The opinion of the court was delivered by: David H. Coar United States District Judge
MEMORANDUM OPINION AND ORDER
Samuel Morgan is currently serving a life sentence of imprisonment at Stateville Correctional Center due to his convictions for the murder of William Motley and Kenneth Merkson and the rape and aggravated kidnapping of Phyllis Gregson. Presently before this Court are Morgan's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, his motion for an evidentiary hearing on the facts underlying his constitutional claims, and Morgan's motion to strike portions of the State's response to his amendment to his habeas petition. For the reasons stated below, Morgan's motion to strike is denied. In addition, the Court respectfully denies Morgan's habeas petition without an evidentiary hearing.
The Court takes the following factual account from the opinions of the Illinois Supreme Court in Morgan's direct appeal, People v. Morgan, 492 N.E.2d 1303 (Ill. 1986) (Morgan I), cert. denied, 479 U.S. 1101 (1987), and post-conviction proceedings, People v. Morgan, 719 N.E.2d 681 (Ill. 1999) (Morgan II) and People v. Morgan, 817 N.E.2d 524 (Ill. 2004) (Morgan III), unless otherwise indicated. For the purposes of habeas review, the Court presumes the state court's factual findings to be correct unless Morgan rebuts this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
On the afternoon of January 27, 1982, Morgan arrived at the apartment of his longtime friend, Elijah Prater ("Prater"), accompanied by William Motley ("Motley") and Kenneth Merkson ("Merkson"). After the four men talked and used cocaine and marijuana for approximately 15 to 20 minutes, the group dispersed. Prater, Merkson, and Motley left the apartment, and Morgan stayed behind.
Phyllis Gregson ("Gregson"), who knew both Prater and Morgan, arrived at Prater's apartment around 8:30 that evening. Morgan was still at the apartment alone when Gregson arrived, and he invited her inside. The two shared marijuana and watched television. At 9:00 p.m., two men who were unfamiliar to Gregson arrived at the apartment, talked with Morgan until around midnight, and then left. Gregson and Morgan were alone again in the apartment, and at this point, Morgan made sexual advances toward Gregson, which she refused.
At approximately 1:00 a.m. on January 28, 1982, Prater, Merskon, and Motley returned to the apartment. The three men, along with Morgan and Gregson, proceeded to consume cocaine and marijuana while they spent the night at Prater's apartment.
Around 3:00 a.m., Prater and Gregson were talking quietly on the couch in the front room of the apartment, when Morgan called them into the bedroom and demanded to know what they were discussing. After Prater responded, Morgan directed Merkson to retrieve a shotgun from the bedroom closet and hand it to him. Morgan pointed the shotgun at Prater and Gregson and again demanded to know the truth about what they were discussing. At this point, Gregson told Morgan that she wanted to go home. Morgan grabbed her, punched her in the face, and knocked her to the floor by hitting her in the chest with the butt of the shotgun. Merkson helped Gregson back to her feet, and eventually, Gregson went into the front room of the apartment where she fell asleep on the couch. The four men stayed awake and continued using cocaine until about 5:00 a.m.
Just before noon on January 28, 1982, Motley was sitting on a loveseat in the front room of the apartment, talking on the telephone and looking through a small, black telephone book. While he was making calls, Motley had a .357 magnum revolver tucked under his leg. Gregson and Morgan were also sitting in the front room of the apartment; Gregson was sitting on a rocking chair, while Morgan sat with a shotgun across his lap, some six to seven feet from Motley. Prater and Merkson were both in the kitchen.
At this point, Morgan instructed Gregson to remove her shirt and dance for him, and Gregson refused. Motley, who was still sitting on the loveseat, made an unknown comment to Morgan, and Morgan fired his shotgun at Motley, hitting him in the left side of his chest. Motley's body flew off of the loveseat onto the floor. Morgan then grabbed the revolver from Motley's body and placed it in his own waistband.
Morgan stepped into the kitchen and directed Prater and Merkson to come into the front room and clean up Motley's body. While doing so, Merkson removed some money, marijuana, and the black telephone book from Motley's body and gave them to Morgan. After unsuccessfully trying to fit Motley's body into a dresser drawer, Prater and Merkson stuffed his body into a laundry bag and wrapped it inside a mattress. Morgan instructed Gregson to clean Motley's blood from the floor, and she complied.
