The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Delbert Heard, an Illinois prisoner, has filed a second amended petition for a writ of habeas corpus, and the state has answered. See 28 U.S.C. § 2254. For the following reasons, Heard's petition is DENIED, and the court declines to issue a certificate of appealability.
Delbert Heard was convicted by a Cook County jury of the November 11, 1992 murders of Natalie Wilson, Kenneth Seals, and Zita Jones. Finding no mitigating factors to preclude the imposition of the death penalty, and Heard having waved a jury for his sentencing hearing, the trial court sentenced Heard to death. Heard appealed directly to the Illinois Supreme Court, which affirmed his conviction and death sentence. People v. Heard, 718 N.E.2d 58 (Ill. 1999). Then-Governor Ryan subsequently commuted Heard's sentence to a term of natural life. People ex rel. Madigan v. Snyder, 804 N.E.2d 546, 550 (Ill. 2004).
In its opinion, the Illinois Supreme Court summarized the facts of Heard's case and the evidence presented at his trial. Absent clear and convincing evidence to the contrary, this court must presume those factual findings to be correct. Ben-Yisrael v. Buss, 540 F.3d 542, 546 (7th Cir. 2008). They are as follows:
On November 11, 1992, Natalie Wilson lived in a first-floor apartment behind a storefront on 118th Street in Chicago. Her ten-year-old daughter, Tanquinka (nicknamed "TQ"), and her cousin, Zita Jones, lived with her. Kenneth Seals was Natalie's boyfriend, and she was pregnant with his child; their relationship had begun in April 1992. Previously, Delbert Heard (nicknamed "Heavy") had been Natalie's boyfriend for approximately five years. Sometime in 1992, Natalie ended her relationship with Heard.
TQ testified that around 8 p.m. on the night of the murders, Heard knocked on the front door and asked if he could come in. Natalie, Kenneth, and TQ were all in the apartment. When Natalie told Heard he could not come in, Heard replied through the door, "I'm not going to hurt you." Heard asked where TQ was, claiming that he wanted to buy some of the candy she was selling for a school fundraiser. Natalie said TQ was not home; Heard kicked the door and left.
TQ went to bed. Her bedroom was next to Natalie's, and a common door between the two rooms was-as always-left open because they shared a single radiator located in Natalie's room. Later on, TQ heard the side door unlock. Zita and her boyfriend, talking and laughing, went into Zita's bedroom. TQ later heard them walk back to the side door and unlock it. Then the door locked again and Zita walked back to her bedroom alone.
As TQ was going back to sleep, she heard the door unlock again, this time slowly, and she heard the floor squeak. TQ saw Heard standing at the foot of Natalie's bed. He exchanged words with Natalie and Kenneth, and said to them, "don't try it." TQ heard 25 or 30 gunshots coming from her mother's room, and she saw Heard lean over Natalie and Kenneth. He had a long black gun, and sparks were coming from it. TQ heard Zita scream as the floor squeaked again. Heard went into Zita's room, and TQ heard more gunshots. Then she heard the floor squeaking very fast and the outside gate rattling.
TQ went into Natalie bedroom. She asked her mother if she was okay, but Natalie did not respond. Kenneth had been moaning, but the moaning stopped. TQ then went to Zita's room. Zita was lying down with "a hole in her head" and "stuff coming out of her neck." TQ called the police and ran upstairs to get help from the landlords, Monique and Melvin DeYoung.
Mrs. DeYoung testified that on the night in question, she and her husband were awakened by gunfire. She heard heavy footsteps and then heard the kitchen door to Natalie's apartment slam. Someone on the first floor was moaning. TQ came upstairs to her bedroom. She was shaking, and her eyes were "bugged." TQ told Mrs. DeYoung that "somebody shot my mama" and that "something" was coming out of Natalie's eye. TQ had tried to wake Natalie and Kenneth, but Natalie would not wake up, and Kenneth just said "huh" and then died. TQ told Mrs. DeYoung that she then went to Zita's room, but Zita, too, was dead and had "something" coming out of her eye.
TQ and Mrs. DeYoung went to Natalie's apartment. Police officers and paramedics were already there. TQ tried to get back to Natalie, but the officers would not let her. TQ became very upset and Mrs. DeYoung heard her say to herself, "Man, why did Heavy shoot my mama?" When Mrs. DeYoung asked TQ if she saw Heard, TQ said, "Man, why did he shoot my mama? I didn't see nothing. I didn't see nothing Mrs. DeYoung." Mrs. DeYoung described TQ as "very shaken," "concerned," "frightened," and "in shock."
Mary Pearson, Natalie's sister-in-law and the common-law wife of Heard's cousin, also arrived on the scene. She testified that TQ ran to her and said, "Auntie Net, he gon killed my mother." When Mary asked TQ who killed Natalie, TQ hugged Mary but did not answer the question. Mary and TQ then went with detectives in an attempt to find Heard at his house, at his parent's house, at his sister's house, and at the garage where he parked his tow truck. At each location, TQ laid down in the backseat of the car as if she did not want to be seen. When the detectives pulled up in front of Heard's parents' house, TQ told Mary, "He gon see us," and began to cry. The next day, Heard learned that the police were looking for him, and he went to the police station.
John Butler, a CPD forensic investigator, testified regarding his processing of the crime scene. In one bedroom, Natalie and Kenneth's bodies were on the bed. In a second bedroom, Zita's body was on the bed. The victims had been shot numerous times, and total of 32 cartridge cases were recovered, all 9-mm Luger FCs. The police found a set of keys in the outside kitchen door, but no usable fingerprints were discovered on them. The police also found a Taurus .380 semiautomatic pistol on the window sill near Kenneth's body. Assistant Chief Medical Examiner Dr. Mitra Kalelkar testified that Natalie and Zita were each shot 5 times, and Kenneth was shot 17 times. Natalie was six to eight weeks pregnant.
After the prosecution rested, Heard presented the testimony of Alonzo Williams (Heard's friend), Tina Coleman (Heard's fiancée), and Kimberly Nelson (Coleman's sister). Williams and Coleman testified that Heard was with them on the night of the murders. They went to the Miami Bowl around 9:30 or 10:00 p.m. and stayed until roughly 1:30 a.m., when they went to Denny's. Heard and Coleman left Denny's together sometime after 2:00 a.m. Coleman testified that the two of them spent the rest of the night together at the Avenue Hotel, since Heard had out-of-town guests staying the night at his home. They left around 7 a.m. Coleman further testified that when she received a page from her sister, Kimberly Nelson, at around 1:30 a.m., she returned the call. She was at the Miami Bowl at the time. Nelson testified that when she spoke to ...