The opinion of the court was delivered by: Charles P. Kocoras, District Judge
Before the court is Petitioner Carl Tate's petition for a writ of habeas corpus. For the reasons expressed below, the petition is denied.
After a bench trial in the Circuit Court of Cook County in 2002, Tate and his co-defendant Richard Starks were convicted of the murder and armed robbery of Jodie Kelly. The evidence presented during that trial demonstrated that Tate and Kelly were distributors of crack cocaine. After Kelly began selling his product at a lower price than Tate, Tate and his co-defendant confronted Kelly and stabbed him several times. After Tate was convicted, the trial judge sentenced him to consecutive prison terms of 40 years for the first degree murder count and 15 years for armed robbery.
On direct appeal, Tate presented a single challenge: that the trial court erred in imposing a consecutive sentence for the armed robbery conviction. On December 17, 2003, the Illinois Appellate court affirmed Tate's sentence. He did not file a petition for leave to appeal the decision to the Illinois Supreme Court.
On July 25, 2003, while his direct appeal was pending, Tate filed a pro se post-conviction petition in Cook County Circuit Court. Tate filed pro se supplements to his initial petition in 2004 and again in 2005. Among the claims presented were*fn2
(a) Tate's Confrontation Clause rights violated by admission of confession of non-testifying co-defendant Richard Starks;
(b) Tate's consecutive sentence was invalid under Illinois law;
(c) trial counsel was ineffective for failing to move to suppress Starks' confession;
(d) Tate's Fourth Amendment rights were violated because there was no probable cause to arrest him;
(e) trial counsel was ineffective for failing to cross-examine one of the prosecution's witnesses;
(f) trial counsel was ineffective for telling Tate that he could not testify;
(g) trial counsel was ineffective for failing to interview or present alibi witnesses;
(h) Tate's due process rights were violated because he was not proven guilty beyond a reasonable doubt;
(i) trial counsel was ineffective for failing to impeach a different prosecution witness with the affidavits of persons who supplied information favorable to Tate.
On December 7, 2006, Tate, through counsel, filed an amended post-conviction petition. In that petition, Tate asserted the following claims that are repeated in his current petition:
(a) direct appeal counsel provided ineffective assistance by failing to argue that there was insufficient evidence to support Tate's convictions and for failing to appeal denial of motion to quash arrest;
(b) Tate's Sixth Amendment right to a speedy trial was violated;
(c) Tate's Sixth Amendment Confrontation Clause rights were violated as a result of his counsel's failure to cross-examine one of the prosecution's witnesses;
(d) the State violated Tate's due process rights by securing his indictment using testimony of two witnesses whom Tate contended had perjured themselves before the grand jury;
(e) Tate's Fifth and Sixth Amendment right to testify was violated when trial judge failed to notify him of his right to testify on his own behalf and Tate did not validly waive it.
On September 21, 2007, the trial court dismissed the amended petition. Tate appealed the dismissal. The only issue Tate addressed on appeal was whether trial counsel was ineffective for refusing to allow Tate to testify. In addition to his counseled appellate brief, Tate also filed a pro se motion in the appellate court for leave to demonstrate that his post-conviction appellate counsel was not providing a reasonable level of assistance. Tate's primary concern with his counsel's performance was his attorney's decision to not present a number of the claims Tate raised in the post-conviction trial court to the court of appeals. Tate's complaints in this regard were of a general nature; the pro se motion did not specifically identify the claims that he wished to present to the appellate court. On August 19, 2009, the appellate court denied Tate's motion related to the performance of his post-conviction appellate counsel. The court then affirmed the trial court's dismissal of Tate's post-conviction petition on September 14, 2009. In the order explaining its decision, the appellate court noted that while Tate had claimed in his initial pro se petition that his trial counsel was ineffective for refusing to permit him to testify, his subsequent counseled amended post-conviction petition did not contain such a claim. The appellate court relied on this omission in holding that Tate's ineffective assistance claim was not properly before the court. Later on in the order, the court remarked that even if the claim were properly raised it was without merit because it was not reasonably probable that Tate's testimony would have resulted in acquittal.
On November 9, 2009, Tate filed a pro se petition for leave to appeal the appellate court's decision to the Illinois Supreme Court. In his petition to the Illinois Supreme Court, Tate presented the following claims that he also makes in his present petition for habeas corpus:
(a) Tate's right to testify was violated where trial counsel told him the decision to testify was not Tate's to make;
(b) post-conviction appellate counsel was ineffective for failing to make claims presented in original pro se post-conviction petition;
(c) trial counsel was ineffective for advising Tate incorrectly regarding ...