The opinion of the court was delivered by: Charles P. Kocoras, Chief District Judge
This matter comes before the court on a petition for a writ of habeas corpus by Aldwin McNeal pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
McNeal and James Woods were indicted in Lake County, Illinois, for armed robbery of a restaurant that took place in early April 1994 during which two men, Corey Gerlach and Perry Austin, were murdered. Both were shot in the head with a 9-millimeter handgun.
On April 20, 1994, a police officer responded to a call directing him to an alley behind McNeal's townhouse in Zion, Illinois. Upon his arrival, the officer spoke with two teenaged girls with his back to the house. As they spoke, McNeal came out of the house with a brown paper bag. Seeing the officer, he dropped the bag into a nearby trash can and quickly went back into the house. The officer then took the paper bag out of the trash; inside was a loaded 9-millimeter handgun. Ballistics tests performed thereafter with the recovered firearm concluded that it was the gun used to kill Gerlach and Austin.
A few days later, Woods and McNeal's wife Regina were arrested on suspicion that they were involved in the murders. After she was arrested, Regina consented to a search of the Zion townhouse she shared with McNeal and implicated both McNeal and Woods. Police confronted Woods with Regina's accusations, and he eventually gave a statement.*fn1 In it, Woods told police about the murders and the contemporaneous theft of several pieces of stereo equipment from the restaurant. He stated that McNeal owned the handgun used to shoot the two victims. Woods also told police of another robbery that McNeal had conducted shortly before the murders with a teenage girl named Jennifer Giles. When Giles was interviewed, she corroborated Woods' story of the earlier robbery and told police that McNeal had beaten her and threatened to shoot her.
The search of the townhouse conducted pursuant to Regina's consent produced a bullet lodged in a wall that matched the handgun recovered from the trash can, as well as stereo equipment bearing the same brand and model number as a manual found at the restaurant where the murders occurred. Police were unable to determine if the equipment had the same serial number as the one stolen from the restaurant because that information had been scratched off of the stereo found at the townhouse.
Shortly thereafter, McNeal was arrested and confronted with the police's knowledge of the handgun and its involvement in several crimes, including the murders, and the statements given by Woods and Regina. McNeal stated that he did not remember the events of the night of the murders because he was under the influence of alcohol, heroin, and cocaine at the time but that he was "not going to go down for this by himself."
McNeal and Woods were tried separately. The evidence at McNeal's trial included the handgun and the officer's testimony regarding its discovery in the trash can; testimony of McNeal's brother, a Lake County deputy sheriff, and another man named Jimmy Gilmore that McNeal had told them that he was involved in the murders; Regina's testimony on a variety of topics including her involvement on that April night; other witnesses to particular aspects of the events of that night who corroborated Regina's account; identification of the stereo recovered from McNeal's house by a friend of Gerlach's as that which had formerly been at the restaurant; and ballistics evidence connecting the bullets recovered from the murder scene to that found at McNeal's house and to the recovered handgun. Giles offered testimony of her involvement with McNeal at the earlier robbery. Woods' statement was not introduced at McNeal's trial.
McNeal was convicted on the armed robbery charge and both murder counts and was sentenced to 30 years for the first offense and death for the second two.*fn2 He appealed several aspects of his conviction and sentence to the Illinois Supreme Court, two of which are relevant to our consideration of his petition. The first focused on Regina's testimony regarding her plea agreement with the state, which provided that the state would not charge her in connection with the murders of Gerlach and Austin if she testified truthfully against McNeal. However, when the prosecutor asked her about this aspect of her arrangement at trial, she stated that she did not recall that being a part of her agreement. The second pertinent point McNeal raised before the Supreme Court concerned a special verdict form used for the first-degree murder counts. According to McNeal, the absence of specific mention of two elements of the crime on the verdict form violated his Sixth Amendment rights. The Illinois Supreme Court subsequently affirmed the conviction and sentence.
McNeal then filed a post-conviction petition in state court, asserting that he should be afforded relief on several grounds. Three are relevant here; all pertain to his counsel's performance at trial. First, McNeal contended that his trial counsel was ineffective for failing to solicit testimony from James Gilmore, Tony Gilmore, Gloria Lomack, Andrea Green, Delores Smith, Carnell Taylor, and David Pitts as part of the defense's case. Second, he asserted that counsel should have ordered forensic tests of blood and hair on the murder victims. Third, he argued that his attorney should have sought to suppress evidence found during the search of the townhouse. The state moved to dismiss the petition, and the trial court granted the motion.*fn3 On November 10, 1997, the appellate court affirmed the dismissal. On October 13, 2000, the Illinois Supreme Court followed suit.
While McNeal's first post-conviction petition was pending, the Illinois Supreme Court considered the issue of whether the statement Woods made to police after his arrest should be suppressed as coerced in light of injuries he received while in police custody. Concluding that the state had not offered clear and convincing evidence that the injuries were not the result of physical violence designed to coerce him to confess, the Court reversed the trial court's decision not to suppress the statement and the resulting conviction and remanded the case for a new trial. People v. Woods, 703 N.E.2d 35 (Ill. 1998).
As stated earlier, McNeal and Woods were tried separately and Woods' statement was not introduced at McNeal's trial. However, after the Court decided Woods, McNeal promptly filed a second post-conviction petition seeking a retrial on the basis that the evidence obtained as a result of Woods' statement should have been suppressed at his trial. The trial court considered the petition but denied it on its merits. Both appellate courts affirmed that decision.
McNeal filed the instant petition pursuant to 28 U.S.C. § 2254 on February 7, 2005. At this court's request, the parties filed additional briefing addressing the issue of the timeliness of McNeal's filing. After reviewing the helpful and instructive papers filed ...