The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge
District Judge David Coar
MEMORANDUM OPINION AND ORDER
Petitioner Samuel Morgan's Discovery Motion [dkt 45], brought pursuant to Rule 6 of the Rules Governing Section 2254 Cases, was referred to this court by the District Judge [dkt 33]. Respondent Terry McCann in his official capacity as Warden of the Stateville Correctional Center, Illinois Department of Corrections, has filed a response [dkt 53], and Morgan has filed a reply [dkt 54].*fn1 The court held a hearing on the motion.*fn2 For the reasons below, the motion is granted in part and denied in part.
Morgan's case, unsurprisingly, has a long procedural history.*fn3 In 1983, Morgan was convicted in a jury trial of the murders of William Motley and Kenneth Merkson, and the rape and aggravated kidnapping of Phyllis Gregson. Morgan received a death sentence on the murder charges, and prison terms for rape and aggravated kidnapping.
The Illinois Supreme Court described the evidence at Morgan's original trial in summary as follows. Morgan went with his friends Motley and Merkson to Elijah Prater's apartment on the afternoon of January 27, 1982. The four men drank alcohol and used various drugs. Prater's friend Phyllis Gregson later joined them. Morgan III, 817 N.E.2d at 528. All five spent the night at Prater's apartment. The following morning, Motley, Gregson and Morgan were in the front room of the apartment, where Motley was seated on a couch with a .357 Magnum tucked under his leg. Morgan was seated in a chair with a shotgun across his lap. Prater and Merkson were in the kitchen. Morgan told Gregson to remove her shirt and dance for him, but Gregson refused. Motley made a comment to Morgan, and Morgan shot Motley in the chest with the shotgun. Morgan took the gun from Motley's body and put it in his own waistband. Id. Morgan told Prater and Merkson to clean up Motley's body. Prater and Merkson placed the body in a laundry bag and wrapped it inside a mattress. Morgan told Gregson to clean Motley's blood from the floor, which she did. Id. at 528-529.
Morgan then sent Prater to buy alcohol and fill his car with gasoline. Prater did as instructed, and returned approximately 15 minutes later. Id. at 529. Morgan told Merkson to take Motley's body out of the apartment. Merkson made a comment that caused Morgan to chase him to the front room. Morgan then hit Merkson in the head with the butt of the handgun, and again told Merkson and Prater to remove Motley's body from the apartment. Merkson made another comment to Morgan, who then told Merkson to get on his knees and face the floor. Prater testified that he saw Morgan point the handgun at Merkson's head from about four to five feet away. Prater then turned to face the wall, heard a shot, and looked back to see Merkson's body on the floor, while Morgan stood beside him, holding the handgun. Gregson also testified that she saw the handgun in Morgan's hand as he stood near Merkson's body. Id.
Morgan then instructed Gregson to clean up Merkson's blood, and told Prater to remove the body from the apartment. Prater began to tie up Merkson's body, and then Morgan came up behind Prater and began shooting at him. Prater stated that he felt a bullet go by his head. He then ran through the kitchen and out the back door. Id. Morgan, armed with the handgun, then took Gregson out of the apartment by her arm. A neighbor, who had heard the shots, called the police. The police found the two bodies, a loaded shotgun, a fingerprint from a dresser later identified as Morgan's, a bullet from the floor, and a bullet from the downstairs neighbor's ceiling. Id. at 529-530.
Morgan took Gregson to the South Shore Motel, where he checked in under an alias and raped her. Id. at 530. Later, Morgan took Gregson back to the car, where he was witnessed by a motel employee putting the gun to Gregson's head. Morgan saw the employee, aimed the gun at him and began to chase him. Morgan soon gave up the chase, pushed Gregson into his car, and drove. Not long thereafter, Morgan stopped the car and told Gregson to get out at the side of the road, warning her not to tell anyone what happened. He was arrested the next day. Prater contacted the police and informed them that Morgan had killed both men. Gregson confirmed Prater's statements to police. Id. at 530. Both Prater and Gregson testified at trial as the only eyewitnesses against Morgan. (Pet. at 5.)
On June 2, 1986, the Illinois Supreme Court affirmed Morgan's conviction and sentence of death, vacated the extended terms of imprisonment imposed for the rape and kidnapping charges, and reduced the rape sentence to 30 years, and the kidnapping sentence to 15 years. Morgan I, 492 N.E.2d at 1306. The United States Supreme Court deniedcertiorari, Morgan v. Illinois, 479 U.S. 1101 (1987), and denied Morgan's petition for rehearing. Morgan v. Illinois, 481 U.S. 1025 (1987).
Then-Governor Ryan commuted Morgan's sentence in January 2003, so that the maximum sentence available became natural life without parole or mandatory supervised relief. Morgan III, 817 N.E.2d at 526.
Gregson was arrested twice in 1982, in two separate instances, unrelated to the murders or to each other: (1) on April 16, 1982, Gregson was arrested for possession of a controlled substance and possession of cannabis; (2) on May 4, 1982, Gregson was arrested with Lawrence Froio, and she was charged with two counts of possession of a controlled substance, and one count of possession of marijuana. (Pet. at 22.)*fn4 Gregson died in 1995. (Pet. at 18.) The State's treatment of Gregson in connection with the arrests is central to Morgan's present claims.
Morgan's Petitions for Post-Conviction Relief
On January 20, 1988, Morgan challenged his convictions and the death sentence by filing a petition in the Circuit Court of Cook County pursuant to the Post-Conviction Hearing Act (725 Ill. Comp. Stat. 5/122-1 et seq.). See Morgan II, 719 N.E.2d at 686. The circuit court dismissed all of Morgan's claims without an evidentiary hearing, with the exception of a portion of the ineffective assistance of counsel claim. On that claim, the court held an evidentiary hearing, ultimately denying any relief. Id.
Morgan appealed the circuit court decision directly to the Illinois Supreme Court. Id. On September 23, 1999, the Illinois Supreme Court affirmed Morgan's convictions and vacated his death sentence, remanding the case to the circuit court for re-sentencing. Id. at 712. Morgan's petition for a writ of certiorari to the United States Supreme Court was denied on March 20, 2000. Morgan v. Illinois, 529 U.S. 1023 (2000).
On October 19, 2000, while the remand to the circuit court for re-sentencing was pending, Morgan filed a second petition in the circuit court, the Successor Petition for Post-Conviction Relief and Petition for Relief from Judgment ("the Successor Petition") on the basis of a due process violation and new evidence of his "actual innocence,"specifically, that Prater had recanted his trial testimony in an affidavit dated September 26, 2000. Morgan III, 817 N.E.2d at 525-526; Defendant's Motion for Leave to File Amended Successor Petition, Ex. A, Affidavit of Elijah Prater.)*fn5 Prater stated in his affidavit that one of ...