Shortly thereafter, Morgan sent Prater to buy alcohol and to fill his car with gasoline. When Prater returned approximately 15 minutes later, Gregson was washing dishes in the kitchen, and Morgan was sitting in the dining room with the shotgun in his lap and the revolver tucked into his waistband. Merskon was walking around the apartment making jokes. The men drank some of the liquor that Prater had purchased, and Merkson continued to make jokes until Morgan told him to stop and to remove Motley's body from the apartment. When Merkson made another remark, Morgan chased him into the front room of the apartment, where he hit him in the head with the butt of the revolver. Morgan again directed Merkson and Prater to remove Motley's body from the apartment. Merkson made another comment to Morgan, and, at this point, Morgan ordered Merkson to get down on his knees and face the floor. Prater testified at trial that he saw Morgan aim his revolver at Merkson's head from a distance of four to five feet. Prater then turned to face the wall, heard a shot, and turned back to find Merkson's body on the floor. Both Gregson and Prater testified that they saw Morgan standing beside Merkson's fatally wounded body with the revolver in his hand.
Morgan then ordered Gregson to clean up Merkson's blood and instructed Prater to remove the body from the apartment. As Prater began tying up Merkson's body, Morgan approached from behind him and began shooting. Prater felt a bullet pass by his head, and he ran out of the apartment. At this point, Morgan ordered Gregson to go into the bathroom, where she locked the door behind her. After five or ten minutes, Morgan ordered her to come out. Still armed with the revolver, Morgan took Gregson out of the apartment by her arm. While this was happening, Prater's downstairs neighbor called the police in response to the shots he had heard.
Upon arriving on the scene, police officers discovered the bodies of Motley and Merkson, a loaded shotgun, a fingerprint on the dresser later identified as Morgan's, a bullet from the floor, and a bullet from the downstairs neighbor's apartment.
Meanwhile, after leaving Prater's apartment, Morgan took Gregson to the South Shore Motel, where he checked in under an alias and raped her. After spending about two hours in the motel room, Morgan escorted Gregson by the arm to his car. A motel employee testified that he witnessed Morgan pointing his revolver at Gregson's head. Upon noticing the employee, Morgan aimed the gun at him and began to chase him. When the employee ran toward the motel lobby, Morgan chased him for a short distance, then returned, again grabbed Gregson by the arm, and led her to his car. The motel employee testified that he saw Morgan push Gregson into his car headfirst. Shortly after driving away from the motel, Morgan stopped the car and told Gregson to get out on the side of the road. He threatened Gregson, warning her not to tell anyone about what had happened, or he would come and find her. Morgan then drove off at a high rate of speed.
Morgan was arrested the following day. While investigating an unrelated disturbance, Chicago police officers encountered Morgan and called to him to stop. Instead of stopping, Morgan continued walking. The officers then identified themselves as police officers, at which point Morgan dropped a plastic bag to the ground and continued walking. The officers pursued Morgan on foot, and when they were within approximately 15 to 20 feet of him, Morgan turned toward the officers and pulled a revolver from his coat pocket. When he saw the officers' guns, he dropped his weapon. The officers took Morgan into custody and recovered the revolver, the plastic bag, and its contents. Later that same day, Prater informed the police that Morgan was responsible for the deaths of Motley and Merkson. Gregson, when contacted by the police, offered an account consistent with Prater's.
At trial, expert testimony showed that the revolver recovered from Morgan upon his arrest had fired the bullets police found at the crime scene. The plastic bag that Morgan dropped prior to his arrest contained a black notebook, which Prater and Gregson identified as the book Merskon had removed from Motley's body. Prater and Gregson testified as the only eyewitnesses against Morgan at trial. (Pet. at ¶ 16.)
On May 3, 1983, a jury convicted Morgan of the murder of Merkson and Motley and the rape and aggravated kidnapping of Gregson. Morgan I, 492 N.E.2d at 1305. After Morgan waived his right to a jury at the capital sentencing hearing, the court sentenced Morgan to death for the murders of Merkson and Motley. Id. at 1309. In addition, the court imposed concurrent extended prison terms of 60 years for the rape of Gregson and 30 years for her aggravated kidnapping. Id.
