The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is a Report and Recommendation ("R&R") (Doc. 59) submitted by United States Magistrate Judge Proud, issued pursuant to 28 U.S.C. § 636(b)(1)(B), recommending that the § 2254 habeas petition (Doc. 1) filed by petitioner Terry E. Shotts be denied. The R&R was sent to the parties, with a notice informing them of their right to appeal by way of filing "objections" within ten (10) days of service of the R&R. In accordance with the notice, Petitioner has filed timely objections to the R&R (Doc. 60) as well as a supplement to those objections (Doc. 71). Respondent has filed a response to those objections (Docs. 66 & 68).
Petitioner has also filed a motion to clarify that the wrong standard of review was used by Judge Proud (Doc. 80) as well as a motion for additional court proceedings (Doc. 81). In Petitioner's motion for additional court proceedings he requests that a 100 page document containing his amended post-conviction petition be added to the record. However, the Court finds that the parties discussed the amended petition at length and the addition of the lengthy document at this point in the proceedings is not necessary. Accordingly, the Court DENIES Petitioner's motion for further court proceedings (Doc. 81).
Because timely objections have been filed, this Court must undertake de novo review of the objected to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P. 72(b); SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject, or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues for which specific objection has been made. Id. However, the Court need not conduct a de novo review of the findings of the R&R for which no objections have been made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). For the reasons discussed herein, the Court ADOPTS the findings of the R&R.
Petitioner Terry E. Shotts is serving consecutive sentences of twenty-five years for aggravated criminal sexual assault and thirteen years for each of three criminal sexual assault convictions resulting in a total sentence of 64 years imprisonment. On his direct appeal, petitioner raised four claims that the state failed to prove guilt beyond a reasonable doubt, that there was a fatal variance between the charging instrument and the proof at trial, that the trial court erred by allowing prejudicial testimony, and that the trial court erroneously believed that consecutive sentences were mandatory. However, the appellate court affirmed the appeal on December 23, 1992 and Shotts failed to file a PLA.
On March 4, 1993, Shotts subsequently filed a petition for post-conviction relief pursuant to 725 ILCS 5/122-1, et. seq., raising eleven claims.*fn2 The post-conviction petitioner was dismissed in May 1993 and Shotts filed a notice of appeal on June 8, 1993. Shotts filed a motion to reconsider, asking to add two additional grounds, that the trial court erred in imposing mandatory consecutive sentences and the appellate counsel had been ineffective for failing to file a petition for leave to appeal to the Supreme Court. When his motion was denied, Shotts filed another notice of appeal which was consolidated with the first notice. On appeal, Shotts raised two points, that his right to fair trial was violated by juror bias and misconduct and that his consecutive sentences were not mandatory. The Fourth District determined that the jury misconduct issues were waived "because defendant failed to raise the issues of juror misconduct at trial, by post-trial motion, or at the time of his direct appeal, he may not raise them on appeal" (Doc. 18 Ex. D at p. 5). However, the appellate court remanded the case for re-sentencing as the court found that consecutive sentences are not mandatory (Id. at pp. 5-8).
On remand, Petitioner was resentenced to consecutive sentences and both his appeal and petition for leave to appeal were denied. Subsequently, on March 12, 1997 Shotts filed a section 2-1401 petition raising the issue that one of the victims testified falsely. The trial court dismissed the petition as "frivolous and patently without merit." The decision was appealed and Fourth District affirmed. His petition for leave to appeal was also denied.
On June 3, 1997 while his appeal of the section 2-1401 petition was still pending, Shotts filed a successive post-conviction petition. An amended petition was filed on October 9, 1998, although Petitioner failed to request leave to file the petition. Shotts was informed that the court lacked jurisdiction to review the petition given the pendency of his appeal and dismissed his amended petition, although the original petition was not dismissed. Although Petitioner appealed the decision that the court lacked jurisdiction, the appeal was dismissed because the petition was still pending and the order dismissing the amended petition was not considered a final order. The State later moved to dismiss the original petition which the court granted. However, on appeal the Fourth District reversed the dismissal because the court had failed to appoint Shotts counsel, as was required when a post-conviction petition was pending for more than ninety days.
On remand, the court appointed counsel who filed an amended petition. The amended petition included three claims: that trial and appellate counsel were ineffective for failing to tender jury instructions regarding a lesser included offense, failing to challenge the forged signatures on the charging instrument, and failing to argue that defendant should have been present when judge responded to questions from the jury; that trial counsel's cumulative errors constituted ineffective assistance; and that the state violated Brady v. Maryland, 373 U.S. 83 (1963) by not disclosing various agreements allegedly entered into with the victims and their families.
The State moved to dismiss the petition which was granted. Shotts appealed and his appointed counsel moved to withdraw, claiming the petition was not meritorious. Counsel's motion was granted and Shotts filed a pro se brief raising several claims, but failing to raise issues as to ineffectiveness of counsel. Shotts moved to file a supplemental brief but leave to do so was denied. On August 1, 2006, the Fourth District affirmed the dismissal of his petition, noting that the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. only contemplates the filing of one post-conviction petition and therefore Shotts' claims were forfeited. Shotts PLA was denied.
Thereafter, on May 11, 2007,*fn3 Petitioner filed the instant petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. In his petition, Petitioner asserts eleven separate grounds for habeas relief.*fn4 Judge Proud reviewed the claims and issued an R&R recommending that Shotts' petition be dismissed because all of his claims were procedurally defaulted (Doc. 59). Analyzing Petitioner's claims of ineffective assistance of trial and appellate counsel, Judge Proud determined that the claims were defaulted because he failed to raise them on his appeal to the Fourth District. While he did attach a copy of his petition which included his claim on his PLA, Supreme Court rules do not recognize attachments to the PLA.The R&R also notes that Petitioner failed to properly present his claims in his successive post-conviction petition as Petitioner readily admits that he neglected to argue the claims in his brief on appeal. Judge Proud, in ...