The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Petitioner Saul Donado ("Donado"), an Illinois state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, his amended petition for a writ of habeas corpus  is denied.
I. Background A. Factual Background
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). As Petitioner Donado has not presented clear and convincing evidence challenging the statement of facts set forth in the Illinois Appellate Court's decision on direct appeal, the Court adopts the following account from the Illinois Appellate Court's Rule 23 Order on direct appeal affirming the judgment of the Circuit Court of Cook County.
At trial, Reginald Samuels testified that he was with the victim, [Arthur] Montelongo, on October 8, 2002. Samuels testified that he drove Montelongo to a convenience store near the area of Montrose and California Avenues in Chicago, Illinois. Shortly after their arrival, an unidentified man waved to Montelongo. Montelongo walked over to the man, and Samuels left; according to Samuels' testimony, this was the last time that he saw Montelongo alive.
Chicago Police Officer Banaskiewicz testified that on October 8, 2002, at about 9:11 p.m., he investigated a report of shots being fired. Officer Banaskiewicz found Montelongo lying face down in an alley, near the garage located at 2445 West Leland, approximately six blocks from where Samuels dropped off Montelongo. The officer testified that Montelongo had sustained multiple gun shot wounds, including a gun shot wound to the back of the head. Officer Banaskiewicz immediately roped off the area to preserve the crime scene. Officer Banaskiewicz also testified that he did not find a gun on or near the victim.
Kathleen Gahagan, a forensic investigator with the Chicago Police Department performed the forensic investigation of the crime scene. Gahagan testified that there was a bullet hole in the garage door, two bullet holes in the rear wall of a garage located at 2439 West Leland, and a bullet hole in the taillight of the vehicle parked in the 2439 garage. Gahagan testified that discharged bullets were recovered from the taillight of the vehicle, the garage floor, and at least one bullet from Montelongo's body. Gahagan also testified that there were six 9 millimeter cartridge cases found under the elevated train tracks at approximately 2443 West Leland. Jennifer Ulber, a firearms expert, testified that the bullets recovered from the crime scene were fired from a 9 millimeter semi-automatic firearm. Ulber also testified that the recovered bullets were fired from the same firearm.
Dr. Adrienne Segovia, a medical examiner, examined the body of Arthur Montelongo and found that Montelongo had gunshot wounds to his head, back, chest, and forearm. Dr. Segovia testified that the gunshot wound fractured Montelongo's skull. Dr. Segovia also testified that the gunshot wound to Montelongo's head was a "contact" wound, in which the gun was placed on the back of Montelongo's head and in contact with his scalp when fired. Dr. Segovia testified that the head wound likely would have rendered Montelongo immediately unconscious. Montelongo also had a gunshot wound to the right side of his back, in which the bullet pierced the lower portion of his right lung and traveled through the middle portion of his right lung. The bullet exited Montelongo's chest cavity, fracturing his rib. Dr. Segovia testified that there was no evidence of close-range fire and that the gunshot to Montelongo's back could have been fatal. She also related that Montelongo had a gunshot wound to his left forearm and sustained several abrasions to his face which were consistent with Montelongo falling face-down onto asphalt. Dr. Segovia concluded that Montelongo's death was a homicide, caused by multiple gunshot wounds.
Chicago Police Officer James Gildea testified that on October 19, 2002, he placed Donado into custody and brought him to the station. Officer Gildea testified that Donado was advised of his Miranda rights. After waiving those rights, Donado stated that on the night in question he went with a friend named George Chavez to pay Montelongo $4,500. Donado further stated that after giving Montelongo the money, he dropped Montelongo off in the vicinity of 14th Street and Cicero Avenue.
Ken Fielder testified that on October 19, 2002, he was employed as an Assistant State's Attorney. ASA Fielder testified that he interviewed Donado at the police station after Donado waived his constitutional rights. Donado stated that on the date in question, Montelongo gave him four and one-half ounces of cocaine to sell, which Donado sold for $5,500. After the sale, Donado called Montelongo, and Donado agreed to meet Montelongo at a convenience store parking lot. When he arrived, Montelongo got into his vehicle and Donado gave Montelongo $4,500, despite selling the cocaine for $5,500. Donado told ASA Fielder that he dropped Montelongo off at the elevated train station.
