The opinion of the court was delivered by: Judge Joan H. Lefkow
Pro se petitioner Alfonso Savage (prisoner number R14393), who is currently incarcerated in the Centralia Correctional Center, is serving a 20-year sentence for felony murder. He has petitioned this court for a writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, the petition is denied.
The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Savage neither contests them nor points to clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts, and begins by summarizing this case's protracted procedural posture and facts relevant to the petition.
A. State Direct Proceedings
During a jury trial in the Circuit Court of Cook County, the state contended that on November 8, 1999, Quincy Birts and his girlfriend, Diane Gordon, returned to their apartment on Chicago's South Side. A white Jeep Cherokee was parked in their parking space. As they approached the apartment, a masked man accosted Birts, and another masked man with a gun forced Gordon into the Jeep. The assailant robbed Gordon and allowed her to leave the Jeep approximately eight blocks from the apartment. Gordon called her landlord, who had witnessed the initial attack, and the landlord called the police. Gordon also flagged down police officers on the street, who drove her back to her apartment building.
As the sound of gunshots rang out from the second floor, additional plainclothes officers arrived on the scene and approached the apartment's door. The officers announced themselves and Birts opened the door holding a gun. An officer fatally shot Birts after he failed to heed the officers' command to drop his gun and, instead, moved towards the officers with his gun raised.
Another officer heard noises coming from the apartment's back porch. Police found Savage leaning against a rail near the bottom of the back stairs with his hands in the pockets of his black leather jacket. After repeatedly commanding Savage to show his hands, Savage withdrew his hands from his pockets and credit cards and a license fell to the ground. Savage told the officers that he had been shot so the officers helped him remove his jacket and discovered jewelry inside. The officers took Savage to the hospital and upon arrival, searched Savage's clothing. They found a Mitsubishi car key, a watch, a gold chain and cross, and $51; Gordon later identified these items as belonging to her and Birts.
Savage testified in his own defense. According to Savage, on the date of the incident, he was walking to the liquor store with two women when he was attacked and forced up the stairs of a two-flat into an apartment. A man robbed and beat him, hit him with a gun, and shot him as he fled from the apartment. As Savage tried to exit the building via the back stairs, he encountered police officers who directed him to an ambulance. Savage suffered a bullet graze wound, two gunshot wounds, and numerous wounds on his head requiring staples and stitches.
The parties agreed that the pattern instructions did not adequately address the felony murder charge. After considering counsel's submissions, the trial court gave the following instruction for felony murder: "A person commits the offense of first degree murder when he commits the offense of robbery and during the commission of the offense of robbery he sets in motion a chain of events which cause [sic] the death of an individual." People v. Savage, No. 1-02-2596, at 11 (Ill. App. Ct. May 14, 2004) (unpublished order). The jury found Savage guilty of the felony of robbing Birts and thus found him guilty of felony murder based on Birts's death. In connection with Gordon's abduction immediately before Birts's death, the jury acquitted Savage of armed robbery based on an accountability theory. The trial court sentenced Savage to a 20-year term of imprisonment.
2. Savage's Direct Appeal
Savage raised the following issues on appeal: (1) the State failed to prove him guilty beyond a reasonable doubt because Birts's death was not a reasonably foreseeable consequence of the robbery and Birts's act of threatening the officers with his gun was an intervening cause; (2) the trial court erred in giving a non-Illinois Pattern Jury Instruction on felony murder; (3) the trial court erred when it prohibited him from presenting prior consistent statements he made to the police on the night of the murder; and (4) portions of the State's closing argument denied him a fair trial. On May 14, 2004, the Illinois Appellate Court affirmed. Savage filed a petition for rehearing on June 4, 2004, which was denied on June 23, 2004.
Savage filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court arguing that his conviction and the non-IPI jury instructions given at trial both incorrectly relied on "but for" causation (i.e., did Savage "set in motion a chain of events" leading to Birts's death). People v. Savage, No. 1-02-2596, at 11. According to Savage, the lower courts should have also considered whether Birts's death met the foreseeability requirements for proximate cause. See PLA, People v. Savage, No. 98797 (Ill.) (Dkt. 15-4, Ex. J).*fn1 On October 6, 2004, the Illinois Supreme Court denied the PLA. On April 19, 2005, Savage filed a motion to reconsider the denial of his PLA. On May 12, 2005, the Illinois Supreme Court granted the motion, vacated the denial of the PLA, and took the PLA back under advisement. Without further briefing, the court denied the PLA on September 27, 2006.
B. Savage's State Post-Conviction Proceedings
Meanwhile, on April 5, 2005, Savage filed a pro se post-conviction petition pursuant to 725 ILL. COMP. STAT. § 5/122-1, et seq. In his petition, Savage argued:
1. Trial counsel was ineffective for failing to inform him of his right to request a lesser included offense jury instruction about the predicate offense of robbery;
2. Trial counsel was ineffective for failing to present an "overt withdrawal" and "termination of the felony" defense because after fighting with Birts, he "verbally and physically acknowledged defeat discontinuing any form of struggle or act of aggression" and left Birts "restored to his sense of safety" and willing to open the door to his apartment when the plainclothes officers arrived;
3. The prosecution's failure to disclose that State witness Diane Gordon had criminal charges pending against her at the time of her testimony, its decision to delay filing an arrest warrant against Gordon until after she testified, and its failure to disclose that Gordon had a prior conviction for credit card fraud violated his Fourteenth Amendment due process rights;
4. The prosecution failed to disclose its agreement to seek leniency in sentencing for Gordon's pending criminal cases in return for her testimony at his trial; and
5. His due process rights were violated when the prosecution impeached him "by omission" as part of its rebuttal case by calling a police officer to testify about notes summarizing another officer's interview of ...