The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
An Illinois jury convicted Robert Buchanan Jr. of first-degree murder. The trial judge sentenced him to a prison term of life without parole. Buchanan 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 State violated his due process rights by not providing funds to enable him to hire a psychiatrist as a defense expert. For the reasons stated below, the Court denies Buchanan's petition and declines to issue a certificate of appealability.
A. The murder of Wilma Buchanan
On the night of October 1, 2002, Wilma Buchanan was at her home in Zion, Illinois. She lived there with her three adult children, two of whom, Alicia Gomillia and Kenneth Gomillia, were also at the townhouse that night. Wilma had spent the day packing up her belongings, because she and her children intended to move to Arkansas the next day.
Between 11 p.m. and midnight, Robert Buchanan, Wilma's estranged husband, called Wilma approximately ten times. Wilma spoke with Buchanan but refused his requests that she come to see him.
At approximately 12:15 a.m. on October 2, 2002, Buchanan entered Wilma's townhouse by smashing down the back door. Kenneth, who had been downstairs, ran upstairs to warn his mother and Alicia, who were in Wilma's bedroom. After Kenneth entered the bedroom, Wilma and her children attempted to close the bedroom door, but Buchanan forced his way into the room. He was carrying a knife, and he grabbed Wilma and held the knife to her throat. Alicia picked up the phone to dial 911, but Buchanan told Wilma that "[i]f your daughter calls the police I will kill you." Resp. Ex. B at 1109; see id. at 1073. Alicia hung up the phone. Buchanan refused to let Wilma or her children leave the room, but while he was attempting to force Wilma into a closet in the bedroom, Alicia and Kenneth were able to flee.
Zion police officers Brian Fiene and Anthony Velardi responded to Alicia's aborted 911 call. They entered Wilma's house and went to the second floor. They took up positions outside the bedroom where Buchanan was holding Wilma, but they but did not enter. Buchanan repeatedly threatened to kill Wilma if the police entered the room and made Wilma repeat this threat to the police. He also began to throw furniture against the bedroom door to create a barricade.
The police stayed outside the bedroom for about twenty minutes. Fiene and Velardi were joined by Sergeant Timothy Bartlett, who had brought nonlethal "flashbang" stun grenades from the police station. At some point, the police heard the sounds of a struggle from within the room, and someone opened the door a few inches from the inside. Police saw a bloody hand reach out from inside the bedroom. Bartlett attempted to kick the door in but found the door barricaded from the inside. The police were able to force the door open a foot or so, and they threw a stun grenade into the room. They were then able to open the door completely and remove Wilma, who was bleeding from multiple wounds. She had suffered twenty-one stab wounds and died later that day.
Buchanan was on the floor of the bedroom with a broken knife stuck in his chest. He resisted when officers tried to subdue him and had to be shocked twice by a Taser. At one point, Buchanan told the police to shoot him because he did not want to go back to jail. Id. at 1366. Police eventually handcuffed Buchanan to a stretcher so that he could be taken for medical treatment. As he was taken outside the home, he asked if Wilma was dead. Id. at 1441--42. Sergeant Terry Richards told Buchanan that Wilma would be fine. Upon learning this, Buchanan became agitated and started screaming and spitting on the police officers. Id. at 1430.
B. Psychological examination and fitness hearing
An Illinois grand jury indicted Buchanan for first-degree murder committed with three different sentencing enhancements: murder of someone protected by an order of protection, murder during the course of a home invasion, and murder accompanied by "exceptionally brutal or heinous behavior indicative of wanton cruelty." 730 ILCS 5/5-8-1(b); see 720 ILCS 5/9-1(a), (b)(6)(c), (b)(19). These sentencing enhancements, if proven, made Buchanan eligible for a sentence of life without parole.
