The opinion of the court was delivered by: Murphy, District Judge:
This matter is before the Court on Petitioner Rinando Tucker's amended petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 (Doc. 29). Respondent filed an answer to the petition on October 14, 2009 (Doc. 33). For the following reasons, the petition is DENIED.
On October 20, 1997, a jury in St. Clair County, Illinois, found Mr. Tucker guilty of the murders of Martin and Judith Dotson (Doc. 20-9, Ex. K). The trial court sentenced Mr. Tucker to natural life in prison.
The following factual background has been taken from the direct appeal decision on Mr. Tucker's case rendered by the Illinois Fifth District Appellate Court on November 3, 2000.
The victims, Marty and Judy Dotson, husband and wife, were murdered in their home late in the evening on April 17, 1997, or early in the morning on April 18, 1997. Defendant, age 20 at the time of the murders, did not deny his presence at the scene, but denied killing the victims. Tucker asserted that Brandon "Buck" Craighead, age 16, was the shooter. Tucker was tried under an accountability theory. Craighead was tried separately.
The evidence showed that on April 18, 1997, Centreville Police Sergeant William Miller was working the midnight shift. During his shift, he observed a Chevy Corsica being driven in a strange manner and attempted to investigate; however, the driver of the Corsica would not stop. A chase ensued. Ultimately, the Corsica came to a stop and its occupants fled on foot. Sergeant Miller found a cellular phone near the car. He ran the plates on the car and found that the car was registered to Marty Dotson . . . .
At 9 a.m. on April 18, 1997, Centreville Police Officer Gregory Hosp was dispatched to the victims' home to check on their well-being. When Officer Hosp arrived, he found the front door partially open. Upon entering the home, he discovered Marty Dotson's body slumped on a bar stool and Judy Dotson dead on her bed. Each victim died from a single, close contact gunshot to the head. Crime-scene technicians were then called to the scene . . . .
Patricia Jackson, a crime scene investigator for the Illinois State Police, arrived, at approximately 10:43 a.m. She found no evidence of forced entry. Both bedrooms were ransacked. She collected People's Exhibit 5c, latent fingerprints from the inside of the front door and from a metal box found on a bedroom floor. The print from the metal box was transferred and labeled as People's Exhibit 5b. A fingerprint expert identified the latent print as a fingerprint of defendant's left middle ring finger. Judy Dotson's daughter, Karin Morales, testified that she had seen the two metal boxes at the victims' home, but she did not know what was stored in those boxes. She also testified that the victims kept several pieces of jewelry in their bedroom.
Other evidence collected at the scene included, inter alia, a shell casing discovered in the living room, People's Exhibit 18, and a shell casing discovered in the bedroom, People's Exhibit 17. Spent projectiles were later retrieved from the bodies of the victims and introduced at the trial as People's Exhibits 12 and 13 . . . . Detective Coppetelli of the Collinsville Police Department testified that on April 19, 1997, as part of his duties with the Major Case Squad, he . . . recovered a firearm from Judy Dotson's son, Tim Foster. Detective Coppetelli interviewed Foster, who indicated that he had a firearm at his residence. Foster turned the firearm over to the police. The gun was analyzed and identified as a .32-caliber, but was not connected to the crime in question. The gun was marked as People's Exhibit 7 and shown to the jury. Likewise, People's Exhibit 8, a super-automatic, .38-caliber Colt pistol, which was not connected to the crime, was shown to the jury. However, after defense counsel objected, the State withdrew its motion to have the guns admitted into evidence. Collinsville Police Officer Todd Link testified that he retrieved the .38-caliber gun from Michael Gillespie on April 20, 1997. The State failed to tie up Gillespie's connection with the investigation.
Thomas Gamboe, Jr., a forensics, firearm, and toolmark expert, examined People's Exhibits 7 and 8, along with People's Exhibits 12 and 13, which were, in his opinion, bullets from a .38-caliber or 9-millimeter weapon, and People's Exhibits 17 and 18, the discharged cartridge cases. Gamboe opined that Exhibits 12 and 13 were fired from the same weapon, as were Exhibits 17 and 18. Gamboe further opined that Exhibits 12 and 13, the spent projectiles, could not have been fired from either People's Exhibit 7 or 8.
John Vickers, who lived on 36th Street in East St. Louis, testified that on April 18, 1997, at approximately 3 a.m., he got up to use the bathroom and noticed that someone had piled trash near his trash cans, which he had set out the night before to be picked up the following morning. Mr. Vickers returned to bed, but he stopped his car on the way to work to try to stuff the extra trash into a trash bag. Some of the items would not fit, so Mr. Vickers set them in his house to be sorted through later. When he arrived home from work in the evening, he attempted to stuff the extra trash into a trash bag. He then watched the evening news and learned of the victims' murders. He realized that he had seen Mr. Dotson's name on one of the papers in the trash left by the trash cans. Mr. Vickers called his attorney to find out what to do. His attorney advised him to keep what he had and bring it to the attorney's office where he met with the police and handed over the trash. Items included an ashtray, a car caddy, a glove, and papers. These items were introduced into evidence as People's Exhibit 33.
