The opinion of the court was delivered by: James B. Zagel United States District Judge
MEMORANDUM OPINION AND ORDER
Following a bench trial in 2003, the Circuit Court of Cook County, Illinois found Petitioner David Jackson ("Jackson" or "Petitioner") guilty of murder, aggravated discharge of a firearm, and unlawful use of a weapon. See People v. Jackson, No. 1-03-2233 (Ill. App. 2005). Jackson was sentenced to terms of thirty-five and ten years of imprisonment, respectively, for his murder and aggravated discharge of a firearm convictions, and a concurrent term of five years of imprisonment for the unlawful use of a weapon conviction. Id. Jackson now petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 For the reasons set forth below, the petition for habeas corpus is denied.
Early in the morning of January 20, 2001, Christopher Pitts ("Pitts") was shot and killed. See Resp't Ex. P (Trial Transcripts, People v. David Jackson, No. 01 CR 5087) at D-34. At approximately 1:00 a.m., Pitts and five of his friends stopped to refuel their van at a gas station on the corner of Augusta and Cicero in Chicago. Id. at D-32. Pitts walked to the cashier's window with James Wilson ("Wilson") and another friend. Id. at D-125. At the cashier's window, the three friends encountered Jackson's cousin Toniac Jackson. Id. At D-126, G-18, G-19-20. Toniac had arrived at the gas station minutes earlier with Jackson and Richard Hodges. Id.
In a sworn statement, Jackson said the "word on the street" was that Pitts had known of -- but failed to warn anyone about -- plans to murder Derrick Jackson, who was David's brother and Toniac's business partner. Id. at G-19--G-20. Derrick was subsequently murdered on June 1, 2000, and Toniac had since been searching unsuccessfully for Pitts so that he might recover money or drugs that Pitts owed Derrick. Id. At G-20. Toniac verbally confronted Pitts outside of the cashier's window at the gas station. Id. at D-126, G-19. Jackson could see the altercation begin as he sat in the driver's seat of the Geo Tracker in which he had driven Toniac and Hodges to the gas station. Id. at G-20. When Pitts refused to pay, Toniac threw a beer bottle at him. Id. at D-126, G-21.
When Pitts fled in the direction of the van he had arrived in, Toniac gave chase drawing a gun from his waistband and firing several shots. Id. at D-127--128, G-21. After Toniac began firing, the van in which Pitts arrived drove away. Id. at D-127. At this time, Hodges, who had been seated in the Tracker, exited the car and began chasing Pitts, firing a gun in his direction. Id. at D-128, G-21. Pitts fell when he arrived at the corner of Augusta and Cicero, just outside of the gas station lot, and Hodges caught up to him. Id. Wilson and another of Pitts' friends had run down a side street, and when they returned Pitts lay in the street. See Resp't Ex. P (Trial Transcripts, People v. David Jackson, No. 01 CR 5087) at D-129.
At trial, Wilson testified that he ran away from the gas station once the shooting began, and that he only saw Toniac throw a beer bottle at Pitts. Id. at D-56. On cross-examination, however, Wilson admitted that he saw both Toniac and Hodges fire guns at Pitts. Id. at D-88-89. Contradicting a pretrial statement he gave to police, Wilson also testified that he saw Petitioner fire a gun at Pitts. Id. at D-89-90. Wilson's pretrial statement was introduced into evidence. Id. at D-24. Detective James Brock interviewed Wilson on January 20, 2001. Id. at D-183, 190. Detective Brock testified that he did not believe that Wilson had said during that interview that he had seen the driver of the Tracker holding or firing a gun. Id. at D-195. After the interview, Wilson saw a lineup of seven individuals, including Jackson. Id. at D-185--188. He identified Toniac and Hodges as men who had shot at Pitts, but failed to identify Jackson. Id. at D-186--188, 195.
