The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Petitioner Antonio McDowell was convicted of first degree murder, attempted murder, and aggravated vehicular hijacking following a bench trial in the Circuit Court of Cook County. See U.S. ex rel. McDowell v. Hardy, No. 04 C 4992, 2010 WL 3167202 (N.D. Ill. Aug. 6, 2010). According to the testimony at trial, on December 21, 1996, McDowell shot and killed Mario Castro in an apparent robbery attempt; Mr. Castro's nephew, Alberto Varela, gave chase, and in McDowell's subsequent attempt to flee the area, he shot at Varela and hijacked Ruth Morales-Santana's car. For these crimes, McDowell was sentenced to consecutive sentences of fifty-nine, twenty-nine, and fifteen years, respectively, for a total of 103 years.
Following various unsuccessful rounds through the state court review system, McDowell filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court, arguing inter alia that he had been denied effective assistance of counsel and that his due process rights were violated. While McDowell had exhausted his state remedies, this court concluded that all of his claims were procedurally defaulted save those based on McDowell's claim that one of the eyewitnesses, Juan Medina (Mr. Castro's brother-in-law), had been subjected to an unduly suggestive procedure when Medina was shown two different photo arrays, both of which contained McDowell's image. See McDowell, 2010 WL 3167202, at *8. The court also determined that McDowell's claim of actual innocence, which McDowell believed would excuse his procedural default, was unavailing. The court noted that it would rule on McDowell's request for an evidentiary hearing and discovery after briefing on the merits. The court has now had the opportunity to consider the supplemental briefing on McDowell's non-defaulted due process and ineffective assistance of counsel claims. For the reasons set forth below, the court denies the petition and the request for evidentiary development, and grants McDowell a certificate of appealability.
As the Supreme Court has repeatedly emphasized, "a federal court may issue a writ of habeas corpus to a state prisoner 'only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'" Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (quoting Wilson v. Corcoran, 131 S. Ct. 13, 15 (2010)); see Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), further narrows a reviewing court's inquiry. For claims that were not presented to the state court (and therefore did not receive an adjudication on the merits), a reviewing court may "dispose of the matter as law and justice require." See 28 U.S.C. § 2243; Cheeks v. Gaetz, 571 F.3d 680, 684-85 (7th Cir. 2009). But under AEDPA, once a petitioner's claim is "adjudicated on the merits in State court proceedings," a federal court can grant relief only where the challenged state court decision is "contrary to" or "an unreasonable application of" clearly established federal law as determined by the Supreme Court of the United States, see 28 U.S.C. § 2254(d)(1), or where the state court based its decision "on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," see 28 U.S.C. § 2254(d)(2). See Greene v. Fisher, 132 S. Ct. 38, 42 (2011); Cheeks, 571 F.3d at 684-85.
Under § 2254(d)(1), 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 [that of the Court's]." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court's decision involves an "unreasonable application" of clearly established federal law where the state court unreasonably applied the controlling legal rule to the facts of the case. Id. at 407. Under the "unreasonable application" theory, the facts in the case under review not need be identical to the facts of the case that announced a legal principle: '"Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.'" Winston v. Boatwright, 649 F.3d 618, 625 (7th Cir. 2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). Still, the state court's application of Supreme Court precedent must be more than incorrect or erroneous, it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 65 (2003).
Under § 2254(d)(2), a challenge to the state court's factual determinations "will not succeed unless the state court committed an 'unreasonable error,' and § 2254(e)(1) provides the mechanism for proving unreasonableness." Ben-Yisrayl v. Buss, 540 F.3d 542, 549 (7th Cir. 2008). Section 2254(e)(1) establishes that factual findings based on the trial record-whether made by the state trial court or by the state court of review-are presumed correct unless the petitioner rebuts that presumption by clear and convincing evidence. Ben-Yisrayl, 540 F.3d at 546. Where the state court's decision "rests upon a determination of fact that lies against the clear weight of the evidence, however, that decision is by definition, a decision so inadequately supported by the record as to be . . . objectively unreasonable." Id. at 549 (quoting Ward v. Sternes, 334 F.3d 696, 703-04 (7th Cir. 2003) (internal quotation marks omitted)).
In the State's answer to McDowell's second amended petition for a writ of habeas corpus, the State spends significant time arguing that McDowell's claims are procedurally defaulted. The State claims that this court did not address whether McDowell's suggestive identification argument was fairly presented in his initial post-conviction petition, and that this court only addressed whether the argument was fairly presented on appeal after the post-conviction petition was denied. (See Answer Second Am. Pet. at 7.) Thus, the State again argues that this court should deny the claims as procedurally defaulted.
The court disagrees for two reasons. First, the identification issue likely was presented in McDowell's initial post-conviction petition. Reading McDowell's pro se post-conviction petition liberally, as this court must, see Lewis v. Sternes, 390 F.3d 1019, 1027 (7th Cir. 2004), McDowell specifically stated that the computer-generated photo of him was presented in such a suggestive manner that the witnesses would not have been able to exclude him. (See Post-Conviction Pet. at 5, Ex. E.) But second, and more importantly, even if the State is correct that McDowell had not fairly presented the issue in his initial post-conviction petition, it makes no difference: "If the last state court to consider a constitutional claim addresses it on the merits, procedural default poses no barrier to a federal court's consideration of the claim." Morales v. McCann, No. 00 C 2656, 2010 WL 748203, at *29 (N.D. Ill. Feb. 25, 2010); see Pole v. Randolph, 570 F.3d 922, 936-37 (7th Cir. 2009) (finding no procedural default where the state appellate court agreed that a petitioner had not adequately raised two claims, but nonetheless went on to address the claims on the merits); U.S. ex rel. Robinson v. Atchison, No. 08 C 4027, 2012 WL 669049, at *6 (N.D. Ill. Feb. 27, 2012) ("But even assuming arguendo that this would otherwise result in default, the state appellate court actually addressed the issue on the merits. As a result, there is no procedural default at the state appellate level."). Here, the state appellate court reviewed McDowell's post-conviction pleadings and specifically stated that McDowell's "allegation that the photographic identifications were suggestive was not supported by the record." (See Ex. J at 8.) As the State recognizes, these allegations specifically relate to McDowell's claim that police showed Medina two sets of multiple photographs and argued that McDowell was the only person common to both arrays. (See Answer to Second Am. Pet. at 2-3.) The court's conclusion that certain claims are not procedurally defaulted because the state appellate court addressed the issues on their merits remains unchanged. See McDowell,2010 WL 3167202, at *1.
The crux of McDowell's suggestive identification due process claim is that the only evidence linking McDowell to the crime was unreliable witness testimony resulting from a tainted identification procedure. McDowell was identified at trial by three eyewitnesses: Medina, Mr. Castro's brother-in-law; Varela, Mr. Castro's nephew; and Morales-Santana, the hijacking victim. All three of these individuals identified McDowell from a photo array, all three picked McDowell out of a lineup, and all three identified McDowell in court as the person they observed on that fateful day.
Of these three, only Medina's identification is presently at issue.*fn1 McDowell claims that Medina was shown two photo arrays, and McDowell was the only person common to both arrays. (See Reply to Answer to Second Am. Pet. at 2.) Both Medina and Detective Guevara testified that on July 12, 1997, Medina was shown a book of photographs and asked whether he could recognize any of the people as being Mr. Castro's shooter. Medina identified McDowell's picture, but then asked Detective Guevara whether he could see a more recent photograph. (See Trial Tr. at B-64 to 65 and D-68 to 69.) Detective Guevara met with Medina a few days later bearing five black-and-white ...