The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background*fn2
Pending before the Court is a Report and Recommendation ("the Report) submitted on January 30, 2009, by Magistrate Judge Clifford J. Proud regarding Petitioner Marcus Bradley's petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (Doc. 15). The Report recommends that Bradley's writ of habeas corpus be denied in all respects, leaving his conviction and sentence undisturbed. Bradley filed objections to the Report on February 19, 2009 (Doc. 16) to which Respondent, Donald Gaetz filed a response (Doc. 17). Timely objections having been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R.CIV.P.72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id. Based on the applicable case law and the following, the Court adopts /modifies the Report, overrules Bradley's objections and denies his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The facts surrounding Bradley's conviction and sentence are as follows. Marcus Bradley took strong offense at the fact that Dewayne Wilson had beat up Marcus's younger brother. Marcus was heard to say: "That nigger fuck my brother up. It's not going on like that." A few hours later, in the early morning of December 5, 1999, Marcus and his brother Antoine Bradley, accompanied by Diwone Walker, Alexander Matlock, David Taylor, and Terrance Luster, drove to Dewayne Wilson's house, intent on settling the score.
Marcus and Diwone, armed with shotguns, kicked down the front door and entered the Wilson home while Taylor and Luster stood watch with two-way radio sets. When Diwone saw Montez Wilson, Dewayne's brother, he shot him in the back. Montez died from the wound.
Marcus found Tina Jackson, Dewayne's girlfriend and mother to Dewayne's three young children. He jammed the barrel of the shotgun against Tina's head and demanded to know where he could find Dewayne. Apparently, Tine was not forthcoming enough to satisfy Marcus. With the shotgun barrel flush against Tine's head, he pulled the trigger. Marcus blew Tina's brains out. When he returned to his cohorts, waiting for him at the car, he explained why he had decided to kill a defenseless young woman: "I told the bitch to tell me where Wayne was at."
Bradley, 810 N.E.2d at 495; (Doc. 8-2, ps. 1-2).
On January 7, 2000, the grand jury of St. Clair County, Illinois returned a two count Criminal Indictment charged Bradley with two counts of first degree murder for causing the deaths of Tina L. Jackson (Count 1) and Montez L. Wilson (Count 2) in violation of 720 ILCS 5/9-1(a)(1) (Doc. 8-12 ps. 12-13). The Criminal Indictments did not specifically state that the prosecution's theory was felony murder. (Doc. 8-12, ps. 12-13). On September 21, 2001, the State, pursuant to People v. Maxwell, 592 N.E.2d 960 (Ill. 1992) and People v. Rosochacki, 244 N.E.2d 136 (Ill. 1969), gave notice to Bradley and his counsel that it intended to submit jury instructions on multiple theories of first degree murder, including home invasion and/or armed robbery. (Doc. 8-12 p. 14).
The jury instructions given at trial included instructions on the law regarding accomplice liability and felony murder (Doc. 8-12 ps. 17-20; Doc. 8-13, ps. 2-5). Bradley did not object to these instructions. Following the trial, Bradley was convicted of two counts of first degree murder and sentenced to natural life imprisonment. Id. Bradley appealed his conviction and sentence (Doc. ).*fn3 The Illinois State Appellate Court affirmed Bradley's sentence and conviction (Doc. 8-2). The Illinois State Appellate Court found:
(1) Bradley could not establish prejudice with respect to his ineffective assistance of counsel claim about the jury venire composition given the evidence at trial and that the under-representation of African Americans in Bradley's jury venire did not indicate a flawed selection process but, instead, a rare jury composition in petitioner's case; (2) Illinois law does not require that an accountability theory be alleged in the indictment; (3) trial counsel was not ineffective for not challenging the indictment's lack of an accountability theory allegation; (4) the bad character of the witnesses testifying against petitioner did not render the evidence insufficient; (5) Bradley's second trial counsel's withdrawal because of a conflict of interest did not give rise to a valid speedy trial claim; and (6) Bradley was not found guilty of an offense not charged in the indictment given that an accountability theory did not have to be alleged.
Bradley, 810 N.E.2d 494; (Doc. 8-2). Thereafter, Bradley filed a petition for leave to appeal in the Illinois Supreme Court, raising the same claims presented on appeal (Doc. 8-9). The Illinois Supreme Court denied his petition for leave to appeal (Docs. 8-9, 8-10 & 8-11). Bradley did not file a collateral attack in the Illinois State Court. Instead, he timely filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).*fn4
In his petition, Bradley raised six issues:
(1) Pursuant to the indictment returned, petitioner was charged with (2) counts of first degree murder. The State proceeded under the felony murder rule. The State based felony murder on Home invasion and armed robbery. The State argued that petitioner had committed the offenses of home invasion and armed robbery. The State instructed the jury on the offenses of home invasion and armed robbery. However, this petitioner was never charged by the Indictment with either charge;
(2) The State interjected the accountability theory, when said theory has distinct elements to be proven beyond a reasonable doubt. Since the burden of proof involves reasonable doubt, accountability is a separate and distinct offense, and should have been charged by indictment. Pursuant to U.S. Supreme Court ...