ASA Fielder testified that during a second interview, Donado again waived his constitutional rights and provided a statement. This time, Donado stated that Montelongo gave him the cocaine to sell and George Chavez drove Donado to meet Montelongo at the convenience store parking lot. In the parking lot, Montelongo got into Chavez's vehicle and Chavez dropped Donado and Montelongo off in the alley at 2445 West Leland. Donado stated that another vehicle pulled into the alley and he walked up to the vehicle to exchange cocaine for money from the passengers. After the exchange, Donado walked back toward Montelongo with a bag containing money and the buyers drove away. Montelongo took the bag from Donado and discovered that it contained fake money. Donado stated that Montelongo became angry and punched and knocked him down. Donado stated that he was scared and took out his 9 millimeter gun and shot Montelongo in the chest. Montelongo started to run away and Donado shot him four or five more times before leaving the area. Donado stated that he flagged down Chavez and rode to Chavez's residence. Donado told Chavez that Montelongo had tried to "do me" and that he shot Montelongo. Donado and Chavez exchanged vehicles and drove to Donado's residence. Donado then called an unidentified individual and asked him to retrieve the gun that Donado had used to shoot Montelongo and dispose of it. ASA Fielder testified that Donado provided a videotaped statement describing this version of events.
Donado testified that Montelongo was a friend and that they were both members of the Spanish Cobras street gang. Donado testified that he and Montelongo sold drugs and "gang-banged" together. On October 8, 2002, Montelongo wanted Donado to sell four and one-half ounces of cocaine. Donado testified that after he failed to sell the cocaine, Chavez drove him to pick up Montelongo and then dropped Donado and Montelongo off in an alley. Donado testified that a vehicle approached them in the alley and Montelongo gave the occupants of the vehicle cocaine while Donado walked up to the vehicle to collect money. Donado received a bag of money from an individual in the vehicle and handed the bag to Montelongo. Donado testified that Montelongo discovered that the bag contained "phony money" and became upset. Donado testified that Montelongo attacked him, putting his hand around Donado's neck, pushing him against a garage, and punching and kicking him. Donado testified that Montelongo told him that he was stupid for not checking the bag and that he was going to kill Donado. According to Donado, he fell to the ground and Montelongo continued to push and stomp on him, at which point Donado jumped up, pulled out his gun, and shot Montelongo once. Donado and Montelongo wrestled for the gun and shots were fired from the gun during the struggle. Donado testified that after the shots were fired, he panicked and fled.
Donado testified that he brought the gun with him on the day in question for protection; he testified that he was afraid of Montelongo because he also is a "gang-banger," he had witnessed Montelongo attack other individuals approximately 20 to 30 times during the previous 12 years,*fn1 and he had heard that Montelongo had previously shot an individual who owed Montelongo money. Donado testified that he did not know whether Montelongo was carrying a gun on the date in question. Donado further testified that he lied in his initial statements to police officers because he was scared and not treated nicely by the police.
Detective Richard Zuley testified that he was assigned to participate in the investigation of Montelongo's homicide. Detective Zuley testified that he was present during Donado's interview with the ASA Fielder and during Donado's video-taped statement. Detective Zuley testified that after Donado waived his Miranda rights, during his interview, Donado did not indicate that Montelongo threatened to kill him or that Donado and Montelongo were gang members. Detective Zuley also testified that Donado did not tell him that Montelongo put his hands around Donado's neck, that he had wrestled with Montelongo in the alley, or that Donado had panicked after the shooting. Detective Zuley testified that he did not instruct Donado on what to say during his videotaped statement. Zuley believed, based on the locations of Montelongo's wounds, that the shooting of Montelongo was an "execution" in which the gun was held to the back of his head when fired.
