The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner Miguel DeLeon ("DeLeon") petitions the Court for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 For the following reasons, the Court denies DeLeon's habeas petition.
The Court adopts the underlying facts set forth by the Illinois Appellate Court in People v. DeLeon, No. 1-99-0028 (Ill. App. Ct. Sept. 15, 2000) (unpublished). 28 U.S.C. § 2254(e)(1); see also Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007).
On April 4, 2007, DeLeon met fellow Imperial Gangsters Elvis Burleson ("Burleson"), Allen Montgomery ("Montgomery"), and John Merced ("Merced") in Franklin Park, Illinois. Montgomery and Burleson saw a red Mustang turn into "their" area of Franklin Park, driven by Jose Sanchez ("Sanchez"). Concluding that Sanchez was a member of a rival gang, the Latin Kings, Montgomery ran to a fence near Schiller Boulevard, followed by DeLeon. Meanwhile, Burleson intercepted Sanchez on Schiller. Burleson verbally confronted Sanchez about his gang affiliation and punched him in the face. At trial, Sanchez testified that he drove away after being punched and, as he accelerated, he heard a gunshot, saw a gunman's shadow, and felt a burning sensation in his chest. When he reached a service station, he discovered a bullet had gone through his body.
Montgomery testified that, when he arrived at the fence, he saw an ice cream truck parked a few feet away near Schiller Boulevard and children standing near it. He saw Burleson verbally confront Sanchez and punch Sanchez in the face. He then saw DeLeon shoot at the car using a "double-armed position." As the car sped away, several more shots were fired, and Montgomery saw a girl lying in the grass in front of the ice cream truck and a wounded boy. The wounded boy was three-year-old Noe Ocampo ("Ocampo"); the dead girl was Juana Nieto ("Juana"). After the shooting, Montgomery left the area and claimed that he never saw or spoke to DeLeon again. Over the next few days, he talked with police and identified DeLeon as the shooter and Burleson as the person who punched Sanchez.
Anabel Nieto ("Anabel"), a 10-year-old girl, testified that on April 4, 1997, she and her sisters went across the street to buy ice cream from the truck. As she walked towards the truck, she saw a white man and a black man standing next to each other at the fence on Schiller. Anabel further testified that, when a red car came by, the two men jumped over the fence and DeLeon ran up to the driver's side of the car. Gunshots rang out, and she saw DeLeon shooting at the moving car with his arms outstretched. She then saw her seven-year-old sister, Juana, lying on the ground. Within an hour of the shooting, Anabel spoke with police, and a few days later she viewed a lineup in which she identified DeLeon as the shooter. On cross-examination, she recalled telling police officers that the assailants were white and black and that the shooter was Hispanic. Franklin Park Investigator Norm Carli ("Carli"), testified that Anabel was able to describe the features of the black man she had seen, but that she could only describe the white man as having darker skin than Carli.
Burleson testified that he saw DeLeon shooting more than five rounds at the Mustang, and that he told police that DeLeon was the shooter after he was arrested for his role in the incident. He acknowledged writing two letters while in prison recanting those statements given to the police, but explained that he had made those false statements in the letters because he was afraid that DeLeon would have him killed in prison. Burleson also testified that his statements to the police were fully accurate. Burleson acknowledged that the state of Illinois had dropped murder and attempted murder charges against him and had allowed him to plead guilty to aggravated battery in exchange for his truthful testimony in this case. A Franklin Park paramedic testified that he responded to the shooting and saw Omar O'Malley ("O'Malley"), the ice cream truck driver, get out of the truck with a gunshot graze wound.
At trial, the defense called three witnesses. Detective Carli testified that Anabel first told him that there were three male Hispanics involved in the incident and described their heights and builds. Anabel was able to provide details for a composite sketch of the black male, but not for the Hispanic male. Carmen Merced, the mother of DeLeon and John Merced, testified that her sons were at home during the shooting. John Merced similarly testified that he and DeLeon were at home the entire day, and named Burleson as the leader of the Imperial Gangsters and Montgomery as the chief enforcer. DeLeon declined to testify after acknowledging that he had considered this matter with his family and his attorney.
II. Procedural Background
On November 4, 1998, after a bench trial in the Circuit Court of Cook County, the trial court found DeLeon guilty of the murder of Juana and the attempted murder of Sanchez. (Resp.'s Rule 5 Exs., Ex. A.) The court, however, granted DeLeon's motion for directed verdicts on the attempted murder and aggravated battery counts regarding Ocampo and O'Malley. See id. The trial judge sentenced DeLeon to mandatory life imprisonment for the first-degree murder conviction and a consecutive thirty-year prison term for the attempted first-degree murder conviction. See id. On direct appeal, DeLeon argued that the evidence was insufficient to support his convictions. (Resp.'s Rule 5 Exs., Exs. A, B, C.) After the Illinois appellate court affirmed DeLeon's conviction and sentence on September 15, 2000, DeLeon did not file a petition for leave to appeal ("PLA") to the Supreme Court of Illinois, nor did he file a petition for a writ of certiorari to the United States Supreme Court. (Doc. 14, Amd. Habeas Pet. ("Habeas Pet."), at 2.)
