The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Petitioner Donte Redding was convicted on March 11, 1997 of first degree murder and sentenced to 38 years in prison for his role in the murder of nine-year-old Donnetta Poole, an innocent bystander killed by a stray bullet. Petitioner appealed his conviction, arguing that inappropriate statements by the prosecutor, primarily during closing argument, denied Petitioner his right to a fair trial. The Illinois Appellate Court denied his appeal on August 15, 2000, and on June 1, 2001, the Illinois Supreme Court allowed the Petitioner to file a late petition for leave to appeal. In this petition, Redding again argues that inappropriate comments by the prosecution violated his constitutional rights. The Illinois Supreme Court denied the petition for leave to appeal on July 23, 2001.
On October 25, 2001, Petitioner filed this action. His federal habeas petition argues, again, that the prosecutor's comments deprived him of his right to a fair trial, and challenges the sufficiency of the evidence to support his conviction. In an amended petition filed by counsel on May 24, 2002, Petitioner argues, in addition, that his Fifth and Sixth Amendment rights were violated because he was convicted of accountability for murder when the individual who actually fired the shots was found not guilty by reason of self-defense. For the following reasons, the petition for habeas corpus is denied.
Keith Price, who lived at 6438 Fairfield, was an eyewitness to the events resulting in the death of Donnetta Poole. People v. Redding, No. 1-98-0123,at 2 (1st Dist. Aug. 15, 2000) (Ex. A to Respondent's Answer.) On June 21, 1996, the day of the shooting, Price was sitting on his front porch on South Fairfield Avenue with family members, facing north. Between 7:00 and 7:15 p.m. that evening, Price witnessed a van pull up between 6425 and 6427 South Fairfield. Four or five men exited the van and began talking to the Petitioner and to Joseph Taylor, who were standing outside. Soon after, the men began shouting. A fist fight broke out and lasted for five to ten minutes, ending when the men from the van got back in the van and left the scene.
Price did not see any guns during this first altercation. After the van left, Price saw the Petitioner go into his house at 6425 South Fairfield*fn2 and re-emerge with his hand placed on the side of his hip. Id. at 2-3. Taylor and the Petitioner then walked north to the corner of 63rd street and Fairfield. Id. at 3.
Minutes later, while Petitioner and Taylor were still at the corner, the van returned and stopped in front of Taylor's house. Id. Two men, one of them holding a golf club, exited the van and began knocking on the door of Taylor's house. When the two men did not receive an answer, they started to return to the van. Id. As they approached the van, the Petitioner yelled at the two men from the corner of 63rd and Fairfield. Id. at 3. At this point, two or three more men exited the van, which was still standing in front of Taylor's house. Id.
Price testified that when these men emerged, the Petitioner raised his hand and began to shoot south in the direction of the men and the van. Id. The other men shot back at the Petitioner, but he continued to walk south toward them, and continued to fire his weapon. Id. At some point after the Petitioner approached the van, firing, the other men stopped shooting, returned to the van, and fled the scene. During this volley of bullets, the victim, an unarmed bystander, was shot and killed. Id.
On cross examination, defense counsel confronted Price with prior inconsistent statements he made to police on the day of the incident. Price denied ever having told a police officer that he witnessed a man dressed in black holding a gun near the van when the shooting commenced.*fn3 Id. at 3-4. He did admit, however, that on the night of the incident, he did not tell police that he saw the Petitioner fire a gun. Id. at 4. On re-direct, Price testified that all the men involved in the shooting belonged to the Gangster Disciples street gang and that on the night of the shooting, he had spoken to police but told them that he did not want to be a witness in the case. Id. The prosecutor also asked Price whether he was concerned about his own safety, and Price answered "yes," but the court sustained the defense objection to this question and answer. Id.
