The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:
MEMORANDUM OPINION AND ORDER
On August 28, 2008, the Court denied Petitioner Maurice Coleman's petition for a writ of habeas corpus and supplemental habeas petition pursuant to 28 U.S.C. § 2254(d).*fn1 On November 19, 2010, the Seventh Circuit remanded this matter to the Court to conduct an evidentiary hearing on Coleman's claim of actual innocence, which is a gateway for the Court to review the merits of Coleman's procedurally defaulted Sixth Amendment ineffective assistance of counsel claims. See Coleman v. Hardy, 628 F.3d 314, 319 (7th Cir. 2010). On remand, after the parties conducted discovery, the Court held an evidentiary hearing on August 22 and 23, 2011. The parties completed their post-hearing briefing on December 19, 2011. In light of the testimony and documentary evidence, along with the Court's credibility determinations, the Court denies Coleman's petition for a writ of habeas corpus. See 28 U.S.C. § 2254(d). The Court also declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2).
The Court first turns to a summary of the evidence presented at Coleman's jury trial as determined by the Illinois Appellate Court, which the Court presumes as correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1). Testimony from Coleman's 1983 criminal trial shows that on Sunday, August 2, 1981 at about 5:00 p.m., the victim, Terrell Jackson, age 33, was at his home on the south side of Chicago and was asleep on the floor in a second floor bedroom. Jackson's stepdaughter, Gwen Thomas, age 19, was in another second floor bedroom with her newborn baby. At that time, Jackson's younger brother, Arlander Adamson, age 18, was watching television in the first floor living room. That same day, two men carrying guns burst through the rear door of Jackson's home. The men put their guns to Adamson's head and ordered him to tell them who was in the house. Adamson then told them that his brother, his niece, and her baby were upstairs. The men also asked Adamson if there were any drugs or money in the house. They then bound and gagged Adamson forcing him to accompany them upstairs.
Once upstairs, Adamson indicated to the men that his niece and her baby were in the room where the door was closed. The men, along with Adamson, went down the hallway to Jackson's bedroom, after which the men ordered Adamson to lie on the floor. They told Jackson to get up and asked him, "Where is the s--t at?" As Jackson awakened, the men fired five or six shots at him. One of the men took Jackson's jewelry and money and the other looked through various drawers in the room while asking, "Where's the s--t?"
One of the men then left Jackson's room and went to Thomas' room, and -- with a gun in his hand -- told Thomas to come with him. He then directed Thomas to Jackson's room. Thomas testified that she saw Jackson and Adamson lying on the floor. One of the men told Thomas that if she did not tell them where "it" was, the two men would kill them. Thomas then asked Jackson what the men wanted and where "it" was. Jackson said that he did not have anything and that he did not want to die. Nonetheless, the two men ransacked the room, went into the closets and under the mattress, and pulled out drawers. One of the men put something in his pocket. They also tied up Thomas and made her lie face down on the floor and one of the intruders took a necklace from Thomas' neck. They then left Jackson's home.
Shortly thereafter, Thomas and Adamson untied each other. Thomas went downstairs, locked the doors, and then called the police, her grandmother, and her cousin, Dorothy Davis, while Adamson held Jackson, who was dying. Jackson then died from his gunshot wounds. After the police arrived, Adamson and Thomas described the two offenders. Later that evening, Adamson and Thomas looked through photograph books at the police station, but neither one made an identification of the perpetrators. A few weeks later on August 18, 1981, Thomas looked through a book of photographs that Chicago Police Detectives brought to the home of Thomas' friend. Thomas identified a picture of Coleman as one of the offenders. On the following day, Thomas and Adamson identified Coleman in a lineup at a Chicago police station.
On August 28, 1981, Chicago police showed Adamson a group of photographs and he identified Joseph Barnes as the other offender. After the police charged Barnes with the August 2, 1981 robbery-murder, the Circuit Court of Cook County issued a warrant for Barnes' arrest. On September 12, 1981, Baltimore, Maryland police arrested Barnes. After extradition proceedings, Barnes was extradited to Chicago on February 17, 1982, and on that date, Thomas and Adamson identified Barnes in a lineup as the other offender who invaded their home and killed Jackson on August 2, 1981. Adamson and Thomas also identified Coleman and Barnes at the 1983 criminal trial as the two assailants who intruded into their home, robbed them, and killed Jackson.
