The opinion of the court was delivered by: James F. Holderman, Chief Judge
MEMORANDUM OPINION AND ORDER
For the reasons set forth below, Christopher McDonald's ("McDonald") Petition for Writ of Habeas Corpus is denied.
The following background information is repeated as set forth by the Appellate Court of Illinois:*fn1
On February 9, 1999, John Gholston was driving a stolen car with three passengers, Derrick Gholston, Lucias Byes and Courtney Ward. As [John] Gholston parked the car, defendant [McDonald] came up to the vehicle, and an argument ensued. When John Gholston got out of the car, defendant shot him; defendant then shot inside the car wounding Derrick Gholston and Lucias Byes. Courtney Ward escaped from the vehicle without injury. John Gholston died as a result of the shooting.
After defendant was indicted, the State petitioned the court for material witness bonds for Byes, Ward and Raymond Keyes, a potential witness to an inculpatory statement that defendant purportedly made. Each petition alleged that the witness feared for his safety because Derrick Gholston had been shot and killed on February 20, 1999. Byes' petition also alleged that he planned on leaving the Joliet area.
Neither defendant nor counsel received copies of the petitions or notice of the hearings on the material witness bonds, and neither was present at the hearings. Defendant's counsel later found out about the hearings and filed a motion to dismiss the indictment, which the court denied.
People v. McDonald, 749 N.E.2d 1066, 1068 (Ill. App. Ct. 3d Dist. 2001). Following a jury trial in state court, McDonald was convicted of first degree murder, two counts of aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful use of a weapon by a felon. On November 15, 1999, McDonald was sentenced to 30-, 10-, 10-, 10- and 5-year terms of imprisonment, respectively. The two 10-year sentences for aggravated battery with a firearm are to be served consecutively to each other and to the 30-year murder sentence, while the remaining terms are to be served concurrently.
McDonald appealed his convictions and sentences, arguing that his due process rights were violated when the court conducted ex parte hearings on the material witness bonds, that the trial court committed plain error when it denied his motion for a mistrial after the government improperly introduced "bloodhound" evidence at trial, and that the trial court failed to properly consider mitigating factors in sentencing McDonald. In a published opinion on May 16 , 2001, the Appellate Court of Illinois affirmed McDonald's convictions and sentences. The Supreme Court of Illinois denied McDonald leave to appeal this decision.
McDonald then filed his first pro se post-conviction petition, arguing among other things that he was denied the effective assistance of counsel when his trial lawyer failed to advise him that (1) McDonald would be required to serve 100% of his sentence if he was convicted of first degree murder and (2) the sentences for aggravated battery with a firearm would be served consecutive to each other and also consecutive to the murder sentence. McDonald argued that the omission of this information impaired his ability to knowingly decline the tender of a jury instruction on second degree murder. The trial court summarily denied McDonald's petition as "frivolous or patently without merit" on August 1, 2002. (Dkt. No. 33, Ex. H.) The Appellate Court of Illinois affirmed the dismissal of McDonald's first post-conviction petition in an unpublished order on August 29, 2003, and the Supreme Court of Illinois again denied leave to appeal.
On July 26, 2004, McDonald filed a second post-conviction petition, again pro se, arguing that his due process rights were violated when he was forced to appear before the jury in leg shackles with no individualized finding by the trial court that shackles were warranted in his case. McDonald also argued that his counsel was ineffective for failing to object to this due process violation. McDonald's second post-conviction petition was summarily dismissed by the trial court on September 15, 2004.
