The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
An Illinois jury convicted Christopher Parker of first degree murder and aggravated battery of a child in connection with the death of two-year-old Joshua Sandifer. The trial judge sentenced Parker to a fifty-five year prison term.
Parker has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Parker contends that his trial and appellate counsel rendered ineffective assistance; the prosecutor made improper remarks in closing argument; and the trial court erred by appointing co-counsel for his trial, failing to hear and appoint counsel on a motion claiming ineffective assistance of retained counsel, and allowing the prosecution to introduce evidence of prior bad acts. For the reasons stated below, the Court denies Parker's petition and also denies a certificate of appealability.
The following is a summary of the relevant facts and procedural history of this case, taken from the Illinois Appellate Court's decision in Parker's direct appeal and, in some instances, from the trial court record. Additional facts relevant to Parker's ineffective assistance claims are discussed later in this decision.
Parker began dating Roletta Sandifer in July 1997. By November 1997, Parker had moved into Roletta's home, and she was pregnant. At the time, Roletta lived in a two-flat building with her mother, Patricia Walker (Walker) and her sister, Patricia Sandifer (Patricia). Walker lived in an apartment on the second floor; Patricia lived in a closed-off living room and bedroom area in the basement with her four-year-old daughter, Jasmine; and Roletta lived in an apartment on the first floor with her two-year-old son, Joshua.
Parker and Joshua had a good relationship at first, but by early December 1997 it had deteriorated to the point that Joshua would cry because he did not want to be with Parker. Claiming that he wanted to bond with Joshua, Parker assumed primary responsibility for Joshua's care and prohibited Roletta or anyone else in her family from tending to him.
In December 1997, Walker and Roletta noticed injuries on Joshua. Parker explained a bruise over Joshua's eye by stating that he had fallen out of the tub. When Walker asked Parker about a burn on Joshua's face, Parker claimed that Joshua had fallen off his bed and hit the radiator.
Over a defense objection, Roletta testified about several incidents of domestic violence by Parker that took place in December 1997. Her testimony included an incident on December 28, 1997, a few days before Joshua's death. Roletta had just put Parker's son Christopher and Jasmine in a "time out" to punish them for playing roughly with Joshua. An enfuriated Parker threw a bowl of hot soup against the floor, and the soup splashed onto Roletta's legs. She took Joshua upstairs to her mother's apartment and locked the door. Parker kicked the door and got into the apartment, demanding that Roletta put Joshua to bed. She complied, and when she rejoined Parker, he repeatedly hit her in the face and punched her in the stomach. Roletta testified that Parker said, "you think this little boy [Joshua] don't do no wrong, he just a bad ass just like the rest of them and you'll never love my son [Christopher] the way you love him." Resp. Ex. X at 1246. Parker then went upstairs to grab Joshua and returned with him to say, "look at your momma." Id. at 1247.
The next day, December 29, 1997, Walker noticed that Joshua appeared ill and had green blotches on his chest. Roletta thought this might be an allergic reaction to Chinese food, so she and Parker took Joshua to the hospital where she worked as a medical assistant. On the way, Parker attempted to persuade Roletta that they should not take Joshua to see a doctor. He warned that the authorities would take Joshua away from her because of a bruise on his head. When they arrived to the hospital, Parker angrily insisted they leave before a doctor examined Joshua. Roletta testified that she ultimately agreed to leave because she was afraid of Parker.
On the afternoon of December 31, 1997, Walker was watching television in the basement with Joshua in her lap, when he wet himself. Walker called for Roletta to change Joshua, but Parker responded instead and took him upstairs.
Roletta saw Parker carrying Joshua, propped up on his shoulder. When they sat on the couch in their living room, Joshua fell over and said that he felt sick. Parker asked what was wrong with him, and he made a gesture with his arms Roletta had never seen before. Though she was not concerned about his behavior, she sensed it was unusual. She left the living room to lay down in the bedroom because she was feeling ill from her pregnancy. Parker placed Joshua in bed with her. Roletta was cradling Joshua when he said that his stomach hurt. She told him that she would treat him when she got up.
Soon thereafter, Parker took Joshua out of the room and closed the door behind him. Roletta testified that she fell back asleep and woke up to find Parker and Joshua in bed with her again. She noticed that Joshua's neck looked odd, and she asked Parker to straighten out Joshua's head. Parker moved Joshua and pulled the covers, but Roletta insisted that he did not look straight. Parker put Joshua up against his back and insisted that Joshua was fine. At that point, Parker and Roletta had sexual intercourse. Moments later, Roletta noticed that Joshua was white and cold, and she started screaming.
Parker and Roletta drove Joshua to Provident Hospital. On the way, Roletta, who was trained in CPR, attempted to resuscitate Joshua. At the hospital, Joshua was pronounced dead on arrival.
Chicago police detectives John Griffin and David Golubiak investigated Joshua's death. Once the police learned from the medical examiner that Joshua had died of blunt trauma inflicted within two hours of his death, the detectives and assistant state's attorney Michael O'Malley took Roletta and Parker to the police station to conduct a series of interviews. Parker admitted during an interview that he had punched Joshua once in the stomach when Joshua cried and kicked as Parker picked him up from Roletta's bed to change him. Parker said that Joshua calmed down, but Parker then noticed that his eyes were wide and rolled back in his head. Moments before Roletta screamed, Parker also noticed that Joshua was struggling to breathe.
Parker signed a statement documenting his account of what had happened on December 31, 1997. The statement was consistent with the testimony given at trial by Roletta, Walker, and Patricia.
In closing argument, the prosecution argued that Parker caused the blunt trauma injuries that resulted in Joshua's death. To prove that Parker intended to kill Joshua or at least cause him great bodily harm, the prosecution focused on evidence that Parker ignored signs that Joshua was ill, hurt, and struggling to breathe moments before he died.
