The opinion of the court was delivered by: David H. Coar United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Darnell Clay's motion to vacate his sentence pursuant to 28 U.S.C. § 2254 is before this Court.*fn1 For the following reasons, the motion is denied.
On January 29, 1998, following a jury trial in Cook County Circuit Court, Clay was convicted of two counts of aggravated kidnapping, and one count each of aggravated vehicular hijacking and armed violence. He was sentenced to concurrent prison terms of twenty-five years on each of the latter counts and fifteen years on the aggravated kidnapping counts. Briefly, Clay was convicted of kidnapping Shalonda Brown at gunpoint and forcing her into the back of her own car. At trial, Brown testified that Clay's co-defendant Willie McFadden forced to her call her boyfriend, Gerald Walters, and demand $100,000 for her safe release. McFadden, Clay, and their third co-defendant Alvin Mitchell then allegedly took Brown to a motel on Chicago's west side. McFadden and Mitchell were arrested at the scene of the ransom pick-up. Clay was arrested at the hotel on the night of March 22, 1996.
On direct appeal, Clay, who was represented by the public defender, argued that his right to a fair trial was violated because the prosecutor improperly assumed facts not in evidence in his closing argument to the jury. Specifically, Clay argued that the prosecution improperly presented a theory to the jury about what happened to the gun allegedly used during the kidnapping. No gun was recovered from the crime scene and Clay denied possessing or using a gun. In fact, no witness testified about what happened to the alleged gun. During his closing argument, however, the prosecutor discussed the gun and Brown's allegations that she was kidnapped at gunpoint and threatened with the gun during the course of her confinement. Clay contended that this argument overreached the evidence and assumed facts not in evidence. The Illinois Appellate Court disagreed, finding that the prosecutor's argument represented "legitimate inferences drawn from the facts and circumstances proved" and thus were permitted. People v. Clay, No. 98-1252, slip op., at 1 (Ill. App. Ct. Jun. 30, 1999) (citing People v. Shum, 512 N.E.2d 1183, 1193-94 (Ill. 1987)).
Clay filed a petition for leave to appeal to the Illinois Supreme Court on August 6, 1999, re-alleging that the prosecutor improperly assumed facts not in evidence relating to the gun in his closing argument. The Illinois Supreme Court issued a one-sentence denial of Clay's petition on October 6, 1999.
Shortly thereafter, on November 28, 1999, Clay filed a pro se post-conviction petition, claiming violations of his Sixth and Fourteenth Amendment rights and of his rights under Article 1, section 8 of the Illinois Constitution of 1970 because of ineffective assistance of counsel. In particular, Clay asserted that his counsel was ineffective because she failed to present a defense theory he advocated, and failed to interview and call an alibi witness, Cecil Hines, and one of Clay's co-defendants, Willie McFadden, to testify on his behalf. The trial court found that Clay could have raised his claims on direct appeal but had not done so. Despite this, the trial court reviewed Clay's ineffective assistance of counsel claim and found it without merit on February 23, 2000.
Clay appealed to the Illinois Appellate Court on March 23, 2001, alleging that the trial court erred in not finding his attorney's failure to call an alibi witness ineffective assistance of counsel, and that the trial court erred in sentencing because the sentence for armed violence based on ransom was unconstitutionally disproportionate to aggravated kidnapping with a handgun. The State responded, Clay replied, and the State filed a supplemental brief. The Illinois Appellate Court found that Clay did not satisfy the two-prong test for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984). After stating that "the decision whether to call a witness is considered a matter of trial strategy," People v. Clay, No. 00-1222, slip op., at 6 (Ill. App. Ct. May 24, 2002) (citing People v. Kidd, 175 Ill.2d 1, 45 (1997)), the appeals court noted that defendant stated in his motion for a new trial that he had "supplied information" about his alibi witness to his trial attorney. The appeals court found it reasonable to infer that "counsel knew the substance of Hines' testimony and decided not to call him," even though Hines stated that Clay's attorney never interviewed him. People v. Clay, No. 00-1222, slip op. at 7. The decision not to call a Hines was thus a trial tactic and did not support a claim of ineffective assistance of counsel. The appeals court, however, vacated Clay's sentences for the two counts of aggravated kidnapping because they violated the lesser-included offense doctrine.
On June 2, 2002, Clay filed a petition for leave to appeal to the Illinois Supreme Court, arguing that the lower courts erred in determining that his trial attorney's failure to call an alibi witness was trial strategy when she had never interviewed the witness and when the witness' testimony would have changed the outcome of the trial; and that the appellate court improperly inferred that Clay's trial attorney knew what his alibi witness would testify to because Clay had supplied only Hines' name and address to his attorney. The Illinois Supreme Court denied Clay's petition for leave to appeal on October 2, 2002.
Clay filed a timely petition for habeas corpus relief in this Court on November 18, 2002. His petition asserts five claims for relief, four of which allege ineffective assistance of counsel by his trial attorney: 1) for failing to contradict the prosecution's case or seek out exculpatory evidence; 2) for failing to interview and call a defense alibi witness, Cecil Hines, who would have corroborated Clay's defense theory and testimony; 3) for not defending Clay against two aggravated vehicular hijacking counts, thereby denying him a fair trial; 4) for failing to contradict photographic evidence the State presented to the jury of an alleged injury the kidnapping victim sustained to her knee during the crime. The fifth claim asserted is that the state courts erred in applying the presumption to an attorney's failure to call a witness was based on trial strategy. On February 10, 2003, Clay filed a motion for an evidentiary hearing with this Court, noting that the State had not yet answered his petition. The State responded to ...