The trial court gave permission for Buchanan to be evaluated by a psychologist, Dr. Michael Gelbort. Dr. Gelbort tested Buchanan and found that his IQ score was very low, in the range where he would be considered mentally retarded. The defense moved for a fitness hearing based on this evidence, but the trial court found that the evidence did not create a bona fide doubt as to Buchanan's fitness. The court did, however, continue the trial to allow Buchanan time to be evaluated by another psychologist.
The new psychologist, Dr. Alan Friedman, reported that he had doubts regarding Buchanan's fitness to stand trial. But he also wrote:
I do not believe that I have reliable testing data based upon Mr. Buchanan's lack of cooperation. He tested in the range of persons with mental retardation. His full scale IQ fell eleven points below the testing level of Dr. Michael Gelbort, Ph.D. from eleven months ago. I cannot account for this drop in scoring other than by an inference that Mr. Buchanan was trying to produce a lower score on the IQ test. Similar low scores repeated on other assessments lead me to conclude that Mr. Buchanan was attempting to skew the data by looking as bad as possible. Resp. Ex. C at 142. Dr. Friedman stated that he wanted to do additional testing to confirm or rule out the possibility that Buchanan was malingering, that is, exaggerating his mental incapacity for strategic reasons.
Based on Dr. Friedman's report, the defense again requested a fitness hearing. The trial court denied the motion, but appointed another psychologist, Dr. John Dunne, to examine Buchanan. In his report, Dr. Dunne stated that Buchanan's performance on two psychological tests, the TOMM (Test of Memory Malingering) and M-FAST (Miller Forensic Assessment of Symptoms Test), was "highly suggestive of malingering." Id. at 644. Dr. Dunne wrote that the M-FAST in particular is designed to detect whether a patient is malingering. Dr. Dunne also interviewed Buchanan. Buchanan told Dr. Dunne that he could not remember killing his wife, experienced auditory hallucinations, did not know his lawyer's name, and had only a limited understanding of the trial process. Given the results of the tests, however, Dr. Dunne thought it more likely that Buchanan was feigning his symptoms and lack of understanding. He recommended that the court find Buchanan fit to stand trial. After receiving Dr. Dunne's report, the trial court ordered a fitness hearing before a jury. See 725 ILCS 5/104-12.
Shortly before the fitness hearing was to take place, Buchanan asked the trial court to provide him with funds to hire a psychiatrist as an expert. His attorney, Jed Stone, argued that a psychiatrist at the county jail where Buchanan was in custody had prescribed Haldol, an anti-psychotic drug, after Buchanan appeared to attempt suicide. Stone contended that a mentally healthy person would have been incapacitated by the drug but that Buchanan's behavior and comprehension of his circumstances had improved after he began taking it. Stone argued that Buchanan's reaction to the drug suggested that he was mentally ill and that an expert psychiatrist was necessary to testify about the effects of the drug. Stone also argued that the expert psychologists were unqualified to speak about psychotropic medications. The court denied the motion, noting that Buchanan had already retained two expert witnesses on the issues of fitness and sanity. Resp. Ex. B at 210.
At the fitness hearing, Dr. Dunne testified about his testing and interview of Buchanan. He also stated that he had reviewed Dr. Friedman's results and that Dr. Friedman had tested Buchanan with the TOMM and M-FAST as well. Dr. Friedman's results were similar to Dr. Dunne's and also suggested malingering.
The defense called Dr. Richard Wagner, the psychiatrist who had treated Buchanan in the county jail. Dr. Wagner stated that he had prescribed the antidepressants Trazadone and Paxil for Buchanan, and that later, after the apparent suicide attempt, he had prescribed Haldol and then Risperdal, both anti-psychotic drugs. Dr. Wagner testified that he gave Buchanan the anti-psychotics to help control his unstable mood and agitation. He stated that Buchanan was currently confined to his cell for most of the day because of his bad behavior, and if the drugs helped him control his behavior, he would be allowed more freedom at the jail. Dr. Wagner stated that he had never diagnosed Buchanan as psychotic. He acknowledged that Buchanan had reported auditory and visual hallucinations to him, but it was his conclusion that Buchanan was malingering and not actually suffering from hallucinations.
