The opinion of the court was delivered by: Charles P. Kocoras, District Judge:
This case comes before the Court on the motion of Petitioner Dishon McNary ("McNary") for a certificate of appealability and to proceed in forma pauperis, without prepayment of fees. For the reasons stated below, the motion for a certificate of appealability is granted in part and denied in part and the motion to proceed in forma pauperis is granted.
During the early morning hours of March 21, 1998, McNary was driving under the influence of alcohol when he hit and killed a pedestrian and two individuals in another motor vehicle. At approximately 1:50 a.m., Chicago Police Officer Jose Martinez ("Officer Martinez") saw McNary strike and kill the pedestrian and then subsequently strike another motor vehicle killing two other individuals. Chicago Police Officer Donald Branch also witnessed McNary's car crashing into the other motor vehicle. Shortly after the car accident, Chicago Police Officer Richard Hardesty ("Officer Hardesty") arrived at the scene and observed that McNary was semi-conscious and his breath smelled of alcohol. McNary was transported to Cook County Hospital by an ambulance.
At approximately 3:50 a.m., Officer Hardesty arrived at Cook County Hospital. A doctor in the emergency room gave Officer Hardesty permission to speak with McNary. Officer Hardesty observed that McNary was awake and lucid and lying on a gurney with an I.V. in his arm. Officer Hardesty introduced himself to McNary and informed McNary that he was investigating the accident. Officer Hardesty asked McNary if he had been drinking and McNary, minimizing the amount of alcohol consumed, said he had two beers and two shots. When questioned about how the accident occurred, McNary stated "I seen the man standing in the middle of the street, I beeped my horn, he did not move, I kept on going." Officer Hardesty placed McNary under arrest for driving under the influence of alcohol and read him the "Warning to Motorist" form. McNary was then administered blood and urine alcohol tests. McNary's blood alcohol level was .22 grams per deciliter.
On March 21, 1998 at approximately 8:00 a.m., Detective Theodore Ptak ("Detective Ptak") went to Cook County Hospital and received permission from the attending physician to speak with McNary. Detective Ptak advised McNary of his Miranda rights. According to Detective Ptak, McNary appeared to understand the questions asked, did not appear shocked or confused, and did not complain of any pain. Among other things, McNary told Detective Ptak that he struck a pedestrian but did not stop because he knew he was drunk.
McNary was charged with aggravated reckless homicide and first degree murder in the Circuit Court of Cook County, Illinois. At trial, McNary testified that he had been drinking since approximately 1:00 p.m. the day before the accident. When asked whether he felt drunk, McNary testified "I was feeling high, but I was feeling though that I can drive." McNary acknowledged that he hit something while driving, but stated that he kept driving because he did not know what he hit. McNary testified that a suspicious car was following him, so that he ran several red lights when he collided with the other motor vehicle. McNary stated he did not remember anything after the accident until he woke up in the hospital handcuffed to the bed.
At the jury instruction conference, McNary's counsel proposed a jury instruction on voluntary intoxication. The trial court found that McNary's intoxication did not deprive him of all reason and, therefore, the jury instruction on voluntary intoxication was not warranted. The trial court instructed the jury on aggravated reckless homicide as to all three victims and on first degree murder as to the two victims in the motor vehicle.
On May 27, 1999, a jury found McNary guilty of two counts of first degree murder and one count of aggravated reckless homicide. McNary was sentenced to a mandatory term of natural life for the two murder convictions and a concurrent ten-year sentence for the aggravated reckless homicide conviction.On September 28, 2001, the state appellate court affirmed. On May 1, 2002, the state supreme court denied McNary's petition for leave to appeal. On May 23, 2002, McNary filed a post-conviction petition in the Circuit Court of Cook County. On August 9, 2002, the trial court summarily dismissed the post-conviction petition, finding it frivolous, patently without merit, and untimely. Because McNary's petition was timely, the state appellate court reversed and remanded. On remand, McNary filed a supplemental post-conviction petition and, on October 31, 2006, the trial court granted the State's motion to dismiss both the original and supplemental post-conviction petitions. On December 23, 2009, the state appellate court affirmed and, on May 26, 2010, the state supreme court denied McNary's petition for leave to appeal.
On March 11, 2011, McNary filed an amended petition for a writ of habeas corpus and Marcus Hardy ("Hardy"), the Warden at Stateville Correctional Center, subsequently responded to McNary's petition. On June 9, 2011, this Court denied McNary's habeas petition. United States ex rel. McNary v. Hardy, No. 10 C 5185, 2011 WL 2415030 (N.D. Ill. June 9, 2011). McNary now moves for a certificate of appealability.
A district court may entertain an application for a writ of habeas corpus on behalf of a state prisoner who is in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A court may award habeas relief if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established federal law if it applies a rule that contradicts the governing law or reaches a result different from a Supreme Court case with materially indistinguishable facts. Price v. Vincent, 538 U.S. 634, 640 (2003). The state court decision constitutes an unreasonable application of clearly established federal law if the state court applied the governing law in an objectively unreasonable manner. Bell v. Cone, 535 U.S. 685, 699 (2002) (explaining that "it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied [the governing law] incorrectly"). In evaluating a habeas petition, the court presumes that all factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). The petitioner, however, can rebut the presumption with clear and convincing evidence. Id.
A district court may issue a certificate of appealability only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). Where a district court has rejected the constitutional claims on the merits, the petitioner must demonstrate that "reasonable jurists would find the district court's assessment of ...