The opinion of the court was delivered by: Murphy, District Judge
For the reasons that follow, the petition for writ of habeas corpus filed by Petitioner, Curtis Brunkhorst, is denied.*fn1
On October 4, 1996, Curtis Brunkhorst was charged with three counts of first-degree murder, concealment of a homicidal death, aggravated battery of a child, endangering the life or health of a child, and domestic battery. The charges arose from the death of eight-year-old Caleb Jones on September 12, 1996. The essential facts, as found by the Illinois Appellate Court for the Fifth District (hereinafter "Appellate Court"),*fn2 are as follows: In September 1996, Brunkhorst and his three daughters lived with Cynthia Sayles and her three sons. On the morning of September 7, 1996, Brunkhorst took eight-year-old Caleb to the baseball field behind their apartment to run, in order to punish Caleb for spitting out his medicine. When they returned to the apartment, Caleb's lip was bleeding. Brunkhorst told Sayles's oldest son, twelve-year-old Joshua, that Caleb had fallen down. Brunkhorst then took Caleb back to the field to run. When they returned, Caleb had another bloody lip. Brunkhorst told Joshua that he had punched Caleb because he refused to run.
Brunkhorst then began to wrestle with Caleb. He placed Caleb in a painful wrestling hold called a "figure-four-leg lock." Cynthia Sayles testified that Brunkhorst told Caleb, "Don't make me hurt you" and later told her, "If Caleb don't [sic] do what I'm telling him to do, I'm going to kill him."
Joshua testified that during that morning he left the apartment twice to ask neighbors for pain medication for his mother. Upon returning both times, Joshua saw Brunkhorst holding Caleb in the wrestling hold. When Joshua entered the apartment the second time, he heard a crack as he came through the door, and Caleb, still held by Brunkhorst, was holding the back of his head and crying. There was a visible knot on the front of Caleb's head. Cynthia Sayles testified that Caleb then reared up, and his head slammed down on the hard floor.
Brunkhorst took Caleb to his room and told Joshua to hold Caleb in a "sleeper hold," which is designed to cause a loss of consciousness by cutting off oxygen to the brain. Joshua held Caleb as he was told, and Caleb fell to the floor, hitting his head. Joshua applied the sleeper hold again, and Caleb fell to the floor a second time. Brunkhorst returned to the room and asked Joshua what had happened. Joshua replied that the sleeper holds had worked. Brunkhorst placed Caleb on the bed, and Caleb started "shaking." Brunkhorst told Caleb to "cut it out." Thereafter, Caleb fell unconscious, and Brunkhorst and Cynthia Sayles took him to the hospital. Caleb died five days later as a result of severe head injuries.
A short time before these events, on September 6, 1996, Brunkhorst had disciplined Caleb by forcing him to stand on his hands in a corner while Brunkhorst held his feet. When Caleb could no longer hold the handstand, Brunkhorst would let go of his feet, and Caleb's head would hit the floor. Brunkhorst made Caleb do the handstand repeatedly throughout the day. Brunkhorst had threatened to kill Caleb on more than one occasion and had frequently punished him with other harsh punishments including not allowing him to use the toilet, restricting his time to eat a meal, locking him in his bedroom, and forcing him to run for long periods of time. (See Docs. 14-6, 14-10, 14-16, Exs. C, G, and M).
After presentation of the evidence at trial, Brunkhorst and the prosecution agreed to instruct the jury on three alternative theories of first-degree murder in the same jury instruction: 1) that Brunkhorst acted with the intent to kill or do great bodily harm, 2) that Brunkhorst knew that his acts created a strong probability of death or great bodily harm, or 3) that Brunkhorst caused the death of Caleb Jones while committing a forcible felony (aggravated battery of a child by causing Caleb's head to strike the ground) (Doc. 14-10, Ex. G, p. 2). The Perry County, Illinois, jury returned a general verdict finding Brunkhorst guilty of first-degree murder along with verdicts of guilty on all other charges. The trial judge sentenced him to a term of "natural life" imprisonment for first-degree murder and a consecutive five-year sentence for the concealment of a homicidal death (Doc. 14, Ex. C, p. 1).
Brunkhorst, represented by counsel, raised three issues on direct appeal: 1) that the prosecution violated discovery rules by failing to disclose the substance of oral statements he allegedly made, 2) that the statute under which Brunkhorst was sentenced to natural life imprisonment was unconstitutional, and 3) that the trial court improperly imposed consecutive sentences (Doc. 14, Ex. A, p. 3). In an order dated February 25, 2000, the Appellate Court affirmed the conviction, but vacated the natural-life sentence and remanded the case for resentencing because the statute under which it was imposed had been declared unconstitutional (Doc. 14, Ex. C, p. 7). Brunkhorst did not seek leave to appeal this decision.
