MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
This matter comes before the Court on Magistrate Judge Philip M. Frazier's September 11, 2013 Report and Recommendation ("the Report") (Doc. 19). The Report recommends that the Court deny Barrientos' petition for a writ of habeas corpus and dismiss the case. Barrientos filed timely objections (Doc. 20). Based on the following, the Court ADOPTS the Report in its entirety.
On July 16, 2012, Barrientos, pro se, filed a petition for writ of habeas pursuant to Section 2254 (Doc. 1). Barrientos argues that his conviction is unconstitutional due to ineffective assistance of counsel. Specifically, that trial counsel was ineffective for failing to present the testimony of petitioner's brother at trial. The Government thereafter responded arguing that the state appellate court's rejection of Barrientos' argument that trial counsel was ineffective was neither contrary to, nor an unreasonable application of, United States Supreme Court Precedent (Doc. 12).
On September 11, 2013, pursuant to 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Frazier submitted the Report recommending denial of Barrientos' petition. The Report was sent to the parties with a notice informing them of their right to appeal by way of filing "objections" by September 30, 2013. On September 30, 2013, Barrientos filed objections to the Report.
Barrientos raises a single objection, essentially a restatement of the argument in his petition, that trial counsel's failure to have Barrientos' brother testify renders his conviction unconstitutional. He chooses two points to emphasize. First, he argues that his brother's testimony would have been exculpatory, that the failure to present such evidence is ordinary deficient barring some consideration, and that there is "no suggestion in the record that there was any reason not to put [his brother] on the stand" (Doc. 20). Second, Barrientos asserts that "counsel's decision to... put [his bother] on the stand was based on, as the record reflects, ... an inadequate investigation" ( Id. ). Specifically, Barrientos argues that counsel never followed up with his brother regarding his potential testimony.
Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir.1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.
In 2001, Barrientos was convicted of first-degree murder and sentenced to 25 years imprisonment. A determination of a factual issue made by a State court is presumed to be correct unless petitioner can rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Baddell v. Correll, 452 F.3d 648, 659 (7th Cir. 2006). In this case Barrientos has not rebutted the appellate court's summary of the facts. The following is an excerpt from the Illinois Appellate Court Order issued September 30, 2002.
[Barrientos'] conviction arose from the fatal stabbing of the victim, Yazmin Perez, at 10:15 p.m. on June 8, 2000, in the parking lot of a White Hen Pantry located at 1580 South Busse Road in Mount Prospect. Medical evidence established that the victim sustained a single stab wound to her abdomen, involving the small intestine, iliac artery, and iliac vein. The wound was four to five inches deep. She was five feet, three inches tall and weighed 196 pounds.
Fabiana Perez, the victim's sister and [Barrientos'] girlfriend, testified that she was pregnant with [Barrientos'] child at the time of the incident. She resided with [Barrientos], but spent several days in a psychiatric clinic after attempting suicide. On the night of incident, she escaped from the clinic and sought refuge, asking both [Barrientos] and the victim for assistance. After telling [Barrientos] that her sister was "chasing" her out, Fabiana made an arrangement with [Barrientos] that she would meet him in the White Hen parking lot, and he would drive her to a hotel. [Barrientos] and his brother[, Rafeal, ] arrived to find Fabiana and the victim talking in the parking lot.
Cedrick Johnson testified he was a customer at White Hen and witnessed the incident from inside the store. He observed [Barrientos] jump out of his car and approach the victim. Fabiana pulled at [Barrientos] from behind, but the man with [Barrientos] grabbed Fabiana and took her back to [Barrientos'] car. [Barrientos] held the victim with one hand and thrust at her with the other hand. After the victim was struck by [Barrientos], she held her right side with both hands. [Barrientos] then retreated to his car as the victim cried for help, staggered, and fell to the ground. When Johnson saw a large red spot on the victim's white shirt, he told a store employee to call 911.
Fabiana Perez testified that she tried to stop [Barrientos] from hitting her sister. [Barrientos] and Fabiana engaged in pushing and pulling each other, and [Barrientos] called the victim a whore. During the confrontation, [Barrientos'] work knife, a knife Fabiana had seen previously, fell to the ground with its blade closed. After the knife fell, [Barrientos] yelled to his brother to grab Fabiana. [Rafeal] grabbed Fabiana, but she managed to see [Barrientos] pick up his knife and stab the victim. The victim's hands were in her pockets when [Barrientos] stabbed her.
[Barrientos] testified that he arrived at the scene to find the victim hitting his girlfriend. He had a knife in his pocket because it was the knife he used at work to separate large boxes, and he was wearing his work pants. [Barrientos] stated that the victim came towards his, shoved him, and threatened him. He admitted stabbing the victim while she had her hands hidden in her T-shirt. ...