The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Petitioner Joseph Smith ("Smith") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons explained below, Smith's petition is denied.
In 1995, petitioner Joseph Smith was convicted in Cook County of first degree murder and attempted armed robbery, and was sentenced to concurrent terms of 55 years and 14 years imprisonment. Petitioner appealed to the Illinois Appellate Court and the judgment was affirmed on September 10, 1997. Petitioner filed a petition for leave to appeal to the Illinois Supreme Court, which was denied on March 31, 1999. Petitioner filed a post-conviction petition on June 29, 1999. The circuit court dismissed the petition on July 16, 1999, finding that the claims were barred by res judicata or waiver. Instead of filing a timely notice of appeal, petitioner, on March 28, 2000, mailed a "Motion to Reconsider Post-conviction Petition" to the clerk of the circuit court. This motion was denied on April 12, 2000. On May 23, 2000, petitioner submitted a late notice of appeal to the state appellate court; that court denied petitioner leave to appeal on June 16, 2000. On July 19, 2000, petitioner filed a federal habeas petition. On that same day, petitioner filed a motion to stay the proceedings until after his state court proceedings concluded. On August 16, 2000, petitioner moved to voluntarily withdraw his petition. This motion was granted on February 2, 2001 (and the court denied as moot petitioner's motion to stay).
On December 21, 2000, petitioner filed a successive post-conviction petition. On February 22, 2001, the circuit court dismissed the petition as frivolous and without merit. On July 25, 2001, petitioner filed a late notice of appeal, which was granted by the Illinois Appellate Court on August 2, 2001. On June 16, 2003, the appellate court found that the circuit court properly dismissed the successive post-conviction petition. On July 10, 2003, petitioner filed a motion for extension of time to file a petition for leave to appeal in the Illinois Supreme Court. The Illinois Supreme Court granted the motion on July 22, 2003, but denied the petition for leave to appeal on October 7, 2003.
On December 16, 2003, this court allowed petitioner to reinstate his case and file an amended federal habeas petition. On April 1, 2004, petitioner filed his amended petition. On July 8, 2004, respondent moved to dismiss the petition on the ground that it was untimely. On March 7, 2005, the court denied the motion. On June 11, 2007, the court appointed counsel to represent petitioner, and petitioner filed an amended petition on July 24, 2007. In his amended petition, petitioner raises the following claims: (1) trial counsel was ineffective for failing to object to an improper jury instruction concerning how to weigh identification testimony of a witness; (2) trial counsel was ineffective for failing to interview and present at trial alibi witnesses; (3) appellate counsel was ineffective for not arguing on appeal that the trial court erred in denying petitioner's motion to strike eyewitness Charles Queen's in-court identification and his motion for a mistrial; (4) the state violated the Confrontation Clause by eliciting testimony from Detective Duffin that led to the inference that petitioner's co-defendant implicated petitioner in the shooting. On June 20, 2008, the respondent filed its answer.
II. Factual Background*fn1
At trial, the state presented the testimony of three eyewitnesses: Robert Severson, Dale Sramek, and Charles Queen. Severson testified that at 10:30 p.m. on April 6, 1992, the night of the shooting, he went to a tavern to drink a couple of beers with his friend Danny Sheehan. As they were driving home, sometime around midnight, they drove by the intersection of 47th Street and Leamington where they saw some friends, including the victim Frank Miranda, standing by a closed hot dog stand. Severson stopped to talk with his friends, who told him that they were standing there to get drugs. According to Severson, his friend Charles Queen drove up shortly thereafter, and gave Severson $60 to use to purchase drugs should the opportunity arise.
Severson further testified that a black male then approached him and Frank Miranda and asked them if they wanted to buy some rock cocaine. Severson said yes, and the man stated that he would be back with some cocaine in about ten minutes. The man then walked away, and returned several minutes later with another black male. However, the two men did not proceed all the way to the hot dog stand where Severson and his friends were standing, but, rather, stopped in a vacant lot across the intersection of 47th and Leamington, and called over to Severson and his group of friends. Severson and Queen then began walking over to the vacant lot to purchase their drugs, but Frank Miranda ran ahead of them in order to be the first one to get the drugs. Severson then saw one of the two black men pull out a shotgun from beneath his trench coat, and called out to warn Miranda about the gun. The man with the shotgun then told Miranda, "give me your money," and Miranda said "Fuck you," turned around, and started to walk back over to the hot dog stand. The man with the shotgun then shot Miranda in the back. The two men then fled the scene.