Officer John Haritos ("Haritos") of the Chicago Police drove towards the scene after hearing the gunshots. Id. at D-151. He testified that he saw two males -- subsequently determined to be Jackson and Toniac*fn2 -- run towards and enter the Geo Tracker. Id. The officer observed that Toniac had a gun in his hand, but he could not identify the driver of the Tracker, and did not see the driver holding or firing a gun. Id. at D-167, 175. Haritos testified that he pursued the Geo Tracker until he saw Toniac exit the car six to eight blocks from the gas station and drop a .25 caliber semi-automatic firearm onto the street. Id. at D-154--155, 158. He recovered the .25 caliber firearm, which had one bullet in the chamber, and apprehended Toniac after a brief foot chase. Id. at D-155--156, 158.
Officer Jason Arrends ("Arrends") of the Chicago Police heard on his police radio a call to look for the Tracker, and subsequently witnessed it drive by at a high rate of speed. Id. at E-81. Arrends located the vehicle parked in front of a residence at 5047 West Ferdinand. Id. at E-82. When Jackson approached Arrends as he was securing the Tracker at 1:45 a.m., Arrends arrested him. Id.
Jackson met with Assistant State's Attorney Lisa Hennelly ("Hennelly") while he was in police custody on January 20 and 21, 2001. See Resp't Ex. P (Trial Transcripts, People v. David Jackson, No. 01 CR 5087) at G-5-6. They first spoke at 9:00 p.m. on January 20, but Hennelly did not take a written or recorded statement from Jackson until approximately 11:30 p.m. on January 21 (at which time he had been in custody for approximately forty-six hours). Id. at G-5-6, 16, 27. The statement was published into the trial record without objection. Id. at G-10. Hennelly testified at trial that Jackson refused the food and drink he was offered while in custody. Id.
B. Petitioner's Statement
According to Jackson's recorded statement,*fn3 he arrived at the gas station on the corner of Augusta and Cicero on January 20, 2001 at approximately 12:30 a.m. along with co-defendants Toniac and Hodges. Id. at G-18-19. Jackson was driving his wife's Geo Tracker, and the three of them were on their way to Jackson's mother's house to play cards when they stopped to purchase chasers for some Hennessy. Id. at G-18--19. Jackson and Hodges stayed in the car while Toniac exited, holding a bottle of beer, and walked to the cashier's window. Id. Pitts used to work for Jackson's brother Derrick before Derrick was murdered. Id. at G-19--20. Pitts, Toniac, and Muffin were members of the Traveling Vice Lords street gang. Id. at G-20.
When Pitts encountered Toniac, Pitts shouted, "Fuck you, motherfucker! I ain't going to pay you shit." Id. Toniac then threw his beer bottle at Pitts and missed, at which point Pitts turned and ran around the northeast corner of the building. See Resp't Ex. P (Trial Transcripts, People v. David Jackson, No. 01 CR 5087) at G-21. Toniac chased after Pitts while holding a gun in his right hand. Id. Jackson stated that Hodges then exited the Tracker and ran after both Toniac and Pitts. Id. According to Jackson, Toniac regularly carried a .10 millimeter gun, while Hodges regularly carried a .9 millimeter handgun. Id.
Jackson stated that he heard shots while Toniac and Hodges were chasing Pitts, and that he witnessed Toniac stop running and fire approximately four times in the direction of Augusta Boulevard. Id. at G-21--22. Jackson also saw Hodges following and shooting at Pitts. Id.
According to Jackson's statement, when Toniac yelled, "I'm out. I'm out," Jackson exited the Tracker, took a .25 caliber semi-automatic gun from his right pants pocket, and fired at Pitts. Id. at G-22--23. He did not stop shooting at Pitts until he thought his gun was empty. Id.
Jackson saw a police car as he and Toniac ran back towards their car, and as Jackson was driving from the gas station, he saw Hodges but did not stop to pick him up because the police were too close. Id. at G-23. Jackson stated he drove south on Kilpatrick and gave his gun to Toniac, who then jumped out of the Tracker at Kilpatrick and Erie. Id. Jackson parked the Tracker on Ferdinand and walked to his aunt's house at 400 North Lawler, but upon discovering that no one was home to let him in, he returned to the Tracker. Id. At that point, Jackson encountered officer Arrends and was arrested.
