that he did not know what had happened because he entered the house, heard two gunshots, and ran back downstairs. The officer testified that Evans was coherent at the time of this conversation.
B. Attending Physician's Testimony
The attending physician at the emergency room testified that Evans was admitted with a head wound and an altered mental state. A blood test indicates that Evans' blood alcohol level was .131, well over the legal limit. Evans had a laceration on his head and cuts on his ankles and toes. The result of his CT scan was normal.
The Circuit Court admitted evidence from Evans' 1993 jury trial pursuant to the parties' stipulation. The stipulation included testimony by the trace evidence expert that Mary Ann Evans and Thomas Evans both had gunshot residue on their hands. The medical examiner testified that Mary Ann had recent bruises and scratches on her face, chin, forearm, and thumb and that Mary Ann had died from gunshot wounds to her left cheek, left nostril, right hand, and left thigh. The medical examiner testified that the bullets that struck Mary Ann's head were fired from at least 18 inches away, and thus could not have been self-inflicted. The medical expert also testified the Deandre died from a gunshot wound. Specifically, the bullet entered Deandre's left shoulder, went through his spinal cord and lung, and exited near the armpit fold on the left side of his chest.
The State played a recording of Evans' 911 call at trial. Evans told the 911 dispatcher that he had been shot and that his wife was dead. Evans claimed that his wife shot him as soon as he came into the house. When the dispatcher asked Evans who shot his wife, he ...