The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
In 2000, Petitioner Vernon White ("Petitioner" or "White") was convicted of first-degree murder in the Circuit Court of Cook County, Illinois and was sentenced to 42 years in prison. White has filed a pro se petition for writ of habeas corpus under 28 U.S.C. §2254.*fn1 See . For the reasons set forth below, White's petition for habeas corpus relief  is denied.
Petitioner does not present clear and convincing evidence challenging the statement of facts set forth in the Illinois Appellate Court's decision on direct appeal, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Therefore, the Court adopts the following account from the Illinois Appellate Court's Rule 23 Order on direct appeal in People v. White, No. 1-01-0768 (Ill. App. Ct. 2002).
White's conviction arose from the shooting death of Leslie Logan on September 30, 1996. Rule 23 Order, People v. White, No. 1-01-0768 (Ill. App. Ct. 2002), Ex. C at 1.*fn2 Around 2:30 p.m. on that date, police responded to a report of shots fired at the intersection of West Huron Street and North Lawndale Avenue, in Chicago. Id. at 13. Police found Logan lying face down in a nearby alley, with a pool of blood around his head. Id. At that time, Logan was still alive, but was unable to speak. Id. He was taken to the hospital, where he later died as a result of two gunshot wounds to the head. Id. at 14. One bullet was recovered from Logan's head, and a shell casing was found across the alley from the pool of blood, in a vacant lot. Id. A firearms examiner determined that the bullet was of 9 millimeter Luger caliber, and that the shell casing was fired from a 9 millimeter Luger. Id.
Iris Terry was sitting on the porch at her home on North Ridgeway Avenue, with her young son, on the afternoon of September 30, 1996. Id. at 14, 15. Just before 2:30 p.m., a man she knew as "Dre" told her to go inside. Id. at 15. After entering the apartment, Terry heard gunshots and dropped to the ground to cover her son. Id. She waited a minute or two before getting up to look out the front window. Id. There, Terry saw White and a man named "Corn" run by. Id. Both men were wearing black hooded sweatshirts and carrying guns. Id. Terry did not seek out police, and did not talk to anyone about the incident until more than a year later, on November 16, 1997, when detectives came to her house to question her. Id.
On November 16, 1997, Terry spoke with Chicago police sergeant Dominic Rizzi, who at the time was a violent crimes detective (and will hereinafter be referred to as "Detective Rizzi").
Id. After speaking with Terry about Logan's murder, Detective Rizzi began looking for White. Id. Early in the morning on January 21, 1998, White was arrested for the unrelated murder of Cornell Williams. Id. at 1. Detective Rizzi and his partner learned that White was in custody and went to the police station to talk with him. Id. at 15. At about 6 a.m. on January 21, 1998, they introduced themselves to White, who was in an interview room, and told him that they were investigating Logan's murder. Id. That afternoon, around 3 p.m., White approached Detective Rizzi, and after being advised of his constitutional rights, had a twenty-to thirty-minute conversation about Logan's murder. Id. at 15, 16.
White told Detective Rizzi that he had been walking with his friends "Larry"*fn3 and "Von," when Larry told him that "some guys" were selling drugs on his spot in the alley. Id. at 16. The three men then put on hooded sweatshirts, got guns, and went to the alley. Id. White specifically noted that he was carrying a 9 millimeter pistol, Larry was carrying a.25 caliber pistol, and Von had a.357 handgun. Id. After arriving in the alley, they confronted the man selling drugs. Id. White explained that he asked the man why he was selling drugs in that location, and that Larry then shot the man in the head. Id.
Detective Rizzi returned to the interview room around 6 a.m. the next morning, January 22, 1998, to talk with White, and they again spoke for twenty to thirty minutes. Id. at 10. Later that day, around 1 p.m., Assistant State's Attorney Karen Wehrle visited White. Id. at 11. Wehrle introduced herself and gave White Miranda warnings. Id. The two then discussed the Logan murder, and with White's permission, Wehrle reduced his statements to writing. Id. White signed each page of the written statement. Id. at 11, 12.
White was charged with first-degree murder on January 22, 1998, and was indicted by an Illinois grand jury on February 9, 1998. Report of Proceedings and Order Dismissing Post-Conviction Petition, People v. White, Circuit Court of Cook County (April 28, 2003 and May 2, 2003), Ex. G at 3; Indictment, Ex. N. A jury in the Circuit Court of Cook County found White guilty of first degree murder on December 11, 2000. Jury's Verdict, People v. White, 98-cv-04526(01), Ex. M. He received a sentence of 42 years in prison on January 26, 2001. Ex. C at 1. White filed an appeal, raising three claims: (1) that his oral statement to Detective Rizzi was coerced and should have been suppressed as involuntary, (2) that he was not proven guilty of first-degree murder beyond a reasonable doubt, and (3) that his 42-year sentence was excessive. Pet. Direct App. Br., Ex. A at 5-6. On March 22, 2002, the Appellate Court of Illinois affirmed White's conviction and sentence on appeal. Ex. C at 27. The Illinois Supreme Court denied White's motion for leave to appeal on October 2, 2002. Order denying PLA (October 2, 2002), Ex. E.