II. Procedural Background
In 1983, a jury in the Circuit Court of Cook County found Coleman and Barnes guilty of murder and armed robbery. Although the State sought the death penalty, the trial judge sentenced Coleman to prison terms of natural life and thirty years' imprisonment, respectively. Coleman appealed his judgment of conviction to the Illinois Appellate Court, First District, arguing that: (1) improper identification evidence was obtained in violation of his Sixth Amendment right to counsel and was wrongly used at trial; (2) his Sixth Amendment right to a jury composed of a cross-section of the community was denied because the trial court excluded all persons who were unalterably opposed to the imposition of the death penalty; (3) the trial court erred in admitting the State's rebuttal testimony to Barnes' alibi witness; (4) cumulative prosecutorial error denied him a fair trial; and (5) the trial court failed to properly exercise its discretion by summarily denying the jury's request for a transcript of witness testimony. On February 3, 1989, the Illinois Appellate Court affirmed Coleman's conviction and sentence.
On April 6, 1989, Coleman filed a petition for leave to appeal ("PLA") to the Supreme Court of Illinois, raising three claims: (1) improper identification evidence was obtained in violation of his Sixth Amendment right to counsel and wrongly used at trial; (2) cumulative prosecutorial error denied him a fair trial; and (3) the trial court failed to properly exercise its discretion by summarily denying the jury's request for a transcript of witness testimony. On June 1, 1989, the Supreme Court of Illinois denied Coleman's PLA.
On March 1, 1990, Coleman filed a pro se petition for post-conviction relief in the Circuit Court of Cook County pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., arguing that trial counsel was constitutionally ineffective for failing to call Tracey and David Wilkins to testify. On September 23, 1992, Coleman filed a pro se supplemental amendment to his post-conviction petition arguing that trial counsel was constitutionally ineffective for failing to call Evelynn Cade and Loretta Cade, a witness identified as "Sleepy," and Roy Wright as trial witnesses, along with counsel's failure to call Tracey and David Wilkins. On August 9, 1994, Coleman, by counsel, filed an amended post-conviction petition alleging that Barnes admitted that Coleman was not involved in the underlying crimes and that Barnes' admission was corroborated by other evidence proving that Coleman was wrongly convicted. In particular, Coleman asked for a new trial based on his actual innocence pursuant to People v. Washington, 256 Ill.App.3d 445, 447-48, 195 Ill.Dec. 94, 628 N.E.2d 558 (1st Dist. 1993), an appellate opinion that the Supreme Court of Illinois later affirmed.*fn2 After granting Coleman an evidentiary hearing in which Coleman's co-defendant
Barnes testified, the post-conviction Circuit Court denied Coleman's amended post-conviction petition finding Barnes' testimony incredible and that his friendship with Coleman was a strong motivation for him to testify favorably for Coleman. The Circuit Court also concluded that revenge was a powerful motivating factor for Barnes substituting Roy Wright as his accomplice instead of Coleman. In sum, the Circuit Court concluded that Barnes' testimony "so lacks credibility and lacks credibility to the extent that the outcome of this case would probably not be different if Barnes was a witness, in the past trial or would be a witness in a future trial." See People v. Coleman, No. 1-95-4039, at *9-10 (1st Dist. July 31, 1998) (unpublished).
Coleman appealed the Circuit Court's denial of his post-conviction petition to the Illinois Appellate Court arguing that the trial court abused its discretion in denying his amended post-conviction petition because Barnes' exculpatory statement was unavailable at trial and would have proven his innocence if introduced at a new trial. Coleman, however, did not argue that his trial counsel was constitutionally ineffective on post-conviction appeal. On July 31, 1998, the Illinois Appellate Court affirmed the Circuit Court's denial of Coleman's amended post-conviction petition. In its July 1998 decision, the Illinois Appellate Court explained Coleman's post-conviction petition and the evidence in support of the petition, including the August 1995 post-conviction hearing evidence:
Defendant's amended [post-conviction] petition alleged that the newly discovered evidence consisted of a statement by Barnes that he was involved in the offense with Roy Wright and Barnett Hall (a drug dealer who is now deceased), and not with defendant. This statement was supported by Barnes' affidavit, which described how the offense was committed. An affidavit of Barnes' trial counsel, James Rhodes, indicated that Barnes told him during the jury's deliberation that defendant did not have anything to do with the crime. In corroboration, an affidavit from Isaac Smith, an inmate at Menard prison, stated that he was present in July or August 1994, when Wright told defendant in the prison yard that he knew defendant was not involved in the murder.