Severson ran back to a telephone located next to the hot dog stand to call the police, while Queen went to assist Frank Miranda, who was lying on the ground and bleeding heavily. After calling the police, Severson left the scene and went to a bar. While at that bar, Severson called Christine Quinn, the victim's sister, and told her that he had heard her brother had been shot. Severson admitted that he lied to Ms. Quinn, and explained that he did not tell her that he was present at the scene of the shooting because he did not want to be implicated therein and because he did not want Ms. Quinn's husband to hesitate in hiring Severson should he have work for Severson to do. Severson also stated that he did not talk to the police immediately after the shooting because there was a warrant out for his arrest for missing a court date pursuant to a retail theft charge and he did not want to spend the night in jail.
Severson further testified that on May 16, 1992, the police came to his house and asked him if he would be willing to view a lineup and discuss the murder of Miranda. He had not spoken with the police before that date about this case, and agreed to accompany the police to the station. On the way, he admitted to the officers that he had witnessed the shooting. He then viewed a lineup in which he identified co-defendant Antoine Edwards as the man who first approached Severson and his group of friends prior to the shooting. Several hours later, Severson identified petitioner as the gunman in the shooting in an array of photographs and then in a lineup. Severson also identified petitioner in court as the man who killed Miranda.
The state then called Dale Sramek to the stand. Like Severson, Sramek testified that he had gone to the closed hot dog stand on the night in question to purchase drugs. His testimony as to the events surrounding the shooting was substantially the same as Severson's. In addition, Sramek testified that prior to the shooting, between 7 p.m. and midnight, he, his girlfriend, and the victim had been smoking crack cocaine, and that he had had approximately 50 "hits" off of a crack cocaine pipe that evening. Sramek also stated that at the time of the shooting, he was too far away from the gunman to see his face. After the shooting, Sramek pursued the offenders in his car, at which point he returned to the crime scene, where he encountered the dead victim, his girlfriend, Charles Queen, and the police. At that time, Sramek did not tell the police that he had been present at the scene because he was afraid of being implicated in a drug deal, but, rather, stated that he had merely been driving by when he noticed a commotion. He did not tell any police officers or prosecutors that he had actually been at the scene of the shooting until shortly before giving his trial testimony.
The state then called Charles Queen to the stand. Queen's testimony as to the events leading up to and including the shooting was substantially the same as that of Severson and Sramek. Queen stated that on the night in question, at approximately 11:30 p.m., he was on his way home from work with his girlfriend when he stopped at the closed hot dog stand to buy drugs. Queen said that as he and Severson were walking towards the two offenders and came within 25 feet of them, he saw the taller of the two offenders produce a shotgun. Queen further testified that he identified the shooter to a police officer who came to the scene as having had a long jacket on and as being approximately six feet tall and having dark skin. Queen also identified petitioner in court as the man who shot Miranda on the night in question.
The state also called Chicago Police Department Officer Thomas Paszkowski to the stand. Officer Paszkowski testified that he was summoned to the scene of the shooting. When he arrivied, he saw Miranda lying in the vacant lot and bleeding heavily from his lower back, and Charles Queen attempting to stop the blood flow. Sramek then gave a description of the two offenders to Officer Paszkowski as two black males, one between 22 and 28 years old who was approximately 5 feet, 8 inches tall and wearing a gray jacket with a hood, and the other between 18 and 22 years old, wearing a light-colored jacket and yellow pants.
Chicago Police Department Officer John Kosiewicz then testified that on May 16, 1992, more than five weeks after the murder, he responded to a call regarding a disturbance at 4900 West 44th Place in Chicago. Upon arriving at that location, Kosiewicz heard shots and saw two black males running away from a Chicago Housing Authority ("CHA") security guard. Kosiewicz and other officers pursued the two men on foot, and reached the CHA security guard after he had apprehended one of the subjects, co-defendant Antoine Edwards. Kosiewicz then took Edwards into custody and learned that he lived near the scene of the shooting of Miranda. Kosiewicz had heard about the Miranda shooting and knew that it had involved a shotgun and two black males in their late teens or early twenties who fled from the murder scene through an alley adjoining Edwards' home, and therefore notified detectives investigating the Miranda murder that he might have one of the offenders in custody.
