The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Petitioner Tony A. Rolfe's (Rolfe) pro se petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. § 2254. For the reasons stated below, the court denies the Petition.
Rolfe was convicted in Illinois state court in a jury trial of first-degree murder and was sentenced to fifty years in prison. The record reflects that the mother of the victim came home to find the victim in a pool of blood with over fifty stab wounds. (Ex. C 2-3). Rolfe appealed the conviction, and on May 5, 2008, the Illinois Appellate Court affirmed the conviction. Rolfe filed a petition for leave to appeal to the Illinois Supreme Court (PLA), which was denied on September 24, 2008.
On January 9, 2008, Rolfe filed a post-conviction petition, and the trial court denied the petition. Rolfe appealed the denial, and on August 23, 2010, the Illinois Appellate Court affirmed the denial. Rolfe then filed a PLA on his post-conviction appeal, which was denied on January 26, 2011. On May 25, 2011, Rolfe filed the Petition in this action.
An individual in custody pursuant to state court judgment may seek a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) 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 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The decision made by a state court is deemed to be contrary to clearly established federal law "'if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.'" Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable application of clearly established federal law "'if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.'" Emerson, 575 F.3d at 684 (quoting Bell, 535 U.S. at 694).
This court has liberally construed Rolfe's pro se filings. See Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 2004)(stating that "[a]s [the plaintiff] was without counsel in the district court, his habeas petition is entitled to a liberal construction"); Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001)(indicating that a court should "liberally construe the pleadings of individuals who proceed pro se"). Rolfe asserts the following claims in the Petition: (1) that Rolfe's due process and equal protection rights were violated because he was convicted of murder but was tried under an accountability theory relating to his participation in a robbery (Claim 1), (2) that Rolfe's trial counsel was ineffective for failing to object to what Rolfe deemed to be a constructive amendment of the indictment to include a robbery charge (Claim 2), (3) that Rolfe's trial counsel was ineffective for failing to file a post-trial motion on the issue of a fatal variance (Claim 3), (4) that the trial court erred in denying Rolfe's motion to suppress evidence obtained from his tennis shoes because, according to Rolfe, he did not consent to the seizure of the shoes (Claim 4), (5) that the trial court erred in not granting Rolfe's motion to suppress a witness identification because, according to Rolfe, a suggestive identification procedure was used (Claim 5), (6) that the trial court abused its discretion in sentencing Rolfe to fifty years imprisonment (Claim 6), and (7) that Rolfe's appellate counsel on direct appeal was ineffective because he did not present certain arguments relating to the ineffectiveness of trial counsel (Claim 7).
Respondent argues that Rolfe cannot prevail on the merits on Claim 1. As indicated above, Rolfe argues in Claim 1 that Rolfe's due process and equal protection rights were violated because he was convicted of murder but was tried under an accountability theory relating to his participation in a robbery. Under the Fourteenth Amendment, a criminal defendant in state court has "the fundamental right to be informed of the nature and cause of the charges made against him so as to permit adequate preparation of a defense." Kaczmarek v. Rednour, 627 F.3d 586, 596 (7th Cir. 2010). The due process clause also protects an individual from conviction of a crime "'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . .'" Sanders v. Cotton, 398 F.3d 572, 581 (7th Cir. 2005)(quoting In re Winship, 397 U.S. 358, 364 (1970)).
Under Illinois law, "accountability is not a separate offense but merely an alternative manner of proving a defendant guilty of the substantive offense." People v. Doss, 426 N.E.2d 324, 327 (Ill. App. Ct. 1981). An individual can be convicted under an accountability theory if the state establishes "beyond a reasonable doubt that: (1) defendant solicited, ordered, abetted, agreed or attempted to aid another in the planning or commission of the crime; (2) defendant's participation took place before or during the commission of the crime; and (3) the defendant had the concurrent intent to promote or facilitate the commission of the crime." People v. Garrett, 928 N.E.2d 531, 535 (Ill. App. Ct. 2010). Rolfe was charged as a principal in a murder, but that did not prevent him from being convicted under an accountability theory. See Doss, 426 N.E.2d at 327 (stating that "a person charged as a principal can be convicted upon evidence showing that he was in fact only an aider or abettor"). The record reflects that the jury in Rolfe's case was properly provided with instructions that included an accountability theory instruction. (Ex. G 2).Rolfe has not shown in regard to Claim 1 that the Illinois Appellate Court's decision affirming the ...