The opinion of the court was delivered by: Marvin E. Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
On October 23, 2002, Darryl Allen ("Petitioner" or "Allen") petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. 1.) By Minute Order of December 16, 2002, we dismissed the petition without prejudice on grounds that Allen had not exhausted his state court remedies, because his third post-conviction petition was still on appeal. (Min. Order of Dec. 16, 2002 (Dkt. 11.)) Accordingly, we granted Allen leave to file a motion for reinstatement within 63 days after the issuance of a decision by the Illinois Supreme Court ruling on that appeal. (Id.) Following the Illinois Supreme Court's denial of leave to appeal, Allen timely filed a motion for reinstatement (Dkt. 13,) which we granted by Minute Order of June 13, 2006 (Dkt. 14.)
With this petition for habeas relief, Allen challenges his conviction on 17 grounds, enumerated "A" through "Q." (Pet. pp.5-8.) Respondent Nedra Chandler, Warden of the Dixon Correctional Center (the "State"), contends that each of Allen's claims is either procedurally defaulted or without merit. (See Resp.) Allen's Petition and Supporting Memorandum of Law were both filed pro se, but he has since obtained counsel for the preparation of his Reply Memorandum. (Dkt. 23-24, 28.) Allen's reply does not "forego any of the issues raised" in his Petition, though it only addresses issues "M" and "N." (Pet. Reply p.1, Dkt. 28.) For the reasons set forth below, we deny Allen's petition.
FACTUAL AND PROCEDURAL BACKGROUND
Allen was tried twice for armed robbery. The first trial ended in a mistrial because the jury could not reach a unanimous verdict. Following a second jury trial in 1992, Allen was convicted and sentenced to 48 years in prison. The facts underlying Allen's conviction, as found by the Illinois courts, are as follows.*fn1
On the evening of October 26, 1990, an armed robbery occurred at the General Store, a gas station and convenience store located in Will County, Illinois. For security purposes, the store had a video surveillance camera installed behind the counter in the store. The camera was operating on the night of the robbery. People v. Allen, 619 N.E.2d 827, 828 (3rd Dist. 1993).
Cheryl Smithson ("Smithson" or the "victim") testified that she was a General Store employee and was working the 3 p.m. to midnight shift on October 26, 1990. At approximately 10 o'clock that evening, while Smithson was assisting another customer, a man whom she identified as Allen entered the store. He walked to the soft drink cooler at the back of the store, then turned around and left without making a purchase. Smithson testified that, a short time later, Allen re-entered the store and walked to the front counter. Smithson went to the front counter to help him.
As she got behind the counter, Allen pulled out a gun, leaned across the counter, and showed it to her. She was less than a foot away from Allen. Smithson testified that the gun was black, made of metal, had a slide on the top, and had a small opening at the end of the barrel the size of a bullet. She stated that the gun appeared to be real. Defendant then told Smithson to give him the money from the cash register. After she had given him the bills and coins, defendant told Smithson to get down on the floor. She got down behind the counter and defendant left the store. Smithson then pressed an alarm button to alert the police. Id. at 828-29. Subsequently, Smithson identified Allen as the perpetrator in a photographic lineup. (Resp. Ex. N, People v. Allen, No. 3-99-0761, at 2 (3rd Dist. 2001)).
The store's owner testified that Allen was a frequent customer. (Id.) The State entered into evidence a video tape taken from the surveillance camera which showed the robbery in progress, and Smithson identified Allen as the robber on the video tape. Allen, 619 N.E.2d at 828-29.Joseph Farmer, a police officer, testified that he went to Atlanta, Georgia in late December of 1990 or early January of 1991 to arrest Allen on a warrant. He tried unsuccessfully to speak with Allen about a number of cases while they waited for their airplane. For reasons that remain unclear, defense counsel cross-examined Farmer on Allen's post-arrest silence and general refusal to cooperate. (Resp. Ex. N, People v. Allen, No. 3-99-0761, at 2 (3rd Dist. 2001)).
On direct appeal, Allen argued that: 1) the trial court erred in refusing to instruct the jury on the lesser included offense of robbery; and 2) the report prepared prior to sentencing was inadequate, and his sentence was excessive. Allen, 619 N.E.2d at 828. The Court affirmed his conviction. Id. Allen then filed a pro se Petition for Leave to Appeal ("PLA") with the Supreme Court of Illinois, which the Court denied. (See Resp. Ex. F, Order Denying PLA, People v. Allen, No. 76186 (Ill. Dec. 23, 1993)).
