The opinion of the court was delivered by: Herndon, District Judge.
Before the Court is Petitioner Leslie Stanley's ("Stanley" or "Petitioner") Amended Habeas Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 15) and Motion to Strike Respondent's Affirmative Defenses (Doc. 33). As the Court stated in its previous Order (Doc. 54), Petitioner is currently serving a 35-year prison sentence for being convicted of first degree murder. A Report and Recommendation ("R&R") (Doc. 34) was issued by United States Magistrate Judge Phillip M. Frazier, recommending Petitioner's amended habeas petition and Motion to Strike be denied. The Court then appointed counsel for Petitioner to aid with further proceedings (Doc. 44). Petitioner thereafter filed objections to the R&R (Doc. 52), specifically objecting to the Magistrate Judge's findings that certain actions of Petitioner's trial counsel did not amount to ineffective assistance of counsel and to findings that certain other actions of trial counsel were not excepted from being in procedural default due to the resulting miscarriage of justice.
The Court, in conducting a de novo review*fn2 of Petitioner's Amended Habeas Petition and Motion to Strike, found that an evidentiary hearing, pursuant to 28 U.S.C. § 2254(e)(2), was necessary in order to develop an adequate record (Doc. 54, pp. 13-14). This evidentiary hearing took place before this judge on January 24, 2006 (Doc. 79). At the close of this hearing, both parties requested they be allowed to submit briefs to the Court for consideration in lieu of closing arguments, stating their proposed findings of fact and conclusions of law, to which the Court agreed, setting a briefing schedule (Id.). Now that the parties have submitted their respective briefs, the Court will once again consider Petitioner's Amended Habeas Petition and Motion to Strike in light of the Magistrate Judge's findings in the R&R, the evidence presented by the parties at the January 24, 2006 evidentiary hearing, and the proposed findings of fact and conclusions of law submitted by the parties.
II. PROCEDURAL BACKGROUND
Petitioner was convicted of the crime of murder in the first degree of Sammie Wilborn and is currently serving a 35-year prison sentence in Pinckneyville Correctional Center. Petitioner was represented by Public Defender, attorney Jon Allard ("Allard"), during his two-day trial in the Circuit Court of St. Clair County, Illinois, on May 11 and 13, 1994 (January 24, 2006 Evidentiary Hearing ("Evid. Hr."), Ex. 17, Vols. I & II, - Trial Transcript ("Tr.")).
As recounted by the Court in its previous Order granting Petitioner an evidentiary hearing (Doc. 54), the only eye-witness to the murder was James Dean, a convicted felon, who was admittedly under the influence of cocaine, marijuana, and alcohol on the night of the murder (Evid. Hr., Ex. 17 - Trial Tr., Vol., I, pp. 30, 36). Dean also admitted to arguing with Wilborn the night of the murder over a "straight shooter" used for smoking cocaine (Id. at 22). According to Dean, there was a group of about fifteen people gathered on Crenshaw street in the Centreville projects getting high on cocaine, smoking weed, and drinking beer on the night of the murder (Id. at 21, 35).
Dean told the jury that he and Wilborn were among those getting high on cocaine (Id. at 20). Dean testified that he got in the passenger seat of a yellow Lincoln driven by Petitioner*fn3 and Wilborn got in the back seat of the car; Dean and Wilborn were still fighting over the shooter (Id. at 22, 38-40). The trio drove around the back streets of Centreville for about 20 minutes, when Dean asked to go back to the projects (Id. at 24). After promising to take Dean back, Petitioner stopped the car near a dead end because Wilborn had to urinate (Id. at 27).
Prior to the stop, Dean noticed Petitioner had a German automatic gun with him (Id. at 26). Dean testified he then saw Petitioner get out of the car and fire two shots at Wilborn,*fn4 at which point Dean took off running towards the projects hearing a third shot fired as he fled (Id. at 28, 41). Dean testified he did not call the police because he was scared (Id. at 29), but later gave the police a statement after he was picked-up for his involvement in Wilborn's murder (Id. at 43). Dean testified Petitioner came to his house a few days after the murder and told Dean that Wilborn had messed up his eight-ball of cocaine (Id. at 33).