Shondreka Hinkle, age 17, testified that near the date of the murders, Tucker and Craighead were at her house while she was baby-sitting for her four-year old nephew. Craighead had a gun and insisted on showing her. At one point, Craighead handed the gun to the four-year-old. Hinkle got angry and struck the gun out of her nephew's hand. On that same evening, Craighead told her that he needed some money and was going to kill a woman in Parkside. According to Hinkle, defendant told Craighead to be quiet because Hinkle might tell someone.
Angeletta Jacobs . . . recalled that on the evening when the victims were killed, she was with Craighead and defendant at her mother's house. They arrived about 9 p.m. . . . Craighead had a gun, which he showed to defendant. Jacobs testified that Craighead told defendant it was a 9-millimeter. Craighead and defendant left a little before 10 p.m. Jacobs received a phone call from defendant at about midnight. A few minutes after her conversation with defendant, Craighead called her. Jacobs recalled that both conversations were normal conversations and that nothing seemed out of the ordinary.
A records officer for Ameritech testified about the billing records from the victims' cellular phone. Two telephone calls were billed to the phone on April 17, 1997. The first was an incoming call at 2:34 p.m.; the second was an outgoing call at 11:29 p.m. Six outgoing calls were billed to the cellular phone on April 18, 1997, at the following times: 12:21 a.m., 12:43 a.m., 1:21 a.m., 1:21 a.m., 4:11 a.m., and 4:28 a.m.
Defendant left the area after the murders and went to stay with relatives in Beloit, Wisconsin, where he was arrested. . . . After searching the house in Beloit where defendant was staying, police found, hidden beneath the carpet in a bedroom, photocopies of newspaper articles concerning the victims' murders.
On May 7, 1997, defendant was interrogated in Beloit by police officers, including, Sergeant Steve Brown of the Centerville Police Department. Defendant gave a nine-page written statement to police, as well as a videotaped statement. Both the written statement and the videotape were introduced into evidence. The videotape was played to the jury.
Outside the presence of the jury, the State moved for admission of any exhibits not previously introduced into evidence. Defense counsel objected to the admission of the weapons, citing People v. Wade, 51 Ill. App.3d 721, 366 N.E.2d 528 (1977), on the basis that it was reversible error to admit weapons that are in no way connected to the crime. The prosecutor argued that the guns were admissible to show that a thorough investigation had been conducted by the police. The trial court reserved its ruling. Ultimately, the State withdrew its motion to admit the guns . . . . Defense counsel also stated that as part of his trial strategy he was not going to introduce favorable character evidence on defendant's behalf. Defense counsel explained that if he introduced character evidence, the State could rebut such evidence with details of a pending burglary investigation of defendant. Defendant took the stand in his own defense.
Defendant testified that prior to the night in question, he socialized with Craighead on only two or three occasions. He was with Craighead on the night of the murders because Craighead wanted defendant to meet his cousin from Kansas City, who was visiting and thinking about giving defendant a job. Defendant could not remember Craighead telling Ms. Hinkle that he was going to kill someone. He did, however, remember the incident involving Hinkle's four-year-old nephew. Defendant denied planning the events of the evening or planning to rob anyone.
Defendant explained that Mr. Dotson had a reputation for helping kids, including defendant. Defendant had been to the victims' homes on other occasions, and Mr. Dotson had paid him to do odd jobs. Defendant testified that he and Craighead arrived at the victims' home between 9:00 p.m. and 11 p.m., after Craighead suggested that they go to the victims' house. Mr. Dotson let them in after defendant identified himself. Mr. Dotson padlocked the door after defendant and Craighead entered. Defendant and Craighead had brandy, cigars and marijuana. Defendant opened a cigar and put some marijuana inside it and smoked it. The three socialized.
Mr. Dotson asked defendant how his mother was doing, and defendant responded that she was fine. Mr. Dotson then asked Craighead how his mother was doing, and Craighead went ballistic, screaming at Mr. Dotson that it was wrong to be asking about his mother. Mr. Dotson and Craighead locked arms, but defendant interceded, and the situation seemed calmer; however, Craighead suddenly got up, drew his gun from his pants, and shot Mr. Dotson. Defendant told Craighead that he was going to leave, but Craighhead turned the gun on defendant and told him that he was not going anywhere and that even if he wanted to leave, he could not because the door was padlocked.