Morgan appealed his conviction and sentence directly to the Illinois Supreme Court. In his direct appeal, Morgan raised claims of prosecutorial misconduct, error in the trial court's qualification of prospective jurors and its consideration of irrelevant evidence, involuntary waiver of jury sentencing, and the unconstitutionality of the death penalty statute. On April 18, 1986, the Illinois Supreme Court affirmed Morgan's convictions and sentence of death, vacated the extended terms of imprisonment imposed for rape and kidnapping charges, and reduced the rape sentence to 30 years and the kidnapping sentence to 15 years. Morgan I, 492 N.E.2d at 1306. Morgan then filed a petition for a writ of certiorariin the United States Supreme Court, which was denied on February 23, 1987. Morgan v. Illinois, 479 U.S. 1101 (1987). The United States Supreme Court also denied Morgan's petition for rehearing. Morgan v. Illinois, 481 U.S. 1025 (1987).
On January 20, 1988, Morgan filed a petition for post-conviction relief under 725 ILCS 5/122-1, et seq., challenging his convictions and death sentence. With the court's permission, Morgan amended that petition on July 28, 1993, and again on July 3, 1995. (Pet. at ¶ 22.) Morgan's second amended petition included 14 claims. The circuit court dismissed all of the claims without an evidentiary hearing, with the exception of a portion of Morgan's ineffective assistance of counsel claim. Morgan II, 719 N.E.2d at 686. The court granted an evidentiary hearing on Morgan's claim that his trial counsel's failure to investigate and present mitigating evidence of Morgan's brain damage and medical condition denied Morgan effective assistance of counsel at his sentencing. (Pet. at ¶ 23.) The court ultimately denied relief on that claim as well. Morgan II, 719 N.E.2dat 686.
Morgan appealed the circuit court's decision to the Illinois Supreme Court. On September 23, 1999, the Illinois Supreme Court affirmed Morgan's convictions but vacated his death sentence and remanded his case to the circuit court for a new sentencing hearing. Id. at 712. The court reached this decision after finding that Morgan had been denied effective assistance of counsel at his sentencing because of his trial attorney's failure to investigate and present mitigating evidence including, most significantly, evidence of Morgan's severe brain damage. Id. at 711. On March 20, 2000, the United States Supreme Court denied Morgan's petition for a writ of certiorariconcerning his convictions. Morgan v. Illinois, 529 U.S. 1023 (2000).
d.Successor Petition for Post-Conviction Relief and Petition for Relief from Judgment
On October 19, 2000, while Morgan's re-sentencing was pending on remand before the circuit court, Morgan filed a successor petition for post-conviction relief and petition for relief from judgment (the "Successor Petition") in the circuit court. In his Successor Petition, Morgan asserted that newly-discovered evidence-in particular, the recantation of Elijah Prater's eyewitness testimony-established that he was actually innocent of the crimes for which he had been convicted. Morgan III, 817 N.E.2d at525-26. In support of his petition, Morgan submitted the September 26, 2000 affidavit of Elijah Prater in which he recanted his trial testimony. Id. at 526. In his affidavit, Prater stated specifically that one of the two victims had actually been killed by the other, and although Morgan killed the second victim, he had done so out of self-defense. Id.
On March 22, 2001, Morgan filed a motion for leave to file an amended successor petition. The amended successor petition included a new allegation that, at the time of Morgan's trial, the State failed to disclose that it provided Phyllis Gregson with favorable treatment on drug charges in exchange for her testimony against Morgan. (Pet. at ¶ 30.) On April 6, 2001, the circuit court granted Morgan's motion for leave to file the amended pleading, but barred Morgan from presenting this new claim at his upcoming evidentiary hearing because it had not been included in the original Successor Petition. (Id.)
The circuit court held an evidentiary hearing on Morgan's Successor Petition in September and October of 2001. (Id. at ¶ 31.) During the hearing, Prater recanted his trial testimony in open court. Morgan III, 817 N.E.2d at530. According to Prater's revised account, Motley and Merkson began arguing while they were at Prater's apartment. Id. Motley struck Merkson with the revolver he had been carrying and then used the gun to shoot Merkson in the head. Id. When Motley then turned toward Morgan and Prater, pointing the revolver at them, Morgan shot Motley, killing him in self-defense. Id. It was at this point, after both Merkson and Motley had been killed, that Prater left the apartment to buy alcohol and fill his car with gasoline. Id. When he returned, Prater helped tie up the bodies and clean up the blood. Morgan then shot at Prater, as in Prater's initial testimony, and Prater fled from the apartment.