A jury convicted Donado of first degree murder, and he was sentenced to 35 years in prison, with an additional 25 years of imprisonment for using a firearm during the course of the murder.
On direct appeal, Donado argued that: (1) his conviction should be reversed because he had a reasonable belief that his life was in danger, or truly but unreasonably believed he needed to use deadly force in self-defense; (2) he received ineffective assistance of counsel because his trial counsel tendered a version of jury instruction 2.03A which stated that he need not present mitigating evidence, even though he had done so, and failed to tender a version of jury instruction 3.12X that would have instructed the jury to consider the victim's prior acts of and reputation for violence; (3) the 25-to-life sentence enhancement given under § 5-8-1(a)(1)(d)(iii) of the Illinois Code of Corrections, 730 ILCS 5/5-8-1(a)(1)(d)(iii), should not have applied to him and is unconstitutional; (4) the compulsory extraction and storing of his DNA violated his constitutional rights; (5) the trial court failed to admonish Donado that he could challenge "any aspect of his sentencing hearing," and (6) the mittimus contained errors. Petitioner's Brief, People v. Donado, No. 1-04-2066, at 2-3 (Ill. App. Ct. Mar. 16, 2006). Except for correction of a mistake in the mittimus, each of these claims was denied. Rule 23 Order, People v. Donado, No. 1-04-2066 (Ill. App. Ct. Mar. 16, 2006).
Donado then filed a Petition for Leave to Appeal ("PLA") to the Illinois Supreme Court. Petition for Leave to Appeal, People v. Donado, No. 102484 (Ill. Sep. 27, 2006). In his Petition, Donado asserted one claim: the appellate court erred in not finding prejudice where Donado's trial counsel submitted an improper version of jury instruction 3.12X. Id. On September 27, 2006, the PLA was denied. Order Denying PLA, People v. Donado, No. 102484 (Ill. 2006).
While his direct appeal was pending, Donado also filed a pro se post-conviction petition under 725 ILCS 5/122-1 in the Cook County Circuit Court. In this petition, Donado made the following claims: (1) he was arrested without a warrant or probable cause; (2) he was never read his Miranda rights; (3) he was denied a probable cause hearing within 48 hours of his warrantless arrest; (4) his videotaped confession was physically and psychologically coerced; (5) the State violated his Fifth Amendment rights by vouching for government witnesses and misstating the evidence; (6) his trial counsel was ineffective for failing to file a motion for a speedy trial, filing a confusing "hybrid" motion to quash arrest and suppress statements, failing to investigate the case or defense witnesses, failing to communicate with Donado regarding the case, making inappropriate comments during the trial regarding Donado, failing to object to the admission of damaging evidence, and failing to call mitigation witnesses; and (7) the trial judge was biased against him, which prejudiced the jury against Donado during his trial, and which influenced his decision to refuse to grant Donado's motion to substitute counsel, violating his Due Process rights. Post-conviction Petition, People v. Donado, No. 02 CR 28048 (Ill. Ct. Cl. Nov. 28, 2005). Donado's trial judge, Judge Sachs, dismissed these charges as frivolous and patently without merit. Order Dismissing Post-conviction Petition, People v. Donado, No. 02 CR 28048 (Ill. Ct. Cl. Nov. 28, 2005).
Donado timely appealed this dismissal, arguing that his claim of judicial bias stated the gist of a meritorious constitutional claim, that his trial counsel failed to make an adequate record of the judge's alleged misconduct, and that his petition should be heard by a different judge. Petitioner's Brief, People v. Donado, No. 1-06-0176 (Ill. App. Ct. July 26, 2007). The appellate court denied his appeal on two grounds: (1) Donado failed to attached necessary support, such as affidavits, or explain their absence, in violation of 725 ILCS 5/122-2 and People v. Collins, 202
Ill. 2d 59 (2002); and (2) the allegations within the post-conviction petition, particularly the judicial bias claim, could have been raised on direct appeal, and were thus waived. Rule 23 Order, People v. Donado, No. 1-06-0176 (Ill. App. Ct. 2007). On August 27, 2007, Donado filed a Petition for Leave to Appeal to the Illinois Supreme Court, asserting two grounds for error: (1) that the appellate court erred in holding that Donado's judicial bias and ineffective assistance of trial counsel claims were procedurally waived; and (2) that the appellate court erred by upholding the trial court's dismissal of his petition, without assigning the matter to another judge. Petition for Leave to Appeal, People v. Donado, No. 105188 (Ill. 2007). This petition was denied by the Illinois Supreme Court. Order Denying Petition for Leave to Appeal, People v. Donado, No. 105188 (Ill. 2007).
