The opinion of the court was delivered by: Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Nick Colon has filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), challenging his state criminal conviction for first degree murder. For the reasons set forth in this Memorandum Opinion and Order, the Court denies the petition.
On August 13, 1996, Felix Morales was murdered. (Resp't's Ex. A, Def.'s Post-conviction Opening Br. 2.) Colon and three co-defendants were indicted for their participation in the murder. (Resp't's Ex. D, People v. Colon, No. 1-08-0469, slip op. at 2 (Ill. App. Ct. Aug. 31, 2010).) A jury convicted Colon of first degree murder, and he was sentenced to fifty-five years of imprisonment. (Id.) The evidence at trial established that Colon, a member of the Maniac Latin Disciples, shot and killed Morales, a member of the Latin Kings, at a gas station in retaliation for two other gang murders that occurred five days earlier. (Id.) At Colon's trial, Harold Garcia, who is also a Maniac Latin Disciple, stated that he was testifying solely to avoid prosecution, claimed not to know Colon, did not recall answering questions before the grand jury. (Resp't's Ex. M, Resp't-Appellee's Br., Ex. A, People v. Colon, 1-99-1105, slip op. at 7.) However, Garcia's trial testimony was impeached when the following portion of Garcia's sworn grand jury testimony was admitted into evidence: "After that Nicky [Colon] was like, 'I popped that nigger. I fucked them kings.' . . . He motioned with his hand like he's shooting a gun." (Id. at 9.) In addition, Michael Vasquez, a member of the same gang as Colon and Colon's co-defendant Edward Serrano, testified that he saw Colon and Serrano together in Serrano's car immediately before the shooting near the scene of the crime. (Id. at 5.) Prior to Morales' murder, Serrano told a police officer that he wanted to kill a member of the Latin Kings. (Id. at 14.) Moreover, Serrano admitted being at the gas station at the time of the shooting. (Id.) In addition, Serrano brought his car to an auto body shop to be painted two days after the shooting. (Id.) John Morrow, an eyewitness who had stopped at the gas station after work, testified that as Morales lay on the ground, he saw a man, whom he later identified as Colon from a line-up and in court, fire two shots into Morales' chest. (Id. at 3.)
In 2000, Colon appealed his conviction. (See Resp't's Ex. A, Def.'s App. Br. (filed July 27, 2000).) In August 2001, the Illinois Appellate Court affirmed his conviction. (See Resp't's Ex. M, Ex., People v. Colon, No. 99-1105, slip op. at 20 (Ill. App. Ct. Aug. 20, 2001.) Colon then petitioned for leave to appeal to the Illinois Supreme Court. (See Resp't's Ex. E, Pet. Leave Appeal.) On February 6, 2002, the Illinois Supreme Court denied the petition for leave to appeal. (See Resp't's Ex. F, People v. Colon, No. 92421, slip op. at 1 (Ill. Feb. 6, 2002).
On April 17, 2007, after the Illinois Appellate Court reversed the dismissal of his original post-conviction petition and remanded the matter, Colon filed an amended post-conviction petition. (See Resp't's Ex. Q, Am. Post-conviction Pet. 1-29.) On January 30, 2008, the trial court dismissed the amended post-conviction petition. (Am Pet. Writ Habeas Corpus 3.) On August 21, 2009, Colon appealed. (Resp't's Ex. L, Def.'s Opening Br. 1-59.) On August 31, 2010, the Illinois Appellate Court affirmed the dismissal of his amended post-conviction petition. (Resp't's Ex. O, People v. Colon, No. 1-08-0469, slip op. at 14 (Ill. App. Ct. Aug. 31, 2010).) Colon petitioned for leave to appeal to the Illinois Supreme Court, but on November 24, 2010, that court denied his petition. (Am. Pet. Writ Habeas Corpus 3.)
Colon asserts the following grounds for habeas relief:
(1) the trial court's dismissal of his post-conviction petition was erroneous because the affidavit of co-defendant Ignacio Arroyo presented newly-discovered evidence supporting Colon's free-standing claim of innocence;
(2) his appellate counsel provided ineffective assistance of counsel for failing to challenge on direct appeal the trial court's use of IPI Criminal 4th No. 3.15 ("IPI 3.15"); and
(3) he was denied a fair trial because the jury was given IPI 3.15. (Am. Habeas Petition 5.)
As an initial matter, Colon's first habeas ground, that the trial court's dismissal of his post-conviction petition was erroneous because the affidavit of co-defendant Arroyo presented newly discovered evidence supporting Colon's free-standing claim of innocence, is not cognizable because it does not rely on a federal right. The federal Constitution does not require states to provide collateral review of criminal convictions. Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). "Unless state collateral review violates some independent constitutional right . . . , errors in state collateral review cannot form the basis of federal relief." Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996). Colon merely argues that the trial court's dismissal of his post-conviction petition was erroneous under state law and whether or not the trial court correctly applied state law in dismissing Colon's post-conviction petition does not provide a basis for habeas relief. Colon does not argue that the state collateral review violated some independent constitutional right. Thus, the Court denies Colon's amended habeas petition as to the first ground.
With regard to Colon's second and third habeas grounds, under AEDPA, a federal court "deferentially review[s] the decision of the last state court to address [petitioner's] claims on the merits." See Harris v. Hardy, 680 F.3d 942, 948 (7th Cir. 2012). A federal court may not grant habeas relief unless the state court's adjudication of a claim "was contrary to, or involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). "Under the 'unreasonable application' of law clause, 'a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Harris, 680 F.3d at 948 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). "This means that the state court's application of law must have been objectively unreasonable." Id. (quotation omitted).
Colon argues that his appellate counsel's failure to challenge the court's use of IPI Criminal 3.15 constituted ineffective assistance because the Illinois Appellate Court has since held that using IPI Criminal 3.15 is plain error when it may have mistakenly led the jury to rely on a single factor, rather than a variety of factors, in deciding whether the eyewitness identification testimony was reliable. People v. Gonzalez, 761 N.E.2d 198, 208 (Ill. App. Ct. 2001); see People v. Herron, 830 N.E.2d 467, 483-84 (Ill. 2005) (holding that where case turns on credibility of a single eyewitness, the use of IPI 3.15 is plain error); (Resp't's Ex. L, Pet'r-Appellant Br. at 33-34; Resp't's Ex. D, People v. ...