The opinion of the court was delivered by: James F. Holderman, Chief Judge:
MEMORANDUM OPINION AND ORDER
On February 6, 2003, Petitioner Ronald Ruhl ("Ruhl") was convicted at a jury trial in the Circuit Court of Lake County of first-degree murder for the 2002 shooting of Richard Neubauer ("Neubauer"). Ruhl subsequently was sentenced to 50 years in prison. Before the court is Ruhl's "Petition for a Writ of Habeas Corpus" pursuant to 28 U.S.C. § 2254 (Dkt. No. 32) ("Am. Pet.").
Ruhl timely filed a petition for habeas relief on September 2, 2008. (Dkt. No. 1.) The court stayed the petition on October 7, 2008, pending disposition of then ongoing post-conviction proceedings in the state court. (Dkt. No. 18.) After exhausting his state court remedies, Ruhl filed his amended petition on December 22, 2010.
In his petition, Ruhl primarily raises the following three issues: (1) that he was deprived of a fair trial when the trial court did not allow Mary McIntosh ("McIntosh") to testify about co-defendant Raymond Serio's ("Serio") self-incriminating statements to her; (2) that he was deprived of a fair trial when the state disclosed an additional witness, Officer Keith Lamanna ("Lamanna"), during trial; and (3) that his trial counsel was ineffective for various reasons. For the reasons stated herein, Ruhl's Petition for a Writ of Habeas Corpus is denied.
The following facts are taken from the Illinois Appellate Court's ruling affirming Ruhl's conviction and sentence. (Dkt. No. 42, Ex. B, People v. Ruhl, No. 2--03--0920 (Ill. App. Ct. Dec. 15, 2004) (unpublished order pursuant to Illinois Supreme Court Rule 23) ("Direct Appeal."). Ruhl and Serio were charged with two counts of first-degree murder for their roles in the January 6, 2002, murder of Neubauer. They were tried separately.
At Ruhl's trial, the state presented evidence that while Neubauer waited for his girlfriend, Denise Schubat ("Schubat"), in the parking lot of Serio's bar, Ruhl shot and killed Neubauer at Serio's behest. The motive for the killing was Serio's interest in pursuing a romantic relationship with Schubat.
Neubauer's body was found the morning of January 6, 2002, in his car at the entrance to the Bristol Renaissance Faire, which is near the Wisconsin/Illinois border in Kenosha County, Wisconsin. The Lake County, Illinois, medical examiner concluded that Neubauer died as result of three gun shot wounds, two in the head and one in the neck.
Schubat, who in August 1998 had a daughter with Neubauer, was the key witness for the state. She testified that after the birth of their daughter, she and Neubauer lived together for about 18 months. After that, Schubat and her daughter returned to Schubat's mother's home in Lake Villa, Illinois, but Schubat continued dating Neubauer. In the early part of 2001, the couple drifted apart, but Neubauer continued to visit their daughter.
In August 2001, Serio hired Schubat to work as a night-shift bartender at his bar in Antioch, Illinois called the Whip Lash. Schubat testified that Serio worked the night shift with her, and was very "flirtatious and grabby" toward her. Schubat was acquainted with Ruhl, whom she described as a friend of Serio's. According to Schubat, Ruhl and Serio were together all the time. Ruhl would frequently drive Serio to and from work and run errands for Serio. According to Schubat, Ruhl owed Serio a substantial amount of money. Schubat testified that Serio and Ruhl used direct connect Nextel cellular telephones that had a two-way radio feature. She saw and heard Ruhl and Serio converse via these devices every night.
Schubat described an incident near the end of October 2001 in which Serio asked her to give him a ride to a hotel where he was staying. At the hotel, Schubat and Serio used cocaine and had sexual relations. The next day, Serio again invited Schubat to his hotel room, but Schubat told him that the previous night was a mistake. Schubat described Serio as unhappy with her decision and said that Serio continued to pursue her.
In November of 2001, Schubat began dating Neubauer again. Neubauer often picked Schubat up at work when she was done cleaning the bar at around 2:30 a.m. During the latter part of 2001, Serio continued to make advances toward Schubat.
Schubat testified that about one week before Neubauer was killed, she was in the kitchen at the Whip Lash with Serio and Ruhl when Serio told Ruhl that they were going to kill Neubauer. According to Schubat, Ruhl responded, "[w]ell okay, only if Schubat doesn't get mad at me." Schubat said she did not take the comments seriously because Serio and Ruhl were laughing about it. Around the same time, Schubat noticed an old western movie-type handgun with a tan-colored handle in one of the drawers behind the bar.
