The opinion of the court was delivered by: Marvin E. Aspen, District Judge
MEMORANDUM OPINION AND ORDER
Earl Johnson ("Petitioner" or "Johnson") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he received ineffective assistance of counsel in violation of his rights under the United States Constitution. Respondent John Chambers, Warden of the Danville Correctional Center (the "State"), responded on August 5, 2005, contending that each of Petitioner's claims is either procedurally defaulted or without merit. For the reasons set forth below, we deny Johnson's petition.
On November 7, 1994, Petitioner was convicted, following a jury trial, of first degree murder of Leo Patterson, attempted first degree murder of Dexter Patterson, and aggravated battery with a firearm of Dexter Patterson. He was sentenced to concurrent forty-five years imprisonment for first degree murder, thirty years imprisonment for attempted murder and thirty years imprisonment for aggravated battery.
At trial, Petitioner's uncle, Frederick Johnson, testified that he and Petitioner were at Frederick's home watching a movie with three other people. Frederick testified that while at home, he went outside, saw ambulances and heard that someone had been shot. Frederick stated that he then returned to the house and informed the defendant about the shooting. Finally, Frederick attested that he, Petitioner and Andre De Curre went to the scene of the shooting where they learned that the victim was Leo Patterson. However, in his initial written statement to the police, he admitted to being in a car with Fred House (the driver), Petitioner, Tracy Ferguson, Andre De Curre, and an individual named Mario. According to his written statement, Frederick witnessed Petitioner twice fire his pistol at Leo Patterson and his brother Darryl Patterson.
Petitioner appealed his conviction to the Illinois Appellate Court ("appellate court") on the grounds that the prosecutor made improper remarks during his closing argument. Petitioner also argued that his counsel, Milton Blum, was ineffective because he failed to request a mistrial when several alibi witnesses improperly entered the courtroom and because Blum allowed, without objection, Frederick Johnson's written statement to go to the jury during deliberations. Finally, Petitioner claimed that Blum elicited evidence that actually damaged the defense, including Darryl Patterson's prior consistent statements and various witnesses' unemployment. The appellate court denied these claims and affirmed Johnson's conviction for murder and attempted murder.
Petitioner subsequently filed a petition for rehearing with the appellate court, arguing that the Court's order misstated the facts and law of the case and ignored the plain error doctrine. Johnson's petition was denied.
On January 14, 1998, Johnson, pro se, filed a petition for leave to appeal with the Illinois Supreme Court, presenting arguments almost identical to those in the appeal submitted to the appellate court. Petitioner argued that the State made improper remarks during closing arguments regarding the status of state witnesses and shifting the burden of proof, which unfairly bolstered the State's case. He also claimed that he was denied effective assistance of counsel where Blum did not properly object when the trial court automatically allowed the jury to review Frederick Johnson's disavowed prior inconsistent statement and where Blum failed to request a mistrial when four defense witnesses were excluded. On March 9, 1998, the Illinois Supreme Court denied his petition for leave to appeal.
Petitioner also sought collateral review pursuant to the Illinois Post-Conviction Hearing Act. See 725 ILCS 5/122-1 et seq. On December 29, 1997, Johnson, acting pro se, filed leave for a post-conviction hearing with the Circuit Court of Cook County to vacate his conviction and grant a new trial. Johnson argued that he was entitled to a new trial in light of newly discovered evidence. He also claimed that he was denied effective assistance of counsel and a fair trial where Blum failed to object to the sentence of 45 years as excessive.
On November 5, 1999, the State filed a supplemental motion to dismiss on the grounds that post-conviction review was limited by res judicata and waiver, arguing that Johnson had discovered no new evidence and that Blum was not ineffective in deciding not to challenge the excessive sentence in post-trial motions. On April 16, 2002 and April 19, 2002, evidentiary hearings were held before Judge Francis Golniewicz, who denied post-conviction relief.
On June 2, 2003, Petitioner filed an appeal with the appellate court, arguing that he was entitled to post-conviction relief based on the testimony of a co-defendant, Fred House, exonerating him in the murder. Petitioner argued that firearms evidence corroborated House's testimony by demonstrating that the bullet that killed Patterson came from Zachary Peavey's gun. The implication of Peavey, Johnson claimed, was also corroborated by Peavey's statement against penal interest admitting that he shot Leo Patterson. Petitioner further argued that the trial court erred in dismissing his claim of ineffective assistance of counsel where Blum failed to admit evidence that Frederick Johnson was mentally disabled, failed to investigate alibi witnesses and failed to file a motion for a new trial based on ballistics evidence implicating Peavey.
On March 31, 2004, the appellate court affirmed the denial of Johnson's post-conviction petition in a written opinion, finding that Petitioner failed to show that the trial court's denial of his claim based on newly discovered evidence was manifestly erroneous and affirming the judgment of the circuit court. A few weeks later, Johnson filed a petition for rehearing of the case, arguing that he had presented conclusive, newly discovered evidence of his actual innocence sufficient to warrant a new trial and that the ineffective assistance of counsel claim should not have been dismissed. The appellate court denied that petition on May 17, 2004.
On June 21, 2004, Johnson filed a petition for leave to appeal to the Illinois Supreme Court, which was denied on September 13, 2004. Johnson then filed this Petition for writ of habeas corpus on April 26, 2005.*fn1 In his Petition, Johnson claims five grounds for denial of effective assistance of counsel, but we have further separated the multiple claims within each ground into twelve distinct issues.*fn2 Johnson argues that he was denied effective assistance of counsel where:
1) Blum failed to request a mistrial when four alibi witnesses entered the courtroom in violation of the motion to exclude witnesses and were therefore barred from testifying;
2) Blum failed to investigate and present the testimony of two of his neighbors as alibi witnesses;
3) Blum failed to investigate and present evidence that Zachary Peavey admitted to Kimberly Hilliard and Wendy Floyd that he shot the murder victim;
4) Blum failed to investigate and present the testimony of Fred House, whose testimony would have demonstrated a reasonable probability that Petitioner did not commit the crimes for which he was convicted;
5) Blum failed to cross examine prosecution witness Dexter Patterson concerning his blood alcohol level at the time he witnessed the shooting;
6) Blum failed to cross examine prosecution witness Frederick Johnson using records showing that he was mentally handicapped;
7) Blum failed to object to improper remarks made by the prosecutor during closing argument;
8) Blum failed to object to delivery of Frederick Johnson's written statement to the jury during deliberations;
9) Blum failed to request a limiting instruction that the prior convictions of defense witnesses could only be considered to weigh the witness's credibility;
10) Blum improperly elicited testimony from Officer James Robinson that provided details consistent, rather than inconsistent, with the ...