United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, District Judge.
Petitioner DeWayne Wester has filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, against Respondent Warden Kimberly Butler. For the reasons stated below, Wester's § 2254 Petition is denied. Wester's Motion to Stay is also denied.
In 2000, following a jury trial in Lake County, Illinois, Wester was convicted of the first-degree murder of Brian Blanchard. (Resp. Ans., Exh. A, People v. Wester, No. 99-CF-1675 (Ill.App.Ct. Sep. 6, 2002) at 1-2.) At trial, Wester admitted he shot and killed Blanchard but claimed self-defense. (Id. at 8-10; Resp. Ans., Exh. D at ¶ 8.) Wester testified that Blanchard had tried to steal money that Wester had won in a dice game and had punched Wester in the face, after which the two tussled. (Resp. Ans., Exh. A at 8-10.) Wester further testified that he had fired warning shots from his gun and shot Blanchard twice because Blanchard came after him and bystanders had blocked his escape. (Id. at 9.)
However, the State's witnesses contradicted Wester's testimony. They testified that there was no dice game and that, contrary to Wester's testimony, Blanchard had not put Wester in a chokehold. (Id. at 10.) Prior to the shooting, witnesses heard Wester and Blanchard arguing about money, including Wester saying to Blanchard "give me my f____ing money." (Id. at 3-4.) Blanchard's sister, Sherene Blanchard - whose name was not disclosed in discovery - testified on rebuttal that Blanchard had asked her for money on the morning of the shooting, but she responded that she would not pay his drug debt. (Id. at 11.) Three witnesses further testified that Wester struck Blanchard first by pistol-whipping him. (Resp. Ans., Exh. A at 3-6; see also Resp. Ans., Exh. D, People v. Wester, No. 99-CF-1675 (Ill.App.Ct. June 10, 2013 at ¶ 33).) According to the witnesses, Wester shot Blanchard and then, after Blanchard fell to the ground, fired additional shots while running away. (Id. )
At Wester's request, the trial court instructed the jurors on self-defense and involuntary manslaughter but not second-degree murder. (Resp. Ans., Exh. A at 18-19.) After his conviction, Wester was sentenced to forty-five years' imprisonment. (Id. at 1.)
Wester appealed both his conviction and his sentence. He raised the following arguments: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of first-degree murder; (2) trial counsel was ineffective for not advising him adequately about whether to tender a jury instruction on second-degree murder; and (3) the sentencing court abused its discretion by considering improper factors. (Id. ) On September 6, 2002, the state appellate court affirmed Wester's conviction and sentence. (Id. at 11-25.)
On October 18, 2002, Wester renewed his claims by filing a petition for leave to appeal ("PLA") to the Illinois Supreme Court. (Resp. Ans., Exh. E.) The Illinois Supreme Court denied his PLA on February 5, 2003. (Resp. Ans., Exh. F.)
In March 2003, Wester filed a pro se post-conviction petition in state court. (Resp. Ans., Exh. D at ¶ 4; Exh. Z.) His petition was amended by counsel in 2005 and raised a claim that the court had erred by allowing a witness to testify in rebuttal. (Resp. Ans. D. at ¶ 4.) After a series of preliminary proceedings and remands, Wester was appointed new counsel in the public defender's office, who filed an amended petition. Later, private counsel, Gregory Nikitas, appeared on Wester's behalf and filed another amended petition. (Resp. Ans. Exh. D at ¶ 5.) That petition argued that: (1) Wester was unfairly surprised by the testimony of Sherene Blanchard; (2) three witnesses wrongly offered hearsay testimony; and (3) his trial counsel, Michael Conway, was ineffective for convincing Wester that he could not tender jury instructions on both second-degree murder and involuntary manslaughter. (Resp. Ans., Exh. AA at C481-83.) After holding an evidentiary hearing, the trial court denied Wester's petition in September 2011. (Resp. Ans., Exh. D at ¶ 5.) The trial court credited Conway's testimony from the evidentiary hearing that Conway had discussed both instructions with Wester and had recommended submitting both to the jury but that Wester had refused and had chosen to tender only the involuntary manslaughter instruction, as he was entitled to do under Illinois law. (Resp. Ans. Exh. AA at C535.)
Wester appealed, arguing that his private counsel, Nikitas, was ineffective for failing to amend the petition to add claims that (1) Conway was ineffective for failing to object to Sherene Blanchard's testimony as hearsay and failing to object to the State's closing argument and (2) Wester's direct appellate counsel, Kim Campbell, was ineffective for failing to raise an ineffective assistance claim against Conway on these grounds. (Resp. Ans., Exh. J at 20-21; see also Resp. Ans., Exh. D at ¶ 23.) On June 10, 2013, the appellate court affirmed the dismissal of the post-conviction petition. (Resp. Ans., Exh. D at ¶¶ 27-30.) Wester's subsequent PLA was denied by the Illinois Supreme Court on March 27, 2013. ( See generally Resp. Ans., Exhs. O & P.) Wester later moved unsuccessfully to vacate his conviction under 735 Ill. Comp. Stat. § 5/2-1401.
On May 26, 2014, Wester filed the instant § 2254 Petition, raising the following claims:
(1) trial counsel was ineffective for telling him that he must choose either a jury instruction on second-degree murder or involuntary manslaughter, but not both (Doc. 1 at 5);
(2) his sentence is based on improper factors ( id.);
(3) he was denied his right to due process and a fair trial because the trial court allowed Sherene Blanchard to offer rebuttal testimony, though the State did not disclose her name in pretrial discovery ( id. at 6);
(4) he was denied due process and fair trial by a jury instruction which misled the jury into believing that he bore the burden ...