The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Petitioner Michael Carter ("Carter") was convicted by a Cook County, Ill., jury of first-degree murder following a joint jury trial with his brother and co-defendant, Michael Stone ("Stone"). Carter was subsequently sentenced to thirty years in prison. After an unsuccessful appeal and post-conviction petition, he filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting eight possible grounds for relief.
The following factual summary is drawn from the facts set forth by the Illinois Appellate Court in its order affirming Petitioner's conviction, People v. Stone and Carter, No. 1-03-0353 & 1-03-0402, cons. Friday Gardner ("Gardner") was fatally shot on September 12, 1999, following a dispute that arose from a robbery of the Chicago apartment where Stone and others were living.
Carter and Stone came to suspect that Gardner was involved in the robbery, in which money, jewelry, and marijuana were taken. However, other testimony indicated that Gardner had tried to help another resident of the apartment chase down the thieves.
Later that evening, Carter, Stone, and another man, Cortez Jones ("Jones"), apparently broke into Gardner's van and stole his radio. A heated confrontation ensued and Gardner was fatally shot. Several witnesses gave conflicting versions of what occurred, and some recanted their original statements to police at trial. Because of the nature of Petitioner's claims, the Court will go into some detail as to the witness's testimony.
Lenisha Pearson ("Pearson"), who was Gardner's girlfriend, testified that Carter and Jones were arguing with Gardner for about 20 minutes when Stone walked out from a nearby alley and started shooting. Pearson said she heard two shots, followed by three more shots from the area where Carter and Jones were standing. Pearson said she could not tell who was responsible for the second set of shots because Carter and Jones were standing close together. Pearson testified that she did not see anything in Gardner's hands at the time of the shooting.
Rena Phillips and her son Antonio Phillips also testified that they saw the confrontation. Rena Phillips said she saw Jones and Carter shoot Gardner. Antonio Phillips, who was a relative of Gardner, testified that he saw Jones shoot Gardner, then saw Carter pull out a gun. He heard two more shots and then saw Carter and Jones flee. He never saw Gardner with a gun at any time on the night he was killed. Tommy Gaston ("Gaston"), a friend of Gardner's, testified that he saw Jones fire at Gardner, then heard a second round of approximately four more shots. He never saw Gardner with a gun.
Felicia Anderson ("Anderson"), a cousin of Stone and Carter, denied seeing the shooting when she testified at trial. She further testified that Gardner had a gun at the time of the confrontation, and a man she could only identify as "Tommy" removed the gun from Gardner's hand after he was shot. In a handwritten statement given to Assistant State's Attorney Lawrence O'Reilly ("O'Reilly") on the night of the shooting, however, Anderson said that she saw Carter point a gun at Gardner and that after the shooting, she yelled, "[Carter] shot him." Her grand jury testimony was consistent with her signed statement.
LaTonya Cheeks ("Cheeks"), also a cousin of Carter and Stone, testified at trial that the shooting was in self-defense. However, she provided O'Reilly with a handwritten statement saying that she saw Stone shoot Gardner and that after the initial shots were fired she saw more gunfire from the area where Carter and Jones were standing. In the statement, Cheeks said that Gardner had nothing in his hands at the time of the shooting. Her grand jury testimony was consistent with her signed statement. She testified that she was tired when she gave her statement, and that the only reason she signed it was so she could go home. Cheeks also testified that she told O'Reilly and police that she saw Gardner pull out a gun during the argument, but they failed to include that information in her statement.
O'Reilly testified that he took Felicia Anderson's statement and that she told him the only one she saw with a gun was Carter, and that she never saw anything in Gardner's hands. Similarly, he testified that Cheeks never told him that Gardner had a gun at the time of the shooting or that she believed the shooting was in self-defense.
Michelle Anderson ("Anderson"), another cousin of Stone and Carter, testified on their behalf. Anderson testified that she observed a heated argument between Gardner and Jones and Carter that went on for 30 minutes. At some point, Anderson saw Gardner pull out a gun. Immediately after that, a man ran out of the alley and shot Gardner. Jones and Carter fled while a man she knew as "Tommy" took the gun from Gardner's hands and then drove off. She testified that she did not tell the police what she saw because other relatives had been intimidated by the police.
