The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
On March 6, 1998, state prisoner Gary Davis filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging eight grounds on which his conviction and sentence for first-degree murder were constitutionally infirm. On October 19, 2000, this court dismissed his claims as procedurally defaulted, meritless, or both. In so holding, the court found that some of petitioner's claims had been defaulted because they had not been presented to the Illinois appellate court in petitioner's pro se brief in response to state post-conviction appellate counsel's motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Then, on November 15, 2000, the court sua sponte reconsidered its decision in light of the Seventh Circuit's opinion in Wilkinson v. Cowan, 231 F.3d 347 (7th Cir. 2000). Under Wilkinson, because the state appellate court must review all claims on the merits in deciding an attorney's motion to withdraw, Davis's claims I, II, V and part of III were properly presented and were not procedurally defaulted. After this reconsideration, the court ordered respondent to file a supplemental answer. Having now reviewed Davis's original petition, as well as respondent's supplemental answer, the court denies the remaining claims in the petition.
Stemming from the 1991 shooting death of his brother, petitioner Davis was convicted of first-degree murder after a jury trial and sentenced to a prison term of forty-five years. The evidence at trial established that at about 4:20 a.m. on December 26, 1991, Davis and his brother were arguing over what the temperature in their house should be. When Davis's brother began dismantling the thermostat with a screwdriver, Davis retrieved a gun and shot him a total of 26 times, including 16 times to the face and head. Davis then called the police and informed them that he shot his brother. In a subsequent interview with an assistant state's attorney, Davis provided details of the events leading up to the shooting. At trial, Davis sought a second-degree murder conviction, arguing that he was provoked when his brother threatened him with the screwdriver that he was using to dismantle the thermostat. The trial judge instructed the jury on the offense of second-degree murder based on the use of force in self-defense, but not based upon sudden and intense passion resulting from serious provocation. The jury found Davis guilty of first-degree murder.
Davis appealed his conviction and sentence to the Illinois appellate court, raising two claims: first, that he was denied due process when the trial court refused to instruct the jury on second-degree murder based on sudden and intense passion resulting from serious provocation; and second, that the prosecutor's improper comments and misstatements of the evidence during closing argument denied Davis his right to a fair trial. The Illinois appellate court affirmed Davis's conviction and sentence on August 1, 1995.
On September 19, 1995, Davis filed a petition for leave to appeal in the Illinois Supreme Court, raising the same two claims he raised in the Illinois appellate court. The Illinois Supreme Court summarily denied Davis's petition for leave to appeal on December 6, 1995.
On April 4, 1996, Davis filed a petition for post-conviction relief with the state circuit court, raising seven claims: 1) he was denied a fair trial and impartial jury selection, and the jury was given defective instructions; 2) he received ineffective assistance of counsel at trial and on appeal; 3) he was denied a fair trial because of police officers' perjured testimony; 4) he was denied a fair trial because of the prosecution's misconduct during trial; 5) he was denied "proper discretion" by the court during the prosecution's closing and rebuttal arguments, and during sentencing; 6) newly discovered evidence indicates that Davis was not found guilty beyond a reasonable doubt, and he was denied a fair trial; and 7) he was not found guilty beyond a reasonable doubt of every material element of the crime charged. The circuit court denied his petition on June 10, 1996.
Davis appealed from the denial of his post-conviction petition, and his counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), on May 7, 1997. Davis filed a pro se response to the motion to withdraw, alleging that he was denied the effective assistance of counsel. On August 26, 1997, the Illinois appellate court granted counsel's motion to withdraw and found that Davis had failed to present properly any issue to the court for review. Davis filed a petition for leave to appeal with the Illinois Supreme Court, which was denied on February 4, 1998.
Following its reconsideration of the procedural default issue, the court must now resolve the following claims: (I) petitioner was denied the effective assistance of trial counsel; (II) petitioner was denied a fair and impartial jury; (III) petitioner was denied due process at trial when the prosecutors allegedly knowingly used perjured testimony before the grand jury and at trial, and knowingly withheld exculpatory evidence; and (V) petitioner was not proven guilty beyond a reasonable doubt.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petitioner is not entitled to a writ of habeas corpus unless the challenged state court decision is either "contrary to" or "an unreasonable application of" clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 367 (2000). A state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by the Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Williams, 529 U.S. at 404. To demonstrate an "unreasonable application" of clearly established federal law, a habeas petitioner must establish that the state court unreasonably applied the controlling legal rule to the facts of the case. Id. at 407. The state court's application of Supreme Court precedent must be more than incorrect or erroneous. Rather, it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (state court decision must lie "well outside the boundaries of permissible differences of opinion").
In Claim I, petitioner claims that he was denied the effective assistance of trial counsel*fn1 because counsel did not file pretrial motions to suppress the indictment based upon the allegedly perjured testimony of Officer Edmund Leracz. The court dealt with this issue in its earlier opinion when dealing with petitioner's argument that his appellate counsel was ineffective for failing to argue on appeal that the prosecution knowingly used perjured testimony. In its original opinion, the court found that there was no deficient performance because there was no perjury. As the court stated,
The first omitted issue -- the prosecutor's knowing use of perjured testimony -- is based on Davis's belief that a detective perjured himself by testifying that the victim was unarmed and was shot while dismantling the thermostat. Apparently, Davis considers the testimony to be false because the victim was "armed" with the screwdriver he was using to dismantle the thermostat, and because the victim turned away from the thermostat toward Davis when Davis shot him. Not only does this argument lack merit, but Davis's appellate counsel undoubtedly would have risked sanctions by raising it before the Illinois Appellate Court. 10/22/01 Opinion. As before, the court cannot conclude that the detective perjured himself because he did not consider the victim "armed" (despite the fact that he had a small screwdriver) or because the victim was not actually working on the thermostat when he was shot (he was turning away from the thermostat). Because the detective did not perjure himself, Davis cannot make out a claim that his trial counsel was ineffective for moving to suppress the indictment based on the detective's testimony. ...