Mrs. Dotson, who was in a back room, then called out and inquired about the loud noise. Craighead ran into the bedroom and shot Mrs. Dotson. While Craighead was in the bedroom, defendant attempted to leave, but he was stopped by the padlock. Defendant went into the kitchen and smoked a cigarette in an attempt to calm his nerves. He heard Craighead turning over things in the back of the house. Craighead appeared, carrying jewelry and other items. Craighead still had the gun and told defendant it was time for them to leave.
They exited by the front door, and defendant tried to get away quickly because he feared neighbors would see him leaving the house after the shooting. Defendant made some calls to try to find a place to spend the night. He recalled the chase with the police officer and explained that he had been drinking and was not thinking clearly. He was afraid the police would conclude that he had been involved in the shootings, so he ran away. He thought the police would catch only him and pin the murders on him. He testified that he never intended to kill the victims and denied stealing anything. He said that he had been to the victims' home a week or so before the murders and had helped them move some things; however, he did not remember ever touching the metal boxes that had been introduced into evidence. The morning after the shooting, defendant asked his mother to take him out of town. He went to a cousin's house in Rockford, but after a couple of weeks he went to another cousin's house in Beloit. Defendant agreed that his videotaped statement was accurate. The defense rested.
Defense counsel objected to the admission of the trash that Mr. Vickers discovered in his yard. Initially, the trial court sustained the objection but then allowed it for a limited purpose. The State argued that it was necessary to show that Vickers was an innocent man who found some evidence and reacted by giving it to the police, whereas defendant reacted by running away to Wisconsin. The trial court allowed the evidence, and the State discussed the trash during rebuttal.
The jury retired to consider its verdict at 12:05 p.m. At 4 p.m. the jury sent a note asking if they could have the written statement of Ms. Hinkle. The trial court and the lawyers agreed that the statement should not be given to the jury because it was never introduced into evidence. The trial court then stated on the record that an hour earlier the jury had asked the bailiff for a transcript of the entire trial. Without consulting anyone, the bailiff told the jury that the transcript was not available. The trial court concluded that the bailiff's answer was correct, and both the prosecutor and defense counsel agreed. At 7:45 p.m., the jurors announced that they were deadlocked. At 9:50 p.m., the jury came back with guilty verdicts on both counts. (Doc. 20-9, Ex. K); See People v. Tucker, 738 N.E.2d 1023 (Ill. App. Ct. 2000).
Mr. Tucker, with the assistance of counsel, appealed the conviction and sentence, raising the following grounds for relief: 1) he was denied effective assistance of counsel because his trial attorney (a) failed to object to the State's presentation of two unrelated firearms and (b) failed to present favorable character evidence for fear the State could rebut the evidence with evidence of an unrelated pending investigation against Mr. Tucker; and 2) the prosecutor's improper actions denied him a fair trial, which included (a) presenting two guns to the jury unrelated to the case, (b) presenting evidence of papers bearing the victim's name found in a third party's trash can, and (c) arguing Mr. Tucker's guilt was established by comparing his actions with those of an individual who found the papers in the trash (Doc. 20-9, Ex. K). On November 3, 2001, the Illinois Court of Appeals affirmed the conviction. Id.
Mr. Tucker filed a Petition for Leave to Appeal ("PLA") urging the Illinois Supreme Court to reverse the appellate court's findings (Doc. 20-11, Ex. L). The Illinois Supreme Court summarily denied Mr. Tucker's PLA on January 29, 2001 (Doc. 20-12, Ex. M).
B. Petition for Post-Conviction Relief
Mr. Tucker filed a pro se petition for post-conviction relief on October 25, 2000 (Doc. 20-13, Ex. N). An amended petition was filed by appointed counsel on August 2, 2001. Id. Mr. Tucker raised the following grounds for post-conviction relief:
1) The trial court violated his Fourteenth Amendment right to a fair trial by denying his request for a jury instruction defining "intent";
2) The trial court violated his right to confront the witnesses against him by allowing Shondreka Hinkle, a prosecution witness, to testify about statements made by petitioner's co-defendant;
3) The trial court violated his right to a fair trial by:
a. denying the jury's request to see the statement made by Ms. Hinkle to the police.
b. denying the jury's request for transcripts of the trial.
c. speaking to the jury outside the presence of Mr. Tucker and his counsel.
4) The prosecutor engaged in prosecutorial misconduct by:
a. misstating the evidence to the jury.
b. vouching for and bolstering the credibility of State witnesses.
c. suppressing evidence of the co-defendant's mental illness and medical history.
5) The co-defendant has now made a statement fully supporting Mr. Tucker's theory at trial, which constitutes newly discovered evidence of his innocence; and
6) Mr. Tucker was denied the effective assistance of his trial counsel in the following ways:
a. trial counsel failed to object to the State's offer of an improper jury instruction, IPI Criminal 2.03.
b. trial counsel failed to adequately prepare for trial.
c. trial counsel failed to adequately communicate with ...