The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Phillip Curtis' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Curtis' habeas petition. Further, the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).*fn1
Curtis does not present clear and convincing evidence challenging the statement of facts in the last state court decisions to address his arguments on the merits, which include the post-conviction Circuit Court of Cook County's findings and rulings and the Illinois Appellate Court's opinion on direct appeal, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010). The Court therefore adopts the underlying facts as set forth by the Illinois Appellate Court in People v. Curtis, No. 1-06-1122 (Ill.App.Ct. Mar. 26, 2008) (unpublished) and the post-conviction Circuit Court of Cook County in People v. Curtis, No. 05 CR 17742, April 19, 2008, Transcript on Post-Conviction Proceedings, at C-3 through C-13. (R. 27-1, Rule 5 Ex. O). The Court first turns to a summary of the trial testimony. See Allen v. Buss, 558 F.3d 657, 659 (7th Cir. 2009).
At Curtis' criminal trial, the victim's neighbor, Van Eppinger, testified that he resided at 1418 East 48th Street in a gated community in the Hyde Park neighborhood of Chicago, Illinois and that around 2:40 a.m. on July 3, 2005 a noise awakened him. Eppinger testified that he went to his back patio door and saw a man with a white shirt, dark pants, and a husky build in his neighbor's yard walking down the gangway. Thereafter, Eppinger called the University of Chicago Police and then watched as the man went into his neighbor's garage and turned on a light. Eppinger then put on his clothes and went to the front of his house to meet the police.
When the police arrived, Eppinger directed them to his neighbor's garage. One of the police officers went into the garage and Eppinger heard him say "stop, police." Eppinger then testified that he saw the police officer run from the service door toward the garage's overhead door after the man. Eppinger further testified that he did not see the man exit the garage. The police officer, however, returned with a man about five or ten minutes later. Eppinger testified that he told the police officer that although it was too dark for him to see the face of the man who entered the garage, the man who returned with the police officer had the same build and was wearing the same clothing as the man Eppinger had seen entering the garage.
Officer David Jackson of the University of Chicago Police Department also testified at Curtis' trial. Specifically, he testified that he responded to a call of a burglary in progress at 1416 East 48th Street in Hyde Park. He stated that when he arrived, Eppinger directed him to the neighbor's open garage and that thereafter he entered the garage through the open service door and found Curtis standing beside a car holding a gym bag. Officer Jackson testified that when he called out "police," Curtis dropped the gym bag and ran through the open overhead garage door. Officer Jackson ran after him at which time he noticed two mountain bikes laying down at the edge of the garage. Curtis then climbed over a wrought-iron gate and continued to run while Officer Jackson squeezed between two gates and chased him for about a half a block. During the chase, Officer Jackson called for assistance and was met by another University of Chicago police officer in a squad car heading in Curtis' direction. Officer Jackson further testified that Curtis then stopped, sat down on the sidewalk, and put his hands up. In addition, Officer Jackson testified that he never lost sight of Curtis from the time Curtis dropped the gym bag inside the garage until he put his hands in the air and sat down.
At trial, the victim, Cornell McCullom, testified that he resided at 1416 East 48th Street in a town home with a detached garage. At about 3 a.m. on July 3, 2005, University of Chicago police officers woke him up by knocking on his door. The officers directed him to his garage where he discovered that the overhead garage door was open. He further testified that his two bikes -- which he normally kept on a wall rack -- were laying on the ground behind the car. Also, McCullom testified that near the bikes he noticed that his gym bag had a bike pump and some tools in it. McCullom also testified that he normally kept the gym bag empty and on a shelf in the front of the garage. After the police left, McCullom put his bikes up against the wall so that he could close his overhead garage door. When he pushed the automatic button to shut the door, he realized that the latch to the garage door motor had been disengaged to allow for the door to open manually. McCullom further testified that he remembered closing the overhead garage door when he came home the previous evening.
