The opinion of the court was delivered by: Marvin E. Aspen, District Judge
MEMORANDUM OPINION AND ORDER
Korey Jennings ("Petitioner" or "Jennings") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging numerous constitutional violations. Respondent Alan Uchtman, Warden of the Menard Correctional Center (the "State") responded, contending that each of Jennings's allegations is either without merit or procedurally defaulted. For the reasons set forth below, we deny the petition.
On September 18, 2002 Petitioner Korey Jennings was convicted of first-degree murder and attempted murder for shooting and killing Geraldo Martinez. He was sentenced to concurrent terms of 43 years for murder, and six years for attempted murder. People v. Jennings, No. 1-02-3103, slip. op. at 1-2 (1st Dist. May 5, 2004).
At trial, Petitioner and his girlfriend, Devon Franklin, both testified that he was with Franklin at her house the entire night and was not involved in the shooting. Petitioner also claimed that his car, which was used in the murder, had been stolen. Id. at 27.
Jorge Martinez Flores testified that he and his cousin, the victim, were waiting to turn left shortly after midnight on September 25, 1999 when a car with three black men pulled up along the passenger side. He heard a shot, and saw that his cousin was slumped and bleeding. He saw the driver, Petitioner, throw a large black item into the backseat and speed off. He chased the car and crashed into it, causing the license plate and fender to fall off. Flores returned to the police station the next evening to view a lineup and immediately identified Petitioner as the shooter. Id. at 5-6.
The police used the recovered license plate to track down the owner of the car, Eric Jennings ("Eric"), Petitioner's brother. The police reported that Eric informed them that Petitioner actually owned the car, but they had registered it in his name because of Petitioner's bad driving record. At that time, the detectives did a background check on Petitioner and found that he did indeed have a poor driving record, and had been arrested four previous times in the area where the incident took place. Id. at 2-3. At noon on September 25, Petitioner arrived at the police station to inquire about his brother. Detective Darcy asked Petitioner to accompany him to an interview room, and Petitioner agreed. Detective Zaltoris read Petitioner his Miranda rights, and Petitioner agreed to speak to them. Id. at 4. After 10 minutes, Petitioner corroborated Eric's statements that he owned the car and that they had registered it in his brother's name due to his bad driving record. The officer that wrote Petitioner's arrest report based the time of arrest, September 25, 1999, at 12 p.m., on Detective Darcy's statement that Petitioner came into the station at noon and was read his Miranda rights. Id. at 4-5.
Petitioner later told detectives that he was the shooter, but that he had acted in self-defense. He said that two Hispanic gang members pulled up next to his car and pointed a gun at him. He took the shotgun that was in his lap for protection from other gangs, shot the victim, and fled the scene. He said that the victim's car crashed into his car, and that he drove his car to the location where the police found it. Id. at 8.
After being told that no firearms were recovered from Flores, the victim, or the victim's car, and that neither one was a gang member, Petitioner changed his story. He admitted that he was driving earlier that night when some Hispanic gang members yelled gang slogans and threw rocks and bottles at his car. Petitioner stated he became angry and retrieved a shotgun from the trunk of his car. He pulled up to the victim's car and saw that it was occupied by two Hispanics. Thinking that they might have been involved with the gang that threw rocks and bottles at them earlier, Petitioner pointed the gun into the car and fired one shot, killing the victim, and fled the scene. Id. at 8. After stopping his car to inspect the damage, he realized the license plate had fallen off. He vandalized it so that he could report it stolen. Petitioner never signed this statement. Id. at 9.
The detective contacted Flores and asked him to view a lineup at the police station, at which time Flores identified Petitioner as the shooter. Id. at 6.
Assistant State's Attorney ("ASA") Butinas testified that he spoke with Petitioner later that evening. Petitioner told him the same story about Hispanic gang members throwing rocks and bottles at him, and yelling gang slogans. Petitioner said he wanted to shoot them for having disrespected him. He retrieved his shotgun and spotted the victim and his cousin. He pulled up close to "get a good shot at them." After the incident he fled, broke out a rear window, tore out the stereo and damaged the steering column of his car to make it look as if it had been stolen. Although Petitioner did not sign this statement, the ASA testified that Jennings said this version of the facts was true and accurate. Id. at 9-10.
Petitioner appealed his conviction to the Illinois appellate court, on the following grounds: 1) his Fourth Amendment rights were violated when the police seized, held and interrogated him without probable cause; 2) he was denied due process by an incorrect jury instruction and the denial of self-defense instructions; 3) he was denied his Sixth Amendment right to confrontation; 4) he was denied due process when the State wrongly presented evidence that Petitioner had been arrested previously and was a gang member; 5) he was denied due process when the court failed to instruct the jury on involuntary manslaughter; 6) and he was denied due process when the state failed to provide Petitioner with a lab report showing that fingerprints other than Petitioner's were found on shell casings at the scene of the crime. In his appeal he claimed the trial court erred by refusing to appoint him new counsel, and to conduct a hearing to determine whether his counsel received a police report from August 2000, but the appellate court ruled this claim was procedurally defaulted because it was first raised in Petitioner's reply brief. On May 5, 2004 the appellate court denied Petitioner's claims and affirmed his convictions. Id. at 1. The appellate court found that Petitioner was not under arrest at the time he was asked to go into the interview room because he voluntarily went with the detectives, he was not handcuffed, was never mistreated by the police and was never told that he could not leave. Id. at 17. The court observed that being read his Miranda rights "does not establish an arrest." Id. The appellate court also found that any error in refusing to provide a self-defense instruction to the jury was harmless because Petitioner claimed an alibi defense. Id. at 27. Finally, the appellate court found that the August 2000 report would not have changed the outcome of the trial, and, since it was not material, did not warrant a new trial. Id. at 23.
Petitioner filed a petition for leave to appeal with the Illinois supreme court raising nearly the same arguments. He also argued that the appellate court misapplied precedent by holding that there was probable cause for his arrest. The Illinois supreme court denied his petition for leave to appeal on November 24, 2004. Jennings did not file a post-conviction petition in the Circuit Court of Cook County. (Answer at 2-3.)
On November 22, 2005, Petitioner filed his petition for federal habeas corpus on four grounds: 1) he was denied due process because the instructions for second degree murder were improper; 2) he was denied due process because other instructions did not include self-defense; 3) the appellate court mistakenly ruled that Petitioner was not detained for the first ten minutes of his visit to the police station; and 4) he was denied due process when the State failed to provide him with a report showing that additional fingerprints were on the shell casings found ...