After his unsuccessful direct appeal, White filed a petition for post-conviction relief in the Circuit Court of Cook County, raising six claims: (1) that the State unlawfully pursued a second charge of "accountability" at trial which surprised the defense and created a presumption of guilt, (2) that the State knowingly used false and perjured testimony in an attempt to mislead the jury, (3) that the trial judge erred in allowing the State to pursue the second "accountability" charge and in directing a verdict of guilty, (4) that he was convicted under a statute that is unconstitutionally overbroad and vague, (5) that he received ineffective assistance of trial counsel, and (6) that he received ineffective assistance of appellate counsel. Post-Conviction Pet., Ex. F at 2-3. His post-conviction petition was denied on May 2, 2003. Ex. G. White appealed the denial, and his counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Def. Counsel's Finley Motion to Withdraw, Ex. H. On March 26, 2004, the Illinois Appellate Court affirmed the denial of White's petition and allowed counsel to withdraw. Rule 23 Order, People v. White, No. 1-03-01632 (Ill. App. Ct. March 26, 2004), Ex. J. The Illinois Supreme Court denied White's motion for leave to appeal on October 6, 2004. Order Denying PLA, Ex. L.
White filed the instant petition for writ of habeas corpus on April 25, 2005. In his petition to this Court, White includes the first two claims from his direct appeal, and all six claims from his post-conviction petition. Specifically, White contends that: (1) he was not proven guilty beyond a reasonable doubt for accountability in violation of his Fifth and Fourteenth Amendment rights given that the sole eyewitness account was not made to the police until sixteen months after the incident and given that his "involuntary statement" was not made until two years after the incident; (2) his oral statement to Detective Rizzi was coerced and should have been suppressed as involuntary; (3) the State unlawfully pursued a second charge of "accountability" at trial which surprised the defense and created a presumption of guilt; (4) the State knowingly used false and perjured testimony in an attempt to mislead the jury; (5) the trial judge erred in allowing the State to pursue the second "accountability" charge and in directing a verdict of guilty; (6) he was convicted under a statute that is unconstitutionally overbroad and vague; (7) he received ineffective assistance of trial counsel where trial counsel's representation was "tantamount to a guilty plea," and (8) he received ineffective assistance of appellate counsel where his appellate counsel failed to raise meritorious issues, failed to raise the ineffective assistance of trial counsel issue, and "weakly raised and argued only three issues." Pet. at 5-6; see also Pet. Mem. .
Respondent argues that White's petition should be denied in its entirety. Respondent first argues that White procedurally defaulted his fourth, sixth, seventh, and eighth habeas claims because the state courts rejected them on independent and adequate state law grounds. Ans. at 36. Respondent then contends that White's remaining four habeas claims fail on the merits. Ans. at 37.
A. Federal Habeas Relief for State Prisoners
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a habeas petition cannot be granted unless the decision of the state court "was contrary to, or involved an unreasonable application of clearly established Federal law," or "was based on an unreasonable determination of the facts." 28 U.S.C. §2254(d)(1-2) (2000).
A state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the United States Supreme] 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 [the United States Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). "Avoiding these pitfalls does not require citation of [Supreme Court] cases--indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002).
A state court's decision constitutes an "unreasonable application" of clearly established federal law if the state court identified the correct legal rule but unreasonably applied the controlling law to the facts of the case. Williams, 529 U.S. at 407. It should be noted that "an unreasonable application of federal law is different from an incorrect application of federal law."
Id. at 410. "[U]nreasonable" means that a state court's decision lies "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002).
B. The Exhaustion Doctrine and Procedural Default
Before filing a habeas petition in federal court, a petitioner must have "fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge." Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This exhaustion requirement "serves an interest in federal-state comity by giving state courts the first opportunity to address and correct potential violations of a prisoner's federal rights." Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir. 2004) (citing Picard v. Connor, 404 U.S. 270, 275 (1972)). It requires the petitioner to assert each of his or her federal claims through one complete round of state-court review, either on direct appeal of his or her conviction or in post-conviction proceedings, before proceeding to federal court. See O'Sullivan, 526 U.S. at 845 (concluding state prisoners must give the state court a full and fair opportunity to resolve federal constitutional claims by invoking those claims in "one complete round of the State's established appellate review process"); see also Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). This includes presentation of the claims to appellate courts where review is discretionary when that review is part of the ordinary appellate procedure in the State. O'Sullivan, 526 U.S. at 847 (holding that the petitioner in question was required to fully and fairly present his claims to the Illinois Supreme Court in a petition for leave to file an appeal even though that court's review both of direct appeals and post-conviction petitions is discretionary).
