The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Petitioner Roxanne Pitchford ("Pitchford" or "Petitioner") is currently incarcerated at Dwight Correctional Center in Dwight, Illinois. Carolyn Transcoso, the warden of the facility, has custody of Petitioner. Pitchford has filed a pro se writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, Petitioner's petition for a writ of habeas corpus  is respectfully denied.
District court review of a habeas petition presumes all factual findings of the state court to be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Therefore, the Court adopts the following accounts from the Illinois Appellate Court's Order in People of the State of Illinois v. Pitchford, No. 1-04-1611 (Ill. App. 1st Dist. July 31, 2006).
In January 1997, fifteen-year old Pitchford, along with her friend Jeanette Burrell,*fn1 ran away from the DCFS group home where she had been living. Pitchford and Burrell went to live with James Hudson, Burrell's stepfather. Hudson allegedly made sexual advances towards Pitchford, which Pitchford rebuked and reported to Burrell. The two girls told their respective boyfriends, Eric and Eddie Crawford,*fn2 about Hudson's actions. Eric and Eddie asked Pitchford and Burrell if they wanted anything to happen to Hudson, and the girls responded affirmatively. The four then hatched a plot to murder Hudson. They determined that Eddie would use a meat cleaver and Eric would use a hammer to kill Hudson on his payday. The murder was to take place in a vacant apartment upstairs from Hudson's residence so that the four could continue to live in Hudson's apartment after his death. Pitchford's role in the scheme would be to open the door to the apartment for Hudson and lock it behind her.
On the day of the murder, Hudson came home from work carrying groceries. Pitchford opened the door for him. Eric and Eddie instructed Hudson to go to the vacant apartment but Hudson refused. Eric then hit Hudson in the head with a hammer. Hudson attempted to ward off the attack and managed to enter his apartment. Eric went into the kitchen and grabbed a knife. Eddie then repeatedly hit Hudson, who was on his couch, on the head with the hatchet, until he had killed Hudson. After Hudson was dead, the boys took the money out of Hudson's pockets.
The next day, Eddie and Eric removed Hudson's body from the couch and wrapped it in a sheet. The foursome -- the Crawfords, Burrell, and Pitchford -- then went out to buy air freshener. Upon returning, they placed Hudson's body in a closet in the back of the apartment and watched television. The following day, Pitchford went to her grandmother's home and told her grandmother that she "was in the wrong place at the wrong time" and that she had been involved in a "murder."
Hudson's body was found on February 5, 1997, and Burrell and the Crawfords were arrested four days later. Pitchford, however, was not arrested until November 17, 2001. After her arrest, Pitchford gave a videotaped statement laying out her involvement in the murder. Prior to her trial, Petitioner filed a motion to suppress her videotaped statement, alleging that she made it unknowingly and involuntarily because she was not given her Miranda warning, that she was incapable of understanding and waiving her rights, and that her statement was the product of physical, psychological, and mental coercion due to her limited cognitive ability.*fn3 After holding a hearing on the motion, at which the court heard the expert testimony of three doctors who evaluated Pitchford to determine her ability to understand a Miranda warning, the trial court denied Pitchford's motion to suppress. Although the trial court found that Pitchford suffered from intellectual defects, it cited multiple cases in which mentally retarded teenagers were found to have the capacity to knowingly and voluntarily waive their Miranda rights. Of further significance to the court was that Pitchford was given her Miranda warnings at least four times, stated she understood those rights repeatedly, and did not appear to be "abnormal" in the videotaped interview.
The State then filed a motion in limine to prevent the defense from offering at trial the testimony of Dr. Joan Leska, a forensic clinical psychologist. The State argued that Pitchford was attempting to use Dr. Leska's testimony to present a defense of diminished capacity, which is not a recognized defense in Illinois. Pitchford countered that Dr. Leska's testimony was relevant to the issue of how much weight the jury would and should give to Pitchford's videotaped statement, and that Dr. Leska possessed knowledge regarding Pitchford's IQ and mental condition. The court reserved ruling on the motion, and at the conclusion of the evidence, ruled that Dr. Leska's testimony was irrelevant and inadmissible because Illinois does not recognize the diminished capacity defense.
