The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Petitioner Jervone Walker ("Walker") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons explained below, Walker's petition is denied.
In 2001, Walker was convicted in Cook County of the first-degree murder of Ernest Jackson, and was sentenced to a 35-year prison term. Although the murder took place in late 1993 and the arrest warrant issued soon after, petitioner eluded arrest until March 1999. After his conviction, petitioner appealed to the Illinois Appellate Court and his judgment was affirmed. Petitioner filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court, which was denied on January 26, 2005. On January 20, 2006, petitioner filed his federal habeas petition with this court and argued that his due process and equal protections rights were violated when: (1) the trial court failed to instruct the jury on second-degree murder; (2) the prosecutor made improper remarks; (3) the trial court failed to declare a mistrial after the jury was prejudiced by witness testimony; and (4) the appellate court failed to consider evidence and testimony of witnesses. On March 16, 2006, the respondent filed its answer.
II. Factual Background*fn1
At trial, Gerald Cannon testified that on November 10, 1993, he was with the victim. As they were standing on Kenneth Avenue near West End Avenue, they heard someone run up behind them. When they turned around, they saw petitioner and Jocelyn Sanders standing in front of them. Sanders asked the victim if he had been involved in any recent carjackings. According to Cannon, the victim denied committing any carjackings. Petitioner then pulled out a gun and waved it back and forth between Cannon and the victim. Cannon testified that the victim subsequently dropped to his knees and held onto Cannon's leg as he denied involvement in the carjacking. Petitioner then asked Sanders "which one" and she pointed to the victim. Cannon testified that petitioner then told him to step aside and petitioner proceeded to shoot the victim several times. According to Cannon, neither he nor the victim were armed at the time. Cannon also testified that neither he nor the victim attacked petitioner. Cannon later identified petitioner in a photo array and from a lineup after petitioner's arrest on March 7, 1999.
The State also presented the testimony of Paul Becnel and Mark Graham. Becnel and Graham testified that they ran to the area of West End to view a fight. Both men testified that they saw what appeared to be a confrontation between petitioner, Sanders and two other men. Becnel and Graham testified that petitioner shot one of the men several times as the man was running away.
Detective Kathleen Argentino testified that Gerald Cannon identified petitioner as the shooter from a photo array. When asked to describe the photographs viewed by Cannon, she said they were identification record photos of individuals who had been arrested by the Chicago Police Department. At that point, defense counsel objected and made a motion for a mistrial. The trial court denied the motion.
Petitioner testified in his own behalf. He stated that Jocelyn Sanders came to his house on November 10, 1993, asking for his gun because she wanted to confront the person who allegedly carjacked her sometime earlier that year. According to petitioner, he did not want to give her the gun and instead decided to go with her to "make sure everything was okay." At some point, a man known as Egg Nog and another unknown individual joined petitioner and Sanders in the car. They eventually found the victim and Gerald Cannon. Petitioner pulled over and he and his passengers got out of the car. Petitioner testified that he was "real nervous" because he did not know what was going to happen.
As petitioner and Sanders were walking toward Cannon and the victim, an unidentified man suddenly ran up to them. Petitioner testified that he pulled out his gun and told the man to get away from them. Petitioner stated that he did not put away the gun because he was scared and did not know what was going to happen. When they reached the victim and Cannon, Sanders started to argue with the victim. According to petitioner, about 15 people had gathered around and the victim's hands were in his pockets. As Sanders and the victim were arguing, Mark Graham hit the victim. When petitioner jumped back, his gun accidentally went off and the victim fell to the ground. Petitioner testified that he asked if anyone was hurt and it appeared that no one had been shot. As the victim started to get up off the ground, petitioner stated that he was scared because he thought the victim was going to "rush" him. According to petitioner's testimony, he panicked and turned his head and started to shoot. Petitioner stated that he fired roughly five shots. Petitioner immediately fled the scene and when he looked back, he saw the victim running. A friend later informed him that he killed the victim. Petitioner admitted that he never saw a weapon on the victim and that the victim never actually threatened him or attacked him.
Following deliberations, the jury found petitioner guilty of first-degree murder and the trial court sentenced him to a prison term of 35 years.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petitioner is not entitled to a writ of habeas corpus unless the challenged state court decision is either "contrary to" or "an unreasonable application of" clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 367 (2000). A state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by the 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 ours." Williams, 529 U.S. at 404. To demonstrate an "unreasonable application" of clearly established federal law, a habeas petitioner must establish that the state court unreasonably applied the controlling legal rule to the facts of the case. Id. at 407. The state court's application of Supreme Court precedent must be more than incorrect or erroneous. Rather, it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (state court decision must lie "well outside the boundaries of permissible differences of opinion").
Before a federal court will consider a habeas corpus petition, a petitioner must satisfy several procedural requirements. Each claim must be presented on appeal to the Illinois Appellate Court and in a petition to the Illinois Supreme Court for discretionary review. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). To satisfy this requirement, a petitioner must fairly present to the state judiciary both the operative facts and legal principles that control each claim. Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001). A petitioner's failure to fairly present each habeas claim to the state's appellate and supreme courts in the time and manner required leads to a default of the claim, thus barring the federal court from reviewing the claim's merits. Boerckel, 526 U.S. at 848. In addition, a federal court may not review a claim which was presented to the state courts, but which was rejected on an independent and adequate state ground. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A federal court, however, may excuse a procedural default if a petitioner can show either cause for the default and actual prejudice as a result of the alleged violation of federal law, or can demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Id. at 750.
A. Trial Court's Failure to Give Second Degree Murder Instruction to the Jury
Petitioner's first claim is that his right to due process*fn2 was violated when the trial court failed to instruct the jury on second degree murder. The state appellate court analyzed this claim based on two theories: both serious provocation and an unreasonable belief in self-defense. Respondent argues that the claim is non-cognizable in habeas, and that the aspect of the claim based on serious provocation is procedurally defaulted.
Generally, errors of state law are not cognizable on habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). "The remedial power of a federal habeas court is limited to violations of the petitioner's federal rights, so only if a state court's errors have deprived the petitioner of a right under federal law can the federal court intervene." Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004). Thus, "[b]ecause a state trial court's evidentiary rulings and jury instructions turn on state law, these are matters that are usually beyond the scope of federal habeas review." Id. (citing McGuire, 502 U.S. at 70-71). However, in some limited circumstances, a state court's jury instruction error may violate a defendant's due process right to a fundamentally fair trial under the Fourteenth Amendment where the state court committed "an error so serious as to render it likely that an innocent person was convicted . . . ." Id. at 510.
The Seventh Circuit's opinion in Perruquet is instructive here. In that case, the district court dismissed petitioner's due process claim based on the state trial court's refusal to admit evidence through which petitioner sought to establish the defense of self-defense and the court's refusal to instruct the jury on self-defense. Perruquet, 390 F.3d at 510. In concluding that the claim was non-cognizable, the district court relied on the fact that petitioner did not, beyond citing his right to due process, establish how the trial court's rulings were so grave as to have deprived him of that right. Thus, ...