The opinion of the court was delivered by: Hon. George W. Lindberg
MEMORANDUM OPINION AND ORDER
Before the court is Allen Bennett's ("Bennett") petition for a writ of habeas corpus ("petition") pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S. C. § 2254 ("Section 2254"). The respondent is Donald Hulick, Warden of Menard Correctional Center, where Bennett presently resides.*fn1 In October 2002, a jury convicted Bennett of aggravated possession and possession of a stolen motor vehicle. Bennett is currently serving a 15-year term of incarceration for those convictions. Bennett raises the following four issues in his petition for habeas relief: (1) the prosecution violated his constitutional right to equal protection and the precedent in Batson v. Kentucky during jury selection; (2) past crimes evidence should not have been admitted at his trial; (3) the trial judge violated his constitutional right to counsel by appointing his trial counsel; and (4) the indictment was void and duplicitous. For the reasons set forth below, the petition is denied.
Under Section 2254(e)(1), this court presumes the state court's factual determinations are correct for the purpose of habeas review. The following relevant facts are drawn from the opinion of the Illinois Appellate Court in People v. Bennett, No. 1-02-35528 (Ill. App. Ct. 1st Dist. Sep. 14, 2006). Bennett's October 2002 conviction for aggravated possession and possession of a stolen motor vehicle stems from an incident on January 24, 2000. On that date, Bennett, an African-American, stole a 1999 Honda Passport, valued at over $25,000, from Airway Honda in Cook County, Illinois.
The jury selection process at Bennett's criminal trial on the stolen vehicle charges included a two panel venire. There were fourteen people in each venire panel, for a total of twenty-eight perspective jurors. The first panel included three African-Americans. The prosecution excused two African-Americans from the first panel with its first and second peremptory challenges. Petitioner removed the other African-American with his fourth peremptory challenge. Petitioner exercised five other peremptory challenges on the first panel and the judge excused another venireperson for cause. The judge seated the five remaining people in the panel as jurors. The second panel included two African-Americans. After voir dire of that panel, the court excused one African-American for cause, without objection from Bennett or the prosecution. The court seated the remaining African-American as an alternate juror. The prosecution exercised two peremptory challenges on non-African Americans in the second panel.
After jury selection, petitioner (who represented himself during jury selection) objected to the jury, arguing that African-American has been systematically excluded from the jury. The trial court denied the objection and noted that of the twenty-eight perspective jurors, five were African-American and one of those five was seated as an alternate juror. As for the other four African-Americans, the court excused one for cause, without objection. Petitioner exercised a peremptory challenge as to one, and the prosecution exercised peremptory challenges as to the other two. The court also noted that Bennett's jury had a diverse ethnic composition, including two Mexicans, an Indian and a Korean.
During the trial, the court allowed the jury to hear rebuttal evidence from the prosecution regarding Bennett's arrests in 1998 and 1999 for theft of a 1994 Lexus and 2000 Camero, respectively. Bennett objected to the introduction of that evidence, arguing that it was prejudicial and offered solely to show his propensity to commit crimes.
II. Procedural Background
After his conviction, Bennett, through his appointed appellate counsel, appealed to the Illinois Appellate Court. In his appeal, Bennett argued: (1) the prosecution violated his constitutional right to equal protection and the precedent in Batson v. Kentucky and (2) the trial court denied him a fair trial by allowing the jury to hear about past crimes evidence. After his counsel filed the appeal, Bennett moved for leave to file a pro se supplemental brief, raising the following two additional issues: (1) the trial judge, an agent of the State, violated his right to counsel by appointed his trial counsel, and (2) the indictment was duplicitous and void. The Illinois Appellate Court denied the pro se motion to file a supplemental brief and did not consider the latter two issues on appeal. After considering the Batson and past crimes issues, the Illinois Appellate Court denied the appeal and affirmed the conviction in September 2006.
Thereafter, Bennett filed a petition for a leave to appeal ("PLA") to the Illinois Supreme Court, raising both the two issues the Illinois Appellate Court considered and the two issues Bennett included in his supplemental brief. The Illinois Supreme Court denied the PLA in November 2006. While Bennett's direct criminal appeal was pending before the Illinois Appellate Court, he filed a civil petition for post-conviction relief in the Circuit Court of Cook County. In the civil petition, Bennett raised the Batson and past crimes evidence issues in addition to the appointed trial counsel and indictment issues that the Illinois Appellate Court declined to consider. After addressing the later two grounds on the merits, the trial court denied the post-conviction petition in February 2005 as frivolous and without merit.
Bennett appealed the February 2005 ruling, arguing only that the trial court failed to rule on his post-conviction petition within 90 days as required under 725 ILCS 5/122-2.1(a). The Illinois Appellate Court denied the appeal in June 2007. Bennet filed a PLA to the Illinois Supreme Court, again only raising the 90 days requirement, which was denied in January 2008.
Before reaching the merits of Bennett's petition, the court must determine whether: (1) he exhausted his available state remedies; (2) his claims are procedurally defaulted; and (3) he has raised any cognizable federal claims. See 28 U.S.C. § 2254(a),(b). It is undisputed that Bennett has exhausted his available state remedies because the state courts are no longer open to his claims. See Cawley v. DeTalla, 71 F.3d 691, 693 (7th Cir. 1995). ...