The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
On October 12, 2000, a Cook County jury convicted Petitioner Lawrence Coleman of first-degree murder for his role in the shooting death of Jacqueline Bernaugh. Having exhausted his state appeals, Petitioner now seeks a writ of habeas corpus from this court. For the following reasons, his petition is denied.
On November 29, 1998, Petitioner attended the funeral of Elizah McLachlan. McLachlan was a member of the Renegade Vice Lords, a street gang in which Petitioner had once played a leadership role. Petitioner and others testified at the trial that he was no longer a member of the gang by November 1998, but he remained friendly with many gang members. When the funeral ended, around 11 p.m., Petitioner drove home from the funeral with his young son and two gang members, Qune Vantrease and Sam Taylor. On the way, they drove past Jacqueline Bernaugh's apartment and noticed the parked cars of a rival gang, the Mafia Insane Vice Lords, outside the apartment. One of the cars belonged to Jamil Caraway, a member of the Mafia Insane Vice Lords who was dating Bernaugh's daughter.
Upon Petitioner's arrival at his home, several Renegade Vice Lords who had been at the funeral congregated there. The exact details were disputed at trial, but according to Vantrease, the meeting took place in an alley behind Petitioner's home where the gang often met. Petitioner took his son inside, but then joined the others in the alley, where several drunk gang members were engaged in a discussion about killing Caraway. Many in the gang thought that Caraway was responsible for McLachlan's death. Though he had seen Caraway's car earlier that very evening, Petitioner testified that he did not mention this to the others. Petitioner also testified that the gang members often talked about hurting or killing someone but did not actually act on their threats. He acknowledges, however, that when the gang leader, nicknamed "Little," asked him whether he had any ammunition in his house, Petitioner provided Kentrell Culbreath, another Renegade Vice Lord, with six rounds of ammunition for a .380 automatic and ten rounds for a 9 millimeter. Before leaving the scene to drive his son back to his son's home, Petitioner spoke with a gang member named Edward Flowers, who asked him to look for cars belonging to members of the Mafia Insane Vice Lords still parked outside the victim's house. Flowers told Petitioner to call Little to let him know whether any of those cars were still present. Flowers told Petitioner that if the cars were still there, then it was "on tonight," a statement Petitioner "knew . . . meant they were going to go to try and shoot Jamil that night." Petitioner nevertheless agreed to call Little, and testified that he did in fact call when he saw Caraway's car still parked at Bernaugh's apartment.
Jamil Caraway and others were gathered inside Jacqueline Bernaugh's apartment that night. Among those were Jacqueline's daughter Shelly and Alice Larue. Shelly and Larue testified that at around 1 a.m., they heard people gather outside the apartment building. Jacqueline told them to turn the lights off, and Shelly and Larue went to the window and looked out from behind the curtain. When talking to the police later that night, Larue told them that she did not see anything as she looked outside. More than one year later, however, in March 2000, Larue gave a statement to the police in which she claimed that she recognized two of the men outside as Sam Taylor and Octavius Sims, both of whom she knew to be Renegade Vice Lords. She testified at Petitioner's trial that she saw those two as well, and she explained that she had initially lied to the police out of a fear of retribution from the gang. In any event, after looking out from the behind the curtain, Larue and Shelly walked away from the window to tell Jamil what they saw, just as Jacqueline approached the window. Jacqueline pulled back the curtain, and a number of shots rang out; when Larue turned back, she saw Jacqueline lying on the ground in a pool of blood. The police responding to the scene found a mix of 9 millimeter, .380 automatic, and shotgun shells outside of the apartment building.
It is undisputed that Petitioner was not outside Bernaugh's apartment at the time of the shooting. After dropping his son off, Petitioner was on his way home when he was stopped by the police outside Bernaugh's apartment, who told him that someone had been shot. The next night, Petitioner spoke to his cousin, Eddie Coleman, a Renegade Vice Lord who had been outside the victim's apartment the night before. According to a statement Petitioner gave to police following his arrest, Eddie told Petitioner that he saw the curtain inside the victim's apartment move. Worried that a gunman was behind the curtain, Eddie and several others started shooting into the apartment.
On December 12, 1998, police arrested Petitioner in his home. According to affidavits they filed later, Petitioner's uncle, Jimmie Coleman, and girlfriend, Monetta Wade, heard Petitioner tell the police that he wanted to speak with his attorney, David Wiener. (Ex. 3 to Am. Pet.) Seventeen hours later, while in custody, and without the presence of counsel, Petitioner admitted to his role in the shooting.
On December 28, 1999, the court held a hearing on Petitioner's motion to suppress his confession. Petitioner testified that he found out that the police were looking for him in connection with the Bernaugh killing on December 12 and called his lawyer, David Wiener, that morning. At about 11:30 a.m., the police arrested Petitioner at his home and read him his Miranda rights. Upon arriving at the police station, Petitioner claims that he requested to speak with his lawyer, but Chicago Police Detective Philip Graziano refused the request, referring to Mr. Wiener as a "shyster." Petitioner testified that he made between ten and twenty further requests to speak to his lawyer, but he was never allowed to use the phone. According to Petitioner, Graziano eventually brought in two assistant state's attorneys ("ASAs") and told Petitioner that these were the two with whom he was going to "make a deal," although one of the ASAs told him that they were not going to make a deal. Before Petitioner gave his statement, which came nearly seventeen hours after his arrest, he claims that he asked to speak to an attorney again, but the ASAs refused.