The prosecution's next witness, Richard Baines, admitted to being a member of the Gangster Disciples affiliated with a block on South Talman Avenue, two blocks east of Fairfield. Id. Baines had a previous conviction for possession of a controlled substance and a pending home invasion charge, but he denied receiving any consideration for his testimony. Id. Baines testified that at approximately 7:00 p.m. on June 21, 1996, he was at the corner of 63rd Street and Rockwell Street (a block east of Talman) getting his hair styled when his friends pulled up in a van. Id. The driver, Eric Lash, and the three passengers, Derrick Lash, Carlos Bellamy, and Pareece Talbert*fn4 , all were members of the Talman faction of the Gangster Disciples. Id. Baines observed that Carlos was holding a golf club. Id. Baines got into the van and learned that his friends had been involved in a fist fight with certain Gangster Disciples from Fairfield and now planned to return and fight again. Id. at 4-5. Baines testified that he decided to go with them, hoping to prevent the fight because "we was all friends over there." Id. at 5.
When the van pulled up in front of Taylor's house, Carlos jumped out to knock on the door, while the other men waited beside the van. Id. Baines testified that Eric saw Taylor at the corner of Fairfield and 64th Street and that he, Baines, saw Taylor holding a gun, but did not see anything in the Petitioner's hand. Id. Baines recalled that Taylor and Eric Lash began arguing and both Taylor and the Petitioner began walking towards the van, shooting at the men near the van as they approached. Id. Derrick Lash and Pareece Talbert shot back at the Petitioner and Taylor. Id. During the trial, Baines identified both the Petitioner and Taylor and testified that both men were Gangster Disciples from the Fairfield block. Id. Baines also testified that approximately two weeks prior to the shooting, he had a conversation with Petitioner, Derrick, Eric, and Pareece, in which Petitioner had unsuccessfully attempted to sell the other men a .45 caliber pistol. Id. at 5-6.
On cross-examination, Baines admitted that he made no effort to stop the fight other than suggesting the men talk it out and that he did not contact the police after the incident. Id. at 6. Baines admitted, further, that he was the only person involved in the incident who was not charged with murder. Id.
Thomas Lamb, an officer with the Chicago Police Department, testified that he interviewed the Petitioner on the night of the shooting in the presence of the Petitioner's mother, grandmother and a third woman, unidentified in the court's opinion. Id. Lamb recalled that Petitioner gave conflicting information about the shooting. Initially, Petitioner told Officer Lamb that he was out riding his bicycle on Washtenaw when he heard the shots. Id. Later in the interview, Petitioner told Officer Lamb that he was at the corner of 64th and Fairfield when he thought he saw someone shooting from a van as it passed him. Id. Lamb took no notes of this interview. Id. Lamb subsequently learned that the Petitioner was a named offender in the shooting and returned to the Petitioner's house and arrested him. Id.
Ursula Walowski, an Assistant State's Attorney, also interviewed the Petitioner on the night of the shooting, and testified that he offered several versions of the events to her, as well. Id. at 6-7. Initially, Petitioner told Walowski that at the time of the shooting he was a block or two away on his bike. Id. at 7. Petitioner then changed his story and stated that he was not involved in the shooting but was involved in an earlier fight with Eric, Derrick, Carlos, and Pareece. Id. Petitioner added that the people in the fight left in a van but returned later, got out of the van, and began shooting at Petitioner and his friends, "Scooby" and Taylor. Id. Petitioner initially claimed that as soon as the shooting started, he and his friends ran away. Id. Later, Petitioner told ASA Walowski that Taylor was involved in the shooting; at no time did he admit to any personal involvement. Id.
Laurel Bresnahan, a Chicago police officer, testified for the defense that on the night of the shooting Keith Price told her that he saw a man in black holding a pistol from the van when the shooting started. Id. at 7-8. She further testified that Price provided no details regarding the shooting and never stated that the Petitioner fired a gun or that anyone was walking south on Fairfield while firing a gun. Id. at 8.
A number of alibi witnesses testified on behalf of the Petitioner, as well. Tasha Edwards testified that at the time of the shooting she was in front of her house, at 6345 Fairfield, with her son and the Petitioner. Id. When she heard shots, Ms. Edwards recalled, all three ran into the house for protection. Id. It was not until the shooting stopped that the Petitioner went back outside, and she did not see him with a gun. Id. Ms. Edwards admitted on cross examination that after learning that the Petitioner was arrested for murder, she never called the police to tell her story. Id. She also admitted that she knows the Petitioner through her brother, Diwon Edwards. Id.