Defense counsel argued that Roletta was a bad mother and that Joshua died because he suffered from gross neglect. Counsel pointed out that Joshua was sick for days before his death, but Roletta never took him to a doctor. Counsel contended that Roletta's claim she left the hospital at Parker's insistence on December 29 was not credible. Counsel argued that even assuming Parker prevented Roletta from taking Joshua to the hospital, Roletta had not returned to the hospital when she and Parker separated later that evening. Through its own expert testimony, the defense also attempted to undermine the prosecution's evidence that Joshua died from blunt trauma injuries.
The jury found Parker guilty of first degree murder. As indicated earlier, the trial judge sentenced Parker to a fifty-five year prison term.
On appeal to the Illinois Appellate Court, Parker argued that: (1) the prosecution failed to prove him guilty of first degree murder beyond a reasonable doubt; (2) the trial judge erred in failing to recuse himself sua sponte after reporting defense counsel to the Attorney Registration and Disciplinary Commission and erred in appointing co-counsel to represent Parker; (3) the prosecution improperly adduced unduly prejudicial evidence of prior bad acts by Parker; (4) a prosecutor made improper remarks in closing argument; and (5) the trial court erred in failing to conduct a hearing and appoint new counsel after one of Parker's lawyers filed a post-trial motion alleging that co-counsel was ineffective. The appellate court rejected Parker's arguments and affirmed his conviction.
Parker filed a timely petition for leave to appeal (PLA) in the Illinois Supreme Court. Parker's appointed counsel, however, raised only two of the five arguments that Parker had presented to the appellate court. Specifically, counsel argued that the trial court erred in appointing co-counsel for Parker and in failing to conduct a hearing and appoint new counsel after one of Parker's lawyers filed a post-trial motion alleging that co-counsel was ineffective. The court denied Parker's PLA.
Parker then filed a timely pro se post-conviction petition, alleging ineffective assistance of trial and appellate counsel. Specifically, Parker alleged that: (1) trial counsel were ineffective in refusing to allow him to testify at trial; (2) they were ineffective in refusing to allow the trial court instruct the jury on the lesser included offense of involuntary manslaughter; (3) they put forth conflicting defense strategies and rendered ineffective assistance in failing to subject the prosecution's case to meaningful adversarial testing; and (4) appellate counsel was ineffective for failing to raise all of Parker's direct appeal issues in the PLA. On July 14, 2006, the state trial court dismissed Parker's petition on the ground that it was frivolous and patently without merit and assessed costs against Parker.
Parker filed a timely notice of appeal to the Illinois Appellate Court. Counsel was appointed to represent him. Appointed counsel presented only one claim: the trial court's assessment of costs against Parker was inappropriate because the statute authorizing this was unconstitutional.
On November 9, 2007, after the prosecution had filed its response brief, Parker filed a pro se motion asking the court to terminate his appointed counsel and seeking an extension of time to file a pro se brief. Parker explained that he disagreed with appointed counsel's decision to not argue on appeal the constitutional claims he had asserted in the trial court. He asked the court to allow him to proceed pro se because he believed those claims had merit. He also asked the appellate court to grant him an extension of time to prepare his own pro se brief. On November 13, 2007, Parker filed another pro se motion objecting to the brief his appointed counsel had filed and again asked the court to allow him to proceed pro se.
On November 28, 2007, the appellate court entered an order summarily denying Parker's motions. On March 12, 2008, the court affirmed the trial court's assessment of costs.
On April 2, 2008, appointed appellate counsel filed a PLA with the Supreme Court, again arguing only the costs issue. On April 29, 2008, Parker filed, pro se, a supplemental PLA. He expressed concern that the issues he sought to raise in his post-conviction petition might be considered to be procedurally defaulted because his appointed counsel had refused to raise them. He argued that the trial court had erred in dismissing his post-conviction petition without an evidentiary hearing. Parker listed the claims contained in his initial post-conviction petition but did not argue the claims. He contended that the trial court had erred in summarily dismissing his petition without determining whether it met the "gist of a constitutional claim" standard set forth in People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001). Parker concluded by stating that he sought to file a supplemental PLA to preserve his claims for review and avoid procedural default.
Together with his supplemental PLA, Parker filed another pro se motion with the Illinois Supreme Court, apologizing for not filing his supplemental PLA sooner. He explained that he had no access to the prison library because the facility was locked down and his appointed appellate counsel had not communicated with him about the PLA until April 2, 2008, the day she filed the petition.
On May 12, 2008, the Illinois Supreme Court summarily denied Parker's pro se motion to file a supplemental PLA. On January 28, 2009, the court denied the PLA that Parker's appointed counsel had filed.
On January 23, 2009, Parker sought leave to file a second post-conviction petition, alleging that the appellate counsel appointed to represent him on his post-conviction appeal had rendered ineffective assistance by refusing to argue the claims Parker had asserted in his post-conviction petition. Parker argued that counsel had deprived him of the opportunity to seek relief on his constitutional claims and had failed to withdraw upon his request. Parker also reasserted the arguments he had made in his original post-conviction petition.
On October 9, 2009, the trial court denied Parker's leave to file a second post-conviction petition. Parker moved to reconsider, but the court denied that motion on November 20, 2009. On December 28, 2009, Parker filed a notice of appeal. To the best of the Court's knowledge, the appeal remains pending.
On July 14, 2009, Parker filed the present petition for a writ of habeas corpus. He asserts the following claims:
1) trial counsel were ineffective for refusing to allow Parker to testify at trial;
2) trial counsel were ineffective for refusing to allow the trial court instruct the jury on involuntary manslaughter;
3) trial counsel put forth conflicting defense strategies and rendered ineffective assistance in failing to subject the prosecution's ...