The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Rebecca Bivens' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the reasons discussed below, the Court denies Bivens' petition.
Bivens does not present clear and convincing evidence challenging the statement of facts as set forth in the Illinois Appellate Court's opinions affirming the judgments of the Circuit Court of LaSalle County, Illinois, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Whitman v. Bartow, 434 F.3d 968, 969 (7th Cir. 2006). The Court, therefore, adopts the underlying facts as set forth by the Illinois Appellate Court, Third Judicial District, in Bivens' direct and post-conviction appeals. See People v. Bivens, No. 3-99-0738 (3d Dist. Oct. 1, 2001) (unpublished order); People v. Bivens, No. 3-02-0392 (3d Dist. July 16, 2003) (unpublished order); People v. Bivens, No. 3-04-0635 (3d Dist. Mar. 2, 2005) (unpublished order). The Court thus starts with a brief recounting of the facts as determined by the Illinois Appellate Court in Bivens' first direct appeal. See Easley v. Frey, 433 F.3d 969, 970 (7th Cir. 2006).
On November 17, 1998, Bivens arrived at St. Mary's Hospital in Streator, Illinois, carrying her five-year-old stepdaughter, Dani, who was unconscious. Dani had bruises on her left arm, shoulder, right eye, and the back of her head and she was bleeding from her nose and mouth. When questioned, Bivens told the attending nurses that Dani fell off of a bed. Dani was subsequently flown to St. Francis Medical Center in Peoria, Illinois where Bivens told a social worker and several police officers that she was in the basement doing laundry when she heard a loud thud. Bivens stated that she then ran upstairs and saw Dani stumbling out of the bedroom saying that she fell off the bed. Dani died the next morning from massive injuries to the brain.
On November 23, 1998, an officer from the Streator police department received the autopsy report and then contacted Bivens and her husband asking them to come to the police department to discuss the report. The officer and an investigator from the Department of Children and Family Services ("DCFS") interviewed Bivens. The DCFS investigator informed Bivens that he and the police officer had read the autopsy report and then asked Bivens to tell him what happened. Bivens told the DCFS investigator that Dani had fallen off the bed. The DCFS investigator reminded Bivens that he knew the cause of death based on the findings in the autopsy report. After that, Bivens admitted that she killed Dani. Bivens made a written statement summarizing the incident and signed it in the investigator's presence.
The police charged Bivens with first degree murder after which the court appointed Dr. Robert Chapman to examine Bivens for fitness to stand trial. Dr. Chapman concluded that she was fit and based on an agreed stipulation to fitness, the trial court found Bivens fit to stand trial. Bivens subsequently raised the affirmative defense of insanity. Bivens' second fitness hearing and the psychological testing involved are not relevant to this habeas petition.
At trial it was uncontested that Bivens' actions caused Dani's death. Bivens maintained, however, that she was insane at the time she committed the crime.
II. Procedural Background
On August 2, 1999, a jury in the Circuit Court of LaSalle County, Illinois found Bivens guilty but mentally ill of first degree murder in connection with the beating death of her five-year-old stepdaughter. See 720 ILCS 5/9-1 (a)(2), (c)(2). (R. 16-1, Respondent's Rule 5 Exs., Ex. A.) Because the victim was under the age of 12, the Circuit Court sentenced Bivens to the mandatory term of natural life in prison. (Id.)
Bivens appealed her conviction and sentence to the Illinois Appellate Court, Third District raising the following claims: (1) the finding that Bivens was fit to stand trial was contrary to the manifest weight of the evidence; (2) the finding that Bivens was sane at the time she committed the crime was contrary to the manifest weight of the evidence; and (3) Bivens sentence was invalid because the Illinois Supreme Court declared the statutory provision mandating a life sentence unconstitutional. (Id., Ex. B, C, D.) On October 1, 2001, the Illinois Appellate Court rejected Bivens' first two claims, but vacated her life sentence and remanded for a new sentencing hearing. (Id., Ex. A.)
On remand, the Circuit Court sentenced Bivens to 40 years' imprisonment. (Id., Ex. H.) Thereafter, Bivens appealed her sentence to the Illinois Appellate Court, Third District asserting that the trial court improperly considered an aggravating factor at sentencing, namely, that she was in a position of trust with the victim. (Id.) On July 16, 2003, the Illinois Appellate Court, Third District, affirmed the Circuit Court of LaSalle County. (Id., Ex. H.) Bivens did not file a Petition for Leave to Appeal to the Illinois Supreme Court.
On February 23, 2004, Bivens filed a pro se petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. Bivens raised two issues in her petition: (1) the State of Illinois' truth-in-sentencing law, which requires petitioner to serve 100 percent of her 40-year sentence, cannot constitutionally be applied to her; and (2) the trial court erred in considering an improper aggravating factor. (Id., Ex. I.) The State filed a motion to dismiss the petition arguing that Bivens' truth-in-sentencing claim was bared by res judicata and was also without merit. (Id., Ex. J.) Further, the State argued that Bivens' aggravating factor claim was barred by res judicata because it was raised and rejected on direct appeal. (Id.) The Circuit Court appointed counsel to represent Bivens. Counsel then filed an ...