The defense also called Lena Buchanan, Buchanan's mother, and Vermel Buchanan, his sister, to testify at the fitness hearing. They testified that Buchanan had suffered head trauma twice in his childhood. Specifically, he had been beaten with a broom handle when he was eight or nine and had been hit in the head with a lead pipe when he was fourteen or fifteen. Vermel also testified that Buchanan drank to excess, often passing out, and used cocaine.
Following the hearing, the jury found Buchanan fit to stand trial.
Buchanan's trial took place in January 2004. In his opening statement, Stone conceded that Buchanan had stabbed Wilma while the two were barricaded in her bedroom, and he primarily argued that Buchanan was insane at the time of the crime.
One of the prosecution's witnesses was Tyrone Henderson, who had been Wilma's neighbor at the time of the murder. Henderson testified that, on the night of the murder, he had heard Buchanan say that he was going to kill Wilma. Henderson also testified that he heard Buchanan say that Wilma was "his for life" and that "[s]he wasn't going to make it" to Arkansas. Id. at 1135. Henderson testified that he had heard Buchanan make similar comments to Wilma frequently in the past.
At the outset of Henderson's testimony, the prosecution elicited from him that he had been convicted of two felonies. Henderson also admitted that he was testifying because he had been subpoenaed and that the prosecution was paying his expenses. On cross examination, Henderson stated that he had given a written statement to the police on February 24, 2003, more than four months after the murder. Henderson claimed that he had given the statement so late because he had been incarcerated, and he stated that he had also given a statement on the night of the murder but had refused to give his name because there was a warrant out for his arrest. The defense was able to impeach him, however, by calling the police detective to whom Henderson had given his written statement. The detective testified that Henderson had claimed at the time he just missed being interviewed by police because he had gone to a different apartment.
The day after Henderson testified, the defense moved for a mistrial, stating that the prosecution had not disclosed that Henderson had been convicted of the felonies. In particular, the defense stated that the prosecution had not previously disclosed that Henderson had been on probation for a DUI conviction when he first spoke to the police about Wilma's murder, had been sentenced to sixteen months in prison when his probation was revoked, and was on supervised release at the time of trial. All of these facts, the defense contended, gave Henderson a motivation to provide testimony helpful to the prosecution and perhaps to lie. The trial court concluded that the state had violated its obligations to disclose impeachment evidence under Brady v. Maryland, 373 U.S. 83, 87 (1963), but did not order a mistrial. Instead, the court ordered the prosecution to make Henderson available to the defense for an interview and stated that the defense could call him to testify to inquire into his motivations and whether he had received any deal from the prosecution.
Stone was able to interview Henderson before the close of evidence, although (as he told the trial judge) he was unable to talk to Henderson's attorney or the prosecutor in Henderson's case to ascertain whether any negotiations had occurred regarding his testimony. Stone did learn that Henderson had failed a drug test while on probation before he spoke to the police about what he claimed he had heard Buchanan say and that Henderson had actually been held at the county jail for more than a month at the same time that Buchanan was there. Stone argued that these facts gave Henderson both the motive and opportunity to testify falsely. Stone elected, however, not to call Henderson back as a witness to present these facts to the jury.
The defense put on evidence that Buchanan drank heavily and used drugs and that he had twice suffered head wounds as a child. Stone did not call any of the psychologists who had examined Buchanan. There was also no witness to testify about the medications that Dr. Wagner had prescribed for Buchanan or about their effects and uses. At the end of the defense case, Stone indicated to the trial court that Buchanan would not testify. The court had the following discussion directly with Buchanan:
The Court: . . . Mr. Buchanan, as you just heard, your attorney rested and indicated that they were not calling any additional witnesses. You have talked with your ...