The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
A Cook County jury found Petitioner George Guirsch ("Petitioner" or "Guirsch") guilty of three counts of attempted first-degree murder, aggravated battery with a firearm, aggravated battery causing great bodily harm and armed violence. The charges stemmed from an incident where Guirsch fired his gun at four City of Chicago police officers, resulting in one of the officers being paralyzed from the neck down. Upon remand from the Illinois Appellate Court for resentencing, the trial court imposed two consecutive fifty-year terms of imprisonment. Petitioner appealed and the Appellate Court affirmed his conviction and new sentence. The Illinois Supreme Court denied Guirsch's Petition for Leave to Appeal ("PLA"). Guirsch did not seek relief through a state petition for post-conviction relief. Petitioner now has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 wherein he asserts that his federal rights were violated when: (1) the trial court did not instruct the jury on the affirmative defenses of self-defense and defense of dwelling; (2) the trial court did not instruct the jury on the offense of attempted second degree murder; (3) the State used evidence of other crimes and bad character, and the State's witness lied on the stand; and (4) the trial court sentenced him (I) to an enhancement that applies only if the victim is killed, (ii) to consecutive terms based upon facts not proved to a jury beyond a reasonable doubt and (iii) to an increased term using the elements of the crime. Petitioner also contends that the trial court's cumulative errors violated his federal rights.
The State argues initially that Guirsch's petition is untimely and should be dismissed based on the one-year limitation period in 28 U.S.C. § 2244(d)(1) because he did not submit a signed petition before the period expired. The Rules Governing § 2254 Cases, however, require a clerk to accept a filing even though it lacks a signature. Guirsch's unsigned petition therefore stopped the running of the statute of limitations and his later-filed, signed petition related back to date of the timely, unsigned petition. As to the merits of Guirsch's petition, the state court's decision not to instruct the jury on self-defense or defense of dwelling did not violate Guirsch's due process rights because it is not more likely than not that a reasonable jury would have found in his favor on the defenses. With regard to Petitioner's second claim, the State of Illinois' second degree murder statute is not unconstitutional and the Court gives deference to the Illinois statutory scheme that punishes defendants differently; and because Petitioner cannot show that a jury would have more likely than not found him guilty of attempted second degree murder instead of attempted first degree murder, he is not entitled to habeas relief. Finally, Guirsch has not established that the state court's evidentiary rulings or sentencing of him violated his rights under the Constitution or laws of the United States.
Guirsch does not challenge the facts as found by the Illinois Appellate Court, thus, this Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.2d 426, 434 (7th Cir. 2007). George Guirsch was 61 years old at the time of the shooting. Guirsch lived alone in an apartment at 1404 West Estes in Chicago, Illinois and worked as a security guard at a local bank. On the night of October 16, 1996 at approximately 7:30 p.m., Ronald Satchell was walking near Guirsch's apartment building when he saw two shots fired from a gun in a second floor window. Shortly after 9:00 p.m., Satchell's fiancé told him that she heard more gunshots and saw police outside. Satchell went outside and told the police what he had witnessed earlier. Michelle Terrell testified that she heard gunshots around 9:00 p.m. and called 911 anonymously to report them. Guirsch testified that he did not fire the shots and Guirsch and an investigator from the Cook County Public Defender's Office testified that the window identified by Satchell did not open fully.
At around 9:00 p.m., four Chicago police officers knocked on Guirsch's door based on information from Terrell that she had seen Guirsch with a gun. Guirsch was licensed by the State of Illinois to carry a gun in connection with his job as a bank security guard. Three of the officers wore plain clothes, the fourth officer testified that he was wearing his sergeant's uniform. According to the officers' testimony, the plain clothes officers each wore jeans, a plaid shirt, a black bullet-proof vest with a police radio in the pocket and a gun belt which held a holstered gun, an extra magazine for the gun and handcuffs. Two of the plain clothes officers wore their badges, a gold police star, on the front of their gun belts, while the third plain clothes officer pinned his badge to the upper left front of his bullet-proof vest. The uniformed officer displayed his badge and name plate on the front of a white bullet-proof vest. One or two of the officers may have had their weapons unholstered as they waited outside Guirsch's apartment. The police officers testified that they announced "police, police, open the door" and "police, come to the door" as they knocked. Two other witnesses testified that they heard the police officers announcing themselves. Guirsch testified that he never heard the police announce themselves. Philip Davis and his wife, who lived in the building next door, testified that they heard the loud knocking, but did not hear any voices during the knocking.
Guirsch, awakened by the loud knocking on his apartment door, grabbed his gun and walked into the front room of his apartment. Guirsch opened his apartment door with his gun pointed at the officers. None of the officers verbally identified themselves or told Guirsch to drop his weapon at this point. Although he testified that the area outside his door did not have an adequate light source, Guirsch said he could see that the figures were white males wearing plaid shirts and dark vests. Guirsch testified at trial that he was frightened and concerned about what these individuals were up to. The officers immediately ran for cover when Guirsch pointed the gun at them. Guirsch fired two shots at the figures as they "were running away from [him]," one of the shots striking Officer Mullen in his cheek. Guirsch then stepped back inside his apartment. Officer Mullen lay face down on the floor. Guirsch emerged again from his apartment pointing the gun. Officer Brannigan yelled "police" and when Guirsch did not lower his gun, the officer fired his weapon at Guirsch. Guirsch retreated into his apartment before coming out with his hands in the air, stating "I'm sorry, I give up." The officers ordered Guirsch to lay flat on the ground. The officers testified that Guirsch did not cooperate and that they had to forcibly handcuff him, but no officer struck him. Defendant testified that the officers kicked him in the back, broke his glasses and punched him in the back of the head. Ann Whelan testified that she saw a uniformed officer kick Guirsch in the stomach and another officer slap him. The bullet that struck Officer Mullen traveled through his creek and lodged in his upper vertebrae, causing permanent paralysis from the neck down.
