The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER*fn1
Petitioner Thomas Powers brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For all the reasons that follow, his petition is denied.
Petitioner was tried and convicted in the Circuit Court of Winnebago County of attempted aggravated criminal sexual assault and aggravated unlawful restraint. The complaining witness alleged that petitioner attacked her with a knife and attempted to sexually assault her. Petitioner received a twenty-five year prison term for the attempted sexual assault, and he did not receive a sentence for unlawful restraint because the trial court held that the latter conviction merged into the former.
After his appeals, his multiple pro se state post-conviction petitions, his petition for relief from judgment, and his state habeas corpus petitions were unsuccessful, petitioner filed a pro se § 2254 petition, raising the following claims:
I. Petitioner did not receive a full and fair hearing on his Fourth Amendment claim because: (a) trial counsel was ineffective for failing to call petitioner's wife to testify that there was no consent to search; (b) appellate counsel was ineffective for not claiming that the initial search was not justified by any exigency and that the police moving evidence (a clipboard) to fit the crime as reported by the victim violated the inevitable discovery rule; (c) the appellate court erred in finding that the knife was in plain view; (d) appellate counsel was ineffective for not challenging this ruling in a motion to reconsider; and (e) police lacked probable cause; there was no consent to search; there were not exigent circumstances; there was no justification for a protective sweep; police had no search warrant; the inevitable discovery rule did not apply; and there is no evidence that petitioner was given Miranda warnings when he was handcuffed and taken to the police station;
II. Appellate counsel was ineffective for not claiming that:
(1) trial counsel was ineffective for failing to call:
(a) two police officers to testify that they overheard a privileged conversation between petitioner and his attorney about drugs and money and that they revealed this information to the victim, which should have allowed the defense to cross-examine the victim about use of illegal drugs and prescription medication; and (b) Kim Wallschaeger, a prospective juror, who knew the victim had psychological problems; and (2) the trial judge abused his discretion by not allowing petitioner to cross-examine the victim about illegal drug usage and prescription medication;
III. Petitioner was entitled to an evidentiary hearing on his post-conviction claim that trial counsel was ineffective in failing to accurately advise him about the State's plea offer because when the State offered him a deal of fourteen years of imprisonment, counsel advised him that he would have to serve 85% of the sentence rather than 50%; had he been correctly informed, he would have accepted the deal; and
IV. The appellate court should have investigated the conflict between post-conviction appellate counsel and petitioner because petitioner presented a pro se supplemental brief that included several issues that counsel refused to include in his brief.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petitioner is not entitled to a writ of habeas corpus unless the challenged state court decision is either "contrary to" or "an unreasonable application of" clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 367 (2000). A state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by the Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Williams, 529 U.S. at 404. To demonstrate an "unreasonable application" of clearly established federal law, a habeas petitioner must establish that the state court unreasonably applied the controlling legal rule to the facts of the case. Id. at 407. The state court's application of Supreme Court precedent must be more than incorrect or erroneous. Rather, it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (state court decision must lie "well outside the boundaries of permissible differences of opinion").
Before a federal court will consider a habeas corpus petition, a petitioner must satisfy several requirements, including the exhaustion of state remedies and the avoidance of procedural default. Procedural default refers primarily to two situations. The first occurs when the petitioner presents federal claims in his habeas petition that he did not "fairly present" to the state courts, thereby depriving the state courts of the first opportunity to address the claims. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). A petitioner's failure to fairly present each habeas claim to every level of the state courts in the time and manner required leads to a default of the claim, thus barring a federal court from reviewing the claim's merits. Boerckel, 526 U.S. at 848. The second occurs where the state court bases its judgment on a finding of procedural default or waiver under state law, where such grounds are "independent of the federal question and adequate to support the judgment." Franklin v. Gilmore, 188 F.3d 877, 881 (7th Cir. 1999). A federal court, however, may excuse a procedural default if a petitioner can show either cause for the default and actual prejudice as a result of the alleged violation of federal law, or can demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In his second claim, petitioner alleges ineffective assistance of counsel and trial court error connected to alleged drug use and psychological problems of the victim. Respondent argues that this claim is procedurally defaulted. I agree. While petitioner presented dozens of claims to the state trial court, he only filed two petitions for leave to appeal ("PLA") to the Illinois Supreme Court. Because neither of these PLAs contained the claims asserted in Claim Two, the various claims in Claim Two are procedurally defaulted. See Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004) (habeas petitioner who failed to assert his claim at each level of state court review has procedurally defaulted his claim).*fn2
A federal court may excuse a procedural default if a petitioner can show either cause for the default and actual prejudice as a result of the alleged violation of federal law, or can demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
To the extent petitioner argues that he is actually innocent of the crimes, he has not put forward evidence to satisfy this extremely demanding standard. The "fundamental miscarriage of justice" exception is limited to the "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]" Schlup v. Delo, 513 U.S. 298, 321 (1995). Such instances of actual innocense are "extremely rare." Id. In order to demonstrate actual innocence in a collateral proceeding, a petitioner must present "new reliable evidence that was not presented at trial." Id. at 327-28. A petitioner who asserts actual innocence to excuse procedural default must establish that "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327. As the Seventh Circuit has said, "To demonstrate innocence so convincingly that no reasonable jury could convict, a prisoner must have documentary, biological (DNA), or other powerful evidence: perhaps some non-relative who placed him out of the city, with credit card slips, photographs, and phone logs to back up the claim." Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005).
First, and most importantly, petitioner cannot attempt to show actual innocence because he has not put forward any "new reliable evidence" that was not produced at his original trial. Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003). Second, even if I were to excuse this requirement, petitioner has failed to show that he is "actually innocent" and that no reasonable juror would have found him guilty. Petitioner argues that this was a "he said; she said" case and that the complaining witness lied on the stand. His main argument is that the state failed to prove that he took a "substantial step" towards penetration of the complainant (which is, he argues, a required element of Attempt Aggravated Criminal Sexual Assault). He also asserts that he never used a knife on the victim. However, petitioner himself points out that the complaining witness testified at trial that, during a struggle, petitioner pulled her pants down around her thighs multiple times. Further, she testified that she received multiple slashes on her hands. Essentially, petitioner argues that this witness lied on the stand, and that he is innocent. Despite petitioner's assertion, the jury ...