The second crucial witness to testify against Petitioner was his sister, Dwana Stanley (Id. at 58). She testified that Petitioner confessed to her that he killed somebody, but would not say who (Id. at 60-61). On cross-examination, Ms. Stanley confirmed that her brother always said things like that when he was intoxicated (Id. at 64). She also told the jury that Petitioner had a small black .22-caliber gun with himthe night he said he killed somebody (Id. at 62); however, no gun was ever recovered.
There was no physical evidence presented at trial to tie Petitioner to the murder. Petitioner's trial counsel, Allard, offered no evidence to disprove the State's theory, instead choosing to craft his defense around the cross-examination of the State's witnesses.*fn5
B. APPELLATE AND POST CONVICTION PROCEEDINGS
After his conviction, Petitioner was represented by his court-appointed counsel Ann Hatch for the sentencing and post-trial proceedings. During sentencing, Petitioner raised the issue of ineffective assistance of counsel, arguing that "none of the witnesses were subpoenaed nor were they ever interviewed with respect to potential conflicts concerning the evidence" (Evid. Hr., Ex. 18 - Sentencing Transcript ("S. Tr."), p. 26). However, Petitioner's motion for a new trial was denied, the state court finding that his trial counsel, Allard, was effective (Id. at 33-35; see also Doc. 54, pp. 4-6).
On direct appeal of his conviction, Petitioner discharged his counsel and represented himself, submitting a pro se appellate brief to the Illinois Court of Appeals, arguing, among other things, ineffective assistance of trial counsel (see Doc. 11, Ex. A - Defendant-Appellant Pro Se Brief, pp. 64-66; see also Doc. 34, Appendix A, pp. 19-20).Petitioner's appeal was denied by the Illinois Appellate Court (Doc. 11, Ex. B, June 26, 1997 Rule 23 Order; see also Doc. 54, pp. 6-8). The Illinois Supreme Court thereafter denied Petitioner leave to appeal the decision of the appellate court on his direct appeal (Doc. 11, Ex. C - Petition for Leave to Appeal and Ex. D, December 3, 1997 Order Denying Leave to Appeal).
After his direct appeal was denied, Petitioner then initiated post-conviction proceedings under the Illinois Post-Conviction Hearing Act, 725 ILL. COMP.STAT. 5/122-1 - 5/122-8, again raising claims regarding ineffective assistance of trial counsel (Doc. 11, Exs. E&F - Post-Conviction Petition & Memorandum). After an evidentiary hearing was conducted, the Illinois circuit court denied the post-conviction petition (Doc. 11, Ex. G - Circuit Court Order of December 9, 1998). Petitioner subsequently appealed this denial, continuing to state several claims of ineffective assistance of counsel (Doc. 11, Ex. H - Petitioner's Post Conviction Appellate Brief). Once again, Petitioner's appeal was denied by the Illinois Court of Appeals (Doc. 11, Ex. I - June 22, 2000 Rule 23 Order). Petitioner then filed for leave to appeal with the Illinois Supreme Court (Doc. 11, Ex. J - Post Conviction Petition for Leave to Appeal), review of which was thereby denied (Doc. 11, Ex. K -October 4, 2000 Order).
Petitioner's final avenue of approach was to file for writ of habeas corpus with a United States District Court, pursuant to 28 U.S.C. § 2254. Petitioner therefore filed his Habeas Petition with this Court (Doc. 1), which he later amended (Doc. 15). In his Amended Habeas Petition, Petitioner reasserts his claims for ineffectiveness of trial counsel for the following: (1) failure to interview Dwana Stanley, Bryant Swygeart, Robert Brock, Lavonda McNair, James Dean, Stanley Williams, Willie Snipes and Tamara Evans prior to trial; and (2) failure to call Bryant Swygeart, Stanley Williams, Robert Brock and Willie Snipes to testify at trial.
The Magistrate Judge reviewed Petitioner's Amended Habeas Petition, Respondent's Amended Answerand Affirmative Defenses (Doc. 26) and Petitioner's Motion to Strike Respondent's Affirmative Defenses (Doc. 33). In the R&R, issued on August 24, 2004 (Doc. 34), the Magistrate recommended the Court deny Petitioner's Amended Habeas Petition with prejudice, along with Petitioner's Motion to Strike.