Guirsch was taken to Area 3 police headquarters and placed in an interview room. Guirsch remained in the room until he signed a written statement at 1:30 p.m. the next day. In his statement, Guirsch said that he heard the word "police" and the static from radios while he walked through his front room towards the door. Guirsch stated that he did not make any attempts to identify the individuals outside of his door -- by speaking to them or looking out the peephole or adjacent window -- before opening the door with his gun in hand. When he opened the door, Guirsch saw three figures scatter and he fired two shots at the center person because he was the "more readily available target." Immediately following the shooting, a Chicago police detective recovered Guirsch's handgun from the apartment along with Guirsch's gun registration, security guard card, hunting patch and 1958 shooting blue ribbon.
The jury found Guirsch guilty of three counts of attempted first-degree murder, aggravated battery with a firearm, aggravated battery causing great bodily harm and armed violence. The state trial court merged the offenses into the two attempted first-degree murder counts and imposed two consecutive seventy-year terms of imprisonment. Petitioner appealed to the Illinois Appellate Court arguing that: (I) the trial court erroneously failed to instruct the jury on his affirmative defenses (self-defense and defense of dwelling) because evidence was presented that he reasonably feared the unidentified figures outside his home; (ii) the trial court erred in refusing to instruct the jury as to the crime of attempted second degree murder; (iii) he was denied his right to a fair trial by the State's improper use of evidence and argument about uncharged "other crimes" and "bad character;" (iv) the trial court erred in allowing hearsay testimony to be introduced by the prosecution; (v) the trial court improperly sentenced him to consecutive seventy-year terms; (vi) the prosecution failed to prove him guilty beyond a reasonable doubt; and (vii) his conviction should be overturned due to the cumulative weight of the trial court's errors. See Exhibit B. Petitioner would raise substantially the same issues in each of his later state filings. The Appellate Court affirmed Petitioner's convictions, but vacated the consecutive seventy-year sentences. See Exhibit G. The Appellate Court remanded for resentencing because each of the seventy-year sentences exceeded the sixty-year maximum allowed under state law and the imposition of consecutive sentences violated the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Id. Both parties petitioned the Illinois Supreme Court for leave to appeal. See Exhibits H and I. The Illinois Supreme Court denied the PLAs but vacated the Appellate Court's decision and remanded for reconsideration in light of its decision in People v. Wagener, 752 N.E.2d 430, 441 (Ill. 2001), which held that consecutive sentence generally do not violate Apprendi. See Exhibit J. The Illinois Appellate Court again affirmed Petitioner's convictions and remanded for resentencing. See Exhibit L. The remand was confusing, however. The Appellate Court's order stated both that it "vacate[d] the order requiring his sentences to run consecutively and order[ed] his new sentences to run concurrently," and that "[w]e affirm the defendant's convictions and the trial court's order of consecutive sentences but hold that the matter be remanded to the trial court for resentencing within the range set forth in [the applicable state statute]." Id. The trial court resentenced Petitioner to serve two consecutive fifty-year terms of imprisonment. See Exhibit O. Petitioner's conviction and sentence were affirmed on appeal, see Exhibit Q, and the Illinois Supreme Court denied his PLA on May 26, 2004, see Exhibit S. Petitioner did not file a state post-conviction petition. Petitioner filed his federal habeas petition on May 5, 2005.
Petitioner's § 2254 petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Benefiel v. Davis, 357 F.3d 655, 659 (7th Cir. 2004). Under AEDPA, a federal district court may issue a writ of habeas corpus when a prisoner is in state custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Petitioner has exhausted the state remedies as to each of his claims, thus, this Court may review the merits of his claims. See 28 U.S.C. § 2254(b)(1)(A). The scope of federal review of the merits of a petitioner's claims under § 2254 is narrow. A federal court shall not grant habeas corpus relief unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or the state court's determination of the facts was unreasonable in light of the evidence. 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "when the state court applies a rule that contradicts the governing law set forth by the Supreme Court or, on facts materially indistinguishable from the facts of an applicable Supreme Court precedent, reaches a different result." Badelle v. Correll, 452 F.3d 648, 654 (7th Cir. 2006) (internal citations omitted). Similarly, a state court decision unreasonably applies clearly established federal law when it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 245 (7th Cir. 2003) (internal quotations omitted). A state court determination of the facts is unreasonable when it falls "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002). In determining whether the decision was unreasonable, a federal court reviews the last state court decision with an explanation or written opinion. See Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir. 1990) ("Unexplained affirmances or denials of discretionary review do not retract a state-law basis of decision already given").
The State argues that Guirsch's habeas petition should be dismissed because it was not timely filed. Section 2244(d)(1) provides a one-year period of limitation during which a person in custody pursuant to the judgment of a state court may apply for a federal writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). The one-year period of limitation begins running from the latest of several dates; applicable here is the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). The Illinois Supreme Court denied Guirsch's PLA on May 26, 2004, and he did not petition the United States Supreme Court for a writ of certiorari. Thus, his one-year limitations period began to run on August 26, 2004 -- the date on which his right to file a petition for writ of certiorari in the United States Supreme Court expired. See Anderson v. Litscher, 281 F.3d 672, 674 (7th Cir. 2002) ("[W]e believe that the ninety day period during which a petition for certiorari may be filed by a state prisoner falls within the meaning of section 2244(d)(1)(A) for purposes of calculating when the statute of limitations begins to run"). Petitioner filed an unsigned § 2254 petition on May 5, 2005. Section 2242 of AEDPA and Rule 2(c)(5) of the Rules ...