Upon remand, the trial judge sentenced Brunkhorst to a term of imprisonment of 90 years for first-degree murder and 5 years for concealment of a homicidal death (Doc. 14, Ex. G, p. 1). Brunkhorst appealed, arguing 1) that he was improperly convicted of first-degree murder in that the jury returned a general verdict of guilty even though one of the counts was felony murder and the underlying felony of aggravated battery of a child did not have an independent felonious purpose, and 2) the sentencing court erred in relying on the victim's age in imposing an extended term sentence because age was a factor inherent in the offense (Doc. 14, Ex. D, pp. 1-2).
On February 11, 2004, the Appellate Court affirmed the conviction in a Rule 23 Order. The Court held that Brunkhorst's first argument was barred because his conviction was affirmed in the first appeal, and Brunkhorst did not seek leave to appeal the affirmed conviction. The Court reasoned that the affirmance in the first direct appeal barred it from reviewing the claim because issues raised in the appeal after remand were limited to issues arising out of the remand proceedings (sentencing issues only). Nevertheless, the Court discussed the merits of Brunkhorst's claim relating to his conviction and found no error or due process violation. As to the second argument, the Appellate Court found no error in the trial court's reliance on the victim's age in calculating his sentence (Doc. 14, Ex. G). The trial court's judgment was affirmed.
On March 11, 2004, Brunkhorst filed a pro se petition for leave to appeal in the Supreme Court of Illinois, raising the same two issues (Doc. 14, Ex. H). The Supreme Court denied leave to appeal on May 26, 2004 (Doc. 14, Ex. I).
On April 6, 2004, Brunkhorst filed a pro se petition for post-conviction relief in the trial court. Brunkhorst raised a number of issues in the petition (Doc. 14, Ex. M, p. 2). The trial court denied the post-conviction petition as "frivolous and patently without merit" (Doc. 14, Ex. M, p.1). Brunkhorst, with assistance of counsel, appealed the denial raising one issue: whether the trial court erred in dismissing the post-conviction petition because it presented "the gist of" a constitutional claim that Brunkhorst received ineffective assistance of trial counsel for not calling witnesses whose testimony would have contradicted the testimony of Cynthia Sayles and Joshua Sayles that Brunkhorst was alone with the victim prior to the victim falling unconscious (Doc. 14, Ex. J).
The Appellate Court affirmed the denial of the post-conviction petition as frivolous, finding that the witness testimony at issue would not have altered the outcome of the trial because any inconsistencies that would have contradicted Cynthia Sayles's testimony were merely collateral to the question of Brunkhorst's guilt or innocence (Doc. 14, Ex. M). Brunkhorst then filed a pro se petition for leave to appeal in the Supreme Court of Illinois on April 5, 2006, raising claims of ineffective assistance of trial and appellate counsel (Doc. 14, Ex. N). The Illinois Supreme Court denied leave to appeal on May 24, 2006 (Doc. 14, Ex. O).
On October 13, 2006, Brunkhorst filed the instant petition for writ of habeas corpus under 28 U.S.C. § 2254, raising fourteen grounds for relief:
1. He was improperly convicted of first-degree murder when the jury returned a general verdict of guilty and one of the counts was felony murder and the underlying felony did not have an independent felonious purpose.
2 The trial court erred in relying on a factor inherent in the offense in imposing an extended term sentence.
3. Post-conviction appellate counsel was ineffective for not raising the ineffectiveness of trial counsel (for not objecting to the admission of alleged blood and blood-stained items and for stipulating to the testimony of serologist Stacey Speith concerning the blood and blood-stained items).
4. Post-conviction appellate counsel was ineffective for not raising the ineffectiveness of trial counsel (for not objecting to hypothetical questions concerning the alleged "whipping" action to victim).
5 Post-conviction appellate counsel was ineffective for not raising the ineffectiveness of trial counsel (for not petitioning the trial court for a change of venue).
6. Post-conviction appellate counsel was ineffective for not raising the ineffectiveness of trial counsel (for not objecting to the prosecution offering evidence that was not supported by the facts).
7. Post-conviction appellate counsel was ineffective for not raising the ineffectiveness of trial counsel (for not calling certain witnesses to testify at trial).
8. Post-conviction appellate counsel was ineffective for not raising the ineffectiveness of trial counsel (for not retaining a medical expert).
9. Post-conviction appellate counsel was ineffective for not raising the ineffectiveness of trial counsel (for not making an opening statement).
10. The trial court erred in not allowing Brunkhorst to cross-examine an expert witness to impeach him.
11. The trial court erred in not allowing Brunkhorst to elicit testimony from his co-defendant regarding her plea bargain.
12. The prosecution violated bribery statutes, 18 U.S.C. § 201 and 720 ILCS 5/33-1.
13. The prosecution violated Brunkhorst's right not to testify or have to ...