The opinion of the court was delivered by: Blanche M. ManningUnited States District Court Judge
Petitioner Shalawn Wright's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. For the following reasons, Wright's petition is denied.
The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Wright has not provided clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts, and will briefly summarize the key facts which are relevant to Wright's § 2254 petition.
A. Preliminary Proceedings & Wright's Trial
During a preliminary hearing, Antonio Williams testified that Wright spent the early morning hours of December 23, 1998, at the home of John Bogan, along with Romaine Johnson and Johnson's girlfriend. At approximately 3:00 a.m., he and Wright left Bogan's house to sell cocaine at the corner of 16th Avenue and Madison Street in Maywood, Illinois.
According to Williams, when he and Wright arrived at their destination, they saw two other men standing about a block away. One of these men -- Kevin Brown -- approached them and as he pulled on gloves, he held his hands close to Wright's face and yelled, "Are you all strapped up and you all selling drugs on my turf?" Williams then explained that a "strap" is a gun and that he felt that the reference to selling drugs was threatening.
Williams also testified that Wright responded to the "strap" comment by pulling out a gun and shooting Brown two times in the stomach from a distance of approximately two feet. After the shooting, Williams and Wright ran away and returned to Bogan's house. Williams told everyone what had occurred and went to sleep. When he awoke the next morning at approximately 7:00 a.m., he saw Wright removing the Oakland Raiders emblem from the football jacket he had worn during the shooting.
Prior to trial, the State moved to admit Williams's preliminary hearing testimony at trial because he was unavailable to testify since the State could not locate him. The trial court noted that Wright was represented during the preliminary hearing and that counsel had an opportunity to cross-examine Williams. Thus, it admitted Williams's testimony.
Johnson also testified at the preliminary hearing. According to Johnson, he awoke at Bogan's house at approximately 9:30 a.m. on December 23d. He saw Wright, who told him, "I had to give him two of them" and that although he only pulled the trigger once, two shells came out. The court later allowed Johnson's preliminary hearing testimony to be admitted due to Johnson's unavailability and Wright's counsel did not object.
At Wright's bench trial, Bogan testified that he returned home at 4:30 or 5:00 on the morning of the shooting. He asked the people at his house at that time (Williams, Johnson, Johnson's girlfriend, and Wright) if they had heard gunshots and said that he saw police at the corner of 16th and Madison. In response, Wright said that "he popped dude." Bogan explained that, "He said argument came about you all got straps, so we got straps too; pulled out gun and pulled the trigger. The gun went off twice."
At trial, Lawan Gray, a friend of Brown's, testified that he and Brown went out to sell drugs on the night of the shooting. Brown approached Wright and his companion. Gray heard two shots and saw two men run away, leaving Brown lying on the ground. The police officer at the scene testified that he saw two shell casings on the ground near Brown's body. An evidence technician and Dr. Choi, a forensic pathologist, testified that they saw only one glove on Brown. Dr. Choi also testified that Brown was fatally shot in the left upper chest.
Defense counsel argued that Wright acted in self-defense or that mitigating circumstances justified a conviction for second degree murder. The trial court disagreed and found that Wright was guilty of first degree murder. The court subsequently sentenced Wright to a 35 year term of imprisonment.
B. Wright's Direct Appeal
Wright appealed his conviction, arguing: (1) the trial court erred when it admitted the preliminary hearing testimony of witnesses Williams and Johnson because Wright did not have an adequate opportunity to cross-examine these witness*fn1 and the State failed to show that Johnson was unavailable at trial; (2) trial counsel was ineffective for failing to object to the admission of that testimony; (3) trial counsel was ineffective for failing to explore inconsistencies in Williams's testimony;*fn2 and (4) trial counsel was ineffective because he allowed the consistent grand jury testimony of witnesses Bogan and Williams to be admitted into evidence.
The Illinois Appellate Court affirmed Wright's conviction, holding that: (1) even if the trial court erred in admitting Williams and Johnson's testimony, any error was harmless; and (2) Wright's counsel was not constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 694 (1984), because Wright was not prejudiced by any of his attorney's actions. Wright filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court which raised the same issues he had presented to the Illinois Appellate Court. The Illinois Supreme Court denied Wright's PLA on October 7, 2003.
C. Wright's State Post-Conviction Proceedings
A bit less than two months later, on December 2, 2003, Wright filed a state post-conviction petition contending that: (1) his trial counsel was ineffective because he (a) failed to properly investigate potential defense witness Ardell Mosley, who would have said that he heard "a volley of shots" fired as he traveled to his home at the time of the shooting; (b) failed to discuss the defense with Wright or show Wright discovery materials; (c) failed to challenge the prosecution's physical evidence and failed to locate physical evidence of potential use to the defense; (d) failed to move to quash petitioner's arrest and suppress any statements made at that time; and (e) failed to properly cross-examine "the State's key witness," whose identity was not specified. Wright also argued that the prosecution withheld "critical exonerating evidence."*fn3
On January 23, 2004, the Circuit Court of Cook County denied the petition and found that it was frivolous because it reiterated issues which had already been resolved in Wright's direct appeal. Wright appealed, asserting that the circuit court erred when it dismissed his post-conviction petition based on res judicata because res judicata is an improper basis for dismissal at the first stage of post-conviction proceedings. Alternatively, Wright argued that even if res judicata was applicable, it did not bar his claims because they had not been decided in his direct appeal.
The Illinois Appellate Court affirmed, holding that: (1) Wright's post-conviction petition was properly dismissed because the issues he raised could have been adjudicated upon direct appeal; and (2) Wright's claims were frivolous and patently without merit. Wright filed a PLA repeating the arguments presented to the Illinois Appellate Court in his collateral appeal. The Illinois Supreme Court denied Wright's PLA on January 25, 2006.
D. Wright's § 2254 Petition
On March 20, 2006, Wright filed a federal petition for writ of habeas corpus under 28 U.S.C. § 2254, arguing that: (1) his trial was fundamentally unfair because the court improperly admitted Williams and Johnson's preliminary hearing testimony; (2) his trial counsel was ineffective because he (a) allowed grand jury testimony of state witnesses to be admitted into evidence, (b) failed to object to the improper admission of Williams and Johnson's testimony, (c) failed to investigate inconsistencies in Williams's testimony, (d) failed to investigate potential witness Mosley, (e) failed to communicate with Wright regarding his defense and did not give Wright discovery material, (f) failed to challenge the State's physical evidence or locate physical evidence of ...