The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Back in 2005, Tracy Gartman ("Petitioner") filed a petition for writ of habeas corpus , naming as Respondent the warden of the Pontiac Correctional Center ("Respondent")*fn1 pursuant to 28 U.S.C. § 2254. The petition, which asserts 38 claims for relief, was transferred to the undersigned judge in 2008. In January 2009, this Court entered an order  in which it rejected Respondent's argument that most of Petitioner's claims were procedurally defaulted. Since then, the briefs have been amended and supplemented several times, due in part to intervening developments in relevant U.S. Supreme Court precedent. After careful consideration of the voluminous briefing and intervening case law, the Court is now prepared to issue its lengthy ruling addressing each of Petitioner's myriad claims. Cf. Harrington v. Richter,131 S. Ct. 770, 780 (2011) (observing that because "the writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law," courts "must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources"). For the reasons stated below, the petition is denied in its entirety.
On August 18, 1992, Frances H., a 13-year-old girl, left her house and stayed out through the night. At about 3:00 a.m. the next day, she went to J.J. Peppers, a convenience store where Petitioner worked, and asked him for a ride home.*fn3 She had known Petitioner for about a year and had seen him 15 to 20 times during that period. Petitioner agreed to give her a ride after work. He then gave Frances his car keys so that she could drive his car around and fill it with gas. When Frances returned an hour later, Petitioner, who was still working, told her to lie down in his car. Frances did so and subsequently fell asleep.
When Frances woke up, she was in Petitioner's car in a forest preserve. Petitioner was holding a knife to her throat and threatening to kill her if she did not comply with his wishes. Petitioner walked Frances into the woods, told her to remove her clothes, and raped her. Petitioner again threatened to kill Frances and then choked her until she lost consciousness. When Frances woke up, she was bleeding from the chest and throat. She eventually flagged down a passing truck and was taken to a hospital. There, Frances was treated for nine stab wounds near her heart and a slash wound to the neck, which were characterized as life-threatening. Officer Sue Ann Gott asked Frances about her injuries. Frances answered that she had been raped and stabbed. When Gott asked Frances to name her attacker, she answered, "Tracy." Frances also identified Petitioner in a photo array.
Petitioner was arrested at his home later that day. The police found a small pocket knife in his front pants pocket. At trial, Frances identified this knife as the one Petitioner used to assault her. A trauma surgeon also testified that Frances's stab wounds were consistent with the size of Petitioner's knife blade. Finally, a forensic scientist testified that fibers and debris found on Petitioner's clothes were consistent with those taken from Frances's sweatshirt.
Petitioner made two statements introduced at trial. In one statement, he said that he finished work on August 19 at about 7:20 a.m. and then went to McDonald's with Frances, where he let her out of the car. [Tr. at B-152.]In the other, Petitioner said that he let Frances out of his car at J.J. Peppers after work and then went to McDonald's alone. [Tr. at C-52.] He admitted knowing Frances but denied having sex with her. He also said he arrived at home about 8:00 a.m. on August 19. Petitioner's neighbor testified that Petitioner returned home around 7:00 a.m. Petitioner's girlfriend said Petitioner returned around 7:30 a.m.
1. Trial and Direct Appeal
At trial, Petitioner argued in closing that the physical evidence was inconsistent with Frances's testimony. Specifically, Petitioner argued that although Frances testified that blood was "shooting" from her chest when she regained consciousness, and the truck driver testified that Frances was covered in blood when he found her, there was no blood on any of Petitioner's clothing, on the knife, or in the car. [18-11 at 3.] The State responded in rebuttal that Petitioner was wearing a jacket during the attack, which prevented blood from getting on his clothes and which he used to wipe the blood from the knife; Petitioner allegedly disposed of the jacket after the attack. [18-11 at 3.] On August 20, 1993, an Illinois jury found Petitioner guilty of aggravated criminal sexual assault and attempted murder. He was sentenced to an extended term of 45 years' imprisonment for each offense, to be served consecutively.
Petitioner subsequently discovered the jacket in question in the back of his car, which the police released to Petitioner's girlfriend prior to trial. Petitioner filed a motion for a new trial on the ground that the jacket was newly discovered evidence. The trial court denied Petitioner's motion, concluding that the jacket was available to both sides prior to trial. [CL2 at H-9.]
On direct appeal, Petitioner alleged that:
(1) he was denied due process when the State, in rebuttal closing argument, relied on evidence not disclosed at trial (the jacket);
(2) he was denied effective assistance of counsel when trial counsel (a) failed to discover the jacket, (b) failed to impeach Frances with her prior inconsistent statements, (c) failed to object to the admission of improper argument and evidence by the State, and (d) used alibi witnesses whose testimony partially contradicted Petitioner's statements;
(3) he was denied a fair trial by the admission of evidence that, a few weeks before the crime, he asked a deputy sheriff the legal age for consensual sex with a minor;
(4) he was denied a fair trial by the admission of evidence that Frances began crying and shaking when she saw Petitioner's picture in a photo array;
(5) he was denied a fair trial by the admission of prior consistent statements of two State witnesses; and
(6) his sentences were based on findings unsupported by the record and constituted an abuse of discretion.
[18-3, 18-4.] On March 29, 1996, the Illinois Appellate Court affirmed Petitioner's convictions and sentences. [18-11.] Petitioner filed a petition for leave to appeal (PLA) in the Illinois Supreme Court, reasserting claims (1) through (3) above. [18-13 at 1-2.] The Supreme Court denied leave to appeal. People v. Gartman, 671 N.E.2d 736 (Ill. 1996).
2. State Post-Conviction Proceedings
While his PLA was pending, Petitioner filed a pro se petition in the state trial court, pursuant to 725 ILCS 5/122-1 et seq., alleging similar due process claims based on the State withholding evidence, ineffective assistance of trial counsel claims, and denial of his right to present a defense. [18-17.] Petitioner also alleged that he was denied effective assistance of appellate counsel because counsel did not raise all of his allegations against trial counsel, did not argue that his sentence was cruel and unusual and disproportionate, and did not include any sentencing issues in the PLA. [18-17.] The state trial court dismissed Plaintiff's petition. [18-19 at 10.]
Petitioner appealed the dismissal, alleging that he had asserted meritorious issues and that appointed counsel had failed to comply with the Illinois Supreme Court Rule 651(c) in Petitioner's post-conviction proceedings.*fn4 [18-19.] The State conceded the latter, so the appellate court reversed and remanded for further proceedings. [18-20.]
While his post-conviction appeal was pending, Petitioner filed several other pro se collateral attacks on his conviction in the state trial court, including:
(1) a petition for relief from judgment pursuant to 735 ILCS 5/2-1401, alleging that he was denied due process, a fair trial, and effective assistance of counsel at trial when he was represented, in part, by a law student without disclosure of that fact to him or the court, [18-21];
(2) a state habeas corpus complaint pursuant to 735 ILCS 5/10-101 et seq., alleging that he was denied effective assistance of trial counsel, that the trial court lost jurisdiction when he was represented, in part, by a law student without disclosure of that fact to him or the court, and that newly discovered evidence established his actual innocence, [18-23]; and
(3) a motion to compel DNA testing, [18-22].
On remand from the post-conviction appeal, Petitioner filed a pro se motion to supplement his post-conviction petition. Petitioner's motion alleged that:
(1) he is actually innocent;
(2) counsel failed to call character witnesses at Petitioner's sentencing hearing;
(3) his Miranda rights were violated during police questioning;
(4) he was represented at trial, in part, by a law student and was not informed of that fact at the time;
(5) the State knowingly and intentionally lied to the jury to obtain a conviction; and (6) evidence set forth in the post-conviction filings and DNA evidence show that Petitioner was actually innocent or, in the alternative, that there was reasonable doubt of his guilt. [18-26.]
The trial court consolidated the various post-conviction petitions and appointed counsel. Petitioner's appointed counsel filed a supplemental post-conviction petition, [18-27], and a superseding amended supplemental post-conviction petition, [18-28], which re-alleged Petitioner's pro se allegations that:
(1) Petitioner was denied due process and fundamental fairness when the State withheld photographs showing that petitioner's jacket was in his car when it was impounded;
(2) Petitioner was denied due process and the right to discovery when the State withheld other evidence, including police reports favorable to his defense;
(3) Petitioner was denied due process and fundamental fairness when the State did not request a DNA analysis, which would have demonstrated Petitioner's innocence;
(4) Petitioner was denied due process and fundamental fairness when the State knowingly used false and misleading information, including argument to the jury that Petitioner had destroyed his jacket because it was stained with Frances's blood;
(5) Petitioner was denied effective assistance of counsel when trial counsel failed to:
(a) call a potential witness, Brian Gimino, who had seen Frances with another man shortly before the assault, (b) investigate information that Frances had a motive to conceal the identity of her true assailant, (c) make Petitioner's jacket part of the record in his motion for a new trial, (d) advise Petitioner that it was Petitioner's decision whether to testify, (e) omit argument that Frances had self-inflicted her several stab wounds, (f) present any mitigating evidence at sentencing, and (g) prevent Petitioner from being represented by a law student;
(6) Petitioner was denied effective assistance of counsel on direct appeal when counsel failed to allege that trial counsel was ineffective and failed to raise any sentencing issues in the PLA; and
(7) Petitioner was denied his right to present a defense when he was denied the opportunity to present DNA testing, to testify, to call Gimino, and to present evidence that he did not destroy his jacket.
