The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Following a bench trial in 2002, the Circuit Court of Cook County, Illinois found Petitioner Cortez Jones ("Jones") guilty of first degree murder for the 1999 shooting death of Friday Gardner. See People v. Jones, No. 1-03-0352 (Ill. App. Jun. 9, 2004). Jones was sentenced to 30 years in prison. Id. Jones now petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 While I find that Petitioner's claims are procedurally defaulted, Petitioner may succeed in demonstrating that his ineffective assistance of counsel claim are preserved for review pursuant to the miscarriage-of-justice exception. For the reasons set forth below, I find that a hearing on the issue of Petitioner's actual innocence is warranted in this case.
At trial, it was not disputed that Jones was present at the intersection of South May Street and West 61st Street, where Friday Gardner was shot, but witnesses presented various accounts as to Jones's involvement in the shooting. State's witness Antonio Phillips ("Antonio"), the cousin of the victim Friday Gardner ("Gardner"), testified that around 9:00pm on September 12, 1999, Antonio was standing at his apartment window and saw three men taking the victim's radio out of his van near the intersection of South May Street and West 61st Street. Antonio recognized these three men as Michael Carter ("Carter"), Michael Stone ("Stone"), and Petitioner Jones. The three men left the scene, but Antonio testified that later in the evening, Carter and Jones returned to the scene and began arguing with Gardner. Antonio testified that he saw Cortez Jones pull a gun from his pocket and shoot Gardner. Antonio testified that the gun was an inch away from the victim. Antonio ran downstairs and testified that as he ran, he heard two more shots, and then "like three more." He testified that the second set of gunshots was louder than the first set. Antonio also testified that Carter had a gun but that Antonio was not sure if Carter shot at the victim. On cross-examination, Antonio clarified that he heard five shots total, but could not account for when he heard the fifth shot. (See Tr. of R. for Appeal, I22-47.)
Lessy Rene Phillips ("Rene"), the mother of Antonio Phillips, lived near the intersection of 61st and May Street and testified that at around 10:00 or 10:30pm on the night of September 12, 1999, she observed Friday Gardner and his friend, Tommy Gaston, standing outside. Rene testified that Carter and Jones arrived at the scene and began arguing with the victim. According to Rene, Jones took a gun out of his pocket and shot the victim two times and then Michael Carter pulled out a gun and started shooting as well. According to Rene, the gun was "2 or 3 steps back" from the victim. (See Tr. of R. for Appeal, I68-81.)
Tommy Miller Gaston ("Gaston"), a friend of the victim testified that he also witnessed the argument between the victim, Carter, and Jones. Gaston testified that Jones wore a turquoise jacket. According to Gaston, when the argument escalated, Jones fired a shot through his jacket pocket at the victim. Gaston stated he then heard four more shots as he ran and ducked behind a parked car. Gaston said that as he ran, he looked back and saw Jones holding a gun.*fn2 Gaston further testified that the first shot he heard sounded low but the others were louder. In total, Gaston stated that he heard five shots ring out. (See Tr. of R. for Appeal, I48-67.) Gaston denied ever talking to police and denied ever telling the police that "a guy who lives upstairs with Corey was standing in the alley [and] he started shooting at Friday." (Tr. of R. for Appeal, I62.) Later in the trial, however, the parties stipulated that Detective John Murray of the Chicago Police Department would have testified that he talked to Gatson, who told the detective that "the guy who lives upstairs with Corey was standing in the alley [and] . . . he started shooting at Friday."*fn3 (Tr. of R. for Appeal, L48-49.)
Officer Cedrick Taylor ("Taylor") of the Chicago Police Department testified that on September 12, 1999 at around 10:00pm, he was standing outside of the Englewood Police Station when he saw two "muzzle flashes," the high-pressure gases from the muzzle of a firearm that are visible when a firearm is discharged. After seeing the muzzle flashes, Officer Taylor heard three more shots ring out. Taylor then ran in the direction of the shots, and as he ran, he saw a man running in the street wearing a blue jacket with a dark object that could have been a gun in his hand. Taylor chased the man, but did not capture him. (See Tr. of R. for Appeal, I7-22.)
Defense witness Latonya Cheeks ("Cheeks"), cousin of Michael Carter and Michael Stone, testified that she was cooking in her sister's apartment at 6102 South May when she heard an argument outside. She looked out and saw Rene, Gardner, Carter, and Jones outside. She testified that: "all [she] heard was shooting" and "all [she] [knew] is Michael Stone shot him." She also testified that Gardner had a gun, but at trial, she was impeached with her prior testimony that Gardner did not have a gun. She further stated that she did not see Jones stealing Gardner's radio from his van, but she was again impeached with her prior testimony stating that she had observed Jones taking the radio from the van. (See Tr. of R. for Appeal, L3-27.)
