The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner United States ex rel. Lorenzo Jones brings this pro se Motion for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Motion rests upon Jones's claims of ineffective assistance of counsel and of prejudice based on the State's comments made during the closing arguments of Jones's trial. For the reasons set forth herein, Jones's Motion for a Writ of Habeas Corpus is denied.
On December 10, 1998, a jury found Jones guilty of first degree murder for the killing of Jose Oquendo, and the trial court sentenced him to fifty years imprisonment. See People v. Jones, 955 N.E.2d 1200, 1203 (Ill. App. Ct. 2011). Jones is currently incarcerated at the Pontiac Correctional Center in Pontiac, Illinois.
On direct appeal from his conviction Jones's appointed counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), reasoning that Jones could raise only two frivolous claims on appeal: (1) that the trial court erred in denying Jones's motion based on Batson v. Kentucky, 476 U.S. 79 (1986); and (2) that the State presented insufficient evidence to support Jones's conviction. See Jones, 955 N.E.2d at 1203. Jones's appellate counsel believed that both of these grounds for appeal were frivolous and without any merit. Counsel specifically noted that Jones "gave two written statements in which he confessed that he had planned and carried out the murder of his friend." Id. at 33‐34. For the first time during trial Jones stated that he accidently shot Oquendo . In his response to his counsel's Anders motion, Jones asserted that the prosecutor's closing argument denied him a fair trial. See Jones, 955 N.E.2d at 1203‐1204. The Illinois Appellate Court granted Jones's appellate counsel's motion to withdraw pursuant to Anders on November 22, 2000, holding that "'the evidence was not closely balanced nor was the error [that petitioner alleges] of such magnitude to deny defendant a fair trial.'" Id (quoting People v. Jones, 783 N.E.2d 238, 238 (Ill. App. Ct. 2000)).
On April 4, 2001, the Illinois Supreme Court denied Jones's Petition for Leave to Appeal (PLA), in which he argued that the appellate court erred in allowing his appellate counsel to withdraw because the prosecutor called Jones a liar and commented on facts not in evidence during closing arguments. See Jones, 783 N.E.2d at 239‐242. Jones cited no federal law in his PLA, relying primarily on People v. Weathers, 338 N.E.2d 880 (Ill. 1975), which also cites no federal law.
On March 5, 2002, Jones filed a pro se petition for post-conviction relief pursuant to 725 ILCS 5/122‐1 et seq., arguing that: (1) trial counsel was ineffective for failing to file a motion to suppress unspecified evidence; (2) trial counsel was ineffective for failing to object to unspecified statements by the prosecution during closing argument; (3) the prosecution violated Jones's right to fair trial by calling him a liar and commenting on facts not in evidence during closing argument; (4) the evidence was insufficient to prove Jones guilty beyond a reasonable doubt thereby violating his federal due process rights; and (5) appellate counsel was ineffective because he failed to challenge trial counsel's ineffectiveness for failing to move to suppress Jones's confession and failing to object to the prosecutor calling Jones a liar during closing arguments.
Jones subsequently filed a pro se amendment to his post-conviction petition, contending that the prosecution denied him a fair trial by eliciting testimony from Oquendo's widow, Maria, regarding their family and commenting on Oquendo's family during closing argument. See Jones, 955 N.E.2d at 1204. Jones cited only Illinois common law in support of his argument. The amended post-conviction petition also argued that Jones's trial counsel was ineffective for failing to suppress two of his three confessions. Finally, Jones argued ineffective assistance of appellate counsel for failing to raise prosecutorial misconduct and ineffective assistance of trial counsel for failing to argue that the trial court erroneously answered the jury's request for a definition of "reasonable doubt" by referring it to the jury instructions.
Jones later filed another pro se amendment to his petition, arguing that (1) the trial court erred in allowing the prosecution to inflame the jurors' passions; (2) trial counsel was ineffective for failing to object to certain testimony; and (3) appellate counsel was ineffective for failing to argue trial counsel's ineffectiveness. See Jones, 955 N.E.2d at 1204. Jones later filed two additional supplemental petitions that reiterated his earlier post-conviction claims. See Id. The trial court granted the State's motion to dismiss Jones's post-conviction petition filed pursuant to 725 ILCS 5/122‐1 et seq. See Id.
On appeal from the dismissal of his post-conviction petition Jones raised two claims to the Illinois Appellate Court. He claimed that (1) his post-conviction counsel failed to comply with Illinois statutory requirements by failing to follow Illinois Supreme Court Rule 651(c) which imposes three duties on appointed post-conviction counsel; and (2) his counsel on direct appeal was ineffective for failing to raise trial counsel's failure to object to the introduction of certain evidence and to the prosecution's statements during closing arguments. See Jones, 955 N.E.2d at 1203, 1205. Because the appellate court found no evidence that Jones's post-conviction counsel had performed inadequately, the court rejected Jones's ineffective assistance of appellate counsel claim. See Id. at 1205‐1206. The court explained that to prevail on an ineffective assistance of appellate counsel claim, a petitioner "must show that the failure to raise [an] issue was objectively unreasonable and that, but for this failure, defendant's conviction or sentence would have been reversed." Jones, 955 N.E.2d at 1208. Because Maria's testimony had no effect on the jury's verdict, the court concluded that Jones suffered no prejudice and an appeal based on that testimony would have failed. See Id. at 1209. Accordingly, appellate counsel was held to be not ineffective for failing to perfect an appeal based on trial counsel's failure to object to the testimony. Because counsel is afforded "wide latitude" during closing arguments, the court held that appellate counsel was not ineffective for failing to perfect an appeal based on the State's closing argument, and that the State appropriately argued that Jones did not deserve pity for being the victim of an accident. See Id. The court further found Jones's testimony that Oquendo's death was accidental "incredible" and contradicted by Jones's actions before and after the shooting. See Id.
In his post‐conviction petition to the Illinois Supreme Court, during which he was represented by counsel, Jones raised three claims. He argued (1) that his post-conviction counsel failed to comply with Illinois statutory requirements; (2) that the State's evidence and argument regarding Oquendo's family contravened long‐standing Illinois jurisprudence; and (3) that appellate counsel was ineffective for failing to raise the State's use of that evidence. The Illinois Supreme Court denied Jones's PLA on November 30, 2011. See People v. Jones, 962 N.E.2d 486 (Ill. 2011).
On December 16, 2011, Jones filed with this Court the instant Motion for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Jones's § 2254 petition raises two claims: (1) that the prosecution deprived him of a fair trial by calling him a liar and commenting on facts not in evidence during closing arguments, thus resulting in unfair prejudice; and (2) that his appellate counsel was ineffective for not challenging trial counsel's failure to object to the admission into evidence of (a) the names of Oquendo's children, (b) Maria's testimony regarding her last verbal exchange with Oquendo, (c) Maria's testimony regarding Oquendo's last pager message to her, and (d) Maria's identification of a photograph depicting both Oquendo and her baby. Jones has exhausted his state court remedies in bringing this habeas petition. See 28 U.S.C. § 2254(c). The Court recognizes that this petition is timely and that none of its claims are barred by retroactivity principles.
Section 2254 limits federal courts to decide whether a conviction violated the Constitution, laws, or treaties of the United States when a petitioner brings a motion for a writ of habeas corpus pursuant to the statute. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Accordingly, a claim based on state law is not cognizable on habeas review. See Estelle, 502 U.S. at 68; Lechner v. Frank, 341 F.3d 635, 642 (7th Cir. 2003); Verdin v. O'Leary, 972 F.2d 1467, 1476 ...