The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
An Illinois jury convicted Darrell Jarrett of two counts of first-degree murder and one count of aggravated discharge of a firearm in connection with the shootings of Willie Key and Anthony Harris. The trial judge sentenced Jarrett to a prison term of life without parole.
Jarrett has petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that his trial and appellate counsel rendered ineffective assistance and that the prosecution withheld material exculpatory evidence from him. For the reasons stated below, the Court denies Jarrett's petition and declines to issue a certificate of appealability.
Jarrett does not dispute that he shot and killed Willie Key and Anthony Harris on December 29, 1999. He contends that he shot them in self-defense or, in the alternative, that he should have been convicted of second-degree murder instead of first-degree murder on a theory that he unreasonably believed that he was acting in self-defense.
Jarrett states that Travoy Williams picked him up on December 29 from his home at around 8:30 a.m., and they went to buy heroin. After purchasing and snorting the heroin, they returned to Williams's home. Nearby, they acquired more heroin, and then took Williams's car to a car wash. They were followed to the car wash by Tarimako Allen, who picked them up in her brown Chevy van. Jarrett states that the three of them continued to drive together, and Williams and Jarrett continued to snort heroin. At some point they picked up Linda McGhee. The four drove to three different locations looking for more heroin. At one location they bought marijuana for the women to smoke. Both Williams and Jarrett carried guns and rode in the second row of seats in the van.
The four eventually found themselves driving toward Williams's home on Lexington Street. They turned west on Lexington and passed a location where drugs could be bought and a crack house. As they passed a house, Williams told Allen, who was driving, to stop and back up. The van came to a stop very close to a black Chevy Lumina. Referring to the people milling around on the street, Jarrett states that he asked Williams, "Is that some of [t]he [g]uys?" Am. Pet. ¶ 14. He claims that by this he intended to ask if the people on the street were friends of his and Williams's. Jarrett then got out of the van on the passenger side to see if a man named Ralph was there. While he was walking beside the van, Jarrett heard gunfire on the other side of the van. He claims that he did not know who fired the shots. After the shots were fired, the van began to roll forward. Jarrett also claims that someone yelled, "look out . . . stick up men," though he did not testify to this at trial. Am. Pet. ¶ 14; Ans. to Am. Pet. ¶ 33.
Jarrett felt exposed because of the gunfire and because the van had begun to drive away. He now claims that he saw Michael Blue, a witness who testified before the grand jury but not at trial, aiming a gun at him. Jarrett did not testify at the trial that Blue had aimed a gun at him. He testified that he saw people running in every direction, including toward him. Resp. Ex. G at 69--70. He pulled out his gun and, without moving from where he was standing, began to fire into a crowd of people running around. After firing four or five shots, Jarrett ran to the van and got in. The two women in the van dropped Williams and Jarrett off at the home of Jarrett's sister and brother-inlaw and then parked the van behind the apartment building. Police arrived shortly thereafter and arrested Jarrett, Williams, and the two women.
Witnesses for the prosecution testified differently. Allen testified that Williams directed her to Lexington Street. McGee testified that once they had arrived on Lexington, Jarrett asked Williams, "Is that the guys?" Resp. Ex. E at 8. Williams answered that he thought so and told Allen to back up toward the Lumina. Allen stated that once the van came to a stop, Williams pushed her to the floor. She heard gunshots and assumed that Williams was firing. Allen heard more shots from outside the van, and then Jarrett got into the van and they drove off.
Barbara Starling was a witness at the scene who had parked her car behind the Lumina. She saw Harris and Key sitting in the Lumina. A passenger in her car left and got into the backseat of the Lumina. She saw a brown van arrive and back up to the Lumina. Starling then saw and heard six or seven shots come from the driver's window of the van. She saw Harris and Key run from the Lumina and attempt to run away through a gangway. She then saw Jarrett walking along the passenger side of the van. He had a gun in his hand and shot at Harris and Key six or seven times. He then got back in the van, which drove away.
Devon Joshua testified that he stood at the driver's side window of the Lumina talking to Harris and Key. He saw a brown and tan van drive past the Lumina and then back up so that the two cars were even with each other. He saw one woman driving the van and another sitting in the front passenger seat. Joshua saw Williams push down the woman driving the van and aim a gun at him. He ducked after the first shot but could see Jarrett getting out of the van. Joshua then dove under the Lumina. From there, he heard approximately seven gunshots coming from the van's window. He then saw feet walking from the passenger side of the van to the curb of the street and heard five more gunshots, closer to him than those that had come from the van. Joshua saw the feet walk back to the van and heard the passenger door shut.
B. Trial and direct appeal
In 2003, Williams and Jarrett were tried simultaneously before separate juries. Jarrett's attorney admitted during his closing argument that Jarrett had been on Lexington Street and had fired the shots which killed Harris and Key. Resp. Ex. H at 64, 66. He argued that Jarrett was innocent because he had acted in self-defense or that the jury should convict Jarrett of second-degree murder rather than first-degree murder because Jarrett believed that he was acting in self-defense. The jury convicted Jarrett of first-degree murder on both counts and also on the charge of aggravated discharge of a firearm. The trial judge sentenced him to a prison term of life without parole on September 4, 2003.
Jarrett appealed. His appointed appellate counsel only made a single claim, arguing that Jarrett's retained trial counsel had been constitutionally ineffective when he failed to move to suppress guns discovered in the home where Jarrett and Williams were arrested. The appellate court affirmed Jarrett's conviction. Jarrett then filed a pro se petition for leave to appeal (PLA) to the Illinois Supreme Court. The court denied the petition.
C. First state post-conviction petition
On February 28, 2006, Jarrett filed a pro se post-conviction proceeding in state court under 725 ILCS 5/122-1. He raised eight claims: (1) the trial court's instruction on accountability improperly lowered the prosecution's burden of proof; (2) the prosecution's accountability theory was not charged in the indictment; (3) the indictment was vague; (4) his sentence violated the Proportionate Penalties Clause of the Illinois Constitution; (5) the prosecution suppressed material exculpatory evidence that law enforcement had taken a blood sample from him in violation of his due process rights, Brady v. Maryland, 373 U.S. 83 (1963); (6) the Illinois warrantless arrest statute was unconstitutionally vague; (7) trial counsel was constitutionally ineffective because he failed to object to the accountability instruction and the prosecution's use of an accountability theory in its closing argument; and (8) appellate counsel was constitutionally ineffective for failing to challenge trial counsel's ineffectiveness regarding the accountability instruction. The trial court determined that the proportionate penalty and Brady claims were waived because they could have been brought on direct appeal and that the other claims lacked merit. It dismissed the entire petition on May 31, 2006.
Jarrett appealed. Appointed counsel from the appellate defender's office asked to withdraw because there were no issues of arguable merit. The appellate court allowed the appellate defender to withdraw as counsel but appointed new counsel. Jarrett's appellate brief raised only two of the issues that he had asserted in his post-conviction petition: ineffective assistance of trial and appellate counsel related to the accountability instruction, and the challenge to the prosecution's statements about accountability during closing argument. The appellate court affirmed on August 22, 2008. It held that the trial court properly gave an accountability instruction and that any error was harmless, and thus Jarrett had not received ineffective assistance of counsel from either his trial or appellate counsel. Resp. Ex. T at 10--11.
Jarrett's appointed counsel filed a PLA with the Illinois Supreme Court. Counsel asserted trial and appellate ineffective assistance but focused on the argument that the appellate court had not used the proper standard of review for a post-conviction petition that had been summarily dismissed. The court denied the petition on September 30, 2009.
D. Second state post-conviction petition
On July 2, 2007, Jarrett filed a second pro se post-conviction petition in state court. In the petition, Jarrett argued that he was actually innocent of first-degree murder, he had received ineffective assistance of counsel at trial and on appeal, and the prosecution withheld both the identity of an eyewitness to the shooting who confirmed Jarrett's story and the fact that Starling was paid for her testimony. Jarrett specifically claimed that the trial attorney had been constitutional ineffective in the following ways: (1) he did not conduct a pretrial investigation; (2) he did not interview witnesses before trial; (3) he moved to suppress a statement Jarrett made after arrest that supported the self-defense theory; (4) he failed to object to an irregular fitness hearing conducted by the trial court; (5) he did not introduce the post-arrest statement; (6) he did not call as witnesses the police officer and prosecutor who had witnessed Jarrett's post-arrest statement; (7) he moved to exclude grand jury testimony that supported Jarrett's self-defense theory; (8) he failed to offer testimony which rebutted the prosecution's assertion that Williams and Jarrett were hunting the victims; (9) he failed to ask follow-up questions regarding a statement by Starling at trial that indicated that the victims initially got out of their car to confront Jarrett; (10) he instructed Jarrett not to testify that Blue had aimed a gun at him; and (11) he allowed many sidebars and discussions between the attorneys and the trial court to occur off the record. In the petition, Jarrett further claimed that appellate counsel failed to argue that these actions made trial counsel constitutionally ineffective.
The trial court summarily denied the petition on September 5, 2007. Jarrett appealed. His appointed counsel made four claims: (1) actual innocence; (2) ineffective assistance of trial counsel for failure to investigate Jarrett's self-defense claim; (3) ineffective assistance of trial counsel for instructing Jarrett not to testify that Blue aimed a gun at him; and (4) the prosecution's withholding of the identity of an eyewitness who supported Jarrett's self-defense argument violated due process. The appellate court rejected the actual innocence claim, concluding that Jarrett's evidence was not newly discovered and would not have changed the outcome of the trial. People v. Jarrett, 399 Ill. App. 3d 715, 723--25, 927 N.E.2d 754, 763--64 (2010). The court further determined that Jarrett had forfeited his ineffective assistance of counsel claims and his Brady claim by failing to raise them in his direct appeal or initial post-conviction petition. Id. at 725--28, 927 N.E.2d at 764--67. The court held that Jarrett had not established cause and prejudice for his failure to bring these claims earlier. Id. at 726--28, 927 N.E.2d at 765--67. The court held in the alternative that Jarrett's Brady argument failed because the allegedly suppressed evidence was not material. Id. at 728; 927 N.E.2d at 767.
Jarrett's appellate counsel filed a PLA with the Illinois Supreme Court raising the same four claims. The court denied the petition on September 29, 2010.
A person convicted in state court may obtain a writ of habeas corpus on a claim that was adjudicated on its merits in state court only if the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...