The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Regina DeFrancisco's ("DeFrancisco") petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254(d)(1). DeFrancisco has also moved to amend her petition to add further grounds for federal habeas relief and to stay this case pending resolution of state court proceedings. For the following reasons, the Court denies DeFrancisco's (1) Motion to Amend, (2) Motion to Stay, and (3) habeas petition.
The Court adopts the underlying facts set forth by the Illinois Appellate Court in People v. Defrancisco, No. 1-04-2777 (Ill. App. Ct. 2006) (affirming jury trial verdict against petitioner on direct appeal) because DeFrancisco does not present clear and convincing evidence challenging those facts. See 28 U.S.C. § 2254(e)(1); see also Virsnieks v. Smith, 521 F.3d 707, 714 (7th Cir. 2008).
A jury convicted DeFrancisco of felony murder predicated on armed robbery for the killing of Oscar Velasquez and she was sentenced to thirty-five years of imprisonment. (R. 21, Ex A at C6-7). It all began in June, 2000, when, after going on a date with Oscar, DeFrancisco falsely informed him that she was going to jail. (R. 21, Ex B at 10). At DeFrancisco's instruction, her sister Margaret DeFrancisco ("Margaret") told Oscar that she needed $1,000 to bail out DeFrancisco. (R. 21, Ex B at 6). After Oscar loaned Margaret the money, he discovered the sisters had been lying and called repeatedly demanding the return of his $1,000. (R. 21, Ex B at 10). The evidence at trial showed that Oscar made 24 phone calls to DeFrancisco's residence between May 30, 2000 and June 4, 2000. (R. 21, Ex B at 12).
On June 6, 2000, Margaret called Veronica Garcia ("Veronica") and asked to borrow a gun.
((R. 21, Ex B at 6). Veronica agreed, and she brought the gun to DeFrancisco's family residence where Margaret and DeFrancisco were discussing how to get more money from Oscar. (R. 21, Ex B at 6, 10). At trial, DeFrancisco testified that she never told anyone she intended, or planned, to rob or kill Oscar. (R. 21, Ex B at 11, 12). Oscar's phone records, which were admitted into evidence at trial, showed that a call was made from DeFrancisco's phone to Oscar's phone on June 6, 2000, at 7:06 p.m. (R. 21, Ex B at 8). Shortly thereafter, Oscar arrived at DeFrancisco's residence and Margaret greeted him while DeFrancisco waited in the basement. (R. 21, Ex B at 6). Margaret asked if anyone knew he was there, and Oscar replied that nobody did. (R. 21, Ex B at 6, 8). Oscar proceeded downstairs to see DeFrancisco, and Margaret followed with the gun concealed behind her back. (R. 21, Ex B at 6). Veronica testified that she heard a gunshot, saw Margaret ascend the stairs with the gun and saw Oscar on the basement floor bleeding from his ears. (R. 21, Ex B at 7).
DeFrancisco and Margaret took Oscar's cell phone, keys, gun, chain, and wallet, containing at least $600. (R. 21, Ex B at 8, 9). Margaret and DeFrancisco split the money and later tried to sell both Oscar's car and his gun. (R. 21, Ex B at 8, 11).
At trial, DeFrancisco testified. She stated that (1) she had come out of her bedroom to find Oscar in the living room, (2) Oscar followed her downstairs and began screaming and cursing at her, and (3) he pulled out a gun. (R. 21, Ex B at 10-11). DeFrancisco further testified that she curled up on the floor and begged Oscar not to kill her before hearing a gunshot and looking up to see Margaret holding a gun and Veronica at her side. (R. 21, Ex B at 11). DeFrancisco testified that Veronica urged them to get rid of Oscar's body and any identification, so they wrapped his body in clear plastic and a comforter, carried it to his white Camaro, and disposed of it in an alley in Veronica's neighborhood. (R. 21, Ex B at 11). After receiving a report of a body on fire, Chicago Police Detective Timothy O'Meara ("O'Meara"), an expert in fire investigations, examined the body which was later identified as Oscar Velasquez. (R. 21, Ex B at 3). O'Meara concluded that a flammable liquid had been applied to the body before it was burned, and he found an empty bottle of nail polish remover in the vicinity. (R. 21, Ex B at 3). Dr. Albert Fusaro conducted an autopsy on Oscar's body and concluded that Oscar had died as a result of a gunshot wound and the burning occurred post-mortem. (R. 21, Ex B at 3).
Jessica Tellez Benitez ("Jessica") testified that on June 7, 2000, she went to DeFrancisco's residence where there was a big stain near the door that looked like blood, and that DeFrancisco was mopping the basement stairs. (R. 21, Ex B at 8). Jessica asked about the stain and DeFrancisco said "we killed a guy." (R. 21, Ex B at 8). DeFrancisco told Jessica that they had called Oscar over to return the $1,000 he loaned them, but they never intended to return it. (R. 21, Ex B at 8).
DeFrancisco further stated that they put plastic down in the basement where Oscar was shot before he arrived. (R. 21, Ex B at 8). Jessica testified that DeFrancisco had recounted being surprised to find Oscar carrying a gun because he was not a violent person. (R. 21, Ex B at 9). Jessica testified that DeFrancisco and Margaret split the $600 in Oscar's wallet. (R. 21, Ex B at 9). DeFrancisco admitted talking to Jessica but testified she had not said anything to Jessica about a plan to rob or kill Oscar. (R. 21, Ex B at 12).
Maria Constantino ("Maria"), a neighbor who lived upstairs from DeFrancisco's residence, testified that she saw DeFrancisco, Margaret, and another girl load a large plastic-wrapped object into a white Camaro on June 6, 2000. (R. 21, Ex B at 5). Maria further testified that about a week after seeing this incident DeFrancisco came to her door crying and said "we killed him." (R. 21, Ex B at 5). DeFrancisco described to Maria how Margaret shot Oscar from behind when he stepped on some plastic and how the three girls dumped the body and burned it. (R. 21, Ex B at 5). DeFrancisco told Maria that they did it for the money, about $600. (R. 21, Ex B at 5). DeFrancisco was ultimately arrested on October 17, 2002, after a high speed police chase. (R. 21, Ex B at 12).
II. Procedural Background
On July 8, 2004, a jury in the Circuit Court of Cook County convicted DeFrancisco of felony murder predicated on armed robbery. (R. 21, Ex A at C6). On September 9, 2004, the trial judge sentenced DeFrancisco to 35 years of imprisonment. (R. 21, Ex B at C7). On direct appeal to the Illinois Appellate Court, DeFrancisco argued that: (1) trial counsel was ineffective (a) for failing to request jury instructions on self-defense and theft, a lesser included offense of felony murder predicated on armed robbery, and (b) for failing to request that the trial court ask the jury for clarification regarding its specific source of confusion with respect to armed robbery; (2) the trial court abused its discretion in allowing the State to dismiss the intentional and knowing murder charges after the ...