MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
On June 4, 2013, Petitioner Silvonus Shannon, by counsel, filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). For the following reasons, the Court denies Shannon's habeas petition. The Court also declines to certify any issues for appeal because Shannon has not shown that reasonable jurists would debate that the Court should have resolved his habeas petition in a different manner. See 28 U.S.C. § 2253(c)(2).
Shannon does not present clear and convincing evidence challenging the statement of facts in the last state court decision to address his arguments on the merits, and thus the Court presumes the Illinois Appellate Court's facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Bolton v. Akpore, ___ F.3d ___, 2013 WL 4840483 (7th Cir. Sept. 12, 2013). The Court therefore adopts the underlying facts as set forth by the Illinois Appellate Court on direct appeal in People v. Shannon, No. 1-1-1433, 2012 WL 6962106 (1st Dist. Apr. 24, 2012) (unpublished).
I. Factual Background
On the afternoon of September 24, 2009, a fight broke out near the Agape Community Center on 111th Street in the Roseland neighborhood of Chicago. As a result of the fight, the victim, Derrion Albert, died, Many of the individuals at the scene of the fight either attended Roseland's Christian Fenger Academy ("Fenger") high school or were former students. Due to school closings, students who lived in Altgeld Gardens attended Fenger, as well. According to trial testimony, a considerable amount of animosity existed between the students from Altgeld Gardens and Roseland.
During the fight, Shannon, along with two other individuals charged with Albert's murder, Eric Carson and Eugene Riley, were caught on videotape, along with other individuals. The videotape depicts Carson hitting the victim with a stick and Riley swinging a piece of wood hitting the victim in the head. In addition, the videotape shows what appears to be Shannon kicking the victim. Eyewitness testimony was consistent with the videotape. At trial, Shannon testified on his own behalf stating that prior to the fight, he was hit in the head with a board and that he could not remember kicking the victim in the head. On rebuttal, the State called Chicago Police Detective Michelle Moore-Grose, who testified about her interview with Shannon three days after the fight. According to Detective Moore-Grose, Shannon admitted to kicking the victim three times in the body and once in the face.
After deliberating over three hours, the jury found Shannon guilty of first degree felony murder. When the jury submitted the written verdict to the court, they also gave the trial court a note in which seven jurors requested that the judge show mercy when sentencing Shannon. The judge did not reveal the note or its contents to the parties. Instead, he placed the note in the court file.
At the sentencing hearing, the State presented victim impact statements from Albert's relatives. Shannon presented the testimony of his uncle, his best friend, a cousin, and an English teacher from Fenger, as well as his own testimony. At the end of evidence, the trial court stated that Shannon had a lot going on in his life outside of the few minutes depicted on the videotape, but that Shannon had not taken responsibility for his actions. The Circuit Court then sentenced Shannon to 32 years in prison.
II. Procedural Background
As discussed, on January 11, 2011, following a jury trial in the Circuit Court of Cook County, the jury convicted Shannon of first degree felony murder in violation of 720 ILCS 5/9-1(a). Thereafter, the Circuit Court sentenced Shannon to 32 years in prison. Shannon appealed to the Illinois Appellate Court, First District, arguing the following claims: (1) the trial court erroneously denied his motions for a directed verdict; (2) the trial court failed to disclose to the parties that the jury sent a note with the verdict asking the trial court to show mercy in sentencing him; (3) the trial court erroneously refused to allow the jury to view a police report during their deliberations; (4) the trial court erred by refusing Shannon's proffered jury instructions concerning "intent" and "knowledge-willfulness;" and (5) the trial court abused its discretion in denying Shannon's motion to reconsider his 32-year sentence. On April 24, 2012, the Illinois Appellate Court affirmed the judgment of the Circuit Court.
Shannon then filed a petition for leave to appeal ("PLA") in the Supreme Court of Illinois raising the following claims: (1) the Illinois Appellate Court misapplied Illinois law regarding felony murder; and (2) the Illinois Appellate Court erroneously held that the Circuit Court was not required to inform Shannon about the jury's ex parte communication to the judge asking for leniency in sentencing Shannon. On October 31, 2012, the Supreme Court of Illinois summarily denied Shannon's PLA. From the record, it appears that Shannon did not file a petition to the United States Supreme Court for a writ of certiorari nor a post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq.
On June 4, 2013, Shannon filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). Shannon brings one claim in his habeas petition, namely, that the trial court violated his due process and Sixth Amendment rights to be present at all stages of his trial when the court failed to disclose to the parties that the jury sent a note with its verdict asking the judge to show mercy in sentencing him. Respondent does not ...