II. Procedural Background
Following a jury trial in the Circuit Court of Cook County, Illinois, the jury convicted Curtis of burglary and the trial court sentenced him to twenty years imprisonment. Curtis appealed arguing that: (1) he was denied a fair trial because the trial court failed to remove two prospective jurors for cause; and (2) the prosecutor improperly commented on his decision not to testify and shifted the burden of proof. The Illinois Appellate Court affirmed Curtis' judgment of conviction on March 26, 2008. Curtis then filed a petition for leave to appeal ("PLA") to the Supreme Court of Illinois raising these same two claims. The Supreme Court of Illinois denied Curtis' PLA on September 24, 2008.
On August 10, 2007, while his direct appeal was pending, Curtis filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. In his post-conviction petition, Curtis brought claims based on (1) ineffective assistance of counsel; (2) prosecutorial misconduct; and (3) the denial of due process. On August 17, 2007, the Circuit Court dismissed Curtis' post-conviction petition as frivolous and patently without merit. See 725 ILCS 5/122-1(a)(2). On appeal to the Illinois Appellate Court, Curtis' court-appointed counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Curtis then filed a pro se response. On September 8, 2009, the Illinois Appellate Court granted counsel's motion to withdraw and summarily affirmed the Circuit Court's judgment of dismissal. Thereafter, Curtis filed a post-conviction PLA raising claims of ineffective assistance of counsel, prosecutorial misconduct, and due process that the Supreme Court of Illinois denied on March 24, 2010.
While his state post-conviction proceedings were still pending, Curtis filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1) that the Court dismissed without prejudice for failure to exhaust available state court remedies. On March 31, 2010, Curtis filed a new habeas petition and on April 30, 2010, the Court construed the new petition as an amended petition in the present matter.
Construing his pro se allegations liberally, see McGee v. Bartow, 593 F.3d 556, 565-66 (7th Cir. 2010), Curtis' habeas claims include: (1) the prosecution relied upon evidence that was not introduced at trial, namely a gym bag, to establish an element of the crime; (2) the prosecution commented on Curtis' failure to testify and improperly shifted the burden of proof; (3) the trial court erred in permitting the prosecution to rely on evidence, namely, a gym bag, that was not introduced at trial; (4) he was denied a fair trial because the trial court failed to remove two prospective jurors who did not have a strong command of English; (5) the trial court erred in refusing to instruct the jury on a lesser included offense; (6) the post-conviction trial court erred in dismissing his post-conviction petition because it stated the gist of a constitutional claim; (7) trial counsel was constitutionally ineffective for failing to challenge two jurors who did not have a strong command of English; (8) trial counsel was constitutionally ineffective for failing to challenge certain testimony based on the gym bag that was not in evidence; and (9) trial counsel was constitutionally ineffective for failing to cross-examine one of the State's witnesses.
"[I]n all habeas corpus proceedings under 28 U.S.C. § 2254, the successful petitioner must demonstrate that he 'is in custody in violation of the Constitution or laws or treaties of the United States.'" Brown v. Watters, 599 F.3d 602, 611 (7th Cir. 2010) (quoting 28 U.S.C. § 2254(a)). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief cannot be granted unless the state court's decision was contrary to, or an unreasonable application of federal law clearly established by the Supreme Court. See Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Brown v. Finnan, 598 F.3d 416, 421 (7th Cir. 2010). In Williams, the Supreme Court explained that 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 this 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; see also Brown, 598 F.3d at 421-22.
Under the "unreasonable application" prong of the AEDPA standard, a habeas petitioner must demonstrate that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. See Williams, 529 U.S. at 407; Brown, 598 F.3d at 422. "A state court's decision is 'unreasonable' within the meaning of § 2254(d)(1) only if it is 'so erroneous as to be objectively unreasonable.'" Bennett v. Gaetz, 592 F.3d 786, 790 (7th Cir. 2010) (citation omitted); see also Williams, 529 U.S. at 410 ("unreasonable application of federal law is different from an incorrect application of federal law") (emphasis in original); Wood v. Allen, 130 S.Ct. 841, 849 (2010) (state court's factual finding not unreasonable "merely because the federal habeas court would have reached a different conclusion in the first instance."). To be considered objectively unreasonable, a state court's decision must be "well outside the boundaries of permissible differences of ...