The opinion of the court was delivered by: Joe Billy McDade United States District Judge
Before the Court are Petitioner's Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2254 and Petitioner's Motion for Leave to Expand the Record. [Docs. 9, 17] For the following reasons the Habeas Petition and the Motion for Leave are both DENIED.
I. BACKGROUND AND PROCEDURAL HISTORY
Petitioner, Roy D. Houston, is incarcerated at the Shawnee Correctional Center in Vienna, Illinois. On May 12, 1993, a jury trial in the Circuit Court of McLean County, Illinois resulted in Petitioner's conviction for twelve counts of aggravated criminal sexual assault. The state trial court sentenced Petitioner to six consecutive terms of eight years' imprisonment, to be served concurrently with six additional terms of eight years' imprisonment.
Petitioner appealed his conviction to the Illinois Appellate Court, raising four issues involving trial court errors and due process violations. On May 9, 1995, the state appellate court affirmed Petitioner's conviction. People v. Houston, No. 4-93-0680, Rule 23 Order (Ill. App. Ct., May 9, 1995). Petitioner subsequently filed a petition for leave to appeal (PLA) in the Illinois Supreme Court, raising one issue: that he was denied due process when the state trial judge declined the jury's request to define the term "reasonable doubt." The Illinois Supreme Court denied the PLA on October 4, 1995. People v. Houston, No. 79194, Order Denying PLA (Ill., Oct. 4, 1995).
Petitioner then filed a post-conviction petition containing five new grounds for relief in the Circuit Court of McLean County, pursuant to the Illinois Post-Conviction Act, 725 Ill. Comp. Stat. 5/122-1, et seq. (2002). On March 23, 2000, the trial court denied the petition. Petitioner appealed to the Illinois Appellate Court, arguing that his post-conviction trial counsel failed to provide a reasonable level of assistance by failing to support with documentary evidence Petitioner's allegations that his original trial counsel was ineffective. The Illinois Appellate Court affirmed the trial court's ruling on August 28, 2001. People v. Houston, No. 4-00-0337, Rule 23 Order (Ill. App. Ct., Aug. 28, 2001). Petitioner subsequently filed a PLA with the Illinois Supreme Court raising the same issue and was denied leave to appeal. People v. Houston, 763 N.E.2d 774 (Table) (Ill., Dec. 5, 2001).
In addition to his post-conviction petition, Petitioner also filed several motions. On September 10, 2001, Petitioner filed with the Illinois Appellate Court a motion requesting a rehearing. That motion asked the state appellate court to consider two issues that Petitioner had not previously raised. The court denied that motion on September 25, 2001. Petitioner did not appeal.
On July 24, 2001, Petitioner filed in the Circuit Court of McLean County a motion to vacate judgment, claiming that the trial court's imposition of consecutive sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The trial court struck Petitioner's motion, and Petitioner appealed that ruling to the Illinois Appellate Court, which affirmed. People v. Houston, No. 4-02-0093, Rule 23 Order (Ill. App. Ct., Aug 19, 2003). Petitioner did not file a PLA with the Illinois Supreme Court challenging the ruling on his Apprendi claim.
Instead, Petitioner filed a second motion to vacate judgment on July 3, 2003 in the trial court, arguing that his consecutive sentences were unconstitutional because the prosecutor failed to prove at trial that Petitioner had inflicted great bodily harm on his victim. The trial court denied the motion, and the Illinois Appellate Court affirmed. People v. Houston, No. 4-04-0121, Rule 23 Order (Ill. App. Ct., Nov. 4, 2004). On December 29, 2004, Petitioner filed a PLA raising the sentencing issue, which the Illinois Supreme Court denied on March 30, 2005. People v. Houston, 830 N.E.2d 6 (Table) (Ill., Mar. 30, 2005).
Next, on January 12, 2004, Petitioner filed in the trial court a successive post-conviction petition, raising a prosecutorial misconduct claim and an ineffective assistance of counsel claim as to appellate counsel on Petitioner's first post-conviction appeal. The trial court dismissed the petition. Petitioner appealed the dismissal, and the Illinois Appellate Court affirmed. People v. Houston, No. 4-04-0305, Rule 23 Order (Ill. App. Ct., Mar. 8, 2005). On April 28, 2005, Petitioner filed a PLA with the Illinois Supreme Court raising two arguments: (1) the prosecution withheld from the defense evidence respecting the victim's mental state and evidence that the victim was on psychotropic medication at the time of trial; and (2) appellate counsel on Petitioner's first post-conviction appeal was ineffective for failing to argue that trial counsel was ineffective. The Supreme Court denied the PLA. People v. Houston, 839 N.E.2d 1030 (Table) (Ill., Sept. 29, 2005).
On October 31, 2006, Petitioner filed in federal district court seeking the writ of habeas corpus. On November 24, 2006, the petition was transferred to this Court for review. [Docs. 5, 9]
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to Petitioner's habeas corpus petition. Coulter v. McCann, 484 F.3d 459, 466 (7th Cir. 2007). Under the AEDPA, a federal district court may entertain a petition for the writ of habeas corpus by a person incarcerated pursuant to a state court judgment only on the ground that the incarcerated person is in custody in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). The writ will issue only if the habeas petitioner shows that the state court proceeding resulted in a decision that was (1) contrary to, or involved an unreasonable application of, clearly established federal law or (2) 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).
It is well established that state prisoners convicted in Illinois must give the Illinois Supreme Court an opportunity to resolve federal constitutional errors before presenting the issue to a federal district court on habeas review. O'Sullivan v. Boerckel, 526 U.S. 838, 846 (1999). In Illinois, a petitioner must have fairly presented each claim raised in his habeas petition to the Illinois Appellate court and to the Illinois Supreme Court in a PLA. Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007). Any claim that a petitioner fails to advance through one complete round of state appellate review is procedurally defaulted and may not be considered by the federal habeas court. Id.
A procedural default may be excused only if a habeas petitioner demonstrates either (1) cause for the default and resulting prejudice or (2) that the federal court's foreclosing of habeas relief would result in a fundamental miscarriage of ...