JASON M. HANSON, Petitioner,
MICHAEL ATCHISON, Respondent.
MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
Introduction and Background
Pending before the Court is a Report and Recommendation issued by Magistrate Judge Philip M. Frazier (Doc. 18). Hanson filed objections to the Report (Doc. 19). Based on the record and the applicable case law, the Court ADOPTS the Report in its entirety.
Following a jury trial, Jason M. Hanson was convicted of one count of first degree murder and the Williamson County, Illinois Circuit Court sentenced him to forty-five years imprisonment. People v. Hanson, No. 02-CF-321 (Ill. Cir. Ct. 1st, Feb. 2, 2003). He then unsuccessfully appealed his conviction on the ground that his sentence was excessive. People v. Hanson, No. 5-03-0286 (Ill.App.Ct. June 3, 2004). The Fifth District, Illinois Appellate Court set forth the evidence at trial as the following:
[Petitioner] and a group of other young people were socializing and drinking beer in a Herrin housing project at about 2 o'clock on the morning of September 1, 2002. The 21-year old [petitioner], who had been released on mandatory supervised release from the Department of Corrections on August 8, 2002, was drinking beer and had crack cocaine on his person that he intended to sell. Geraldine Jones, who had been drinking and was in bad humor, approached the group and asked if anyone had seen Zack, her boyfriend. When she learned that Zack was not around, she crossed the street and went to her car, which was parked near her home.
[Petitioner] took the.22-caliber automatic pistol that Donyell "Porky" McKenzie handed to him without being prompted to do so. He put the pistol in his pocket prior to approaching Jones' car to see if she wanted to buy crack cocaine from him. An ill-tempered exchange took place in which Jones referred to [petitioner] as a "bitch, " a pejorative prison term for a sexually subservient inmate....
[Petitioner] retorted, "My mom didn't raise no bitches." He shot the victim once, walked to the front of the car and thought "I might as well" and "fuck that, " and returned to the open driver's window and shot at the victim four more times. After the second shot, he "knew she was dyin', " and yet he continued to fire the weapon. [Petitioner] shot the victim at such close range that the pistol, which had a shell extractor that threw shells out and to the right, ejected three of the five spent cartridges into the interior of the car, where they were later found by the police.
Id. at 1-2. Further, trial testimony reveals that an eyewitness, Jonathan Cruse, identified petitioner as the shooter and Robin Garegnani testified that she saw petitioner walk in Jones' direction before the shooting and run from that direction after shots were fired. Garegnani also testified that petitioner admitted to her and others that he shot Jones. At trial, petitioner testified that McKenzie shot Jones and that he confessed to the shooting because investigators allegedly threatened to charge his brother with the crime.
Thereafter, petitioner filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court, again claiming that his sentence was excessive. People v. Hanson, No. 100264. The Illinois Supreme Court denied his PLA on May 25, 2005. People v. Hanson, 833 N.E.2d 5 (Ill. 2005)(Table). Petitioner did not file a petition for writ of certiorari in the United States Supreme Court.
On July 16, 2007, Hanson filed a post-conviction petition in the State Circuit Court pursuant to 725 ILCS 5/122-1. In that petition he raised the following arguments: (1) newly discovered evidence demonstrated that he was actually innocent of the offense; (2) he was denied effective assistance of counsel when trial counsel failed to attempt to suppress evidence; (3) he was denied effective assistance of counsel during his voir dire hearing; (4) he was denied effective assistance of counsel when trial counsel failed to formulate a theory of defense; and (5) he was denied effective assistance of counsel when trial counsel failed to use available reports. The Circuit Court dismissed the post-conviction petition on May 26, 2009, holding that the ineffective assistance of trial counsel claims were time-barred and the actual innocence claim was without merit. People v. Hanson, No. 02-CF-0321 (Ill. Cir. Ct., 1st May 26, 2009). Petitioner appealed to the Appellate Court arguing only that the lower court erred in dismissing his actual innocence claim. On November 23, 2010, the Illinois Appellate Court affirmed the Circuit Court decision. Subsequently, Hanson filed a PLA with the Illinois Supreme Court claiming that he was actually innocent and claiming ineffective assistance of counsel. On March 30, 2011, the Illinois Supreme Court denied the PLA. People v. Hanson, 949 N.E.2d 661 (Ill. 2011).
Thereafter, on March 27, 2012, Hanson filed this petition for habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). In this petition, Hanson raises the following grounds for relief:
Ground 1: Newly discovered evidence demonstrated that he was actually innocent for the offense for which he was incarcerated;
Ground 2(A): He was arrested without ...