The opinion of the court was delivered by: Joan B. Gottschall United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner David Miranda brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 19, 1996, Miranda was found guilty in the Circuit Court of Cook County, Illinois of the 1985 murder of Jose Aroca, as well as separate counts of attempted murder and armed robbery. Petitioner was sentenced to concurrent 70-year, 20-year, and 15-year prison terms. Petitioner appealed his conviction, and the Illinois Appellate Court remanded for an evidentiary hearing on petitioner's claim that the jury was not properly empaneled. On remand, the trial court found that the jury was properly empaneled and that the verdict was sound. The appellate court affirmed. The Illinois Supreme Court denied petitioner's petition for leave to appeal ("PLA"). Petitioner then filed a petition for collateral relief under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., which was denied. The appellate court affirmed and the Illinois Supreme Court denied the PLA.
On October 15, 2003, Miranda filed a federal habeas petition. Respondent answered on February 17, 2004. After reviewing the pleadings, the court appointed counsel on June 2, 2006. On November 2, 2006, the court granted Miranda's motion for funds to hire an investigator for the purpose of locating Lazaro Gonzalez and securing an affidavit from him. After reconsidering the request, the court denied petitioner's motion for funds because it would not be permitted, under controlling Seventh Circuit caselaw and 28 U.S.C. § 2254(e)(2), to consider any new affidavit in light of Miranda's failure to show diligence in developing the factual basis of his claim in the state courts. See 7/9/07 Order at 4-7. On August 10, 2007, petitioner filed an amended § 2254 petition, raising the following claims: (1) trial counsel was ineffective for improperly coercing petitioner not to testify at trial; (2) trial counsel was ineffective for failing to investigate Lazaro Gonzalez, whose testimony would have supported an intoxication defense; (3) trial counsel was ineffective for failing to object to testimony concerning Gonzalez's statement to police after the offense; (4) trial counsel was ineffective for failing to object to the trial court's decision to admit the butcher knife into evidence; (5) trial counsel was ineffective for failing to move the trial court to vacate the attempted armed robbery conviction as a lesser included offense of first-degree murder; (6) petitioner was denied his Fifth Amendment right to testify because his attorney coerced him not to testify, rendering any waiver of that right not knowing and voluntary; (7) petitioner's 70-year sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000); and (8) Miranda's waiver of his right to have his sentence determined by a jury was not knowing or voluntary. On September 19, 2007, respondent answered.
For the reasons that follow, Miranda's petition is denied.
Michael Tomasovich, a retired Chicago police officer, testified that on December 6, 1985, at approximately 10:30 p.m., he responded to a call from 207 North Campbell in Chicago. Upon his arrival, he observed a pool of blood and a butcher knife in the snow. Following the trail of blood, Tomasovich found one man covered in blood, lying in front of a store, and another man lying in a pool of blood inside an adjacent meat market. The first man, Lazaro Gonzalez, survived, while the second man, Jose Aroca, died at the scene. Two .45-caliber bullets were recovered from the crime scene.
Alejandro Rodriguez testified that he moved in with Miranda in the fall of 1985 and stated that Miranda owned a .45-caliber revolver. Both Miranda and Gonzalez worked for Aroca at Aroca's meat market. On December 6, 1985, Rodriguez, Aroca, Gonzalez, Miranda and Jose Velez gathered at Aroca's meat market to celebrate the opening of Aroca's new business. All of the men were drinking scotch. Around 10:00 p.m., Aroca indicated that it was time to leave, at which point Miranda left the store and said, "I'll be right back." Rodriguez testified that Miranda returned with a gun and said, "[N]obody is going to leave," and told Aroca to give him the money in the safe. Aroca laughed and said that Miranda was joking. Miranda then shot Gonzalez several times. Miranda again ordered Aroca to open the safe and give him the money. Aroca bent down as if to open the safe, but stood up again and walked to the window. Miranda warned Aroca not to walk away from him and shot Aroca in the back. When Aroca fell to the ground, Miranda shot him again in the head.
Rodriguez then said, "[Y]ou just killed a man. You killed him." Miranda replied, "[Y]ou got to help me, you [sic] my friend." Miranda grabbed a knife from the butcher block, gave it to Rodriguez and said, "help me." Holding Gonzalez by the arm, Rodriguez walked to the alley in back of the store and threw the knife in the garage. Miranda soon found the men and asked for the knife. Rodriguez told Miranda where he had thrown it and then walked Gonzalez toward nearby houses looking for assistance. After Miranda followed them and beat Gonzalez about the face, Rodriguez yelled for help and left Gonzalez. When Miranda asked Rodriguez to walk with him, Rodriguez replied, "[Y]ou walk your way and I walk my way." At that point, Miranda left and Rodriguez walked to a bar. He later recounted the incident to the police. Rodriguez testified that while everyone was drinking during the evening, Miranda did not appear to be intoxicated. The State admitted People's Exhibit 19, the butcher knife Rodriguez mentioned, into evidence over defense objection.
Velez testified that he and Aroca were going to open a fish market. On December 6, 1985, Velez and Aroca went to the bank and cashed a $10,000 check. Around 6:00 p.m., the two men returned to the meat market where Miranda, Rodriguez, and Gonzalez were present. Aroca waived the bundle of money in the air before placing it into the safe. The men began drinking a one liter bottle of scotch. When Velez left approximately one hour later, none of the men appeared intoxicated.
Toxicology reports revealed that both Aroca and Gonzalez had elevated blood alcohol levels. Detective Jerome Bogucki of the Chicago police department testified that when he interviewed Rodriguez on the night of the murder, Rodriguez was highly emotional and very upset. The defense questioned him about inconsistencies between his recorded report of Rodriguez's statement on the night of the crime and Rodriguez's trial testimony. Rodriguez did not tell Bogucki that Miranda ordered Aroca to open the safe, that Miranda shot Aroca in the head, or that Miranda handed Rodriguez a knife. However, Rodriguez told Bogucki that Miranda told Aroca to "open up and give me what you got."
Miranda was arrested in Texas and extradited to Illinois in January 1994. Bogucki stated that, at the time of trial, Gonzalez was in an Immigration and Naturalization camp in Louisiana.