The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner John Searles' petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254(d)(1). For the following reasons, the Court denies Searles' habeas petition.
The Court adopts the underlying facts set forth by the Illinois Appellate Court in People v. Searles, No. 1-02-2598 (Ill.App.Ct. Mar. 31, 2004) (unpublished); People v. Searles, No. 1-05-2203 (Ill.App.Ct. Aug. 15, 2006) (unpublished) because Searles does not present clear and convincing evidence challenging those facts . See 28 U.S.C. Section 2254(e)(1); see also Virsnieks v. Smith, 521 F.3d 707,714 (7th Cir. 2008).
On June 24, 2000, Petitioner John Searles ("Searles") and Vanessa Padin ("Padin") were at the home of Evelyn Rivera ("Rivera"), a women whom Searles dated. Rivera planned to leave for Puerto Rico the next day and so the three discussed the idea of throwing a party for her. The only complication was that they needed money. Rivera told Searles and Padin that she was dating a man named Anthony Leyva ("Leyva") and she suggested that when he arrived later that day they could rob him. Searles suggested that they carjack Leyva, threaten him with a knife and take his money. Rivera then gave Searles a knife with a curved shape blade that was several inches long with several spikes around the handle.
At trial, Padin testified that when Leyva arrived at Rivera's house, Searles attempted to get into the passenger side of Leyva's car but the door was locked. Having failed at his first attempt, Searles went inside the house and told the others about his aborted carjacking. Later, Rivera convinced Leyva to drive Searles and Padin to the CTA. Searles, Padin and Rivera then got into Leyva's car with the intention of robbing him. After driving for a short distance, Searles ordered Leyva to stop the car. Searles then placed the knife that Rivera had given him earlier in the day against Leyva's neck and demanded "give me your money or I'm going to kill you." People v. Searles, No. 1-02-2598, at 3 (Ill.App.Ct. Mar. 31, 2004) (unpublished). At this point, Rivera and Padin got out of the car and ran to Rivera's house. Sometime later, Searles returned to Rivera's house and told Padin and Rivera that he had stabbed Leyva multiple times.
At trial, forensic pathologist, Dr. James Filkins, detailed Leyva's stab wounds. He testified that one wound severed Leyva's carotid artery and jugular vein on the right side of his neck. Leyva also had a vertical abrasion and puncture wound on the right side of his back, a slanting abrasion on his abdomen, and a cluster of abrasions on his right shoulder where his skin has been punctured. Dr. Filkins testified that he found cuts on Leyva's hands consistent with defensive wounds.
At trial, Searles testified on his own behalf. He stated that he was engaged to Rivera and he was jealous because Rivera was also seeing Leyva. Searles testified that on June 24, 2000, he along with Rivera and Padin, smoked P.C.P. cigarettes made with embalming fluid. The three of them discussed plans for a party and Rivera suggested that they rob Leyva whom she knew to carry $200 to $500 in cash. When Leyva arrived at the house, Searles tried to enter Leyva's car but the door was locked. Searles then went inside the house and told the others to forget about the plan because Leyva was aware of what was happening. Rivera then told Searles that she and Leyva would drop him off at the C.T.A. Searles accepted the ride because he wanted to leave.
Searles testified that during the ride he placed the knife he had been carrying between the car seats and told Leyva to stop driving because, " he wanted the knife out of the car and he didn't want to be there with them anymore." People v. Searles, No. 1-02-2598, at 4. Searles testified further that Leyva then began to struggle with him for the knife, and that while the car was still in motion Searles attempted to reach for the gears, the car jerked, and the knife came back and hit Leyva in the neck. Searles stated that he may also have cut Leyva in the side, because Leyva "pulled the knife down," and Searles "pulled it back." People v. Searles, No. 1-02-2598, at 5. Searles admitted on cross-examination that the knife was initially in a leather sheath and that the sheath had to be manually unbuckled and removed before he placed the knife near Leyva's neck.
At trial, the prosecution presented Searles' videotaped statement to police investigators on the night of his arrest. In his statement, Searles stated that he pulled the knife out, held it up, and told Leyva to get out of the car. Leyva then struggled for control of the knife. Searles told the investigators that he "was just trying to cut [Leyva] in the neck and get [Leyva] to * * * let go of the knife and let [Searles] go already." People v. Searles, No. 1-02-2598, at 5.
II. Procedural Background
On June 13, 2002, a jury in the Circuit Court of Cook Count convicted Searles of one count of first-degree murder and one count of attempted armed robbery in the stabbing death of seventy-two year old Anthony Leyva. (See Resp.'s Rule 5 Exs., Ex. D). The trial judge sentenced Searles to consecutive terms of imprisonment of sixty years and fifteen years, respectively. See id. On direct appeal, Searles argued that: 1) the trial judge erred in failing to instruct the jury on involuntary manslaughter; 2) the trial judge erred in failing to sua sponte instruct the jury on conspiracy to commit robbery; 3) the sentence imposed was excessive; 4) the trial court improperly relied on facts implicit in the offense as aggravating factors for sentencing; and 5) the trial court erred in ordering Searles' sentences to be served consecutively. (See Resp.'s Rule 5 Exs., Exs. E, F, G, H). After the Illinois Appellate Court affirmed Searles' conviction and sentence on March 31, 2004, Searles filed a petition for leave to appeal ("PLA") to the Supreme Court of Illinois raising the same issues. (See Resp.'s Rule 5 Exs., Exs. A, I). The Supreme Court of Illinois denied his PLA on October 10, 2004. (See Resp.'s Rule 5 Exs., Ex. J). Searles then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on December 1, 2004. (See Habeas Pet., at 2)
On May 10, 2005, Searles filed a petition for post-conviction relief pursuant to 725 ILCS 5/122-1, et seq,. (See Resp.'s Rule 5 Exs., Ex. K). Searles argued that: 1) his trial counsel was ineffective for failing to investigate his fitness for trial; 2) his appellate counsel was ineffective for failing to raise the ineffectiveness of trial counsel; and 3) his right to due process was violated when he was forced to rush to trial with a broken jaw. See id. The trial court dismissed the petition without granting a hearing. (See Resp.'s Rule 5 Exs., Ex. L). Searles appealed the trial court's dismissal, arguing that he had stated claims for ineffective assistance of counsel as to both his trial counsel and his appellate counsel. (See Resp.'s Rule 5 Exs., Ex. M). The Illinois Appellate Court affirmed the trial court's dismissal on August 15, 2006. (See Resp.'s Rule 5 Exs., Ex. P). Searles filed a PLA to the Illinois Supreme Court, which was denied on December 1, 2006. (See Resp.'s Rule 5 Exs., Exs. Q, R).
On May 27, 2007, Searles filed the present pro se habeas petition pursuant to 28 U.S.C. Section 2254(d)(1). Searles asserts the following habeas claims: 1) he was denied a fair trial when the trial judge failed to instruct the jury on involuntary manslaughter and conspiracy to commit robbery; 2) his sentence is unconstitutional; 3) his constitutional rights were violated when the judge relied on facts that were inherent in the offense to aggravate his sentence; 4) ineffective assistance of trial counsel for failing to investigate his fitness for trial; and 5) ineffective assistance of appellate counsel for failing to raise the ineffectiveness of trial counsel on direct appeal. (See Habeas Pet., at 5-6).