After exhausting his state court remedies on direct appeal, Allen filed a pro se petition for a collateral post-conviction hearing ("PCH") under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122. (PCH Pet., Resp. Ex. G, People v. Allen, No. 90 CF 3964 (Will Cty. Cir. Ct.)). Shortly thereafter, Allen obtained counsel and amended his petition twice, ultimately raising a number of issues relating to the effectiveness of his trial and appellate counsel. (Resp. Ex. I, Sec. Amend. PCH, People v. Allen, 90 CF 3964 (Will Cty. Cir. Ct.)). The circuit court dismissed Allen's petition on the merits. (Resp. Ex. J, Court Order of Sep. 7, 1999, People v. Allen, 90 CF 3964 (Will Cty. Cir. Ct.)). Allen appealed that dismissal, "claiming that (1) his trial counsel was ineffective for eliciting evidence about his post-arrest silence, and (2) his appellate counsel was ineffective for not arguing his trial counsel's effectiveness." (See Resp. Ex. N, Court Order of June 11, 2001, People v. Allen, 90 CF 3964 (3rd Dist.)). The Appellate Court affirmed the lower court's dismissal, id.,and Allen subsequently filed a PLA with the Supreme Court of Illinois, which it denied. (See Resp. Ex. P., People v. Allen,No. 91828 (Ill. Oct. 3, 2001))
Finally, Allen filed a second, "successive" pro se petition for post-conviction relief. (Resp. Ex. Q, Succ. PCH Pet., People v. Allen, No. 90 CF 3964 (June 13, 2002)). However, the circuit court dismissed it on grounds that Allen had raised "the same issues that [were] addressed in his appeal." (See Resp. Ex. R, Letter of July 10, 2002 Notifying Pet. of Denial of PLA.) Allen appealed, arguing that the successive petition was warranted, because counsel in the first post-conviction hearing provided him with ineffective assistance of counsel, rendering those proceedings fundamentally deficient. (Resp. Ex. U, Court Order of Feb. 20, 2004, People v. Allen, 90 CF 3964 (3rd Dist.))The Appellate Court affirmed, holding that Allen was not "entitled to further proceedings in the circuit court to determine the merits of his successive post-conviction petition." (Id. at 3.) Most recently, Allen filed a PLA with the Supreme Court of Illinois, which the Court denied. (See Resp. Ex. W, Letter of Sep. 29, 2005 Notifying Pet. of Denial of PLA.) With this last denial, Allen exhausted his state court remedies.
A. Procedural Prerequisites
Before we may consider a petition for a writ of habeas corpus on its merits, the petitioner must give the state courts one full opportunity to resolve any constitutional issues by proceeding through the state's established appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732 (1999). Otherwise, the petitioner risks procedural default. And, notwithstanding a petitioner's presentation of federal claims at the state court level, "[a] federal court will not review a question of federal law decided by a state court if the decision of the state court rests on a state procedural ground that is independent of the federal question and adequate to support the judgment." Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002) (citing Stewart v. Smith, 536 U.S. 856 (2002); Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
In order to give the state courts one full opportunity to resolve his federal claims, the petitioner must: 1) exhaust all remedies available in state courts; and 2) fairly present any federal claims in state court first. Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.1996) (citing 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971)). First, "[t]he exhaustion requirement insists that if the state courts have not yet had a full and fair opportunity to consider the petitioner's constitutional claims and remain open to address these claims, the petitioner must take his claims there first." Cawley v. Detella, 71 F.3d 691 (7th Cir. 1995) (citing United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir.1990); Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). Here, the Illinois state courts are no longer open to Allen's claims, and so he has exhausted his state remedies. See id.
Second, fair presentment requires that the petitioner show "that he raised the claims being made on habeas during the state proceedings and that he gave the highest state court an opportunity to address these claims." Cawley v. Detella, 71 F.3d 691, 693-94 (7th Cir. 1995) (citing Jones v. Washington, 15 F.3d 671, 674-75 (7th Cir.), cert. denied, 512 U.S. 1241, 114 S.Ct. 2753 (1994); Mason v. Gramley, 9 F.3d 1345, 1347-48 (7th Cir.1993)). Thus, the petitioner "must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory." Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004) (emphasis added) (internal citations omitted). For Illinois' state court system, this applies to petitions for collateral post-conviction relief as well as direct appeals, and so ...