Prater explained that he had initially attempted to tell this version of the story to his police interrogators, but they coerced him into changing his story to implicate Morgan. Id. In his current petition, Morgan claims specifically that the coercion practiced on Prater involved "an interrogation spanning four days in which he was handcuffed, stripped of clothing as well as threatened with physical violence and prosecution for the murders." (Pet. at ¶ 5.)
To corroborate Prater's new story, Lemuel Bell, a friend of Prater, was called as a witness at the evidentiary hearing on Morgan's Successor Petition. Morgan III, 817 N.E.2d at530. Bell testified that Prater told him that Motley had shot Merkson in his apartment, and that Morgan had "saved the day" by shooting Motley. Id.
On October 29, 2001, the circuit court rejected all of the claims in Morgan's Successor Petition. Morgan appealed the circuit court's decision directly to the Illinois Supreme Court, claiming that the court erroneously rejected Morgan's actual innocence claim by failing to credit Prater's recantation and refusing to hear Morgan's newly-discovered evidence concerning Gregson's credibility. (Pet. at ¶ 32.) On January 10, 2002, the Illinois Supreme Court granted Morgan's motion to stay re-sentencing proceedings pending the disposition of his successive post-conviction appeal. (Pet. at ¶ 33.)
While this appeal was pending before the Illinois Supreme Court, Governor George Ryan granted Morgan clemency in January of 2003. (Id.) The Governor commuted Morgan's death sentence so that the maximum sentence available became life imprisonment without parole or mandatory supervised release. Morgan III, 817 N.E.2d at526.
On September 23, 2004, the Illinois Supreme Court denied Morgan's appeal from the denial of the claims in his Successor Petition, rejected Morgan's claim of actual innocence, affirmed his convictions, and ordered that the stay of his new sentencing proceedings be lifted. Id. at 533. Morgan filed a petition for a writ of certiorarito the United States Supreme Court, which was denied on February 22, 2005. Morgan v. Illinois, 543 U.S. 1167 (2005).
Upon remand to the circuit court for re-sentencing, Morgan filed a comprehensive Memorandum Concerning His Resentencing on July 28, 2005. (Pet. at ¶ 39.) This memorandum, which was accompanied by a three-volume appendix that collected portions of the lower-court record, included mitigating evidence that had never before been presented to a court charged with sentencing Morgan. (Id.) On August 1, 2005, the court ordered a new Presentence Investigation Report as well. (Id. at ¶ 40.) Then, at a routine status hearing on September 19, 2005, the court sentenced Morgan to natural life imprisonment. (Id. at ¶ 41.) Morgan filed a motion to reconsider the circuit court's sentencing order on October 19, 2005, which the court denied on November 22, 2005. (Id. at ¶¶ 42-43.) On December 12, 2005, Morgan appealed the circuit court's September 19, 2005 and November 22, 2005 orders, asking the Illinois Appellate Court to vacate his sentence of natural life in prison and remand the matter to the circuit court for a full sentencing hearing. (Id. at ¶ 44.) The Illinois Appellate Court rejected Morgan's appeal on August 20, 2007. People v. Morgan, 875 N.E.2d 6, 10 (Ill. App. Ct. 2007). Morgan did not file a petition for leave to appeal to the Illinois Supreme Court.
