UNITED STATES OF AMERICA ex rel. EMMETT LANE, JR., Petitioner,
DAVE REDNOUR, Warden, Respondent.
MEMORANDUM AND ORDER
David R. Herndon Chief Judge United States District Court
This case is before the Court on a petition for writ of habeas corpus (Doc. 1). Respondent has filed a Response to the petition (Doc. 23). Petitioner has filed a Reply (Doc. 25). Based on the following, the Court DENIES and DISMISSES petitioner’s habeas petition (Doc. 1).
II. Background A. Procedural Background
Petitioner is currently incarcerated at Menard Correctional Center where he is serving a fifty-one year prison term for murder, attempted murder, and robbery (Doc. 23 Ex. A). Petitioner was found guilty of shooting two victims, both of whom were United States Army staff sergeants on leave from Fort Campbell, Kentucky (Doc. 23 Ex. J at pp. 2-6). One of those individuals, Alfonza Beasley, died as a result of the shooting. The following retelling of the facts is from the Fifth District Appellate Court of Illinois Rule 23 Order (Doc. 23 Ex. C at pp. 1-4).
Prior to the events at issue, a fellow soldier, Lester Easley, had invited Beasley and Floyd Lewis to attend a birthday party for Cenethia Mackins in Mounds, Illinois. On October 16, 2004, Beasley went to Lewis’s home to ride to the party with Lewis. They arrived at the party at approximately 6:30 p.m. Lester Easley, Rashawn Davis, Derrick Tucker, and Cenethia’s brother were also in attendance. At the party, Davis asked Lewis if he had a weapon on him and Lewis indicated that he had as he collected guns. Davis asked to see the gun and he, Lewis, Easley, and Tucker walked out to Lewis’s truck to see a M4 rifle and a .45 caliber, semiautomatic pistol, a Springfield 1911. Tucker also showed off his .9-millimeter handgun.
Later in the evening, the party moved to Club 37. Iesheka Maxwell went to the club with Beasley and Lewis. They arrived sometime between 9:30 and 10:00 p.m. Iesheka drove the truck and when they arrived, she locked the truck and gave the keys to Lewis. Locking the vehicle automatically activated the trucks alarm system. Lewis and Davis each had three or four alcoholic beverages and Iesheka agreed to act as their designated driver when they left. Upon looking in the truck, Lewis noted that his semi-automatic pistol was missing. The M4 rifle was still in the truck. The pistol had a full magazine but no round in the chamber.
Lewis believed that Davis and Tucker stole the gun because they were the only ones who had seen the gun earlier. Lewis instructed Beasley to wait by the truck and he went into the club to tell Lester Easley. Lewis told Easley that someone broke into his truck and took the pistol and reminded him that only three people knew the pistol was in the truck.
Easley went with Lewis back to the truck and then returned to the club to find Davis and Tucker. Easley asked Davis about Lewis’s truck, and although Davis indicated that he had heard about the theft he denied involvement. Easley walked back outside and noticed that Lewis and Beasley were shouting at people outside the bar. Lewis was shouting “Who broke in my truck?” and Beasley shouted expletives. At that time, Tucker and defendant, Tucker’s cousin, walked up to the truck. Lewis asked defendant about the break-in and defendant replied that he didn’t care about the vehicle. Defendant and Lewis exchanged words until Easley pushed them apart.
Lewis then saw Beasley “fussing” with Tucker and Tucker pulled his .9-millimeter out and pointed it at Beasley’s head. Beasley, who had the M4 rifle from the truck, chambered a round and pointed it at Tucker. Beasley then switched the weapon to his left hand, lowered the weapon and pushed the .9-millimeter away from his face. Defendant snuck in behind Tucker and attempted to grab the M4 from Beasley’s hands. The two fought over the gun and Beasley eventually lost hold of the gun. Defendant pointed the gun at Beasley who raised his hands and tried to knock the weapon away from his face. Defendant stepped back and fired, hitting Beasley in the head. Beasley fell to the ground and Defendant shot him again. Lewis shouted “whoa, whoa, whoa” and moved toward Defendant who shot him in the chest. Lewis fell and Defendant shot him in the neck.
During the course of events, Tiffany Wilson, another patron at the club was in her car listening to music. She saw Tucker walking behind the Club 37 building with a silver handgun. Three minutes later she heard gun shots. Tiffany started her car and the Defendant ran up to her car and jumped in the passenger-side door holding a large, black gun. He told Tiffany to get moving. She drove a short distance when defendant instructed her to stop the vehicle. He stepped out of the vehicle, threw the gun in the grass, and then got back in. Tiffany dropped defendant off in Pulaski.
Petitioner was found guilty of first degree murder, attempted murder, and robbery (Id. at pp. 1-4).
2. State Court Proceedings
After his conviction, petitioner pursued a direct appeal, raising only one issue, that the prosecutor made improper statements to the jury during closing arguments (Doc. 23 Ex. A). In that appeal, petitioner focused on three types of comments (Doc. 23 Ex. C). Petitioner argued that the prosecution improperly accused petitioner’s counsel of deception and trickery, repeatedly focused on the status of the witnesses as soldiers making them sound more trustworthy, and told the jury that petitioner had murdered and executed an unarmed soldier (Id. at p. 8). Although the Fifth Circuit Appellate Court of Illinois noted that petitioner’s counsel did not properly object to the remarks, thereby preserving petitioner’s appeal, petitioner argued that the appeals court should review the comments for plain error (Id. at p. 7). The Appellate Court reviewed the comments and although found the two comments regarding soldiers to be improper, the Appellate Court found that petitioner was not prejudiced by these statements (Id. at p. 10). The court found that petitioner was not prejudiced and petitioner’s appeal was denied (Id. at pp. 10-11). Petitioner raised the same argument in his PLA to the Illinois Supreme Court, but the Illinois Supreme Court denied his appeal (Doc. 23 Exs. D & E).
Petitioner also filed a pro se post-conviction petition on May 21, 2007. In his petition, petitioner alleged that:
(1) The trial court failed to voir dire the jurors with respect to any potential bias in favor of witnesses who serve in the military and/or wearing their military uniform;
(2) His trial counsel was ineffective for failing to:
(a) failing to voir dire potential jury with respect to military uniforms, and
(b) failing to interview Michael Schoffner or call him as ...