Schubat testified that on January 4, 2002, Serio once again asked her to leave with him after work. Schubat again refused, saying that Neubauer was coming to pick her up. Serio became upset, and later that night told Schubat that he was going to kill Neubauer. Like the previous week, Schubat said she did not take Serio seriously because he was laughing and joking about it.
The next evening, on January 5, 2002, Schubat arrived at the Whip Lash at 6 p.m. Serio asked Schubat about what she and Neubauer did the previous evening. Schubat told Serio that it was not any of Serio's concern. According to Schubat, Serio then made a comment about getting rid of Neubauer so they could be together. Schubat responded that they would never be together. That evening, Schubat had plans to go to a party in Chicago with Neubauer. Neubauer was planning to go to the party early, leave to pick up Schubat from work, and then return to the party with her. For several days preceding January 5, 2002, Neubauer had been driving his mother's green, four-door car.
At about 10 p.m. on January 5, 2002, Ruhl came into the Whip Lash kitchen with Serio. When Schubat went into the kitchen to ask Serio a question, the two "shut up right away." At some point during her shift, Schubat looked in the drawer behind the bar and noticed the gun was gone. When the bar closed at 2 a.m., Schubat and Serio were alone in the bar. According to Schubat, while she was cleaning up behind the bar, she heard Serio on his Nextel phone asking whether a green, four-door car was still in the parking lot. Schubat heard Ruhl respond "yes" over the Nextel. According to Schubat, she heard Serio ask Ruhl to go up to the window of the car and shoot Neubauer. Schubat tried to leave, but Serio pushed her behind the bar and told her she was not going anywhere.
Next, Schubat heard Serio ask Ruhl to go up to window of the car, knock, and pull the trigger. After a pause, Ruhl asked over the Nextel, "Are you sure?" In response, Serio screamed over the Nextel, "I want to hear a gunshot." The next thing Schubat heard was a gunshot. Pushing Serio out of the way, Schubat ran to the front door of the bar, which had a window. Through the window, Schubat saw Neubauer hunched over in the car with his jaw quivering.
Schubat testified that she fell to the ground, and Serio picked her up and sat her on the pool table. Serio shook her and told her to calm down, adding that she could not blame him because he did not do it. At that point, Serio moved Schubat to a bar stool and she heard pounding on the door and glass breaking. Serio went to the door and let Ruhl into the bar. Ruhl paced back and forth, holding his head. Schubat said the gun she had seen in the drawer behind the bar was now on the bar and wrapped in a blue towel. Ruhl told Serio that they had to hurry up and get rid of the body. Serio told Schubat to go home and make sure that no one knew that Neubauer was at the Whip Lash that night if she wanted her daughter to be safe. Serio told Schubat not to approach Neubauer or the car as she left. Schubat saw Serio watching her from the bar as she walked to her car and drove away.
At Serio's instruction, Schubat drove straight home and called and left a message on Neubauer's phone at about 2:43 a.m. Schubat recalled saying in the message that Neubauer must have stayed in the city, that she was at home, and she would talk to him later. The next morning, Neubauer's mother called Schubat and inquired as to his whereabouts. Schubat lied and said she had not heard from him. The following evening, Neubauer's mother asked Schubat to come to her house, where two detectives told Schubat that Neubauer was found dead in Wisconsin. Schubat lied and said she knew nothing about Neubauer's death. Schubat admitted that between the time of Neubauer's death and April 2002, she repeatedly lied to police about what she knew about his death.
Officer Keith Lamanna of the Waukegan Police Department also testified for the state. He testified that he stopped a vehicle registered to Serio at 5:17 a.m. on January 6, 2002, at Washington Street just east of Lewis Avenue in Waukegan. Lamanna identified Serio and Ruhl as the two men in the vehicle. During the traffic stop, Lamanna asked Serio and Ruhl where they had been, and one or both of them said they "came from the north, Round Lake." Lamanna was suspicious because Round Lake was due west of there. When asked where they were going, one or both of the men said they were looking for a restaurant. Serio consented to a search of his vehicle and Lamanna recovered an open bottle of liquor. Lamanna poured out the liquor and released the men without making an arrest or issuing any citations. He made no written report regarding the traffic stop. Although Ruhl's attorney was aware of the traffic stop, the state did not disclose the name of the officer who conducted the stop until the second day of trial.
Detective Timothy Jonites of the Lake County Sheriff's Department also testified for the state. Jonites testified that he traveled the route between the Whip Lash and the Bristol Renaissance Faire, and from that location to Schubat's home. Jonites left the Whip Lash at 2:20 a.m. The entrance to the Bristol Renaissance Faire was 15.3 miles from the Whip Lash. Upon arrival at the Renaissance Faire, Jonites immediately turned around and went to Schubat's home. He testified that the total distance of the trip was 26.3 miles and the trip took 39 minutes, with him arriving at Schubat's home at 2:59 a.m. Jonites indicated that he exceeded the posted speed limits by 5 m.p.h. and took the fastest route.
