The opinion of the court was delivered by: Marvin E. Aspen, District Court Judge
MEMORANDUM OPINION AND ORDER
Dennis Emerson, a prisoner at Stateville Correctional Center in Joliet, Illinois, now petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We deny the petition.
On August 12, 1979, Emerson and another person, Richard Jackson, robbed Robert Ray and Delinda Byrd after an after-hours meeting at Ray's lounge in Chicago. (Pet. at 2.) After the men tied Ray and Byrd by the hands and feet, Emerson stabbed Ray in the chest with a pair of scissors. (Id.) Ray survived the attack by playing dead and eventually testified at Emerson's resentencing hearing.*fn1 Ray further testified that after he was stabbed, he saw Emerson walk towards Byrd and "[bring] his hands down toward her one time." (Id.) Ray did not actually see Emerson stab Byrd, but she eventually died of stab wounds incurred that evening. (Id. at 3.)
Emerson was convicted of murder, armed robbery, arson, and attempted murder after a 1985 trial in the Circuit Court of Cook County in Chicago. (Pet. at 1.) He was sentenced to death. (Id.) The Illinois Supreme Court eventually reversed his arson conviction, but upheld the remainder of his conviction and death sentence. (Id.) In 1995, we granted Emerson a writ of habeas corpus with respect to his death sentence, finding that Emerson was denied his Sixth Amendment right to effective counsel at his sentencing hearing. (Id.) Accordingly, we ordered the state court to conduct a resentencing hearing, which was held in July 1997. (Id. at 2.)
At the resentencing hearing, Emerson's lawyer argued that although Emerson had been convicted of murder, the State had not proven that Emerson "actually struck the fatal blow that led to Delinda Byrd's death." (Id. at 3.) Before the jury began deliberations, the trial judge gave the following relevant instructions:
Before [Emerson] may be found eligible for a death sentence under the law, the State must prove the following propositions: First: That [Emerson] was 18 years old or older at the time of the commission of the murder . . . and Second: That the following statutory aggravating factor exists:
The murdered person was actually killed by [Emerson]; and In performing the acts which caused the death of the murdered person, [Emerson] acted with the intent to kill the murdered person or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered person . . . .
If you cannot unanimously find that both the first and second propositions have been proved beyond a reasonable doubt, then [Emerson] is not eligible for a death sentence. (Ex. Z to Answer, Resentencing Jury Instructions, at C168.) (emphasis added)
At some point during deliberations, the jury delivered a written question to the trial judge: "Do we unconditionally accept the previous judgment of guilty for murder, attempted murder and two counts of armed robbery as fact when evaluating this case or can we apply reasonable doubt to the prior guilty verdicts?" (Ex. Y to Answer.) Emerson's lawyer requested that the judge answer the jury's question by responding, "You are required to deliberate solely based on the evidence you have heard in this case in accordance with my instructions." (Ex. F, portion of state court record, at 30.) The State suggested that the judge respond,"you have the evidence before you that [Emerson] has been convicted of armed robbery, attempted murder and murder. You are to consider that evidence in the eligibility phase." (Id.) The judge answered the jury's question in terms more similar to those suggested by Emerson's lawyer: "You have received the evidence and jury instructions. Please continue to deliberate." (Id.) Neither side objected to this instruction, and the jury eventually returned a verdict finding Emerson eligible for the death penalty.
On direct appeal, the Illinois Supreme Court rejected Emerson's challenge to the trial court's eligibility instruction. The Illinois Court found in part that "we are unable to discern any significant difference between the answer suggested by defense counsel and the answer the circuit court provided to the jury;" therefore, Emerson waived any objection to the jury instruction. People v. Emerson, 727 N.E.2d 302, 333 (Ill. 2000).
Emerson filed for post-conviction relief, alleging in relevant part that he was denied effective assistance of counsel at his resentencing hearing through his resentencing lawyer's acquiescence in "an inadequate response to a jury question regarding effects of prior verdicts on his eligibility for the death penalty." In August 2006,*fn2 an Illinois appellate court rejected Emerson's claim, finding that Emerson's sentencing counsel's assistance satisfied the requirements of the Sixth Amendment as set forth in Strickland v. Washington, 466 U.S. 668 (1994). (App. A to Pet.)
Emerson now files for writ of habeas corpus, challenging the Illinois appellate court's holding with respect to his claim of ineffective assistance ...