The opinion of the court was delivered by: David H. Coar United States District Judge
CORRECTED MEMORANDUM OPINION AND ORDER
Marlon Singleton, an Illinois prisoner, has filed a petition for a writ of habeas corpus, and the state has answered. See 28 U.S.C. § 2254. For the following reasons, Singleton's petition is DENIED. The court declines to issue a certificate of appealability.
A Cook County jury convicted Marlon Singleton of aggravated criminal sexual assault and armed robbery, for which he received consecutive sentences of fifty eight and thirty years in Illinois state prison. At trial, the State's evidence showed that on the night of July 3, 1997, and into the early morning hours of July 4, 1997, Singleton sexually assaulted and robbed the victim, C.C., while armed with a box cutter. DNA present in vaginal swabs taken from C.C. were matched to Singleton, and C.C. identified Singleton in a lineup. The State also presented other-crimes evidence of a similar attack in 1987 against N.L.. Singleton argued, to no avail, that the sex with C.C. was consensual; he also put forth an alibi to the 1987 attack through his mother and cousin's testimony.
On direct appeal, appointed counsel challenged the introduction of his criminal sexual assault conviction for the 1987 attack against N.L., arguing that the two crimes were too dissimilar to support the use of his conviction as modus operandi evidence under Illinois law. (Ex. A.) The appellate court affirmed in a summary order. People v. Singleton, No. 1-01-2866 (Ill. App. Ct. December 31, 2002). Singleton raised this issue in his PLA, which the Supreme Court of Illinois denied. People v. Singleton, 788 N.E.2d 734 (Ill. 2003).
On October 2, 2003, Singleton filed his first petition for post-conviction relief ("PC") in the Circuit Court of Cook County. (Ex. F.) In his seventy-seven page, thirty-two count omnibus petition, Singleton alleged that trial and appellate counsel were both ineffective; that the trial court made a variety of procedural, substantive, and evidentiary errors; and that the State committed Brady violations and tainted his trial with inappropriate remarks during closing argument. The court found that his claims ranged from conclusory and speculative to plainly false; for instance, trial counsel had in fact filed several of the motions that Singleton complained he never filed. The court dismissed his petition as frivolous and patently without merit in an order dated December 12, 2003. (Ex. G.) See 725 ILCS 5/122-2.1(a).
On appeal from the denial of his first PC, Singleton, through appointed counsel, raised two claims: (1) the State committed prosecutorial misconduct during closing argument; and (2) prior appellate counsel was ineffective for failing to raise the issue on direct appeal. (Ex. H.) While his appeal was pending, Singleton sought leave from the appellate court to file, pro se, a supplemental brief, in which he would argue that trial counsel was ineffective for failing to introduce evidence of the victim's home address and for vouching for an alleged prior victim's credibility; and that the prosecutor committed misconduct by introducing perjured testimony. (Ex. L at 7-22.) When the appellate court denied Singleton leave to file his supplemental brief, he challenged that order in an interlocutory PLA, which the Supreme Court of Illinois denied. People v. Singleton, 839 N.E.2d 1035 (Ill. 2005).
The appellate court affirmed the circuit court's order denying Singleton's first PC. People v. Singleton, No. 1-04-0934 (Ill. App. Ct. Nov. 29, 2005). (Ex. K.) The court determined, as relevant here, that "only three of the ASA's statements cited by [Singleton] on appeal as improper comments were contained in his pro se petition." (Id. at 6.) Those comments, made during closing argument, were the following: (1) "You know, when you have no defense you resort to fancy diagrams;" (2) "Do you see how when you talk out of both sides of your mouth you have no defense. It's defense of desperation. Things are thrown at you hoping they will stick;" and (3) The ASA's comment, in rebuttal, that Singleton's defense theory was "the dumbest defense ever to cross a courtroom floor." (Id. at 6-8.) Based on these three remarks, the court found that the underlying claim of prosecutorial misconduct was without merit, and that appellate counsel therefore could not have been ineffective for failing to raise it on direct appeal. (Id. at 9.) The rest of the prosecutor's allegedly impermissible comments during closing argument were waived under Illinois procedural law. (Id. at 6, citing People v. Jones, 213 Ill. 2d 498 (Ill. 2004).)
Singleton filed a PLA challenging the appellate court's decision. He advanced three arguments: (1) appellate counsel was ineffective for not raising all thirty two claims presented in his first PC on appeal from its denial; (2) the appellate court erred by affirming the denial of his first PC without considering all thirty two of those claims; (3) the circuit erred by dismissing his first PC as frivolous during initial review, see 725 ILCS 5/122-2.1(a), since all of his claims presented the "gist" of a constitutional claim. (Ex N.) The PLA provided no factual or legal argument. Rather, it purported to "hereby incorporate into this petition all grounds and allegations stated in: 1. Petition for Post-Conviction relief, 2. Brief and argument for petitioner-Appellant, 3. Reply Brief for Petitioner-Appellant." (Id. at 2.) Singleton's PLA was denied. People v. Singleton, 850 N.E.2d 812 (Ill. 2006).
Meanwhile, Singleton had also filed a "Motion for Leave to File Successive Petition for Post-Conviction Relief Consolidated with § 2-1401 Petition for Relief from Judgment" in the Circuit Court of Cook County. (Ex. P.) Singleton argued that (1) the State impermissibly used his prior conviction to show his modus operandi; (2) trial counsel was ineffective; (3) Singleton was entitled to a lesser-included theft instruction on his armed-robbery charge; (4) appellate counsel was ineffective for failing to raise these claims. The circuit court found that the petition failed, at the threshold, to satisfy the cause-and-prejudice requirement for a successive post-conviction petition. (Ex. Q, at 5, citing 725 ILCS 5/122-1.) Singleton appealed, arguing that the circuit court erred (1) by recharacterizing his § 2-1401 petition as a PC without the admonishments required by Illinois law and (2) by assessing Singleton fees and costs after rejecting his request to file a successive petition; and that (3) the assessment of fees and costs violated equal protection. (Exs. R, S.) The appellate court affirmed. People v. Singleton, No. 1-06-1115 (Ill. App. Ct. Feb. 8, 2008.) In his ensuing PLA, Singleton raised only the second of these issues. (Ex. W.) The PLA was denied on January 28, 2009. People v. Singleton, 902 N.E.2d 1089 (Ill. 2009).
On April 25, 2006, Singleton filed the present petition for a writ of habeas corpus in this court. On June 14, 2006, this court stayed the petition while Singleton's then-pending successive PC (and ensuing appeals) was resolved. The stay was lifted on February 24, 2009, and Singleton was given an opportunity to file an amended petition. He declined and instead submitted, through appointed counsel, a supplemental memorandum in support of his original petition. This petition raises five claims on its face: (1) the use of other-crimes evidence violated his right to a fair trial; (2) the prosecutor committed misconduct during closing argument; (3) Singleton was not proven guilty beyond a reasonable doubt; (4) the indictment's use of 'box cutter' instead of 'knife' violated the Indictment Clause of the Fifth Amendment; and (5) the trial judge penalized petitioner by sentencing him to an eighty-eight year sentence after he had turned down a plea agreement in which he was offered a forty-five year sentence, thereby violating his Sixth Amendment right to a jury trial. Lurking in the exhibits attached to Singleton's petition is some discussion of a potential witness, Marion Beck, who was never called to testify at trial. Appointed counsel's supplemental memorandum asserts that trial counsel was ineffective for failing to call Beck as a trial witness.
"A district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the grounds that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the court may issue a writ of habeas corpus only if the state court's determination of the petitioner's claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable ...