The opinion of the court was delivered by: Herndon, Chief Judge:
On October 27, 2000, after a bench trial, Petitioner Richard V. Mueller ("Mueller") was convicted of first-degree murder by Judge Edward C. Ferguson, Circuit Court of Madison County, Illinois. He was sentenced to a term of imprisonment of forty-five years. Now before the Court is Mueller's Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
Mueller filed a direct appeal in state court claiming that references to polygraph evidence denied him a fair trial, and that trial counsel was ineffective for allowing the introduction of this evidence, along with evidence regarding Mueller's history of violence (Doc. 11-1). Mueller's direct appeal was denied because the appellate court found that the facts of his case supported the trial court's decision to allow the introduction of polygraph evidence, and that even if the evidence was improperly admitted, any resulting error was harmless. Regarding Mueller's ineffective assistance claim, the appellate court found that evidence of Mueller's violent history would have been admissible even if his counsel had not opened the door; that the introduction of polygraph evidence was not error, and that both of these decisions by defense counsel represented reasonable trial strategy. Thus, Mueller failed to show that his counsel was ineffective under the reasonableness prong of the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) (Doc. 11-1). Mueller petitioned for leave to appeal to the Illinois Supreme Court but that petition was denied on February 5, 2003 (Doc. 1, p. 3).
On August 5, 2003, Mueller filed a petition for post-conviction relief under the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.), on several grounds: (1) ineffective assistance of trial counsel at sentencing for failing to investigate or present certain mitigation evidence, including a number of potential witnesses; (2) denial of due process rights because the trial court disregard Muller's expert's testimony regarding his negative reaction to Prozac, and (3) disproportionality of Mueller's sentence when compared to the sentence received by Sandra Merrifield, a woman who pled guilty in an unrelated case (Doc. 1, pp. 3-4). This relief was denied at the trial level when the trial court granted the State's motion to dismiss Mueller's petition on August 29, 2005 (Doc. 11-6). The trial court dismissed the petition, inter alia, because it found that the affidavits provided by Mueller were insufficient to show that his trial counsel's representation "fell below minimum constitutional standard established by Strickland v. Washington, 466 U.S. 688 [sic] (1984), or that the outcome of the case would have been different" (Doc. 11-6, p. 4). Mueller filed a motion with the trial court to reconsider this dismissal, but this too was denied (Doc. 11-7). First, the trial court noted that the evidence presented by way of affidavit was known to Mueller at the time of his initial appeal and could have been raised on direct appeal. Id. The trial court further noted that the proffered affidavits were of limited evidentiary value, containing "nothing more than cumulative evidence concerning ancillary issues[,]" and they did not "support a finding that the outcome would have been different, had the witnesses testified" (Doc. 11-7, p. 2).
Mueller appealed the dismissal of his post-conviction petition to the Illinois Fifth District Appellate Court.
The following recitation of facts concerning Mueller's conviction and post-conviction proceedings is summarized from the Illinois Appellate Court's Rule 23 Order issued on July 26, 2007, denying Mueller's collateral appeal (Doc. 11-8, pp. 1-9):
Mueller was indicted on two counts of first-degree murder for the July 6, 1997 death of his wife, Kim. At a bench trial, the State presented evidence of a history violence against Kim by Mueller, that they had marital difficulties, that Mueller drowned Kim forcibly in a bathtub in their home after an argument and struggle, that Mueller left Kim face down in the bathtub and left to take his children to camp without calling for help, and that the physical evidence did not support a conclusion that Kim's death was an accident.
Mueller presented evidence that six months prior to Kim's death, he began taking Prozac, an antidepressant that was prescribed for his long-term depression. Mueller, and his mother, father, and brother testified to a dramatic personality change after he began taking Prozac. They testified that Mueller changed from "being depressed and painfully shy to being extremely energetic and outgoing" (Doc. 11-8, p. 2). Mueller's family testified that the positive changes from Prozac were followed by a transition to Mueller becoming obnoxious and unreasonable, which led the family to issue him an ultimatum: either see a psychiatrist and change medications or lose both family and job (working for the family's business). Mueller set an appointment date which unfortunately arrived four days after Kim's death.