Diwon Edwards, who lives with his sister Tasha, also testified that on June 21, 1996, he was across the street from his house when he heard the shots and that he saw the Petitioner across the street with his sister and her son at the time the shots were fired. Id. at 8-9. Diwon ran for safety, but at some point looked across the street and observed the Petitioner helping his sister and her son get inside her house. Id. at 9. After the shots stopped, Edwards saw the Petitioner run down the street in the direction of the shooting. Id. Marvin Barry provided a similar story; he testified that he was across the street from Diwon's house with Diwon when he heard the shots, and that before the shots were fired, he saw the Petitioner across the street with Tasha and her son. Id.
John Griffin, an officer with the Chicago Police Department, was another defense witness. Griffin testified that he was present for the interview conducted by Assistant State's Attorney Walowski and took notes during that interview. Id. at 9-10. According to Griffin's notes, (which Petitioner himself did not review), Petitioner identified Tasha Edwards as a witness to the shooting; Griffin never interviewed Ms. Edwards herself. Id. at 10.
Joanne Biddings, Petitioner's grandmother, testified that Petitioner was home with her and other family members at the time of the shooting. (Trial Transcript, Vol. III, at 665.) She testified, further, that she was present during Officer Lamb's interview with the Petitioner, and that Petitioner did not tell Officer Lamb he was riding his bike at the time of the shooting. People v. Redding, No. 1-98-0123,at 10.
Finally, David Jackson, a private investigator, testified based on his observations of Price's home at 6438 Fairfield, made the day prior to the trial. Id. As of that date, according to Jackson, Price's porch was enclosed and facing east. Id. Thus, Jackson testified, a person would be unable to look north on Fairfield from Price's porch. Id.
Redding and his co-defendant Taylor were tried in a simultaneous trial with separate juries. Id. On March 11, 1997, the Petitioner was found guilty of first degree murder. Id. Taylor, who asserted the affirmative defense of self defense, was acquitted. (Brief and Argument of Petitioner in the Illinois Appellate Court, No. 1-98-0123, Ex. B to Respondent's Answer, at 1.)
The Petitioner appealed his conviction for murder to the Illinois Appellate Court, arguing that he was denied his right to a fair and impartial trial because of a number of improper comments by the prosecution. In all, the Petitioner identified more than twenty statements that he believes deprived him of a fair trial. (Brief and Argument of Petitioner in the Illinois Appellate Court, No. 1-98-0123, Ex. B to Respondent's Answer, at 14-29.) In reviewing the matter, the Appellate Court grouped the allegedly objectionable comments as follows: Petitioner claimed the prosecutor (1) made arguments not based on the evidence, (2) misstated the law of accountability, (3) improperly injected his opinions into the closing argument, (4) improperly referred to witnesses' fear of testifying, (5) made non-relevant comments that prejudiced the jury, (6) commented on the Petitioner's failure to testify, and (7) improperly attempted to shift the burden of proof. (Id.) The Appellate Court also addressed Petitioner's argument that the cumulative effect of the improper statements denied him a fair trial. (Id.) On August 15, 2000, the Illinois Appellate Court denied all of Petitioner's claims on various grounds and affirmed his conviction. Redding, No. 1-98-0123, at 37.
Petition for Leave to Appeal
On June 1, 2001, the Petitioner filed a petition for leave to appeal to the Illinois Supreme Court. (Petition for Leave to Appeal, People v. Redding, No. 91623, Ex. D to Respondent's Answer.) In this petition, submitted pro se, the Petitioner again focused on the prosecutor's comments at trial; he presented the claim as an ineffective assistance of counsel argument, but the substantive argument was the same one he had presented before the Appellate Court. (Id. at 7-8.)