Both Graziano and ASA Nancy Nazarian provided a different account at the suppression hearing. Neither of them recall Petitioner's ever requesting to speak to a lawyer generally or Wiener in particular. In addition, both denied that Graziano suggested that the state intended to negotiate a deal with Petitioner. Both testified, in fact, that Nazarian was the only ASA who met with Petitioner. Graziano acknowledged that he did speak to Wiener on December 12, but claims that they discussed one of Coleman's co-defendants, whom Wiener was also representing, and not Petitioner.*fn2 For his part, Wiener claims that he did call the police station that afternoon, prior to Petitioner's confession, and told Graziano to stop questioning Coleman. This evidence was not introduced at the hearing, however; Wiener mentioned this conversation for the first time in an affidavit he attached to Petitioner's motion for a new trial after Petitioner's guilty verdict. Given the consistency of Graziano's and Nazarian's accounts, the trial court deemed them credible and denied Petitioner's motion to suppress the statement he made to Nazarian.
Petitioner's trial began October 11, 2000. At the conclusion of the two-day trial, a jury found Petitioner guilty of first-degree murder, and he was sentenced to twenty-eight years in prison. Petitioner appealed, arguing that his statement to Nazarian should have been suppressed; that Wiener provided ineffective assistance of counsel by failing to offer evidence at the suppression hearing that he called the police station on December 12; that Petitioner was not proven guilty beyond a reasonable doubt; and that the sentence was excessive. The Illinois Appellate Court affirmed, concluding that Petitioner's Miranda rights were not violated because even if Wiener called the police, such a call would not require police to stop questioning Petitioner. (Ex. D.) Additionally, the court determined that the evidence was sufficient to support the verdict and that the trial court did not abuse its discretion in sentencing Petitioner to twenty-eight years. (Ex. D.) Petitioner's Petition for Leave to Appeal was denied by the Illinois Supreme Court. (Ex. F.)
In 2003, Petitioner filed a post-conviction petition pursuant to 725 ILCS 5/122-1, which permits state prisoners to seek relief for violations of the United States or Illinois Constitutions. 725 ILCS 5/122-1(a). In this petition, Petitioner argued that Wiener provided ineffective assistance of counsel at the suppression hearing by failing to present the testimony of his uncle and girlfriend, and attached the affidavits of those two witnesses. (Ex. G.) The post-conviction petition was denied by the trial court as "frivolous and patently without merit," and the Illinois Appellate Court affirmed, concluding that Wiener's decision not to present the testimony in question was a matter of strategy. (Ex. J at 9.) The Illinois Supreme Court again denied review. (Ex. M.) Petitioner then filed a second post-conviction petition in state court*fn3 , which was summarily dismissed; he appealed, again raising as his sole issue the claim that his counsel was ineffective for failing to call witnesses at the suppression hearing. The Appellate Court affirmed on the grounds that Petitioner was collaterally estopped from retrying the issue, and Petitioner did not appeal that decision to the state supreme court. (Ex. N.) In September 2005, Petitioner filed a third post-conviction petition, this time alleging that the state knowingly used perjured testimony at trial, as well as additional claims of ineffective assistance of trial and appellate counsel for a variety of reasons. Petitioner's counsel moved to withdraw from the case pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), which permits appointed counsel to withdraw from a case in which there are no meritorious issues. The trial court granted counsel's Finley motion, finding the case to be without merit, and the Illinois Appellate Court affirmed. (Ex. Q.) The Illinois Supreme Court denied review. (Ex. S.)
Petitioner then petitioned this court for a writ of habeas corpus.*fn4 Plaintiffs' Amended Petition raised four main claims: (1) his confession was obtained in violation of Miranda; (2) trial counsel was ineffective for several reasons; (3) the state knowingly used perjured testimony, both before the grand jury and at trial; and (4) he is actually innocent. Petitioner later supplemented his petition with an additional claim (5) that the state prosecutor withheld exculpatory evidence in violation of Brady.
A court will grant habeas relief if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court decision is contrary to clearly established federal law only if the "state court arrives at a conclusion opposite to that reached by [the Supreme] 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 [that reached by the Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). To show that the state court unreasonably applied clearly established federal law, a petitioner must demonstrate that "the state court's application of clearly established federal law [is] objectively unreasonable." Id. at 408. The court may also issue a writ of habeas corpus if the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" 28 U.S.C. § 2254(d)(2). State court factual findings, however, are "presumed to be correct,"and a petitioner can overcome that presumption only with "clear and convincing evidence."
28 U.S.C. § 2254(e)(1). With these principles in mind, the court turns to ...