[18-28 at 4-6.] In addition, counsel alleged that:
(1) Petitioner was denied effective assistance of trial counsel when counsel failed to:
(a) object to the admission of the prior statement of a State witness, Frances's statements to a police officer, the State's argument regarding future dangerousness, the State's argument that Petitioner had destroyed his jacket, and testimony characterizing Frances's behavior when she identified Petitioner in a photo array, (b) discover the jacket, (c) include the jacket as part of the motion for a new trial, (d) present mitigating evidence at sentencing, (e) inform Petitioner that it was Petitioner's decision whether to testify at trial, (f) impeach Frances with prior inconsistent statements, and (g) adequately prepare defense alibi witnesses;
(2) Petitioner was denied due process and a fair trial by prosecutorial misconduct when the State argued, without supporting evidence, that Petitioner had destroyed his jacket, attacked the credibility of defense counsel, and made several improper comments designed to inflame the jury;
(3) Petitioner was denied due process and the right to a jury trial pursuant to Apprendi when the jury did not determine beyond a reasonable doubt those facts that supported extended-term sentences;
(4) Petitioner was denied due process and the right to a jury trial pursuant to Apprendi when the jury did not determine beyond a reasonable doubt those facts that supported consecutive sentences;
(5) Petitioner was denied the right to appeal when the appellate court did not fully address his claims that the State's closing argument regarding Petitioner's jacket was not supported by any evidence and that trial counsel was ineffective for not investigating and discovering the jacket; and
(6) Petitioner was denied due process and a fair trial by the cumulative impact of errors committed by trial counsel.
[18-28 at 7-9.] On March 14, 2002, the trial court denied relief, finding that the claims either were forfeited, barred by res judicata, or meritless. [18-30.] Notably, the trial court explained its reasoning regarding three of Petitioner's claims and then concluded that, "as to the remaining issues, a sufficient showing of violations of petitioner's constitutional rights has not been made so as to require an evidentiary hearing." [18-30 at 8.]
Petitioner appealed the denial of his consolidated petition, asserting arguments similar to those made in the trial court. [18-31, 18-32.] Petitioner also filed a motion for leave to file a supplemental pro se brief, [18-33], but that motion was denied, [18-34]. Petitioner then sought to fire appointed counsel and proceed pro se, [18-35], but this request was also denied, [18-36]. Finally, on August 26, 2004, the Illinois Appellate Court affirmed the dismissal of Petitioner's post-conviction petition. [18-5.]
Through counsel, Petitioner filed a PLA in the Illinois Supreme Court, contending only that his sentence for attempted murder violated Apprendi. [18-8.] Petitioner again sought to fire appointed counsel, proceed pro se, and file a supplemental PLA. [18-10.] After further briefings by both appointed counsel, [18-12], and Petitioner, [18-14], the Supreme Court denied Petitioner's motion to proceed pro se, [18-18], and denied the PLA, People v. Gartman, 824 N.E. 2d 287 (Ill. 2004).
3. Federal Habeas Corpus Proceedings
On May 25, 2005, Petitioner filed a pro se petition for writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254, asserting 38 separate claims for relief. [1.] Respondent filed an answer, which relied heavily on the assumption that Petitioner's attempts to supplement his counsel's briefs with his own pro se filings did not constitute fair presentment. [18.] The Court concluded that Petitioner's pro se filings satisfied the fair presentment requirement and granted Respondent leave to file a supplemental brief. [36.] Respondent complied. [43.]