The Illinois Supreme Court, on July 23, 2001, denied the Petitioner's petition for leave to appeal. (Order of the Supreme Court of Illinois Denying Leave to Appeal in People v. Redding, 195 Ill.2d 592, 755 N.E.2d 481 (2001), Ex. E to Respondent's Answer.) This habeas petition followed.
Section 2254 of the Anti-Terrorism and Effective Death Penalty Act entitles a prisoner to a writ of habeas corpus if he is being held pursuant to a state court judgment obtained in violation of the Constitution. 28 U.S.C. § 2254. For claims that were adjudicated on the merits by a state court, a federal court will not grant a writ of habeas corpus unless that state decision (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in that state court proceedings. 28 U.S.C. § 2254(d)(1) & (2). As explained in numerous cases, a state court decision is "contrary to" federal law if the state court either incorrectly laid out governing Supreme Court precedent, or, having identified the correct rule of law, decided a case differently than a materially factually indistinguishable Supreme Court case. Next, a state court's application of a correct statement of federal law is "unreasonable" if it is objectively so, and not merely erroneous or incorrect. Specifically, a state court's decision minimally consistent with the facts and circumstances of the case is not unreasonable, while a determination lying well outside the boundaries of permissible differences of opinion is.
Conner v. McBride, 375 F. 3d 643, 649 (7th Cir. 2004) (citations and internal quotations omitted).
Before an individual may seek habeas relief in the federal courts, he must "(1) exhaust all remedies available in state courts . . . and (2) fairly present any federal claims in state court first, or risk procedural default." Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996) (citations omitted). A petitioner for habeas relief must submit "both the operative facts and the controlling legal principles of a constitutional claim" before properly seeking habeas review in the federal courts. Id. at 469.
In addition, a petitioner's failure to make use of existing state procedures may serve as a bar to habeas relief if the petitioner forfeited the claim by violating a state procedural rule. Boerckel v. O'Sullivan, 135 F.3d 1194, 1197 (7th Cir. 1998), rev'd on other grounds, 526 U.S. 838 (1999). Failure to adhere to state procedure results in procedural default. In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court stated that it would not "review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id. at 729. The rule set out by the Court in Coleman is applicable to both substantive and procedural state law grounds. Id. In the event that a state court "declines to review a petitioner's claim because the petitioner has failed to satisfy a state procedural rule, that claim is procedurally defaulted and barred from federal habeas review." Pisciotti v. Washington, 143 F.3d 296, 300 (7th Cir. 1998). The procedural bar is enforced even where the state court has made additional alternative rulings. As the Court explained in Harris v. Reed, 489 U.S. 255 (1989):
[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.
Id. at 265 n.10 (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935)) (emphasis in original).
A federal court may review a defaulted claim only "if the petition shows cause for failure to raise them at the appropriate time and actual prejudice which resulted from such failure." Rodriquez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999). Absent such a showing, "a defaulted claim is reviewable only if refusal to consider it would result in a 'fundamental miscarriage of justice,' that is, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. (citations omitted). In order for a court to find a "fundamental miscarriage of justice" the petitioner must demonstrate "that it is more likely than not that no reasonable juror would have convicted him." Id. (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)).
As previously mentioned, the Petitioner has raised two primary arguments in his habeas petition. First, he challenges the prosecutor's statements as improper and prejudicial. Second, Petitioner argues here that his Fifth and Sixth Amendment rights were violated because he was convicted on a theory of accountability under state law where the primary shooter was acquitted by reason of self defense. Petitioner also makes a vague reference to claims related to the prosecution's use of false evidence and insufficiency of the evidence. The court will address these arguments in turn.
Petitioner's first claim identifies more than twenty statements made by the prosecutor during his criminal trial which he claims denied him the right to a fair trial. The State argues, in response, that these claims fail either because they are procedurally defaulted or on their merits. Following the Appellate Court's lead, the court addresses the prosecutor's comments in groups.
A. Prosecution made Arguments not Based on the Evidence
First, Petitioner objects to three statements made during the prosecution's closing argument, which Petitioner believes were not based on evidence admitted at trial. Each of the challenged statements relates to the prosecution's contention that, after the ...