The opinion of the court was delivered by: James B. ZagelUnited States District Judge
MEMORANDUM OPINION AND ORDER
On January 14, 1999, following a bench trial in the Circuit Court of Cook County, Petitioner Rayshawn Hudgins was found guilty of ten counts of aggravated criminal sexual assault, seven counts of aggravated kidnaping, two counts of criminal sexual assault, two counts of kidnapping, one count of aggravated criminal sexual abuse, one count of aggravated unlawful restraint, and one count of unlawful restraint. Before sentencing, Mr. Hudgins filed a motion for a new trial, alleging insufficient evidence of guilt and ineffective assistance of counsel. Mr. Hudgins claimed that his original counsel failed to impeach the testimony of the victim and the witnesses of the other crimes, failed to present evidence supporting the conclusion that he was innocent, refused to allow him to testify, and stipulated to DNA evidence. Following a preliminary hearing, the trial court found no merit to the ineffective assistance of counsel claims and denied Mr. Hudgins's motion for a new trial.
On August 3, 1999, Mr. Hudgins was sentenced to an aggregate term of 95 years of imprisonment: 35 years for the first count of aggravated criminal sexual assault counts, 30 years for the second count of aggravated criminal sexual assault, and 30 years for one count of aggravated kidnapping. The circuit court did not sentence Mr. Hudgins on any of the other charges. Mr. Hudgins appealed his conviction to the Illinois Appellate Court, First District, claiming: (1) that the trial court erred in allowing the State to introduce evidence of other kidnappings and sexual assaults alleged to have been committed by him, because there were insufficient similarities between the charged offense and the other crimes; (2) that Illinois' extended-term and consecutive sentencing schemes are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because they subject a defendant to an increased punishment on the basis of facts not charged in the indictment nor proven at trial beyond a reasonable doubt;*fn1 (3) that the trial court erred in convicting him of two counts of aggravated criminal sexual assault, because one of the acts of criminal sexual assault served as the aggravating factor for the kidnapping conviction, and thus was a lesser included offense of aggravated kidnapping; (4) that the trial court failed to consider his rehabilitative potential as evidenced by his youth, lack of prior convictions, employment and family in imposing a 95-year cumulative sentence; and (5) that the trial court erred in failing to conduct an evidentiary hearing on the ineffective assistance claims raised in his post-trial motion. On December 28, 2001, the Appellate Court affirmed Mr. Hudgins's convictions on all three counts and the sentences for the aggravated criminal sexual assaults, but vacated the sentence for an included offense of aggravated kidnapping and remanded the case to the trial court for sentencing consistent with his conviction for aggravated kidnapping with an armed with a dangerous weapon aggravator. The court also found that the trial court met its obligation to consider the ineffective assistance claims raised in Mr. Hudgins's post-trial motion and properly applied the Strickland test.*fn2 The Appellate Court noted that Mr. Hudgins's claim that his counsel denied him his right to testify was unfounded since the record demonstrates that the trial judge informed him of his right to testify, he said he was aware of this right, and declined to testify. The opinion was a careful and lengthy examination of the arguments on appeal.
Mr. Hudgins filed a petition for leave to appeal to the Illinois Supreme Court claiming:
(1) his extended-term sentence violated Apprendi and cannot be saved by application of harmless-error analysis; (2) the trial court erred in failing to conduct an evidentiary hearing on the ineffective assistance claims raised in his post-trial motion denying him due process; (3) the trial court erred in allowing the State to introduce other crimes evidence because there were insufficient similarities between the other crimes and the charged offense; and (4) the appellate court erred in remanding the aggravated kidnapping count for re-sentencing with an armed with a dangerous weapon aggravator, because there was insufficient evidence presented at trial to find that he was armed. The Illinois Supreme Court denied his petition on April 2, 2003.
On August 12, 2002, Mr. Hudgins filed a pro se petition for post-conviction relief ("PCR"). Mr. Hudgins argued that (1) the evidence presented at trial was insufficient to sustain a finding of guilty beyond a reasonable doubt; (2) his trial counsel was ineffective for failing to present irrefutable evidence demonstrating that he could not have committed the charged offense, i.e., that semen found on the rectal swabs taken from the victim could not have originated from him; (3) the trial court denied him equal protection when it allowed the State to make inflammatory statements for the sole purpose of prejudicing the court against him and aggravating the prejudicial impact of the other crimes evidence; (4) the trial court denied him equal protection when it allowed the State to make unfounded statements regarding the scientific evidence; and (5) the trial court denied him equal protection when it allowed one of the State's other crimes witnesses to give perjured testimony. On October 25, 2002, the trial court summarily denied Mr. Hudgins's PCR petition. Mr. Hudgins appealed that denial, arguing that the Circuit Court erred because, in claiming that trial counsel failed to present evidence which would have significantly undermined the testimony of one of the State's other crimes witnesses, he stated the gist of a valid claim of ineffective assistance of counsel. On June 24, 2004, the same panel of the Appellate Court (with one new Justice) affirmed the trial court's denial of Mr. Hudgins's PCR, holding in another careful opinion that his ineffective assistance claims were barred by res judicata and waiver.