At trial, forensic investigator Robert Tovar testified that he recovered seven .9 millimeter cartridge cases near Pitts's body. See Resp't Ex. P (Trial Transcripts, People v. David Jackson, No. 01 CR 5087) at E-25-26. Tovar also recovered: one .9 millimeter and four .10 millimeter casings along the north side of the gas station; one .10 millimeter casing along the east side; and three .9 millimeter casings along the south side. Id. at E-36, 38, 40. Tovar recovered eight .25 caliber casings from the gas station. Id. at E-44, 58.
Tovar testified that the van in which Pitts had arrived at the gas station had two bullet holes in the frame of the passenger side, and that he recovered one fired bullet from the front passenger seat. Id. at E-49--50. Tovar further testified that a window and living room wall in an apartment on Augusta Boulevard had been damaged by a bullet, and that another bullet was recovered from Pitts' clothing by the medical examiner's office. Id. at E-51, 52, 54.
Kris Rastrelli, a forensic scientist specializing in firearms and tool mark identification, determined that the eight .25 caliber casings recovered at the gas station had been fired from the same .25 caliber gun that Officer Haritos recovered immediately before arresting Toniac. Id. at E-96, D-161. Rastrelli also concluded that five of the .10 millimeter casings found at the scene were fired from the same .10 millimeter firearm. Id. at E-97--98. Each of the eleven .9 millimeter cartridge casings were fired from the same .9 millimeter gun. Id. at E-100.
Deputy medical examiner Dr. Tae An testified that, during a January 20, 2001 autopsy he performed on Pitts, he found six entry wounds and six exit wounds on Pitts' body. Id. at E-124, 127. Dr. An did not find any evidence of close-range firing, defined as a gunshot fired from approximately two feet away from the target. Id. at E-130. Dr. An opined that the cause of Pitts' death was multiple gunshot wounds lacerating multiple internal organs. Id. at E-143.
The parties stipulated that Jackson had previously been convicted of a felony. Id. at G-36.
In finding Jackson guilty on all counts, the court specifically rejected defense counsel's argument that Jackson's confession was suspect because of the length of time he was in police custody: "I agree with the state the mere fact that he was there for some 40 some hours in and of itself does not mean the statement was somehow coerced." See Resp't Ex. P (Trial Transcripts, People v. David Jackson, No. 01 CR 5087) at G-50. The court also concluded that it would not be "unusual for a person" like Jackson "who finds him[self] in jail looking at some very, very serious charges" to lose his appetite. Id. at G-51. The trial court observed that evidence of Jackson's guilt was corroborated and demonstrated that Jackson had fired multiple gunshots at Pitts. Id. at G-52. The trial court ruled that there was sufficient evidence to demonstrate beyond a reasonable doubt that Petitioner or either of his two co-defendants shot at the van, and that--because the prosecution proceeded under an accountability theory*fn4 --the prosecution was not required to prove which co-defendant fired gunshots at the van. Id. at G-53.
A. State Court Proceedings
Illinois Trial Court (I). On April 7, 2003, Jackson was convicted of murder, aggravated discharge of a firearm, and unlawful use of a weapon following a bench trial in the Circuit Court of Cook County. The trial court sentenced Jackson to consecutive terms of thirty-five years imprisonment for murder and ten years imprisonment for aggravated discharge of a firearm, as well as a concurrent term of five years of imprisonment for the unlawful use of a weapon. The trial court further imposed a twenty-year sentence enhancement because of its finding beyond a reasonable doubt that Jackson personally discharged a firearm during the commission of a murder, as well as taking into account his prior felony. Petitioner's co-defendants Toniac Jackson and Richard Hodges were also ...