The opinion of the court was delivered by: Elaine E.Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Jesus Gomez ("Gomez") has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied.
I.In September 2001, after a bench trial in the Circuit Court of Cook County, Illinois, Gomez was convicted of reckless homicide and aggravated fleeing or attempting to elude a police officer. The convictions stemmed from an incident that occurred on July 18, 2000. At about 10:00 p.m. that night, Chicago police officers Thomas Beyna ("Beyna") and Ben Martinez ("Martinez") were on duty in their police car when Gomez ran a red light and nearly collided with them. After a high-speed chase, Gomez crashed into a truck driven by Rene Bernal ("Bernal") at the intersection of 31st Street and Lawndale in Chicago. Beyna and Martinez exited their vehicle, drew their weapons, and told Gomez to get out of his car. Gomez then restarted his ignition and sped away.
According to Beyna and Martinez, they spoke briefly with Bernal and were returning to their vehicle when they heard a loud crash. They drove about three blocks east to the intersection of 31st Street and Spaulding to find that Gomez had swerved into oncoming traffic and collided with a vehicle driven by Dalia Santillana ("Santillana"), who was killed as a result. Gomez was sentenced to ten years' imprisonment for the reckless homicide conviction, and a three-year concurrent sentence on the aggravated fleeing charge.
In December 2003, Santillana's estate brought a civil suit against Gomez and the City of Chicago in connection with the July 18, 2000 incident. At the trial, several witnesses testified that, contrary to the officers' account, Beyna and Martinez did not remain at the site of the initial crash with Bernal until after Gomez's subsequent collision with Santillana; rather, these witnesses testified that the officers continued to chase Gomez shortly after he sped away from the site of the first crash. One witness testified that she saw a police vehicle ram Gomez's vehicle from behind prior to colliding with Santillana. The jury also heard a recording of the police dispatcher's transmissions with Beyna, Martinez, and other officers during the events in question. The jury found that Gomez was seventy-five percent responsible for Santillana's death, and that Beyna and Martinez were twenty-five percent responsible. In response to a special interrogatory, the jury found that Benya and Martinez had acted wilfully and wantonly.*fn1 Gomez claims that the police and the prosecutors involved in his criminal case violated his constitutional rights by failing to turn over exculpatory evidence later presented in the civil trial. In addition, he asserts that his trial counsel in the criminal case was constitutionally ineffective for failing to investigate and discover the exculpatory evidence.
II. "The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs federal judicial review of a petition for writ of habeas corpus from a person in custody pursuant to a state court judgment." Collins v. Gaetz, 612 F.3d 574, 584 (7th Cir. 2010). Although Gomez is currently on supervised release, he is still "in custody" for habeas purposes. Jones v. Cunningham, 371 U.S. 236, 243 (1963). "Under the AEDPA, a federal court may not issue a writ of habeas corpus unless the state court's adjudication of the petitioner's claim either 'resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' 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.'" Collins, 612 F.3d at 584 (quoting 28 U.S.C. § 2254(d)).
Gomez argues that the police violated his rights to due process and a fair trial by engaging in three forms of misconduct:
(1) failing to turn over a recording made by the City's Office of Emergency Communications ("OEC") of radio transmissions during the events in question; (2) destroying his vehicle after the crash;*fn2 and (3) offering perjured testimony at his criminal trial.
Claims (2) and (3) are procedurally defaulted because they were not fully and fairly presented in the state court. See, e.g., Gray v. Hardy, 598 F.3d 324, 327 (7th Cir. 2010) (petitioners in federal court must first exhaust their state remedies by fairly presenting their claims through one full round of state-court review). Although Gomez raised the latter arguments at various points during the proceedings in state court, he failed to raise either argument in either of his petitions for leave to appeal to the Illinois Supreme Court. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (defendant's failure to present three of his federal habeas claims in his petition for leave to appeal to the Illinois Supreme Court resulted in procedural default of those claims). Consequently, I do not discuss the merits of these claims.
Gomez's first claim -- that the police failed to provide him with a copy of the OEC recording -- fails on the merits. As the Seventh Circuit has explained, "[t]here is a difference between those situations in which the police fail to disclose to the defendant evidence that it knows to be material and exculpatory, and those situations in which police simply fail to preserve potentially exculpatory evidence." United States v. Kimoto, 588 F.3d 464, 474-75 (7th Cir. 2009). "Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Salem, 578 F.3d 682, 686 (7th Cir. 2009) (quotation marks omitted). Cases involving material evidence are governed by Brady v. Maryland, 373 U.S. 83 (1963), and do not require a showing that the state acted in bad faith in failing to disclose it, see, e.g., Cone v. Bell, 129 S. Ct. 1769, 1772 (2009). In contrast, where the evidence in question is only "potentially exculpatory," a defendant can establish a constitutional violation only if he can show that the evidence was destroyed in bad faith. Kimoto, 588 F.3d at 475.
The state appellate court concluded that the OEC recording was only potentially exculpatory and thus was not "material" within the meaning of Brady. The portion of the recording on which Gomez relies is the following: 22:12:34 He's at 31st and Lawndale right now.