The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
On January 2, 2008, petitioner Raul Puente ("Puente" or "petitioner") filed an amended petition for habeas relief pursuant to 28 U.S.C. § 2254. Puente is currently incarcerated after being convicted of murder based on a June 18, 1995 shooting at the El Saloon Tavern in Chicago, Illinois. For all the following reasons, the court orders an evidentiary hearing to determine whether his counsel was ineffective when he put forward a mistaken identity defense, instead of an involuntary manslaughter defense.
On or about February 7, 1997, following a jury trial in the Circuit Court of Cook County, petitioner was convicted of first degree murder and sentenced to a 40-year prison term. In his direct appeal, petitioner asserted that the trial court abused its discretion in sentencing him to a term of 40 years in light of his rehabilitative potential and lack of a criminal background; he did not challenge any aspect of his conviction. On September 8, 1998, the state appellate court affirmed.
Petitioner then filed a petition for leave to appeal ("PLA") in the state supreme court raising the following four claims: (1) the trial court abused its discretion in sentencing him when it failed to consider his rehabilitative potential; (2) trial counsel was ineffective for failing to object to the prosecution's improper remarks; (3) the State's witnesses committed perjury; and (4) the police report contained multiple errors. The PLA was denied on October 6, 1999. Petitioner did not file a petition for a writ of certiorari in the United States Supreme Court.
On February 8, 2000, petitioner filed a post-conviction petition pursuant to 725 ILCS 5/122-1, et seq., in the Circuit Court of Cook County alleging that: (1) trial counsel was ineffective for failing to: (a) properly investigate his case when further investigation would have led to an offer by the State for a lessor charge in exchange for a guilty plea; (b) move to suppress statements; (c) present evidence that petitioner was drinking alcohol and using cocaine at the time of the incident; (d) call certain witnesses; (e) insist that the pathologist testify; (f) properly conduct plea negotiations; (g) present a "proper" theory of defense; (h) allow petitioner to testify; and (i) question jurors on possible bias; (2) the trial judge gave improper jury instructions when he failed to instruct the jury on involuntary manslaughter; (3) the State lied about a plea offer and "misconstrued" certain post-arrest inculpatory statements made by petitioner; (4) the State improperly put forward prejudicial testimony that the police got his picture from their files of pictures of arrested individuals and that he had a "rap sheet"; (5) the trial court erred in failing to declare a mistrial; (6) the police improperly used a suggestive photo array and line up; (7) the police erred by giving Puente his Miranda rights in English; (8) the trial court erred in failing to provide copies of the police reports to the jury; and (9) appellate counsel was ineffective for failing to raise the aforementioned issues on direct appeal. On May 8, 2000, the trial court dismissed the petition as patently without merit.
Petitioner's counsel on appeal, the Public Defender of Cook County, filed a motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987). Petitioner responded, raising the issues from his post-conviction petition. On August 30, 2001, the state appellate court granted the Finley motion and affirmed. Petitioner filed a PLA raising four new claims, arguing that the state appellate court: (1) wrongly granted the Finley motion because he had raised issues of merit; (2) violated petitioner's due process rights when it affirmed, although the post-conviction court exceeded the maximum time allowed for an initial examination of the petition; (3) erred in affirming the dismissal of the post-conviction petition; and (4) violated Illinois Supreme Court Rule 23 (regarding the publication of decisions). On December 5, 2001, the state supreme court denied the petition, but vacated the appellate court's summary dismissal under People v. Edwards, 757 N.E.2d 442 (Ill. 2001) (holding that unless circuit court dismisses post-conviction petition as frivolous or without merit within 90 days, petitioner advances to second stage and State is allowed to file a response). The Illinois Supreme Court directed the appellate court to consider Puente's appeal.
On remand, Puente argued that trial counsel was ineffective for failing to: (1) move to suppress unduly suggestive identification testimony; (2) object to an impermissible jury instruction; (3) pursue the viable defense of involuntary manslaughter; (4) investigate the case properly; (5) understand the law; and (6) allow him to testify at trial. Puente also claimed that counsel improperly stipulated to the testimony of a pathologist, and that appellate counsel was ineffective for failing to raise meritorious issues on direct appeal. On May 1, 2003, the state appellate court affirmed. Puente filed a PLA raising the same issues he raised in the state appellate court following the remand. On October 7, 2003, the state supreme court denied the PLA.
