MEMORANDUM AND ORDER
David R Herndon Chief Judge United States District Court
Introduction and Background
Pending before the Court is a Report and Recommendation issued by Magistrate Judge Donald G. Wilkerson (Doc. 20). Wilborn filed objections to the Report (Doc. 37). Based on the record and the applicable case law, the Court ADOPTS the Report in its entirety.
In 2006, Wilborn was convicted after a jury trial in the St. Clair County, Illinois Circuit Court of two-counts of first degree murder. Wilborn was convicted of stabbing to death his wife, Nicole Jacobs, and her friend, Wayne Dunnavant, in Jacobs’ apartment in Belleville, Illinois. On November 26, 2006, the St. Clair County, Illinois Circuit Court sentenced him to two consecutive life sentences.
The facts set forth below are taken from the state court proceedings and are presumed to be correct. 28 U.S.C. § 2254(e)(1); Badelle v. Correll, 452 F.3d 648, 659 (7th Cir. 2006).
On May 12, 2005, Nicole Jacobs obtained an order of protection in St. Clair County. This order was served on the defendant, Leron Wilborn, on May 16, 2005, by Sergeant David Thorton of the St. Clair County sheriff’s department. When Thorton served the defendant, he explained to the defendant that he was to stay 500 feet away from his wife, Nicole Jacobs, and her residence located at 21 East C Street, Apartment F, Belleville, Illinois. On the following day, May 17, 2005, Keith Edwards, a downstairs neighbor, found Nicole Jacobs and Wayne Dunnavant dead in Jacobs’ apartment. Edwards called 9-1-1.
Twanda Wilson, Jacobs’ sister, also testified that she had spoken with the defendant a few weeks prior to the murder of her sister. The defendant told Wilson that if he could not have Jacobs, then nobody could and that if he caught Jacobs with another man, he would kill them both.
The defendant testified at the trial that he went to Jacobs’ apartment to try to “patch things up.” Before reaching her residence, the defendant stopped at two stores and purchased alcoholic beverages. Once at the residence, the defendant waited outside, drinking a can of beer and a bottle of wine. The defendant then knocked on the door and went inside. The defendant testified that Jacobs stopped in the kitchen and rested her left hand on a white folded towel on the countertop while she spoke to him. As they spoke and began to argue, Dunnavant entered the kitchen area from the front room. The defendant testified that Dunnavant told Jacobs to “get the thing, get it.” At this point, the defendant claimed, Jacobs grabbed the white towel, which concealed a knife. The knife fell out of the towel and hit the floor. The defendant further testified that he began fighting for the knife and that Jacobs pulled his jacket over his head. The defendant claimed that not being able to see anything, he heard footsteps. While blinded, he found the knife in his hands and began defending himself by swinging the knife. He testified that he did not recall striking anyone with the knife. When the defendant’s jacket was removed from his eyes, he saw Dunnavant holding his arm and heading toward the front room. Afraid that Dunnavant was retrieving a weapon, the defendant ran out of the house. He testified that once outside he dropped the knife and jacket and did not call anyone for help.
The defendant fled to Memphis, Tennessee. On May 25, 2005, the defendant telephoned from Memphis to turn himself into the police. Belleville police officers traveled to Memphis to take defendant into custody. While in Memphis, the police conducted a videotaped interview with the defendant, which was admitted into evidence at trial. In this interview, the defendant told police that he “just could not believe it” when he saw another man in the apartment. He also told police that after seeing Dunnavant in Jacobs’ apartment he, he started to argue with Jacobs. Jacobs tried to reach for something, grabbed the defendant’s jacket, and pushed him. He then told police that “everything went blank” and that he did not remember what he had done to his wife. The defendant also told officers that a knife was on the cabinet and that he “had to” cut his wife and the man and that he “lost [his] mind.”
The defendant tendered an instruction on involuntary manslaughter, which the circuit court refused. The jury found the defendant guilty on both counts of first-degree murder. The court sentenced the defendant to two consecutive life sentences. …
Doc. 13-1; People v. Wilborn, 05-07-0029 (Ill.App. Dec. 20, 2007)(Rule 23 Order). The Appellate Court affirmed Wilborn’s conviction (rejected Wilborn’s argument that the trial court erred in refusing to instruct the jury on involuntary manslaughter) and modified his sentence to concurrent natural-life sentences. Id.Thereafter, Wilborn filed a petition for leave to appeal (“PLA”) to the Illinois Supreme Court and raised the same issues regarding the involuntary manslaughter jury instruction. Doc. 13-4; PLA, People v. Wilborn, No. 105881. The Illinois Supreme Court denied the PLA on March 26, 2008. Doc. 13-5; People v. Wilborn, No. 105881.
In Wilborn’s June 5, 2008 post-conviction petition, Wilborn raised the following claims: that defense counsel was ineffective for failing to call/obtain an expert crime scene investigator as a witness who would testify as to alleged tampering of the evidence by the police, namely the bodies of the decedents; that appellate counsel was ineffective for failing to raise the above argument on appeal; trial counsel was ineffective for failing to advise Wilborn of the inability to pursue both an involuntary manslaughter instruction and self-defense instruction; and that trial counsel was ineffective by advising against a second degree murder instruction. Doc. 13-6; People v. Wilborn, 05-CF-832 (June 5, 2008). The circuit court summarily denied Wilborn’s post-conviction petition. Doc. 13-10, p. 2; People v. Wilborn, 05-08-0334 (Ill.App. October 26, 2009)(Rule 23 Order). Wilborn appealed this decision arguing that the trial court erred in summarily dismissing his post-conviction petition and in holding him to the Strickland v. Washington, 466 U.S. 668 (1984), standard during the first stage of a post-conviction proceedings. Id.
In its Rule 23 Order, the Appellate Court affirmed the circuit court’s dismissal of the petition after a de novo review of the record. It found that there was no evidence of police tampering and that petitioner failed to present any evidence supporting these claims to the trial court in his post-conviction petition. Thus, the Appellate Court found that his ineffective assistance of counsel claims, both trial and appellate, failed to state the gist of a constitutional claim. Further, the Appellate Court found that petitioner’s trial counsel did attempt to introduce an involuntary manslaughter jury instruction but that the circuit court denied the instruction as not supported by the evidence. Also, the Appellate Court held that trial counsel was not ineffective in selecting a self-defense theory of the case in light of Wilborn’s testimony and video-taped confession that he was acting in self-defense. Lastly, the Appellate Court found that the record contradicted Wilborn’s claim that his trial counsel advised against a second-degree murder instruction. Id.
Wilborn filed a PLA, arguing that the Appellate Court erred in analyzing his ineffective assistance of counsel argument as to the witness tampering claims by failing to consider the autopsy reports and that he was unable to acquire an affidavit from his attorney that would have shown that his attorney was aware of the tampered evidence. On January 27, 2010, the ...