The opinion of the court was delivered by: Judge Joan H. Lefkow
Petitioner Carlos Priester is serving a 40-year sentence in the Statesville Correctional Center in Joliet, Illinois, for first-degree murder and unlawful use of a weapon. He has petitioned this court for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons stated below, the petition is denied.
The following facts are taken from the state court opinions, primarily from the Illinois Appellate Court's opinion affirming the trial court's judgment. See Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The state court factual findings that are reasonably based on the record are presumed to be correct, and Priester has the burden of rebutting this presumption by clear and convincing evidence. Id.; 28 U.S.C. § 2254(e)(1).
On January 4, 1999, Carlos Priester and Jamal Jones were arrested and charged with murder in the execution-style shooting death of Jerry Kennedy as part of an alleged botched drug deal. Police responded to a report of gunshots being fired into a vehicle. Priester and Jones were apprehended by Chicago police shortly afterward as Jones fled in the car and Priester tried to flee on foot. The victim had been pulled out of the car onto the ground. Priester had bloodstains on his clothing and was carrying two handguns, a blood-soaked jacket, and a bank statement bearing Jones's name when he was apprehended. He was taken to the police station, where he waived his Miranda rights and signed a statement admitting to shooting at Kennedy. Priester's statement asserts that he and Jones and Kennedy were outside the car arguing about a bad batch of drugs that Jones had received from Kennedy. According to Priester's statement, he and Jones sold drugs together and Kennedy was one of their suppliers. Jones took out a handgun and told petitioner, "I'm gonna get this cat," before the three men got into the car. Priester took out his handgun, hid it in the waistband of his pants, and then followed Jones to the car. Jones got into the driver's seat, Kennedy sat in the front passenger seat, and Priester sat in the rear of the car. Jones retrieved a gun from inside the car and began firing shots at Kennedy. Priester claimed he then pulled his own gun and began shooting wildly into the front seat area in a panic.
Before trial, Priester's and Jones's attorneys filed discovery motions requesting to examine the vehicle in which the shooting occurred. The State's crime lab had mistakenly returned the vehicle to the Hertz car rental company, however, and Hertz later sold the car. The trial court denied Priester's motion to dismiss the indictment against him based on the State's failure to preserve the car.
Priester and Jones were tried in severed, simultaneous trials before separate juries. Priester testified in his own defense and denied saying many of the things that were contained in his signed statement. Priester testified that he had sat passively in the back seat of the car while Jones and the victim argued and that he saw Jones shoot the victim. In response, Priester panicked and fired wildly into the front seat of the car. An eyewitness, however, testified that he saw Priester standing by the opened passenger door of a vehicle and firing a handgun into the vehicle. Priester was convicted of first-degree murder on the accountability theory under Illinois law.*fn1 In his joint appeal with Jones to the Illinois Appellate Court, Priester argued four grounds for reversal: (1) the trial court failed to provide a self-defense and second-degree murder jury instruction; (2) the trial court excluded a hearsay statement Priester gave to an arresting officer in violation of his Sixth Amendment rights; (3) he was denied a fair trial as a result of improper closing argument by the State; and (4) the State's failure to preserve the vehicle as evidence violated due process. The appellate court rejected these arguments and affirmed Priester's conviction. Priester filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court, arguing only the jury instruction issue. That court denied his PLA on September 27, 2006.
Priester then filed an unsuccessful pro se post-conviction petition with the Circuit Court of Cook County on March 22, 2007, arguing that his trial counsel was ineffective for failure to call a trajectory expert and failure to cross-examine the state's forensic experts effectively. On appeal, the Illinois Appellate Court rejected this argument as without merit and affirmed his conviction. The Illinois Supreme Court declined to grant his PLA on September 30, 2009.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the court may not grant a petition for writ of habeas corpus unless a state court 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 in the State court proceeding." 28 U.S.C. § 2254(d).
Before reviewing the state court decision, however, the court must determine whether the petitioner fairly presented his federal claims to the state courts, as any claim not presented to the state's highest court is deemed procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). "The petitioner must establish that he fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge." Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005). To qualify as fair presentment, the claim must be asserted on one complete round of state court review, either on direct appeal or in post-conviction proceedings. Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). In Illinois, this means appeals up to and including the filing of a petition for leave to appeal to the Illinois Supreme Court. O'Sullivan, 526 U.S. at 845--46. When a petitioner has failed to fairly present his federal constitutional claim to the state courts and the opportunity to raise that claim has passed, the claim is procedurally defaulted for purposes of federal habeas review. Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009).
Priester asserts four claims before this court: (1) the state's failure to preserve the vehicle in which the shooting took place and produce it in response to a defense discovery motion violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); (2) the trial court's refusal to admit Priester's potentially exculpatory statement to his arresting officer under the "excited utterance" hearsay exception denied him the opportunity to qualify for a lesser-included charge of second-degree murder, in violation of the Sixth and Fourteenth Amendments; (3) statements the assistant state's attorney made to the jury during closing argument constituted prosecutorial misconduct; and (4) the failure of Priester's trial ...