On November 27, 2007, petitioner filed the instant amended petition for writ of habeas corpus, raising three claims: (1) trial counsel was ineffective for failing to: (a) move to suppress suggestive identification evidence; (b) challenge potentially biased witnesses; (c) investigate; (d) pursue a sound defense strategy; (e) allow petitioner to testify; and (f) object to an impermissible jury instruction on witness identification testimony; (2) the trial court erred in: (a) failing to declare a mistrial based on prosecutorial misconduct; (b) denying his motion for an involuntary manslaughter instruction; (c) imposing an excessive sentence; and (d) exceeding the 90 day examination period in 725 ILCS 5/122-2.1 for consideration of his post-conviction petition; and (3) appellate counsel was ineffective for failing to raise: (a) trial counsel's ineffectiveness; and (b) the errors of the trial court.
On appeal from the denial of Puente's state post-conviction petition, the state appellate court summarized the facts, in one sentence, as follows:
The record shows on June 18, 1995, petitioner got into an argument with Rodriguez [the victim], exited the tavern, obtained a gun, returned to the tavern several hours later and fatally shot Rodriguez.
People v. Puente, No. 1-00-2333, at 10 (Ill. App. Ct. May 1, 2003).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petitioner is not entitled to a writ of habeas corpus unless the challenged state court decision is either "contrary to" or "an unreasonable application of" clearly established federal law as determined by the United States Supreme Court, or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2); see also Williams v. Taylor, 529 U.S. 362, 367 (2000). A state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by the Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Williams, 529 U.S. at 405. To demonstrate an "unreasonable application" of clearly established federal law, a habeas petitioner must establish that the state court unreasonably applied the controlling legal rule to the facts of the case. Id. at 407. The state court's application of Supreme Court precedent must be more than incorrect or erroneous. Rather, it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (state court decision must lie "well outside the boundaries of permissible differences of opinion").
A. Ineffective Assistance of Counsel
Petitioner claims that the Illinois Appellate Court's decision violated 28 U.S.C. § 2254(d)(1) in that the court unreasonably applied Strickland v. Washington to the facts of this case. In addition, petitioner also argues that the Illinois Appellate Court violated 28 U.S.C. § 2254(d)(2) when it made two significant factual errors. Surprisingly, respondent fails to make any argument on this issue, or even acknowledge Puente's allegations of factual errors made by the state appellate court. The court will first address the factual claim, as the two key facts at issue formed the basis for the appellate court's conclusion on the Strickland claim.
Normally, in reviewing the facts surrounding a petitioner's trial and sentence, this court looks to the last state court to issue findings of fact. Those findings of fact are presumed to be correct on federal habeas review absent "clear and convincing" evidence to the contrary. See Williams v. Bartow, 481 F.3d 492, 498 (7th Cir. 2007) (citing 28 U.S.C. § 2254(e)(1)). Here, petitioner argues that such deference is not appropriate in light of the fact that the state appellate court erred in describing two key facts. "A petitioner's challenge to a state court decision based on a factual determination under § 2254(d)(2) will not succeed unless the state court committed an 'unreasonable error,' and § 2254(e)(1) provides the mechanism for proving unreasonableness." BenYisrayl v. Buss, 540 F.3d 542, 549 (7th Cir. 2008) (citing Ward v. Sternes, 334 F.3d 696, 703-04 (7th Cir. 2003)). If a petitioner can show that the state appellate court determined an underlying factual issue "against the clear and convincing weight of the evidence," the petitioner has "'gone a long way towards proving that it committed unreasonable error.'" Id. (quoting Ward, 334 F.3d at 704). "A state court decision that rests upon a determination of fact that lies against the clear weight of the evidence is, by definition, a decision 'so inadequately supported by the record' as to be arbitrary and therefore objectively unreasonable." Ward, 334 F.3d at 704 (quoting Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997)).
Upon careful review of the state court record, the court concludes that the Illinois Appellate Court determined two facts against the clear and convincing weight of the evidence when it concluded that petitioner had "an argument with Rodriguez" (the victim) and "returned to the tavern several hours later" with a gun. No witness testified that petitioner had an argument with the victim. Instead, Jose Montejno, the bartender at the El Saloon on the night of the shooting, testified that he saw no conversation between Puente and the victim. Montejno also testified that he witnessed a heated exchange between Puente and another man, the victim's cousin. Likewise, the testimony at trial contradicts the finding made by the Illinois Appellate Court that Puente left the bar, retrieved a gun and returned to the bar a few hours later. The trial testimony actually showed that after he left the bar, Puente retrieved a gun and returned to the bar a few minutes later.
Montejno testified that petitioner was outside for a few minutes before petitioner came back inside the bar with a gun. In addition, the testimony of eyewitness Juan Morales also supports the fact that petitioner, after leaving the bar, ...