On March 12, 2008, Donado filed a pro se Petition for Post-Judgment Relief, pursuant to 735 ILCS 5/2-1401 et seq., or in the alternative, a Successive Post-Conviction Petition, pursuant to 725 ILCS 5/122-1(f) et seq., in the Circuit Court of Cook County. Petition for Post-Judgment Relief, People v. Donado, No. 02 CR 28048 (Ill. Ct. Cl. Apr. 25, 2008). In this petition, Donado alleged that his appellate counsel had misled him as to which claims would be included in his direct appeal, which resulted in Donado leaving out meritorious claims in his first pro se post-conviction petition. Id. at 5. Donado therefore requested leave to file the second petition, and asserted the following claims: (1) his trial counsel was ineffective for failing to investigate and file motions to suppress his confession and other statements to police, and for failing to file a motion to suppress identification evidence; (2) his appellate counsel was ineffective for failing to raise his trial counsel's ineffectiveness on those issues and for misleading Donado about which claims would be included in his direct appeal; (3) the State's introduction of evidence of Donado's other crimes through hearsay, without the ability to confront the utterers, violated his constitutional rights; and (4) his trial counsel was ineffective for failing to investigate Donado's competency or move for a competency hearing.*fn2 Id.
Once again, Judge Sachs handled Donado's petition, and Donado was denied leave to file a successive post-conviction petition. Order Denying Petitioner Leave to File Successive Petition for Post-Conviction Relief and Petition for Relief from Judgment, People v. Donado, No. 02 CR 28048 (Ill. Ct. Cl. Apr. 25, 2008). However, Judge Sachs addressed Donado's claims on the merits and found each to be without merit. Id. Donado appealed, making two arguments: first, that the cause and prejudice test should not apply to his successive post-conviction petition because the claim implicates his fitness to stand trial, and second, that he had met the cause and prejudice test. Rule 23 Order, People v. Donado, No. 1-08-1530 (Ill. App. Ct. 2010). The state appellate court affirmed the lower court on March 24, 2010, finding that he had established neither cause nor prejudice for his default. Id. Petitioner filed a PLA to the Illinois Supreme Court, again arguing that the cause-and-prejudice test should not apply when a prisoner raises a claim of being mentally unfit to stand trial. PLA, People v. Donado, No. 110269 (Ill. 2010). This petition was denied on November 3, 2010. Order Denying PLA, People v. Donado, No. 110269 (Ill. 2010).
On November 26, 2008, while his second post-conviction petition was on appeal, Donado filed the instant petition pursuant to 28 U.S.C. § 2254, raising two claims: (1) Donado was denied due process based upon his trial judge's alleged misconduct; and (2) his trial counsel was ineffective for failing to file "appropriate" pre-trial motions and for filing a "hybrid" motion that confused the court. Petition at 5. On November 28, 2008, Donado filed an amended petition, which restated the previous claims, and added the following: (3) Donado's trial counsel also was ineffective for failing to call witnesses to verify the victim's violent past, seek a continuance to locate those witnesses, or present mitigation witnesses; (4) his appellate counsel was ineffective for failing to investigate the issue of Judge Sachs' alleged misconduct, such as by interviewing the jurors, and for failing to raise the judge's conduct on direct appeal. Amended Petition ("Am. Pet.") at 5-6. In the amended petition, Donado also claims that: (5) the state appellate court's denial of his self-defense claim was contrary to or an unreasonable application of federal law, or based upon an unreasonable determination of the facts; (6) the state appellate court's denial of his ineffective assistance of counsel claim with regard to improper jury instructions was contrary to or an unreasonable application of federal law; and (7) the state appellate court's denial of Donado's judicial bias claim, without acknowledging that the judge was ruling upon allegations directed against the judge himself, was based upon an unreasonable determination of the facts. Am. Pet. at 7-8.