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 limits the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner. Section 2254(a) permits a federal court to entertain only those applications alleging that a person is in state custody "in violation of the Constitution or laws or treaties of the United States." If an application includes a claim that has been "adjudicated on the merits in State court proceedings," § 2254(d) provides additional restrictions. Sections 2254(b) and (c) provide that a federal court may not grant habeas relief unless, with certain exceptions, the applicant has exhausted state remedies. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
A. Claims Previously Adjudicated on the Merits
Habeas relief does not lie for a claim "adjudicated on the merits in State court proceedings" unless the state court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law," or (2) "based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d). Notably, the Supreme Court recently held that "[§] 2254(d) applies even where there has been a summary denial." Pinholster, 131 S. Ct. at 1402; see also Harrington v. Richter, 131 S. Ct. 770, 784 (2011) ("Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.").
A state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme] 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 [that of the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). "Avoiding these pitfalls does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002).
A state court's decision is an "unreasonable application" of clearly established federal law if the state court identified the correct legal rule but unreasonably applied the controlling law to the facts of the case. Williams, 529 U.S. at 407. It should be noted that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. Rather, "unreasonable" means that a state court's decision lies "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002).
The procedural default doctrine generally precludes a federal court from granting habeas relief when (1) the claim was presented to the state courts, and the state court ruling against the petitioner rests on adequate and independent state law grounds, or (2) the claim is unexhausted, and it is clear that the state courts would now hold that the claim is procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 (1991); Harris v. Reed, 489 U.S. 255, 263 & n.9 (1989); Conner v. McBride, 375 F.3d 643, 648 (7th Cir. 2004).
1. Adequate and Independent State Law Grounds
Federal review of a habeas claim is procedurally defaulted "[w]hen the last state court to issue an opinion on a petitioner's federal claim has resolved that claim on an adequate and independent state ground." Miranda v. Leibach, 394 F.3d 984, 991 (7th Cir. 2005). In other words, the state law grounds for denial of a claim must be independent of the federal question and adequate to support the judgment. See Franklin v. Gilmore, 188 F.3d 877, 881 (7th Cir. 1999). This often occurs when the state court denial was based on a petitioner's failure to comply with a state procedural rule, and the state court "relied on that procedural default to refrain from reaching the merits of the federal claim." Miranda, 394 F.3d at 991-92; see also Coleman, 401 U.S. at 729-30; Franklin, 188 F.3d at 882.
Before filing a federal habeas petition, a petitioner must have "fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge." Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). As the Seventh Circuit explained:
Where state remedies remain available to a habeas petitioner who has not fairly presented his constitutional claim to the state courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim: although a federal court now has the option of denying the claim on its merits, 28 U.S.C. § 2254(b)(2), it must otherwise dismiss his habeas petition without prejudice so that the petitioner may return to state court in order to litigate the claim.
Perruquet v. Briley, 390 F.3d 505, 513, 514 (7th Cir. 2004).
To fairly present a claim in state court, the petitioner must include both the operative facts and the controlling legal principles on which the claim is based, and must also alert the state court that the claim raised is based on federal law. Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004); Chambers v. McNaughtry, 264 F.3d 732, 738 (7th Cir. 2001). A petitioner must present his claims in one complete round of state court review in the state's ordinary appellate procedure-including to appellate courts when review is discretionary-before proceeding to federal court. See O'Sullivan,526 U.S. at 845, 847; Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004).
3. Overcoming Procedural Default
A petitioner whose federal habeas claim is procedurally defaulted may obtain relief only by demonstrating (1) "cause for the default and actual prejudice as a result of the alleged violation of federal law" or (2) "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
Under the "cause and prejudice" test, "cause for a default is ordinarily established by showing that some type of external impediment prevented the petitioner from presenting his federal claim to the state courts." Lewis, 390 F.2d at 1026 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Prejudice is established by showing that the violation of the petitioner's federal rights "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982); see also Lemons v. O'Sullivan, 54 F.3d 357, 362 (7th Cir. 1995). A federal court may grant relief, even in the absence of cause, in extraordinary cases where "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 466 U.S. at 496. Under the "miscarriage of justice" test, the petitioner must show that "no reasonable juror would have found him guilty of the crime but for the error(s) he attributes to the state court." Lewis, 390 F.3d at 1026 (citing Schlup v. Delo, 513 U.S. 298, 327-29 (1995)).
The Court considers each of Petitioner's allegations (Claims A through LL) in turn.
A. Claim A: The State Courts "Refused to Hear" the Claims in Petitioner's Pro Se Submissions.
In Claim A, Petitioner contends that, on post-conviction review, the state Appellate and Supreme Courts erred in refusing to consider his pro se supplemental filings. [1 at 5.] Respondent argues that the claim ...