Mueller testified that on the day of Kim's death, she was "fussing" at him for the way he was cleaning up after the previous night's party. Mueller loaded his children, Megan (age 14) and Matt (age 8), into Kim's van to take Megan to camp, but realized he needed his checkbook and went back into the house to get it. While inside, with the children still in the van, Kim told Mueller that they needed to talk when he returned. Kim was in the bathroom, cleaning it, with the water running in the bathtub, and Mueller stepped into the doorway; an argument ensued and in a physical struggle Mueller and Kim lost their footing, causing Kim to hit her head as he fell on top of her in the bathtub. Mueller panicked and fled with the children. After driving a short distance, he became worried about Kim, fabricated an excuse, and returned to the house. Mueller testified that he found Kim in the tub, could not see anything but her hair, picked her up, put her back down in the water after hearing a knock at the door, changed out of wet shorts and left again to take Megan to camp. He told Megan that Kim had waved goodbye, but he did not tell the children what had transpired or call for help. Mueller testified that he knew he was going to be in big trouble. Mueller also admitted that he lied to his children post-incident and lied to the police when questioned about Kim's death. Mueller's mother discovered Kim dead in the bathtub and called the police.
At sentencing, the State presented aggravation evidence regarding a 1986 incident where Mueller broke into the home of Kim's mother, who was baby-sitting Megan at the time, and pulled his mother-in-law's hair, knocked her down, kicked her in the chest, and left with Megan. Two of Kim's siblings testified to Kim's marital problems with Mueller, as well as Mueller's problems with others. David Bradford, an investigating officer, testified to Mueller's mother's statement that Mueller had a violent temper, that Mueller was to move out of the marital residence the day of Kim's death, and that she thought Mueller had killed Kim and fled with the children.
Mueller presented mitigating evidence in the form of a written statement read by his daughter Megan, and testimony from his parents and brother about his dramatic personality changes after he started taking Prozac. The family testimony was to the effect that, but for the Prozac, Kim's death would not have happened. Mueller testified as well, expressing remorse and admitting responsibility for Kim's death. Mueller also explained his problems with depression and "admitted that he had written several 'nasty' letters to family members from jail" in which he had not accepted responsibility for his actions (Doc 11-8, p. 4).
The state requested an extended term sentence of 100 years, and the defense stressed Mueller's mental health issues and requested mercy. The trial court sentenced Mueller to 45 years of imprisonment, based largely upon the strong physical evidence, testimony, and statements given to police. The trial court specifically found that Kim's death was intentional, not accidental, and that the evidence did not support an accidental cause. The court found that Mueller's actions-forcibly drowning Kim and then coming back and leaving her in the water-"were very cruel and intentional" (Id.). The court noted that the Prozac did not limit Mueller's liability under the law for his acts, and it did not feel that Prozac had much impact on what happened that day, despite Dr. Eric Miller's testimony. The court noted the importance of taking responsibility for one's actions and that specifically, based on Mueller's conduct, Mueller's continuing statements about his involvement, and his "stale attempts to deflect blame on other people," a 45 year sentence was appropriate in this case (Id. at 5).
In his post-conviction proceedings, Mueller alleged that he was denied effective assistance of counsel*fn1 because his "trial counsel failed to call several witnesses that would have refuted the State's evidence of Mueller's history of violence toward Kim and would have corroborated Dr. Miller's testimony about hypomania, an antidepressant-induced mood disorder" (Id.). In support, Mueller attached twelve affidavits to his post-conviction petition. The affidavits were intended to refute testimony about the violent history between Mueller and Kim and show that their marriage was not as bad as it had been described by some of the State's witnesses; to argue that Mueller's personality change and conduct ...