On December 12, 2003, a Cook County jury convicted Pitchford of the first degree murder of Hudson. At her sentencing hearing on February 26, 2004, the trial court sentenced Pitchford to sixty years in prison. In sentencing Pitchford, the trial court stated that it had "considered the Presentence Report, the social history, the evidence presented at trial, as well as the participation of the three offenders [Burrell, Eddie Crawford, Eric Crawford] who had been before me over the years, all within the framework of factors in aggravation and mitigation."
With the assistance of counsel, Pitchford appealed her conviction, arguing that: (1) because she lacked the intellectual capacity to knowingly and intelligently waive her Miranda rights, the denial of her motion to suppress must be reversed and the cause remanded for a new trial; (2) she was denied her Sixth Amendment right to the effective assistance of counsel when her trial counsel failed to offer available expert testimony (i.e., Dr. Leska) concerning Pitchford's mental impairment for the jury to consider in determining the reliability and credibility of her confession; and (3) the sixty-year sentence was an abuse of discretion because the trial court failed to give sufficient consideration to Pitchford's mental retardation, age, and other mitigating factors. The State's response argued that: (1) the trial court properly found that Pitchford possessed the intellectual ability to knowingly and intelligently waive her Miranda rights; (2) Pitchford's trial counsel was not ineffective for failing to offer inadmissible expert testimony; and (3) Pitchford's sixty-year sentence was proper.
In its opinion of July 31, 2006, the Illinois Appellate Court for the First Judicial District affirmed Pitchford's sentence. With respect to Pitchford's first argument, the appellate court found that despite Pitchford's low IQ, she was read her Miranda rights multiple times and understood her actions when making her videotaped confession. Regarding her second argument, the appellate court relied on the oft-cited standards in Strickland v. Washington, 466 U.S. 668, 687 (1984), to state that to prevail on her ineffective assistance of counsel claim, Pitchford would have had to satisfy a two-pronged test: (1) trial counsel's representation fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the result of the trial would have been different. The court agreed with Pitchford that, under People v. Gilliam, 172 Ill. 2d 484, 512--13 (1996), Pitchford could have presented evidence to the jury that might affect the weight or credibility to be given to her confession. However, the court could not find that Pitchford "suffered prejudice" as a result of her trial counsel's failure to pursue having Dr. Leska's testimony admitted on this basis. Finally, the appellate court found that the trial court did not abuse its discretion in sentencing her to sixty years in prison, and that the trial court had properly considered all relevant factors in coming to its sentencing conclusion.
On August 10, 2006, Pitchford, again represented by counsel, filed a Petition for Rehearing in the Appellate Court, arguing that rehearing was necessary because the record rebutted the Appellate Court's presumption that Dr. Leska "could not or would not have offered testimony" about Pitchford's mental impairment and its relation to her mental condition at the time of her confession. The court denied this petition on August 23, 2006.
A little over one month later, on September 28, 2006, Pitchford filed a Petition for Leave to Appeal ("PLA"), pursuant to Illinois Supreme Court Rules 315 and 612. In the PLA,
Pitchford's counsel argued that review was necessary because "the appellate court presumed that the expert [Dr. Leska] would not have offered testimony regarding Roxanne's mental impairment and its relation to her mental condition at the time she confessed." PLA at 2. Counsel maintained that the Appellate Court's reliance on this presumption was rebutted by the record, necessitating the Illinois Supreme Court's review "because the violation of Roxanne Pitchford's constitutional right to the effective assistance of counsel resulted in the violation of her right to familiarize the jury with every circumstance attendant to the State's procurement of her confession." PLA at 3. The Illinois Supreme Court denied Pitchford's PLA on November 29, 2006. Pitchford filed a petition for writ of certiorari, which the United States Supreme Court denied on May 21, 2007.