On April 23, 2001, DeLeon filed a petition for post-conviction relief pursuant to 725 ILCS 5/122-1, et seq., challenging the constitutionality of his mandatory life sentence on the grounds that the Public Act authorizing it, Pub. Act 89-203 (eff. July 21, 1995), violated the single-subject rule of the Illinois Constitution. (Resp.'s Rule 5 Exs., Ex. D.) The trial court summarily dismissed the petition, but on appeal the state conceded error and the Illinois appellate court vacated DeLeon's life sentence and remanded for resentencing. (Resp.'s Rule 5 Exs., Ex. E.)
At resentencing, the court imposed an extended term of imprisonment of 100 years for the murder conviction and a consecutive thirty-year sentence for the attempted murder conviction. DeLeon's counsel filed a motion to reconsider the sentence imposed at resentencing. The motion to reconsider stated: "Counsel for defendant maintains, that the Court did not, at the time of trial, specifically find that the age of the victim was proven beyond a reasonable doubt, while acknowledging that counsel is working without the benefit of a transcript of the Court's original finding." People v. DeLeon, 882 N.E.2d 999, 1007 (Ill. 2008). The resentencing court denied the motion to reconsider.
DeLeon then appealed his new sentence, arguing that: (1) he was denied effective assistance of counsel at resentencing because his sentencing attorney failed to obtain trial transcripts and failed to contest the imposition of consecutive sentences by arguing that Sanchez's gunshot wound did not constitute a "severe bodily injury" as defined under Illinois law; (2) the trial court erred in denying defense counsel access to any mitigating evidence contained in DeLeon's Illinois Department of Corrections ("IDOC") records; (3) the trial court erred in imposing consecutive sentences because Sanchez did not suffer a severe bodily injury; (4) his sentence was excessive in light of his rehabilitative potential; and (5) his mittimus should be corrected to reflect that one count of first-degree murder merged into another. (Resp.'s Rule 5 Exs., Exs. I, J, K.) On September 29, 2006, the Illinois appellate court affirmed DeLeon's convictions and sentences, but directed the Clerk of the Circuit Court of Cook County to amend the mittimus to reflect a single murder conviction. (Resp.'s Rule 5 Exs., Ex. H.) On October 23, 2006, the Illinois appellate court denied DeLeon's subsequent petition for rehearing. (Resp.'s Rule 5 Exs., Exs. L, M.)
DeLeon filed a PLA to the Supreme Court of Illinois, which was granted on January 24, 2007. (Resp.'s Rule 5 Exs., Ex. O.) The Supreme Court of Illinois affirmed on January 25, 2008, rejecting DeLeon's contentions that: (1) his resentencing counsel was ineffective because he neither obtained nor reviewed the trial transcripts prior to the resentencing hearing, failed to correct the trial court's mistaken belief that an extended-term sentence was mandatory, failed to argue mitigating factors at sentencing, failed to argue that Sanchez did not suffer a severe bodily injury and that consecutive sentences were therefore impermissible, and failed to correct the trial court's misunderstanding that DeLeon was responsible for wounding Ocampo and O'Malley; (2) the trial court erred by not allowing his counsel to examine his IDOC records; and (3) the trial court erred in imposing consecutive sentences because Sanchez's gunshot wound was not a severe bodily injury. (Resp.'s Rule 5 Exs., Exs. N, O, P, Q.)
DeLeon then filed a successive pro se post-conviction petition on July 30, 2008, arguing that:
(1) he was denied effective assistance of trial and appellate counsel in several respects; (2) his conviction and sentence were void because Sanchez did not suffer a severe bodily injury; and (3) his sentence was unconstitutional because the murder victim's age was both an element of first-degree murder and used as an aggravating factor for his sentence. (Resp.'s Rule 5 Exs., Ex. S.) The trial court dismissed the petition on August 15, 2008. (Resp.'s Rule 5 Exs., Ex. R.) DeLeon appealed the dismissal, and his appointed counsel on appeal moved to withdraw pursuant to Pennsylvania v. Finley. 481 U.S. 551 (1987). In his Finley motion, DeLeon's counsel argued that DeLeon procedurally defaulted his ineffective assistance and sentencing claims by not raising them in his first post-conviction petition. Moreover, DeLeon's counsel also argued that DeLeon's sentencing double-enhancement claim failed because age was not an element of his murder conviction and was used only at resentencing. (Resp.'s Rule 5 Exs., Ex. U.) On May 18, 2010, the Illinois appellate court granted counsel's motion to withdraw and affirmed the dismissal of the successive post-conviction petition. (Resp.'s Rule 5 Exs., Ex. T.) DeLeon then filed a PLA to the Supreme Court of Illinois, which was denied on September 29, 2010. (Resp.'s Rule 5 Exs., Exs. W, X.)