On October 6, 2004 McDonald filed a motion to reconsider the September 15, 2004 order and thereafter filed an amended second petition for post-conviction relief. In his amended second post-conviction petition, McDonald argued that he had cause to file a successive post-conviction petition because his appellate counsel had not known that McDonald was shackled at trial (the fact that he was shackled was not reflected in the record) and McDonald himself only became aware of the constitutional violation upon reading People v. Doss, 807 N.E.2d 697 (Ill. App. Ct. 3d Dist. 2004) and People v. Martinez 808 N.E.2d 1089 (Ill. App. Ct. 3d Dist. 2004). McDonald further argued that he was prejudiced because he was made to appear on the witness stand in shackles and was unable to adequately assist his counsel in demonstrating the basis for McDonald's self-defense claim,*fn2 because he "could only make hand gestures" in describing how he was attacked. (Dkt. No. 33, Ex. P.) On December 20, 2004, the trial court denied McDonald's motion to reconsider and summarily dismissed McDonald's amended second post-conviction petition.
McDonald appealed the trial court's dismissal of his second post-conviction petition and his amended second post-conviction petition, as well the denial of his motion to reconsider, arguing that the trial court erred in dismissing his pro se petitions when they set forth the gist of a constitutional claim. In a published opinion on February 16, 2006, the Appellate Court of Illinois affirmed the judgment of the trial court. Once again, the Supreme Court of Illinois denied leave to appeal.
Now pending before this court is McDonald's petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254.
Federal habeas review of McDonald's convictions is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under the AEDPA, relief may be granted only if the state court's final decision on the merits of the petitioner's federal claims was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or if the decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2).
A decision is "contrary to" clearly established federal law if "the state court reached a result opposite to that reached by the Supreme Court on materially indistinguishable facts." Virsnieks v. Smith, 521 F.3d 707, 713 (7th Cir. 2008) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000) and Jackson v. Miller, 260 F.3d 769, 774 (7th Cir. 2001)). A state court decision will not be found contrary to federal law merely because it does not rely on or refer to Supreme Court precedent. Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007).
In cases where there is no Supreme Court precedent directly on point, an unreasonable application of federal law occurs "when the state court correctly identifies the governing legal rule but applies it unreasonably to the facts." Badelle v. Correll, 452 F.3d 648, 654 (7th Cir. 2006). In other words, the state court's decision either unreasonably extended a rule to a context where it should not have applied, or unreasonably refused to extend a rule to a context where it should have applied. Virsnieks, 521 F.3d at 713. The inquiry for a federal court on habeas review is not whether the state court's application of the governing law was erroneous or incorrect, but whether it was objectively unreasonable. Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004).
The state court's findings of fact are presumed to be correct; however, this presumption can be rebutted if the petitioner presents the court with clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
Finally, the AEDPA only applies to federal claims that were adjudicated on their merits in state court. Malinowski v. Smith, 509 F.3d 328, 332--35 (7th Cir. 2007). To qualify for habeas review under the AEDPA, the petitioner must have presented his or her federal claim through one complete round of review in the state courts, including a petition for discretionary review in the state supreme court, if available. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Failure to present the claim to each level of the state court will result in procedural default of the claim. Id. at 848. Furthermore, the federal nature of the claim must be apparent from the facts and controlling legal principles of the case, such that the state courts have been given "a meaningful opportunity to pass on the substance of the claims." Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001). Federal courts will not review a petitioner's claim if the state court disposed of the claim on independent and adequate state law grounds, regardless of whether the state court's ruling was substantive or procedural. Coleman v. Thompson, 501 U.S. 722, 729 (1991); Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000). Federal courts will consider procedurally defaulted claims only if the petitioner establishes cause and prejudice for the default, or the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Coleman, 501 U.S. at 750).
1. Ex-Parte Hearings on Petitions for Material Witness Bonds
McDonald's first argument is that his constitutional rights to due process and a fair trial were violated when the trial court conducted ex-parte hearings on the petitions for Byes', Ward's, and Keyes' material witness bonds, as described above. Specifically, McDonald argues that he was "denied an oppurtunity [sic] to prepare a defense to the evidence and testimony presented by the State in obtaining the witness bonds," that he was denied an opportunity to learn the nature of the witnesses' testimony to be presented at trial, and that the trial judge was prejudiced by "inflamatory [sic] and highly prejudicial evidence" presented by the government without McDonald ...