On June 11, 2008, Morgan filed the present habeas corpus petition pursuant to 28 U.S.C. § 2254. Morgan's petition includes the following claims:
(1) Morgan was denied due process when the State knowingly introduced Prater's and Gregson's false testimony and represented that this testimony was credible;
(2) Morgan was denied due process when the State failed to disclose:
a. Gregson's criminal history and the State's promise to treat her favorably with respect to her unrelated arrests if she testified against Morgan;
b. That Prater's testimony was coerced and Gregson's was false; and c. That Prater and Gregson made exculpatory statements to the police regarding Morgan's behavior at the time of the homicides;
(3) Morgan was denied due process when the Illinois courts unreasonably determined the facts related to his claim of actual innocence and specifically refused to find Prater's recanted testimony credible;
(4) Morgan was denied his counsel of choice at trial due to his counsel's frequent absences from critical stages of the trial; and
(5) Morgan's trial counsel was ineffective for:
a. Failing to investigate or present evidence of Morgan's seizures;
b. Failing to interview Prater and Gregson, the only two eyewitnesses to Morgan's behavior at the time of the homicides;
c. Failing to request unrecorded exculpatory witness statements made by Gregson and Prater;
d. Failing to investigate and present evidence discrediting Prater and Gregson at trial;
e. Failing to adequately communicate with Morgan or prepare for trial;
f. Failing to attend critical portions of the trial.
On March 23, 2009, this Court authorized Morgan to conduct limited discovery pursuant to Rule 6 of the Rules Governing Section 2254 cases. (Dkt. 63.) As a result of information acquired through that discovery process, Morgan submitted an amendment to his habeas petition on October 15, 2009. Morgan's amendment specifically added information regarding the credibility of Prater and Gregson. (Dkt. 77.) On October 16, 2009, Morgan filed a motion for an evidentiary hearing on the facts underlying the constitutional claims asserted in his habeas petition.
A district court shall review a petition for a writ of habeas corpus only when the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254. In doing so, "[t]he court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722, 730 (1991).
I.Exhaustion and Procedural Default
Before a federal court reaches the merits of a habeas petition, the state courts must have had a full and fair opportunity to review the petitioner's constitutional claims. Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991), cert. denied sub nom., Farrell v. McGinnis, 502 U.S. 944 (1991). To seek federal habeas review, a petitioner must have exhausted all available state remedies (the "exhaustion" doctrine), and, in the course of those proceedings, he must have fairly presented all constitutional claims to the state courts (the "procedural default" doctrine). See 28 U.S.C. § 2254(b)(1); Momient-El v. DeTella, 118 F.3d 535, 538 (7th Cir. 1997); Farrell, 939 F.2d at 410. These requirements are "grounded in concerns of comity and federalism," and accordingly serve to ensure that states have "the first opportunity to address and correct alleged violations of state prisoners' federal rights." Coleman, 501 U.S. at 730-31.
Exhaustion requires that petitioners afford the state courts "one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A petitioner has exhausted all of his state-court remedies when: (1) he has presented them to the highest court of the state; or (2) no state remedies remain available to the petitioner at the time that his federal petition is filed. See Farrell, 939 F.2d at 410.
Reflecting a related requirement, if a petitioner has exhausted his state court remedies without "fairly presenting" his federal claims at each level of state court review, those claims are procedurally defaulted. See Farrell, 929 F.3d at 410-11; see also Momient-El, 118 F.3d at 538. In addition, a procedural default results when the state court clearly rests its judgment on a state-law ground-substantive or procedural-that is "independent of the federal question and adequate to support the judgment." Coleman, 501 U.S. at 729.
A federal constitutional claim is "fairly presented" when both the "operative facts" and the "controlling legal principles" are submitted to the state court through one complete round of state-court review, either on direct appeal or in post-conviction proceedings. Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009); see also Momient-El, 118 F.3d at 539; Verdin v. O'Leary, 972 F.2d 1467, 1474 (7th Cir. 1992).In determining whether a claim is "fairly presented," federal courts must take care to "avoid hypertechnicality." Id. at 1474. Accordingly, a habeas petitioner need not cite "'book and verse" of the Constitution to present a constitutional claim. Lieberman v. Thomas, 505 F.3d 665, 670 (7th Cir. 2007); Verdin, 972 F.2dat 1474 (citation omitted). "At bottom, the task of the habeas court . . . is assessing, in concrete, practical terms, whether the state court was sufficiently alerted to the federal constitutional nature of the issue to permit it to resolve that issue on a federal basis." Id. at 1476.
A federal court may nonetheless address the merits of a procedurally defaulted claim if
(1) the petitioner can demonstrate "cause" sufficient to excuse the procedural default and "actual prejudice" resulting from a failure to obtain review of the merits, Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 (1977), or, alternatively, (2) the petitioner persuades the court that failure to entertain the defaulted claim would result in a "fundamental miscarriage of ...