The opinion of the court was delivered by: Wayne R. Andersen District Judge
Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This case is before the court on Forrest Woods's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254"). For the following reasons, the petition for habeas corpus is denied.
Petitioner does not challenge the statement of facts set forth in the order of the Illinois Appellate Court affirming the denial of his second post-conviction petition. People v. Woods, No. 1-02-2517 (Ill. App. Ct. 1st Dist. Jan 9, 2004). For purposes of federal habeas review, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e). Accordingly, we will adopt the facts of petitioner's trial as our own.
Following a bench trial, defendant Forrest Woods was found guilty of first degree murder and sentenced to 40 years' imprisonment. At trial, the State's evidence showed that on July 10, 1995, at some time between 11:30 p.m. and 12:00 a.m., defendant fatally shot Omar Wilson in the head in the presence of Omar's sister, Kenya Wilson. Kenya Wilson testified that she observed defendant standing behind her brother for three minutes immediately before the shooting, which she witnessed. Omar's brother, Terrell Wilson, testified that, after hearing the gunshot, he observed defendant attempting to break into a bathroom to which Kenya Wilson had fled.
The Wilsons provided a description of defendant to the police and, approximately 10 days after the shooting, Kenya Wilson identified a photograph of defendant from an array of seven photographs. The following day, Kenya and Terrell Wilson separately identified defendant in a lineup. The Wilsons also identified defendant as the shooter at trial. At the hearing on defendant's pretrial motion to quash arrest and suppress evidence, the trial court rejected defendant's contention that the photographic identification was suggestive.
On direct appeal, the petitioner claimed that his sentence was excessive and an abuse of the trial court's discretion. The Illinois Appellate Court, First District, affirmed his sentence on December 23, 1997, holding that the petitioner waived his excessive sentence claim by failing to file a written post-sentencing motion. The petitioner appealed to the Illinois Supreme Court, raising the same abuse of discretion claim. The court denied the petition for leave to appeal on December 2, 1998.
Petitioner's First Post-Conviction Petition for Relief
The petitioner filed his first pro se petition for post-conviction relief in the Circuit Court of Cook County on March 31, 1999. He claimed that: 1) the photographs shown to a state witness were unnecessarily suggestive; 2) he was denied his right to counsel when placed in lineup without counsel present; and 3) trial counsel was ineffective for failing to call alibi witnesses in his defense. On May 28, 1999, the trial court dismissed this petition, noting that such issues could and should have been presented on direct appeal.
On appeal to the Illinois Appellate Court, the petitioner argued that: 1) the petition set forth the gist of a meritorious claim that the defendant's in-court identification was tainted; and 2) the claim of ineffective assistance of counsel was not subject to waiver when trial counsel and direct appeal counsel were from the same public defender's office. On October 22, 2001, the Appellate Court affirmed, holding that: 1) the identification claim could have been raised on direct appeal and was thus waived and 2) the claim of ineffective assistance of counsel was not waived, but was without merit because the potential alibi witness's "testimony would not have likely changed the outcome of the trial." Petitioner's brother, Harold Woods, stated in his affidavit that he "did not recall [petitioner] leaving the room on the night of the shooting," which the court found inconclusive.
Petitioner presented the following issues to the Illinois Supreme Court on appeal: 1) he had presented a proper unduly suggestive identification claim, about which the fundamental fairness required relaxation of the waiver rule; and 2) the Appellate Court erred in affirming the ineffective assistance of counsel claim for failing to call any alibi witnesses because the petition had set forth the gist of such a claim. The Illinois Supreme Court denied the petition for leave to appeal on February 6, 2002.
Petitioner's Second Post- Conviction Petition for Relief
Petitioner filed a second pro se petition for post-conviction relief on May 20, 2002. He claimed that: 1) trial counsel was ineffective for failing to call alibi witnesses, and 2) post-conviction appellate counsel was ineffective for failing to argue that both trial and direct appeal counsel were ineffective for failing to raise the alibi issue. The trial court summarily dismissed this petition on July 30, 2002, as failing "to allege any points that have either been previously ruled on or which would have changed the outcome of the case."
On appeal to the Illinois Appellate Court, petitioner argued that the trial court erred because: 1) his second post-conviction petition raised a non-frivolous claim of ineffective trial counsel for failing to call alibi witnesses, (his mother and brother-in-law) and 2) the Post-Conviction Hearing Act does not permit summary dismissal on the procedural grounds of untimeliness or successiveness. The Appellate Court affirmed on January 9, 2004, holding that "the procedural bar of waiver may be applied to summarily dismiss a successive post-conviction petition," and there was "no reason why [petitioner] could not have raised these issues in his first post-conviction appeal." On May 26, 2004, the Illinois Supreme Court denied the petition for leave to appeal.
Petitioner's Third Post- Conviction Petition for Relief
The petitioner filed a third pro se petition for post-conviction relief on November 24, 2004. He made the following claims:
1) direct appeal counsel was ineffective for failing to:
a. properly raise the excessive sentence issue by invoking the plain error doctrine;
b. present evidence to directly refute testimony by the state's eyewitness;
c. argue that the photo identification was unduly suggestive;
d. argue that the physical lineup identification was unduly suggestive;
e. argue that trial counsel was ineffective for failing to file a motion to suppress the in-court identification on the grounds that the photo and physical lineups were unduly suggestive;
f. argue the trial counsel was ineffective for failing to object to the photo and physical lineup ...