In April 2008, prior to filing his successive post-conviction petition, DeLeon filed a petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. In May 2008, this Court stayed his habeas proceedings pending his exhaustion of his state court remedies. (Doc. 8.) On October 7, 2010, DeLeon filed a motion to lift the stay following the Supreme Court of Illinois's September 29, 2010 denial of his PLA. DeLeon also filed a pro se amended habeas corpus petition pursuant to § 2254. The Court granted DeLeon's motion to lift the stay on October 14, 2010. (Doc. 13.)
In his present habeas petition, DeLeon asserts the following claims: (1) the evidence at trial was insufficient to prove guilt beyond a reasonable doubt; (2) counsel at resentencing was ineffective because he failed to obtain and read the trial transcripts, failed to make mitigation arguments, failed to correct the trial court's misunderstanding of the facts, and failed to argue that DeLeon was ineligible for consecutive sentencing because Sanchez did not suffer a severe bodily injury; (3) the trial court's in camera review of DeLeon's IDOC records and failure to relinquish them to defense counsel resulted in a denial of his Sixth and Fourteenth Amendment rights; (4) trial counsel was ineffective because he advised DeLeon not to testify at trial, failed to argue that DeLeon's enhanced sentence was unconstitutional because the victim's age was both an element of first-degree murder and a statutory aggravating factor for his sentence, and failed to argue that DeLeon was ineligible for consecutive sentencing because Sanchez did not suffer a severe bodily injury; (5) appellate counsel was ineffective because he failed to raise the ineffectiveness of trial counsel on appeal; (6) his consecutive sentences were improper because Sanchez did not suffer a severe bodily injury; and (7) his enhanced sentence was unconstitutional because the victim's age was both an element of first-degree murder and a statutory aggravating factor for his sentence and the resentencing court's consideration of the victim's age to enhance his sentence was invalid because her age was not found by the finder of fact. (Habeas Pet., at 5--6.)
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief cannot be granted unless the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 402--03 (2000). Under the "contrary to" prong, a habeas petitioner must demonstrate that the state court applied an incorrect legal test to the facts, or confronted a set of facts materially indistinguishable from a relevant Supreme Court precedent yet arrived at an opposite result. See Williams, 529 U.S. at 405--06; Hammer v. Karlen, 342 F.3d 807, 810 (7th Cir. 2003).
Under the "unreasonable application" prong, "[a] state court unreasonably applies federal law if it identifies the correct legal principle but unreasonably applies it to the facts of the case, or if it unreasonably refuses to extend a principle to a context in which it should apply." Goudy v. Basinger, 604 F.3d 394, 399 (7th Cir. 2010) (citing Williams, 529 U.S. at 407). Under this deferential standard, "a federal habeas court may not issue the writ simply because . . . the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411. Thus, under AEDPA, a habeas petitioner must show that the state court's application of federal law was both incorrect and unreasonable-that is, "lying well outside the boundaries of permissible differences of opinion." Toliver v. McCaughtry, 539 F.3d 766, 774 (7th Cir. 2008) (internal quotations and citation omitted).
Before bringing a habeas claim in federal court, a petitioner must exhaust the remedies available to him in state court. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Specifically, habeas petitioners must give state courts a full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process. Id. at 845; see also Mahaffey v. Schomig,294 F.3d 907, 914 (7th Cir. 2002). Illinois requires that a petitioner directly appeal to the Illinois appellate court and, if the conviction is affirmed, present his claim in a PLA to the Supreme Court of Illinois. See id. at 845; Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007).
When a petitioner has "already pursued his state court remedies and there is no longer any state corrective process available to him, it is not the exhaustion doctrine that stands in the path to habeas relief, . . . but rather the separate but related doctrine of procedural default." Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). The procedural default doctrine ordinarily will preclude a federal court from reaching the merits of a habeas petition when: (1) that claim was presented to the state courts and the state-court ruling against the petitioner rests on adequate and independent state-law grounds; or (2) the claim was not presented to the state courts and it is clear that those courts would now hold the claim procedurally barred. See id.; see also Conner v. McBride, 375 F.3d 643, 648 (7th Cir. 2004). An independent and adequate state-law ground may be based either upon substantive state law or upon a violation of state procedural rules. See Walker v. Martin, 131 S. Ct. 1120 (2011); see also Willis v. Aiken, 8 F.3d 556, 561 (7th Cir. 1993) ("For a state procedural ground to bar review, the state court actually must have relied upon the procedural bar as an independent basis for its disposition of the case.").
There are, however, two exceptions to the procedural default doctrine. A petitioner can excuse default by showing either: (1) cause for the default and prejudice arising from failure to review the claims; or (2) that failure to review the claims on procedural grounds would result in a fundamental miscarriage of justice. See Howard v. O'Sullivan, 185 F.3d 721, 726 (7th Cir. 1999); Steward v. Gilmore, 80 F.3d 1205, 1211 (7th Cir. 1996). The "fundamental miscarriage of justice" is narrow in scope and requires a claim that the defendant be actually innocent of the crime that he has been convicted of. See Schlup v. Delo, 513 U.S. 298, 327-328 (1995) (petitioner must demonstrate that, in light of all of the evidence, "it is more likely than not that no reasonable juror would have convicted him.") (internal quotations and citation omitted).