The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Ian Lockhart's amended petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254(d).*fn2
For the following reasons, the Court denies Lockhart's
amended habeas petition. Further, the Court declines to certify any
issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
Lockhart does not present clear and convincing evidence challenging the statement of facts in the last state court decisions to address his arguments on the merits, which include the Illinois Appellate Court's opinions on direct and post-conviction appeal, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010). The Court therefore adopts the underlying facts as set forth by the Illinois Appellate Court in People v. Lockhart, No. 3-03-0214 (Ill.App.Ct. 2005) (unpublished) and People v. Lockhart, No. 3-06-0084 (Ill.App.Ct. 2007) (unpublished).
On August 30, 2000, Lockhart, Keith Bland, Jr. ("Keith Jr.), and Christopher Scott, Lockhart's brother-in-law and cousin respectively, visited the residence of Delores and Keith Bland, Sr. ("Keith Sr."). Delores and Keith Sr. were Keith Jr.'s stepmother and father. The Blands lived with their sons, Kory Bland and Kenneth Gordon. Keith Sr. had evicted Keith Jr. from the home over a year before August 2000, therefore, it was unusual for Keith Jr. to stop by unannounced. Keith Jr., Scott, and Lockhart claimed the purpose of their visit was to show Keith Jr.'s Navy discharge papers to Delores. Their actual purpose was to determine the Blands' schedules and whether four guns were still at the residence.
The next day, August 31, 2000, Keith Jr., Scott, and Lockhart returned to the Bland residence to take the guns that were there. While they were in the home, Delores returned. When she asked the men what they were doing there, Scott shot her. Later that evening, Kory Bland returned home and entered the residence through the back door that was ajar. Thereafter, he found the home ransacked and his mother dead on the living room floor. Kory also noticed that three of the four guns were missing, as well as a VCR and TV antenna. The same model TV antenna was later found at the home of Lockhart's wife.
Police Detective Michael Guilfoyle interviewed Lockhart twice -- once on the day after Delores Bland's murder and again about three and a half months later. During the second interview, Lockhart changed numerous aspects of his story about what had occurred on the day of the murder. Lockhart, for example, originally told the police detectives that he spent the afternoon of the murder with his wife at his mother-in-law's home, but at the second interview he told police that he went to his mother-in-law's home in the morning to obtain money to purchase a birthday gift for his wife -- a used VCR and TV antenna -- and then spent the rest of the afternoon and evening at his wife's home. Also, Lockhart gave Detective Guilfoyle different dates for the purchase of both the VCR and TV antenna and claimed that he purchased the VCR on the street, but got rid of it a few days later because he thought the police would check the serial number. Also, Lockhart initially told Detective Guilfoyle that he wrapped his wife's birthday presents, but later stated that he set up the VCR and TV antenna for her to use on her birthday. Meanwhile, Lockhart implicated Scott and Keith Jr. in Delores Bland's murder
At Lockhart's trial, Lockhart's cell-mate Jason Smith testified that he and Lockhart discussed Lockhart's involvement in Delores Bland's murder. Lockhart told Smith that he, Keith Jr., and Scott went to the Blands' home to steal the guns intending to make the theft appear to be a residential burglary by ransacking the home and stealing other items. Lockhart told Smith that they needed the guns because they were robbing people for drugs and money. He also told Smith that he took the Blands' VCR and TV antenna to make it look like a residential burglary and then gave them to his wife as a birthday gift.
At trial, the State also offered the prior testimony of Victor McClendon from Keith Jr.'s trial, as well as McClendon's recorded statement made to the Will County police. To clarify, at Keith Jr.'s trial, McClendon testified that in early September 2000, Lockhart and Keith Jr. approached him in Chicago and asked him if he wanted to purchase a handgun and shotgun. At Lockhart's trial, however, McClendon could not remember any details about Lockhart trying to sell him guns. Although he recalled testifying at Keith Jr.'s trial in May 2002, McClendon said he could not recall any specific details or the events about which he testified. During an offer of proof at Lockhart's trial, McClendon stated that he had previously testified against Keith Jr., but when the State asked him the same questions that he had answered at that trial, McClendon testified that he could not recall talking with Lockhart after the murder or the substance of his prior testimony. McClendon also testified that he was not going to answer any further questions.
The State then presented an offer of proof regarding McClendon's prior videotaped statement made to Will County police detectives. After the videotape was played in an effort to refresh McClendon's recollection, McClendon admitted that he recognized himself in the tape, but did not remember making the tape or the substance of his statements on the tape. The jury was then brought back into the courtroom and McClendon testified that he admitted that he had previously testified under oath in May 2002. He also testified that he could not recall various statements regarding a conversation he had with Lockhart in September 2000 about buying guns. Also, he testified that he could not remember the events about which he had testified.
Thereafter, a transcript of McClendon's prior testimony was then read to the jury. The transcript established that McClendon had testified that Lockhart and Keith Jr. approached him and attempted to sell him guns. The State also played McClendon's videotaped statement. On the tape, McClendon stated that Lockhart told him that he was with Scott and Keith Jr. when Scott killed Delores Bland and that they had gone to the Blands' house to steal guns.
II. Procedural Background
Following a 2002 trial in Will County, Illinois, a jury convicted Lockhart of first degree murder, armed robbery, and residential burglary. On March 13, 2003, the trial court merged the residential burglary count into a felony murder charge and sentenced Lockhart to terms of forty-one years for murder and sixteen years for armed robbery -- to be served consecutively.
Lockhart filed a timely notice of appeal on March 14, 2003 in which he appealed his convictions to the Illinois Appellate Court bringing the following claims: (1) the trial court improperly admitted into evidence the prior statements and testimony of Victor McClendon in violation of 725 ILCS 5/115-10.2 because McClendon was not available for cross-examination as required by that statute; (2) the trial court failed to adequately inquire into Lockhart's claims that he was denied effective assistance of counsel during pretrial proceedings; and (3) the trial court abused its discretion in sentencing Lockhart to consecutive prison terms of forty-one and sixteen years' imprisonment. The Illinois Appellate Court affirmed Lockhart's convictions on March 14, 2005.
Lockhart, through counsel, then filed a petition for leave to appeal ("PLA") in the Supreme Court of Illinois in which he claimed that the trial court improperly admitted McClendon's testimony under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),*fn3 because McClendon did not appear for cross-examination. The Supreme Court of Illinois denied Lockhart's PLA on May 25, 2005. Lockhart did not file a petition for a writ of certiorari in the United States Supreme Court.
On November 17, 2005, Lockhart filed a pro se post-conviction petition pursuant to 725 ILCS 5/122-1, et seq., in the Circuit Court of Will County. Lockhart brought the following claims in his post-conviction petition: (1) he was denied due process because the State knowingly used false information to suggest his motive for committing the crimes; (2) he was denied due process because he was required to wear an electronic stun belt during trial pursuant to the Will County Sheriff's Department policy without the trial judge considering whether the belt was necessary; (3) his trial counsel was constitutionally ineffective for failing to object to the stun belt; (4) appellate counsel was constitutionally ineffective for failing to raise on direct appeal that he was denied a fair trial due to (a) the State's improper comments during closing arguments, including comments that McClendon and Lockhart were friends and that McClendon had no mental health issues; (b) the cumulative effect of the prosecutor's improper comments, (c) the trial court's failure to instruct the jury to disregard Lockhart's courtroom behavior during the testimony of the government's witnesses, and (d) the State's failure to correct McClendon's statement that his testimony was not pursuant to an agreement with the prosecution; and (5) appellate counsel was ineffective for failing to raise on direct appeal the ...