Also attached to defendant's [post-conviction] petition was certain correspondence between defendant and his appellate counsel in which he conveyed to counsel that Wright could exonerate him. This correspondence did not mention a prison yard conversation with Isaac Smith. Defendant stated that in August 1994 Wright sent word to him that he wanted to talk about his conviction. When they talked in October 1994, Wright allegedly told defendant he would be willing to prepare a statement for him and defendant's counsel affirming defendant's innocence. When defendant told counsel about this October-1994 conversation with Wright, he mentioned Wright's refusal to help Barnes because Barnes owed him money. Although copies of correspondence from defendant's counsel to Wright are attached, no statement from Wright was ever submitted to counsel or defendant.
An affidavit of Geary Kull, defendant's trial attorney, stated that on one occasion he tried to speak to Wright about this case, but Wright refused to talk to him.
A statement was prepared at the time of trial (dated April 21, 1983) and signed by both defense attorneys indicated that neighbors of the decease, the two Wilkins brothers, saw two men enter the deceased's home about the time of the shooting. The Wilkins brothers could identify Barnes, but could not identify defendant. Affidavits of defense investigators documented a short conversation with Adamson in which he told them that the victim was a drug dealer and when the robbers asked where "it" was at, they meant  $10,000.
At the evidentiary hearing, Barnes testified that if defendant was granted a new trial, Barnes would testify on defendant's behalf and that he understood such testimony would be used against him if he were ever granted a new trial. It was then brought out that Barnes had exhausted all appeals and post-conviction challenges, except for a petition of habeas corpus. Barnes testified that defendant did not plan or participate in the murder, was not present during the shooting and was not responsible for the conduct of Barnes, Wright, and Hall.
Barnes testified that he and Roy Wright shot the victim during a dispute over a drug deal. Barnes and Hall had a prior business relationship dealing drugs. In this instance, Barnes gave Hall $10,000 so Hall could purchase drugs from the victim through Wright. After Hall gave Wright the money, bad drugs were delivered. When Barnes' request for the return of his money was denied, Wright took Barnes and Hall to see the victim. When the victim pulled out a gun and refused to produce drugs or money, both Barnes and Wright repeatedly shot [the] victim.
In 1980, Barnes was imprisoned and he placed defendant's name on his visiting list of friends. He explained that he did this only because defendant had agreed to drive Barnes' wife to visit him. He said if defendant's name had not been included, defendant would have had to wait outside in his car while Barnes visited with his wife. Defendant never visited Barnes in prison. Barnes insisted defendant was not his friend, but that he was "an okay guy."
Barnes waived his attorney-client privilege and testified that during the jury's deliberation, he told his attorney that the reason he kept asking Rhodes for a severance was because "that guy [defendant] had nothing to do with it [the murder]." Barnes told Rhodes that Wright, whom he called by his street name, committed the murder with him. Barnes testified that it would have been a shame if the jury had convicted defendant, "because he [defendant] had nothing to do with it." Barnes said that when Rhodes asked him how he knew defendant was not involved, he told him, "Because I was there." Barnes admitted lying in his post-conviction petition. He testified that Rhodes did not refuse to allow him to testify during trial as alleged in the petition, but that he merely recommended that he not testify. He also testified that everything to which Adamson testified at trial was a lie and did not happen, but he did not know why Adamson would lie. Barnes testified that he was now acknowledging his participation in this matter for his own peace of mind.
On cross-examination, Barnes admitted that during his extradition hearing on this case in Baltimore, Maryland, he testified that he was in Baltimore at the time of the murder. He explained his perjury by stating, "I didn't want on [sic] be in Chicago." At trial, Barnes presented a different alibi supported by the testimony of his wife and another relative that he was home in Chicago with his family at the time of his murder. Barnes also admitted lying in his affidavit which accompanied his post-conviction petition.
