The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Before this Court is the 28 U.S.C. §2254 petition for habeas relief filed by Darnell Palacio ("Palacio" or "Petitioner"). For the reasons stated below, this petition is DENIED. All other motions are MOOT and TERMINATED. This case is CLOSED.
On November 4, 1981, following a bench trial, Palacio was convicted of two counts of first degree murder and aggravated battery. He was sentenced to life imprisonment. With the aid of counsel, he filed an appeal in the Illinois Appellate Court. In his appeal, he argued that he was denied a right to a speedy trial. On August 1, 1983, the Illinois Appellate Court affirmed the trial court's decision. Palacio did not file a petition for leave to appeal in the Illinois Supreme Court.
Sometime in December 1991, Palacio filed a petition for post-conviction relief. He alleged that his trial counsel was ineffective for failing to fully investigate his claims of duress and emotional instability. The State filed a motion to dismiss on the grounds that the petition was untimely. The trial court granted the State's motion to dismiss. Palacio appealed. His appointed appellate counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). On August 15, 1996, the Illinois Appellate Court denied the motion to withdraw. The State then confessed error, and the Illinois Appellate Court remanded the case to the circuit court for further consideration.
On November 12, 1998, Palacio filed an amended petition for post-conviction relief. In that petition, he claimed he received ineffective assistance of counsel. He claimed his trial counsel failed to call witnesses to refute the state's expert witness testimony on his sanity at the time of the crime, failed to see that the report offered by the expert did not meet the requirements of the law, and failed to see that the report did not give a diagnosis or a prognosis as to how the expert came to his opinion. The appointed counsel in that case filed a certificate pursuant to Illinois Supreme Court rule 651(c) and informed the trial court that she would stand on the pro se petition.*fn2
The trial court denied Palacio's petition, and he appealed to the Illinois Appellate Court. The state appellate defender filed a motion to withdraw as counsel pursuant to Finley, 481 U.S. 551. Palacio filed a response opposing the withdrawal. In that response, he outlined how his trial counsel had been ineffective and added that his appellate counsel on direct appeal was also ineffective. On December 3, 2001, the Illinois Appellate Court granted the motion of appellate counsel for leave to withdraw and affirmed the dismissal order of the Circuit Court of Cook County. Palacio then filed a petition for leave to appeal in the Illinois Supreme Court, claiming that his trial counsel was ineffective for failing to conduct an adequate investigation and failing to call key witnesses to establish an insanity defense. The Illinois Supreme Court denied leave to appeal on April 3, 2002.
In addition to that petition, Palacio had filed a motion for relief from judgment on December 4, 2000. In that motion, he alleged that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the trial court had based his life sentence on a finding that his crime was brutal and heinous. The trial court treated the motion as a successive post-conviction petition and denied it on December 19, 2000. Palacio filed an appeal. The state appellate defender filed a motion to withdraw pursuant to Finley, 481 U.S. 551. Palacio was advised that he could respond to the motion; he opted not to do so. On June 17, 2002, the appellate court granted the Finley motion. Palacio did not file a petition for leave to appeal to the Illinois Supreme Court.
On May 28, 2002, Palacio filed a third post-conviction petition in Cook County Circuit Court. That petition raised the same issues that had been previously raised. On October 3, 2002, Palacio filed the petition for habeas corpus that is currently before this Court.
Federal courts may not grant a writ of habeas corpus to a prisoner held under a state court judgment unless custody of the prisoner violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); Mahaffey v. Schomig, 294 F.3d 907, 914 (7th Cir.2002). Moreover, before a federal court will grant a habeas petition, the petitioner must both exhaust state remedies and comply with state rules regarding procedural default. Mahaffey, 294 F.3d at 914-915.
Petitioners exhaust all of their state court remedies when: (1) they present them to the highest court of the state; or (2) no state remedies remain available to the petitioner at the time that the petition is filed. See Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.1991).
Procedural default occurs either when (1) a petitioner fails to raise an issue on direct appeal or post-conviction review, see Farrell, 939 F.2d at 410; or (2) the state court clearly relies on a state procedural bar as an independent basis for its denial of relief. See Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). In order to avoid procedural default, a petitioner must fairly present the claim "at each and every level in the state court system..." See Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir.2004) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844-845 (1999)). As the Seventh Circuit has noted, "A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim." Lewis, 390 F.3d at 1026 (internal citations omitted) (emphasis added).
If a petitioner has procedurally defaulted a claim, this Court can only grant relief if (1) there is adequate cause for his failure to raise the claim in state court and prejudice resulting from the default or (2) default would result in a "fundamental ...