To summarize, the R&R found the following of Petitioner's habeas claims to be in procedural default: (1) trial counsel was ineffective for failure to interview witnesses James Dean, Tamara Evans, Stanley Williams and Willie Snipes before trial (Doc. 34, p. 6); and (2) trial counsel was ineffective for failure to call Bryant Swygeart, Stanley Williams, Robert Brock and Willie Snipes as witnesses to testify at trial (Id. at 12-14). However, the R&R found Petitioner's habeas claims that trial counsel was ineffective for failure to interview witnesses Dwana Stanley, Robert Brock, Bryant Swygeart and LaVonda McNair, were not in procedural default (Id. at 5-11). Considering Petitioner's claims which were not in procedural default, the R&R concluded that Petitioner was not entitled to habeas relief. Petitioner filed objections to the R&R (Doc. 40), pursuant to 28 U.S.C. § 636(b) and LOCAL RULE 73.1(b); the Court determined it necessary and appropriate to appoint counsel to represent Petitioner (Doc. 44), whereby counsel for Petitioner filed Amended Objections to the R&R (Doc. 52).
Upon de novo review of the R&R, considered in light of Petitioner's objections thereto, the Court issued an Order (Doc. 54) finding Petitioner was entitled to an evidentiary hearing, pursuant to 28 U.S.C. § 2254(e)(2), regarding his claims of ineffectiveness of trial counsel, in order for the court to fully develop the record. The Court found that the Illinois state courts never considered Petitioner's claims in toto in a full and fair hearing and also applied a higher evidentiary standard was applied than required under Strickland v. Washington, 466 U.S. 668 (1984)(ineffective assistance of counsel standard) (Doc. 54, pp. 16-18).
D. EVIDENTIARY HEARING ON AMENDED HABEAS PETITION
The Court ordered an evidentiary hearing be conducted on January 24, 2006, pursuant to 28 U.S.C. §2254(e)(2). At that hearing, the following witnesses were called on behalf of Petitioner: (1) John Allard, (2) Michael Stanley, (3) Leslie Stanley, and (4) Lee Lawless. Among Petitioner's 25 exhibits admitted at the hearing was the deposition transcript of Robert Brock, taken July 27, 2005, while he was incarcerated in the Lakeland Correctional Facility in Coldwater, Michigan (Doc. 82, p. 10; see also Evid. Hr., Ex. 19 - Brock Deposition Transcript ("Brock Depo. Tr."), p. 6). Also included among Petitioner's exhibits were copies of the discovery materials that the State tendered to Allard prior to Petitioner's trial, including witness statements, Wilborn's autopsy report, forensic reports, a computer drawn map of the location where Wilborn's body was found (Doc. 82. at p. 12; see also Evid. Hr., Ex. 16 - Map), and photos of Wilborn's body and the general crime scene area (Doc. 82 at pp. 12-13; see also Evid. Hr., Group Ex. 20 - Photos)..
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court will proceed to state its findings of fact and conclusions of law, pursuant to FEDERAL RULE OF CIVIL PROCEDURE 52(a), based upon the January 24, 2006, evidentiary hearing.
1. Petitioner filed timely objections to the R&R (see Doc. 50 - Order granting extension of time for Petitioner's court-appointed counsel to file amended objections to the R&R; see also Doc. 52). Therefore, the Court must undertake de novo review of the objected-to portions of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b);SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992).
2. The Court may "accept, reject, or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999).
3. In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id. Thus, the Court will conduct a de novo review of Petitioner's Amended Habeas Petition (Doc. 15) as well as his Motion to Strike Respondent's Affirmative Defenses (Doc. 33).
(2) Review of a § 2254 Habeas Petition
4. The Court's review of Petitioner's Amended Habeas Petition (Doc. 15) is governed by the standards established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2254.
5. AEDPA permits a federal court to issue a writ of habeas corpus if the state court reached a decision on the merits of a ...