Mr. Hudgins then filed a petition for leave to appeal to the Illinois Supreme Court arguing that: (1) the appellate court erred in applying a heightened pleading standard when reviewing the Circuit Court's dismissal of his PCR, and required him to prove the ultimate merits of his claims rather than simply meet the less stringent "gist" standard; (2) the appellate court erred in holding his claims were barred by res judicata and waiver, because res judicata and waiver are not proper grounds upon which to base a first-stage summary dismissal of a post-conviction petition; and (3) the appellate court misread the record and erroneously applied the doctrine of waiver in holding that one of his ineffective assistance claims was barred. On October 6, 2004, the Illinois Supreme Court denied Mr. Hudgins's post-conviction petition as well.
On May 26, 2005, Mr. Hudgins filed this petition for writ of habeas corpus in which he raised the following issues: (1) the trial court erred in allowing the State to introduce other crimes evidence where sufficient similarities did not exist between the other crimes and the charged offense; (2) trial counsel was ineffective for failing to present the following evidence to impeach the credibility of key State witnesses: (i) W.R. (one of the other crimes witnesses) examined photographs after his attack at Chicago Housing Authority ("CHA") Internal Affairs and failed to identify Mr. Hudgins as his attacker; (ii) W.R. recanted his entire story to two CHA inspectors; (iii) W.R., who claimed at trial to have gone home after the assault, was seen by his friend James at a party that night; (iv) W.R. claimed that his attacker dropped him off at 72nd and California, where he went into a Taco Bell to get directions home, but there is no Taco Bell in that area; (v) although W.R. claimed that his attacker pistol-whipped him at trial, W.R. never made such a claim in his initial report to police a day after the attack; (vi) although D.D. (the victim) claimed at trial to have been forced to perform oral sex on Mr. Hudgins, he never made such a claim in his initial report to the police; (vii) D.D.'s description to the police of his attacker was extremely general and vague, for example, he was unable to describe his attacker's eyes, hair, or complexion, and he reported that the attacker had a fat face (even though Mr. Hudgins does not have a fat face); and (viii) E.M. (another other crimes witness) was shown a line-up three times - first for facial identification, then for chest identification, and lastly for voice identification - and he was only able to identify Mr. Hudgins as his attacker in the chest-identification line-up; and, furthermore, his observations of his attacker were made through tiny holes in the baseball cap that had been placed over his face during the attack; (3) trial counsel was ineffective for stipulating to scientific evidence that did not exist; (4) he was not proven guilty beyond a reasonable doubt; (5) his extended-term sentence violates Apprendi; and (6) the cumulative constitutional violations that occurred at his trial led to the conviction of one who is actually innocent.
A federal court can only reach the merits of a petition for habeas corpus if the petitioner has exhausted all state court remedies and has first presented all of the constitutional claims in state court. 28 U.S.C. § 2254(c); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If I find that petitioner has failed to satisfy either requirement, the claim will be barred either for failure to exhaust state remedies or for procedural default. Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). Habeas relief cannot be granted unless the state court's decision on matters of law was contrary to law as determined by the Supreme Court or was based on an unreasonable determination of the facts in light of the evidence presented. Williams v. Taylor, 529 U.S. 362, 406-410 (2000).
Since Petitioner has exhausted his state court remedies, I must first determine whether his claims are barred by procedural default. For the purposes of a state prisoner's habeas petition, procedural default occurs when either the petitioner failed to raise the issue through one complete round of direct appeal or post-conviction review, or the state court's decision rested on independent and adequate state law grounds. See Coleman v. Thompson, 501 U.S. 722, 729 (1991); Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995). If one of these circumstances occurs, federal habeas review is only available if the petitioner can either show cause for the failure to comply with state procedural rules and that actual prejudice resulted from the alleged violation of federal law, or if the petitioner demonstrates that failure to consider his claims will result in "a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The ...