During the evidentiary hearing, Barnes testified that he shot the victim, but stated that he acted in self-defense. He stated that the gun used by the victim was recovered under the mattress in the bedroom where the victim was found. On cross-examination, Barnes admitted he felt a "little bitterness" toward Wright because Wright was the informant who gave his name to the police, but it was nothing he could not "get over."
James Rhodes, Barnes' trial attorney, testified that although a severance was requested before trial, it was denied. When he presented Barnes' alibi defense, he was aware of Barnes' testimony during the extradition hearing in Maryland and therefore only presented the alibi witnesses provided by Barnes.
Barnes first discussed defendant with him when the jury was deliberating. At that time, Barnes told Rhodes in the lockup that "he felt pretty bad for defendant because defendant really didn't have anything to do with it [the murder]." At that time, Barnes did not tell Rhodes he was involved in the offense or provide other details regarding the offense. Rhodes did not ask Barnes whether he was involved or how he knew defendant was not involved. At that time, Barnes never told Rhodes that he wanted to testify at trial and make a claim of self-defense.
Rhodes testified that he never directly asked Barnes or any other client whether he committed the offense.
See Coleman, No. 1-95-4039, at *2-8. Based on the post-conviction Illinois Appellate Court's examination of the record, including the 1995 hearing testimony, the appellate court concluded:
[T]he trial court's credibility assessment was not against the manifest weight of the evidence. Co-defendant Barnes presented three different defenses during separate sworn proceedings. At his extradition hearing in Baltimore, Maryland, he testified that he was in Baltimore at the time of the murder. At trial, his attorney presented an alibi defense that he was at home in Chicago with his family at the time of the murder. Although Barnes maintained his innocence in the affidavit attached to his post-conviction petition, his testimony during the evidentiary hearing on defendant's post-conviction petition admitted his presence and asserted self-defense. Furthermore, Barnes identified Wright, the person who implicated him in this offense, as his accomplice.
Also, Barnes' testimony differed in major respects from that of Rhodes, his trial attorney and the only other witness at the evidentiary hearing. Rhodes stated that during the jury's deliberation Barnes told him that defendant was not involved, but did not tell him anything more. However, Barnes testified that he told Rhodes that he was there, and that Wright was involved with him. Rhodes testified that he never asked Barnes how he knew that defendant was not involved. Additionally, Barnes admitted that Rhodes did not prevent him from testifying at trial as he had previously alleged in the affidavit attached to his earlier-filed petition for post-conviction relief.
Barnes' recent testimony exonerating defendant, inculpating himself and claiming self-defense contains no indicia of reliability. We do not believe that it is of such a conclusive nature that it would probably change the result on retrial. See Coleman, No. 1-95-4039, at *12-13.
Thereafter, on August 7, 1998, Coleman filed a notice of intent to file a post-conviction PLA to the Supreme Court of Illinois. In his post-conviction PLA, Coleman raised one issue, namely, that the trial court erred in denying his amended post-conviction petition because Barnes' testimony would have exonerated him. Coleman did not present any ineffective assistance of trial counsel claims in his post-conviction PLA. The Supreme Court of Illinois denied Coleman's post-conviction PLA on December 2, 1998.
III. Prior Habeas Rulings
Prior to the Court's August 28, 2008 ruling on Coleman's habeas petition, his counsel admitted that Coleman had procedurally defaulted his ineffective assistance of counsel claims because Coleman had failed to present them in one complete round of review to the Illinois state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Counsel, however, argued that the miscarriage of justice exception based on Coleman's actual innocence excepted Coleman's procedural default. See House v. Bell, 547 U.S. 518, 536, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). The Court determined that Coleman had not met the actual innocence standard, but nevertheless discussed Coleman's ineffective assistance of counsel claims on the merits concluding that Coleman had not fulfilled the clearly established standard under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
On March 12, 2009, the Seventh Circuit granted Coleman's request for a certificate of appealability as to the following issues: (1) whether new evidence not presented at trial supports his claim of actual innocence; and (2) whether trial counsel was constitutionally ineffective. On November 30, 2010, the Seventh Circuit remanded this matter for an evidentiary hearing for the Court to evaluate Coleman's actual ...