The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Petitioner Revay Jones filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the habeas petition is denied in part without an evidentiary hearing, and respondent is directed to file an answer addressing the merits of petitioner's claim that his direct appeal counsel was ineffective for failing to appeal the trial court's denial of his motion to suppress.
Following a jury trial, petitioner was convicted of home invasion and armed robbery, and acquitted on charges of felony murder and aggravated unlawful restraint. Petitioner was sentenced to thirty years' imprisonment for home invasion and ten years' imprisonment for armed robbery, to be served consecutively.
Represented by an Assistant Appellate Defender, petitioner appealed his conviction and sentence, raising no claim relevant to the instant petition.*fn1 Order, People v. Jones, No. 1-03-1546 (Ill. App. Ct. Sept. 30, 2004). The Illinois Appellate Court affirmed.*fn2 Petitioner filed a counseled petition for leave to appeal ("PLA"), which the Illinois Supreme Court denied. Order, People v. Jones, No. 99489 (Ill. Jan. 26, 2005). The PLA raised one claim (whether the trial court improperly sentenced petitioner to consecutive terms of imprisonment), which is not relevant to the instant petition. See id.
Petitioner then filed a pro se post-conviction petition pursuant to 725 ILCS 5/122-1 et seq., and a supplemental pro se petition. See Order, People v. Jones, No. 1-07-2673, at 12 (Ill. App. Ct. Nov. 19, 2010). He raised a variety of arguments, including the two ineffective assistance claims he now raises in the instant petition. The first of these claims is that petitioner's appellate counsel was ineffective for failing to raise a Confrontation Clause challenge to the trial court's admission of testimony from a Schaumburg police officer (Sergeant Vince Liberio), who testified to out-of-court statements made by two witnesses, Loren Scott Young (a suspect who cooperated with the police investigation that led to petitioner's arrest) and Sylvia Jones (petitioner's sister), who were both deceased at the time of the trial. The second claim is that his appellate counsel was ineffective because he failed to challenge the trial court's denial of petitioner's motion to suppress evidence found during a warrantless search of his bedroom, which allegedly violated his Fourth Amendment rights. The trial court rejected the claims on the merits and dismissed the petition. See id. at 13.
On appeal, petitioner was again represented by the office of the State Appellate Defender. Petitioner, however, filed a "Motion to File Opening Brief on Appeal," explaining that he wished to proceed pro se because the Assistant Appellate Defender assigned to represent him had "allowed his case to lay dorm[ant] for more than one year and a half, thus leaving [petitioner] no alternative . . . ." The proposed brief accompanying petitioner's motion contended that the trial court erred in dismissing his post-conviction petition on both bases for his ineffective assistance of appellate counsel claim. The Illinois Appellate Court denied petitioner's motion. Order, People v. Jones, No. 1-07-2673 (Ill. App. Ct. July 15, 2009).
Several weeks later, petitioner's appointed counsel filed a brief, which claimed that petitioner's direct appeal counsel had been ineffective for failing to raise the Confrontation Clause argument, but did not contend that direct appeal counsel was ineffective for failing to raise the Fourth Amendment claim. Id. The Illinois Appellate Court rejected the Confrontation Clause claim, agreeing with the trial court that because none of the statements at issue constituted inadmissible hearsay, petitioner's trial counsel was not ineffective for failing to raise that non-meritorious claim on direct appeal. Id. at 18-21. Petitioner filed a pro se PLA, which raised the Confrontation Clause claim, and also argued that the Appellate Court had denied him the right to proceed pro se on appeal, which caused him to waive his Fourth Amendment claim. The Illinois Supreme Court denied petitioner's PLA. Order Denying PLA, People v. Jones, No. 111577 (Ill. Jan. 26, 2011).
On August 30, 2011, petitioner filed the instant pro se petition for a writ of habeas corpus, raising two claims:
(1) his appellate counsel was ineffective for failing to argue on direct appeal that the trial court violated petitioner's Confrontation Clause rights by allowing Sergeant Liberio to testify about statements that the two deceased witnesses made to him; and (2) his appellate counsel was ineffective for failing to argue on direct appeal that the trial court erred in denying petitioner's motion to suppress evidence found in his bedroom.
Respondent Allan Martin contends that the first of these claims fails on the merits and the second is procedurally defaulted. Petitioner's Confrontation Clause claim indeed fails on the merit, although not for precisely the reasons respondent suggests. As for the Fourth Amendment claim, respondent is incorrect; that claim is not procedurally defaulted.
Petitioner's Confrontation Clause claim-that his appellate counsel was ineffective on direct review for failing to argue that the trial court should not have allowed Sergeant Liberio to testify about statements made by two individuals who had died before trial-was considered and rejected on the merits by the post-conviction appellate court. When a habeas petitioner advances an ineffective assistance claim that a state court has already decided on the merits, he is faced with "doubly deferential judicial review." Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009). This court may grant such a petition only if the petitioner shows both that his counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984), and that the state court applied Strickland unreasonably in deciding petitioner's ineffective assistance claim (or made an unreasonable factual determination).
Petitioner cannot show, however, that the Illinois Appellate Court's ruling was unreasonable under 28 U.S.C. § 2254(d)(1) or (d)(2). There is some confusion as to which subsection petitioner has invoked, but this is irrelevant because petitioner could not succeed under either one. Respondent argues only that the Illinois Appellate Court's rejection of this claim did not result "in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1). Although petitioner's reply brief mentions that he is challenging the state court's decision as being "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," thus entitling him to habeas relief under § 2254(d)(2), this is not what his petition in fact claims. Rather, petitioner's opening brief states that "[a]lthough the Appellate Court at the post-conviction ...