The State filed an Answer, arguing that Donado had failed to exhaust or procedurally defaulted nearly all of these claims. Donado then filed a Response, focusing on the state court's denial of two claims: judicial bias and ineffective assistance of counsel due to improper jury instructions.
A. Federal Habeas Relief for State Prisoners
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a habeas petition cannot be granted unless the decision of the state court "was contrary to, or involved an unreasonable application of clearly established Federal law," or "was based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d)(1--2) (2000).
A state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the United States Supreme] 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 [the United States Supreme Court.]" Williams v. Taylor, 529 U.S. 362, 405 (2000). "Avoiding these pitfalls does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002).
A state court's decision constitutes an "unreasonable application" of clearly established federal law if the state court identified the correct legal rule but unreasonably applied the controlling law to the facts of the case. Williams, 529 U.S. at 407. It should be noted than "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. Rather, "unreasonable" means that a state court's decision lies "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002).
B. The Exhaustion Doctrine
Before filing a habeas petition in federal court, a petitioner must have "fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge." Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This exhaustion requirement "serves an interest in federal-state comity by giving state courts the first opportunity to address and correct potential violations of a prisoner's federal rights." Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir. 2004) (citing Picard v. Connor, 404 U.S. 270, 275 (1972)). It requires the petitioner to assert each of his or her federal claims through one complete round of state-court review, either on direct appeal of his or her conviction or in post-conviction proceedings, before seeking relief in federal court. See O'Sullivan, 526 U.S. at 845 (concluding state prisoners must give the state court a full and fair opportunity to resolve federal constitutional claims by invoking those claims in "one complete round of the State's established appellate review process"); see also Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). This includes presentation of the claims to appellate courts where review is discretionary when that review is part of the ordinary appellate procedure in the State. O'Sullivan, 526 U.S. at 847 (holding that the petitioner in question was required to fully and fairly present his claims to the Illinois Supreme Court in a petition for leave to file an appeal even though that court's review both of direct appeals and post-conviction petitions is discretionary).
To fairly present a claim in state court, the petitioner must include both the operative facts and the controlling legal principles on which the claim is based, and must also alert the state court that the claim raised is based on federal law. Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001); Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004). If the federal court reviewing the habeas petition is not satisfied that the petitioner gave the state courts "a meaningful opportunity to pass upon the substance of the claims [ ] presented in federal court," the Court cannot reach the merits. Chambers, 264 F.3d at 737-738; see also Sweeney, 361 F.3d at 332.
"Where state remedies remain available to a habeas petitioner who has not fairly presented his constitutional claim(s) to the state courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim: although a federal court now has the option of denying the claim on its merits, 28 U.S.C. § 2254(d)(2), it must otherwise dismiss his habeas petition without prejudice so that the petitioner may return to state court in order to litigate the claim(s)." Perruquet, 390 F.3d at 514 (citing Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509, 522 (1982)); see also 28 U.S.C. § 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 731 (1991); Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001). However, where a petitioner has already pursued state court remedies and there is no longer any state corrective process available to him or her, "it is not the exhaustion doctrine that stands in the path of habeas relief, see 28 U.S.C. § 2254(b)(1)(B)(i), but rather the separate but related doctrine of procedural default." Perruquet, 390 F.3d at 514.
If an opportunity still exists for the petitioner to return to state court to exhaust his or her unexhausted claims, the petitioner has not yet procedurally defaulted those claims and the Court must consider whether to dismiss the ...