Michele Andersen, also a cousin of Carter and Stone, testified that during the argument in the street, Gardner pulled a gun and then a "guy from the alley" shot Gardner two or three times. She stated at trial that she did not see Jones at the scene of the shooting that night, but was impeached with her prior testimony stating that she did see Jones there. (See Tr. of R. for Appeal, L27-46.)
In addition to live testimony, the state trial court accepted into evidence a stipulation that if Cal Brasic, forensic investigator with the Chicago Police Department, were to testify, he would state that he recovered three semi-automatic cartridge casings from a Winchester 380 in the middle of the street outside 6106 South May. (Tr. of R. for Appeal, I87.) Furthermore, the court accepted into evidence a certified copy of a protocol detailing an autopsy on Friday Gardner, numbered Case 230 and dated September 1999. (Tr. of R. for Appeal, I88.) Neither the protocol nor the full autopsy was included in the record submitted to this court.*fn4
After a bench trial, Jones was convicted of first-degree murder. He appeared for his sentencing hearing on December 20, 2002 alongside Carter and Stone. Carter and Stone had also been found guilty of first-degree murder for the shooting death of Friday Gardner. Stone had admitted to shooting and killing the victim, but argued that he did so in self-defense. At the joint sentencing hearing, the State's attorney argued, "all three [defendants] shot . . . [t]here's no alternative theories . . . all three of these men were armed, and they all pulled the trigger, and they are all responsible for the death of Friday Gardner." (Tr. of R. for Appeal, N12.) The court sentenced Jones, Stone, and Carter to thirty years each in the Illinois Department of Corrections.
Jones made a direct appeal to the Illinois Appellate Court contending that his sentence was excessive. The Illinois Appellate Court, First Judicial District, affirmed Jones's conviction and sentence. People v. Jones, No. 1-03-0352 (Ill. App. Jun. 9, 2004). Jones did not file a petition for leave to appeal ("PLA") to the Illinois Supreme Court.
C. Post-Conviction Petitions
Jones subsequently filed a pro se post-conviction petition under the Illinois Post-Conviction Hearing Act, 725 ILL. COMP. STAT. 5/122-1, et. seq., alleging: (1) that his trial counsel was ineffective for failing to secure the exonerating testimony of Michael Stone in which Stone admitted that he killed the victim in self-defense, (2) that the prosecution withheld the "exonerating testimony" of Stone, and (3) that his appellate counsel was ineffective for not raising the above claims on direct appeal. (Pet. for Post-Conviction Relief, 3-4.) Jones attached a segment of the transcript from Stone's trial, in which Stone admitted to shooting Gardner three times. (Pet. for Post-Conviction Relief, 3-4.) The Circuit Court dismissed the petition, finding that the claims raised by Jones were frivolous and patently without merit. People v. Jones, No. 00-CR-05388-01 (Cir. Ct. Cook County Dec. 21, 2004). Jones appealed, and the Illinois Appellate Court, First District, affirmed the dismissal. People v. Jones, No. 1-05-1212 (Ill. App. Sep. 26, 2006). In affirming, the Illinois Appellate Court wrote:
The failure to either attach the necessary 'affidavits, records, or other evidence' or explain their absence is fatal to a post-conviction petition and alone justifies the petition's summary dismissal. . . . [Petitioner]'s petition does not contain an affidavit from co-defendant Stone indicating he would have been willing to testify or what the substance of that testimony would have been. . . . We find the trial court properly dismissed [Petitioner]'s pro se post-conviction petition inasmuch as it was unsupported by co-defendant Stone's affidavit that he was available for trial and would have been willing to testify, and that his testimony would have been the same as at his own trial. This fact alone justifies the summary dismissal of defendant's petition.
The Court also reviewed the merits of Petitioner's claim, and found that he was not prejudiced by his trial counsel's decision not to call Stone "because there is no indication that co-defendant Stone would have testified at [petitioner's] trial while his own appeal was pending, if at all." The Court found it to be "highly likely" that Stone would have invoked his Fifth Amendment right against self-incrimination and refused to testify at Petitioner's trial; Stone's prior testimony would have been inadmissible hearsay.*fn5 Finally, the Court noted the testimony of several eyewitnesses who testified that Petitioner drew his gun and fired at the victim, finding that Stone's testimony, even if it had been admitted, would not have changed the outcome of the trial.
Justice Wolfson dissented, stating, "Jones' petition raised the gist of a meritorious claim of ineffective assistance of counsel." Id. at 9 (Wolfson, PJ, dissenting). Justice Wolfson reasoned that an affidavit that Michael Stone was willing to testify was not necessary because had Stone refused to testify, he would have become an unavailable witness, and his former testimony ...