Stone testified on his own behalf. He said that on the evening of the shooting he was at home at 6102 S. May Street when he looked outside the window and saw Gardner arguing with Jones and Carter. He grabbed a gun that he said he had purchased for protection earlier that day from a "dope fiend." He then went outside and stood in the middle of the alley. At some point during the argument, he saw Gardner look in his direction and pull out a gun. Stone said he shot Gardner because he was afraid for his safety and that of his brother, Carter. Stone also testified that he did not see Carter with a gun at the time of the shooting. On cross-examination, Stone testified that he, Carter, and Jones were upset about the break-in at the apartment, and that Carter and Jones believed Gardner was involved in it. Stone further testified that some of the marijuana taken from the apartment was packaged for selling. Stone denied selling drugs himself, but said "herb was running through the house." Because he was scared for his safety, he bought a gun within hours of the robbery for "three bags of rocks." Stone said he believed he was acting in self-defense by shooting at Gardner after Gardner pulled out a gun. Additional facts, including those raised in Carter's post-conviction petition, will be discussed where relevant.
Both Stone and Carter were convicted of first-degree murder, and both were sentenced to 30 years in prison. Jones was tried and convicted separately.
Carter now seeks habeas relief on eight grounds: (1) actual innocence; (2) that he was denied a fair trial when the state elicited evidence concerning the marijuana robbery; (3) that he was denied a fair trial because the state was allowed to introduce into evidence the signed statements and grand jury testimony of Felicia Anderson and Cheeks; (4) that he was denied a fair trial when the trial court refused to admit into evidence a prior consistent statement made by Stone; (5) that his trial counsel was ineffective for failing to present exculpatory evidence; (6) that he was denied a fair trial because of comments made by the prosecutor during closing arguments; (7) that the appellate court improperly found that his Sixth Amendment rights were not violated; and (8) that his sentence is so excessive as to violate the Eighth Amendment. A habeas petition brought by Stone and raising similar claims was recently denied by U.S. District Judge Elaine E. Bucklo. Stone v. Hardy, 10 C 241, 2011 WL 91038, at *7 (N.D. Ill. Jan. 11, 2011).
Section 2254 of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") entitles a prisoner to a writ of habeas corpus if he is imprisoned pursuant to a state court judgment obtained in violation of rights guaranteed by the Constitution and laws of the United States. Estelle v. McGuire, 502 U.S. 62, 67--68 (1991). Habeas relief is not available to remedy errors of state law. Id.
For any claim that was adjudicated on the merits in state court proceedings, a federal court may not grant a writ of habeas corpus unless the state court decision was (1) contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254 (d)(1),(2); Ellsworth v. Levenhagen, 248 F.3d 634, 638 (7th Cir. 2001).
Further, a petitioner seeking habeas relief must show that the state courts were given a full and fair opportunity to review his claims. Johnson v. Loftus, 518 F.3d 453, 455 (7th Cir. 2008). This means that the petitioner must exhaust all remedies available to him in state court. Id. Further, the petitioner must present all claims to the state court at the required time, or they are procedurally defaulted. Id. Procedural default also can occur when a state court rejects a claim on an independent and adequate state law basis. Id. When a petitioner defaults on a claim, a court may consider it only if he can establish cause and prejudice or show that the failure to consider the default would be a fundamental miscarriage of justice. Id. at 455--56. Finally, to preserve a claim for review, a petitioner must present the claim through one complete round of state court review, which in Illinois means it must be presented both in an appeal to the Illinois Appellate Court and in a petition for leave to appeal to the Illinois Supreme Court. Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007). If a petitioner fails to exhaust a claim, and complete exhaustion is no longer possible, the claim is procedurally defaulted. Id.
Petitioner's request for habeas relief must be denied because all of his claims are either not cognizable, ...