On March 8, 2007, Pitchford filed a pro se post-conviction petition pursuant to the Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. In the petition, she alleged that her counsel "failed to have Roxanne Pitchford approach the bench to testify on her own behalf in defense of the video statement." She also alleged that while she was asking questions about "speaking for herself," her trial counsel told the judge that Pitchford was disruptive and she would have someone from the Public Defender's office sit with Pitchford during the trial to explain things to her. Furthermore, Pitchford alleged she was denied due process because the trial court erred in forcing her trial counsel to go to trial when counsel needed more time to prepare, in allowing a woman who works with the Public Defender's office to sit with Pitchford at trial even though Pitchford was found mentally fit, in letting the transcript of Pitchford's videotaped statement go back to the jury room with the jurors in the middle of the trial, in accepting defense witness Dr. Leska's title, in allowing hearsay to be presented, in allowing one of the State's expert witnesses, Dr. Messina, to testify about a test that Dr. Messina did not perform, in finding Pitchford fit to stand trial, and in failing to fully consider Pitchford's IQ. Finally, she claimed that her trial counsel was ineffective for failing to offer expert testimony of her mental impairments, for refusing to deal with Pitchford's questions and not knowing the woman who sat with Pitchford at trial, for failing to file a timely motion to suppress, and for failing to call defense witnesses.
The circuit court summarily dismissed Petitioner's petition as "frivolous and patently without merit" on May 9, 2007, finding that her petition could have been dismissed on waiver and res judicata alone, because all of her claims were apparent from the record and could have been addressed in her earlier appeals. The judge also imposed $155.00 in court costs and fees based upon Pitchford having filed a frivolous petition, pursuant to 735 ILCS 5/22-105, which allows for the imposition of fines if prisoners file "frivolous" suits. The $155.00 assessment included a $90.00 filing fee pursuant to 705 ILCS 105/27.2(a), a $50.00 State's Attorney fee pursuant to 55 ILCS 5/4-2002.1, and a $15.00 mailing fee pursuant to 705 ILCS 105/27.2(a).
Pitchford filed a Notice of Appeal of this decision on May 30, 2007. Again represented by the state appellate defender's office, Pitchford made two main arguments: (1) the Circuit Court erred in summarily dismissing Pitchford's pro se post-conviction petition because Pitchford alleged the gist*fn4 of a meritorious constitutional claim of ineffective assistance of counsel for denying Pitchford her right to testify at her trial; and (2) the imposition of costs and fees pursuant to 735 ILCS 5/22-105 for filing a frivolous petition violated Pitchford's rights to equal protection because only prisoners are subject to these sanctions. The Appellate Court affirmed in part and vacated in part. Regarding the first argument -- that Pitchford had set out the gist of a meritorious claim of ineffective assistance of counsel because counsel did not allow her to testify in her own defense -- the Appellate Court found that Pitchford's argument was based on a statement that her counsel had made at the trial. Therefore, the court found that Pitchford could have raised the issue on direct appeal, but did not.*fn5 Accordingly, Pitchford forfeited the claim unless other recognized exceptions to the rule that a claim not presented to the trial court has been waived -- such as fundamental fairness or incompetence of appellate counsel -- applied. The court found that none applied. Furthermore, the court found that the record did not demonstrate that Pitchford ever told her trial counsel that she wished to testify at trial and was rebuffed, and had filed no other affidavits or other evidence to support this claim.
The court then addressed Petitioner's second argument, that the imposition of costs and fees pursuant to 735 ILCS 5/22-105 sanctions litigants who are incarcerated at the time of filing, and by doing so, burdens their fundamental right of access to the court. The court rejected this argument, noting that it had already ruled "that the imposition of costs and fees pursuant to section 22-105 is constitutional because the statute does not actually preclude a prisoner from filing a post-conviction petition, and therefore does not violate defendant's equal protection rights." However, the court found that the $50.00 State's Attorney fee imposed by the trial court was improper because Pitchford prepared her petition pro se and that it was dismissed at the first stage of proceedings with no input by the State's Attorney. The court vacated the $50.00 fee, but affirmed the judgment in all other respects.
Pitchford filed a PLA to the Illinois Supreme Court, raising only the issue of whether the appellate court erred in upholding the constitutionality of 735 ILCS 5/22-105 because the statute violates both the due process and equal protection clauses. She argued that the appellate court erred because: (1) it ignored Petitioner's argument that the imposition of "fees and costs" pursuant to the statute serves a punitive purpose; (2) the appellate court failed to consider the fundamental unfairness created by § 22-105 by resorting to the "indefensible legal fiction" that "the statutory definition of 'frivolous' enables prisoners, who are not lawyers, to 'guard against such a determination'"; and (3) the appellate court's decision was ...