To fairly present a claim in state court, the petitioner must include both the operative facts and the controlling legal principles on which the claim is based, and must also alert the state court that the claim raised is based on federal law. Chambers v. McNaughtry, 264 F.3d 732, 737 (7th Cir. 2001); Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004). If the federal court reviewing the habeas petition is not satisfied that the petitioner gave the state courts "a meaningful opportunity to pass upon the substance of the claims  presented in federal court," the Court cannot reach the merits. Chambers, 264 F.3d at 737-738; see also Sweeney, 361 F.3d at 332.
"Where state remedies remain available to a habeas petitioner who has not fairly presented his constitutional claim(s) to the state courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim: although a federal court now has the option of denying the claim on its merits, 28 U.S.C. § 2254(d)(2), it must otherwise dismiss his habeas petition without prejudice so that the petitioner may return to state court in order to litigate the claim(s)." Perruquet, 390 F.3d at 514 (citing Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509, 522 (1982)); see also 28 U.S.C. § 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 731 (1991); Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001). However, where a petitioner has already pursued state court remedies and there is no longer any state corrective process available to him or her, "it is not the exhaustion doctrine that stands in the path of habeas relief, see 28 U.S.C. § 2254(b)(1)(B)(i), but rather the separate but related doctrine of procedural default." Perruquet, 390 F.3d at 514.
However, if an opportunity still exists for the petitioner to return to state court to exhaust his or her unexhausted claims, the petitioner has not yet procedurally defaulted those claims and the Court must consider whether to dismiss the petition without prejudice or, if appropriate, stay the case. See Rose v. Lundy, 455 U.S. 509 (1982); Dolis v. Chambers, 454 F.3d 721, 724 (7th Cir. 2006). Generally a federal district court may not adjudicate a mixed habeas petition. See U.S.C. § 2254(b)(1)(A); Rose, 455 U.S. at 518-19. Under the total exhaustion requirement, federal district courts are required to dismiss a mixed petition without prejudice to allow petitioners to pursue exhaustion of their claims. Lundy, 455 U.S. at 522. The petitioner then has the option of returning to state court to exhaust his or her claims or to resubmit his or her habeas petition presenting only the exhausted claims. Id. at 510. Although dismissal without prejudice is the typical response to a mixed petition filed prior to exhausting the available state remedies, the Court may, in the interest of comity or judicial economy, deny a habeas petition on the merits. See 28 U.S.C. § 2254(b)(2); see also Granberry v. Greer, 481 U.S. 129, 134-135 (1987).
In limited circumstances, a court may "stay" a habeas petition to avoid limitations period problems. The enactment of the AEDPA altered the landscape of federal habeas law by imposing a one-year statute of limitations on the filing of federal petitions while preserving the total exhaustion requirement. See28 U.S.C. § 2244(d). Under the AEDPA, the filing of a habeas petition in federal court does not toll the statute of limitations. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). As a result, habeas petitioners who file mixed petitions in federal courts run the risk of losing their opportunity for any review of their unexhausted claims. Rhines v. Weber, 544 U.S. 269, 277 (2005). In an attempt to solve this problem, some district courts have adopted a stay and abeyance procedure. Id. at 275. The stay and abeyance procedure should be used in "appropriate but limited circumstances." Dolis v. Chambers, 454 F.3d 721, 724 (7th Cir. 2006). The Seventh Circuit has cautioned that a federal district court may only stay a mixed petition "if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentional dilatory litigation tactics." Id. at 278.
The procedural default doctrine, also grounded in principles of comity, federalism, and judicial efficiency, normally will preclude a federal court from reaching the merits of a habeas claim when either (1) the claim that was presented to the state courts and the state-court ruling against the petitioner rests on adequate and independent state law grounds, or (2) the claim was not presented to the state courts and it is clear that those courts would now hold the claim procedurally barred. Id.; see also Coleman, 501 U.S. at 735; Harris v. Reed, 489 U.S. 255, 263 & n.9 (1989); Conner v. McBride, 375 F.3d 643, 648 (7th Cir. 2004). Thus, when a habeas petitioner has "exhausted his state court remedies without properly asserting his federal ...