The state then called Chicago Police Department Detective Michael Duffin who testified that on May 16, 1992, he was assigned to work on this case with Detective Albert Graff. After several unsuccessful attempts at contacting various alleged eyewitnesses to the Miranda murder that evening, the detectives located Severson, whom they brought in to view co-defendant Antoine Edwards in a lineup. According to Duffin, Severson identified Edwards in that lineup as the accomplice of the man who shot Miranda. Duffin testified that he then had several conversations with Antoine Edwards over a four-hour period, and thereafter drove with Edwards and Detective Graff to several locations. They first went to petitioner's house, where Duffin spoke with petitioner's older brother, Willie Smith. Willie Smith advised Duffin that petitioner was not home and provided Duffin with a photograph of him. Duffin left a business card with Willie Smith and then he, Graff and Edwards went to the house of Antoine Crawford. They then went to the home of Crawford's cousin, to look for the shotgun used in the murder. Duffin advised a woman at the latter residence that he had information that a shotgun was sold to her son, Antoine Crawford's cousin, for $20, and that he believed that the gun was in the house. The woman refused to consent to a search of the house. Duffin returned to the police station and placed the photograph of petitioner into a photographic array which he showed to Severson, who identified that photo as being that of the shooter. After petitioner called Duffin, he agreed to come into the station, at which time Severson identified petitioner in a lineup as the person who shot Miranda.
Duffin further testified that he and assistant state's attorney James Sullivan met with petitioner, who at first denied any involvement in the shooting but then confessed. In his oral confession to Duffin and Sullivan, petitioner stated that on the night of April 6, 1992, he had been drinking at home and had an argument with his mother and brother. He later went over to co-defendant Antoine Edward's house, at which time Edwards told him that there were some white guys standing outside at 47th and Leamington who were trying to buy some drugs and whom Edwards wanted to rob. He and Edwards then proceeded to that location. On the way, petitioner took the shotgun that Edwards was carrying and removed the safety. When they arrived, petitioner saw some white guys and called them over. He pointed the shotgun at the stomach of one of them who came up to him and then demanded his money. The individual panicked, denied having any money, and began to walk away, at which time Antoine Edwards said, "Shoot him," and petitioner did. Antoine Edwards, together with Antoine Crawford, took the murder weapon over to Crawford's cousin's house to get rid of it. Duffin further testified that petitioner refused to sign a written statement, but that Duffin took notes of petitioner's statement. Co-defendant Edwards and Antoine Crawford then gave written statements to Duffin and Sullivan.
Finally, the state called former state's attorney James Sullivan to the stand. Sullivan's testimony was substantially the same as that given by Duffin. In addition, Sullivan stated that when he and Duffin took petitioner's oral statement, petitioner told them that on the evening of the shooting he was upset because he had no money. Petitioner also told them that when he arrived at Edwards' house, Edwards went out to use the public telephone at 47th and Leamington, and that when he returned, he told petitioner that there were people out there whom they should rob. Petitioner agreed to be the one to commit the robbery, and took Edwards' shotgun from Edwards, which he ultimately used to kill Miranda. Sullivan also recorded petitioner's confession in written notes.
In his case-in-chief, petitioner testified and denied any involvement in the murder and denied ever making any confession to Duffin and Sullivan. He testified that he is six feet, three inches tall and weighs 185 pounds, and that on April 6 and 7, 1992, he was 17 years old and was a high school student living with his mother. Petitioner testified that he was at home studying on the night of the shooting. Petitioner further testified that in 1991, co-defendant Edwards "pulled a pistol" on him, apparently because Edwards suspected that petitioner was involved with Edwards' girlfriend.
After deliberating for approximately fours hours, the jury sent the judge a note indicating that it could not come to an agreement after four votes. The judge instructed the jury to continue deliberating and, soon thereafter, because it was 10:00 p.m., the jury was sequestered. The following day, the jury returned with a guilty verdict against petitioner for first degree murder and attempted armed robbery. The trial court ...