The defense called Sandra Morton, a friend of both Schubat and Ruhl. Morton testified that she and Schubat had worked together at a different bar before Schubat left to work at the Whip Lash. In the four and a half years that Morton had known Schubat, she never met Neubauer. Morton said that Schubat complained about Neubauer a lot and said he was a poor father, never gave her money, was upset with Schubat's lifestyle, and had threatened to take their daughter.
Before trial, the state filed a motion in limine seeking to bar the testimony of Marcy McIntosh on the grounds that it was inadmissible hearsay. At the hearing on the motion, McIntosh testified that her fiance, Jim Natywa, was from the same south-side neighborhood as Serio, so they drank for free at the Whip Lash. McIntosh worked as a bartender at the Whip Lash from January 2002 until April 2002.
On the day before Serio was arrested for the murder of Neubauer, Serio came into Whip Lash. McIntosh and Natywa were the only people in the bar. Police had just released Serio after questioning him in connection with Neubauer's murder. When Serio came into the bar, McIntosh asked him why police were questioning him when he had nothing to do with the murder. According to McIntosh, Serio responded, "What do you mean I had nothing to do with it? I did it." At that point, Natywa got up and walked away.
Serio proceeded to tell McIntosh that he shot Neubauer once in the parking lot, and when that did not kill him, he shot him again. Serio said Neubauer was a punk and that Schubat and her child were better off without Neubauer. Serio told McIntosh that on the night of the murder, Schubat was standing right where McIntosh was standing. He did not implicate Schubat in the murder.
McIntosh admitted that she did not socialize with Serio, nor did she confide in him or ask his advice. McIntosh said that Serio would occasionally "borrow" her van and cell phone without her permission when she was working at the Whip Lash. McIntosh said that she did not tell police about what Serio said because she did not want to get involved because of what she knew about Serio and his connections. However, she came forward when Ruhl was accused of the murder because Serio had said nothing about Ruhl being involved in the murder.
On the date set for the ruling on the motion in limine, Ruhl's trial lawyer had a conflict and substitute counsel appeared on his behalf. Ruhl's trial lawyer sent a letter to the court indicating that if the court found that Serio's statements were against his penal interest, the court should hold a second hearing to determine if there were sufficient indicia of trustworthiness to allow the hearsay statements to be admitted. The trial court, however, said it had already held a hearing on that issue, and found that although the statements were against Serio's penal interest, McIntosh and Serio were not close acquaintances, McIntosh's testimony was not corroborated, and there would be no opportunity to cross-examine Serio regarding his purported statements because he would undoubtedly exercise his Fifth Amendment right not to testify. The trial court granted the motion, finding that McIntosh's hearsay statements were not sufficiently trustworthy to be admitted under the standard set forth in Chambers v. Mississippi, 410 U.S. 284 (1973).
After he was convicted, Ruhl retained new counsel and filed a post-trial motion for new trial or for judgment notwithstanding the verdict. The trial court denied the motion and sentenced defendant to 50 years in prison. Ruhl filed a timely notice of appeal.
On direct appeal, Ruhl raised four claims: (1) he was deprived of a fair trial when the trial judge barred McIntosh from testifying as to Serio's confession; (2) the state's disclosure of Officer Lamanna's name after the trial began deprived Ruhl of a fair trial; (3) his extended sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and the Illinois Code of Criminal Procedure; and (4) his constitutional right to be presumed innocent was violated when the trial court selected an anonymous jury. (Dkt. No. 42, Ex. I, at 2 ("Br. on Direct Appeal").) The state appellate court rejected each of Ruhl's contentions and affirmed his conviction and sentence. (Direct Appeal 9--36.) The state appellate court also rejected Ruhl's petition for a rehearing. (Dkt. No. 42, Ex. L.)
Ruhl, represented by counsel, then filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court. In his PLA, Ruhl raised only two claims: (1) that the trial court erred in excluding McIntosh's testimony and (2) that the trial court erred in allowing Officer Lamanna to testify despite the late disclosure of his name. (Dkt. 42, Ex. M, at 3--6 ("PLA on Direct Appeal").) The Illinois Court denied his PLA on May 25, 2005. (Dkt. 42, Ex. N, People v. Ruhl, 833 N.E.2d 7 (Ill. 2005)).
3. Post-Conviction Petition
On November 22, 2005, Ruhl filed a post-conviction petition in the state trial court in which he claimed his constitutional right to effective assistance of counsel was violated for various ...