about what reasonable, properly instructed jurors would do). There was considerable evidence at
trial that placed the Petitioner at the scene of the crime. Indeed, after his arrest Petitioner told the
police that he was at the scene of the arson. In addition, one eyewitness saw Petitioner holding a
Molotov cocktail, that is, a glass bottle filed with an accelerant with a flaming rag hanging out of
it, getting ready to throw it. In other words, Thomas’ averment that Petitioner “stay back” is
unequivocally refuted by the evidence produced at trial that Petitioner was at the scene of the
offense,

Because Petitioner has not made a colorable claim of actual innocence, his claim cannot
act as a gateway to a merits determination of any procedurally defaulted claims. See Herrera,
506 USS. at 404.

D. Ineffective Assistance of Counsel Claims

Next, Petitioner claims that his counsel provided constitutionally ineffective assistance of
trial counsel. To establish ineffective assistance of counsel, Petitioner must show: (1) his
attorney’s performance “fell below an objective standard of reasonableness,” Strickland y.
Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); and (2) “but for
counsel’s unprofessional errors the result of the proceeding would have been different.” Jd. at
694, Ifa defendant fails to make a proper showing under one of the Strickland prongs, the Court
need not consider the other prong. See Strickland, 466 U.S. at 697.

With respect to the first prong, a “court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Strickland, 466 U.S. at 689 (citation and quotations omitted).

13


actual innocence based on an affidavit of his co-defendant, Imani Thomas, and that his trial
counsel was ineffective for failing to present evidence that would have discredited the testimony
of the eyewitnesses. He also raised a claim based on Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000). Finally, Petitioner argued that the enactment of Public Act
83-942, which amended the Illinois Post-Conviction Hearing Act to permit the dismissal of
certain petitions prior to the appointment of counsel, violated the single subject rule of the
Illinois Constitution. (dd. Ex. G.) On July 11, 2002, the Illinois Appellate Court, First Judicial
District, affirmed the Circuit Court’s summary dismissal of Petitioner’s post-conviction petition.
(Ud. Ex. J.) On August 1, 2002, the appellate court denied Petitioner’s petition for a rehearing.
(Id. Ex. L.)

Petitioner then filed a petition for leave to appeal to the Illinois Supreme Court arguing
that: 1) his sentence violated Apprendi; 2) the post-conviction court erred when it summarily
dismissed his pro se claims of actual innocence based on his co-defendant’s affidavit; and (3) the
post-conviction court erred because his post-conviction petition included a non-frivolous claim
that trial counsel was ineffective for failing to present impeachment evidence. (/d. Ex. M.) On
December 5, 2002, the Illinois Supreme Court denied the petition for leave to appeal. (/d. Ex.
N.)

On February 4, 2003, Petitioner filed a successive post-conviction petition raising the
claim of actual innocence. He again included Imani Thomas’ affidavit. According to the
petition, Petitioner claimed that he misunderstood the law, and thus was unable to adequately
raise the claim in his first petition. (/d. Ex. O.) On May 20, 2003, the Circuit Court of Cook

County dismissed the successive post-conviction petition as procedurally barred and frivolous



CONCLUSION

For these reasons, Petitioner’s petition for a writ of habeas corpus is denied.

Dated: October 18, 2004. ENTERED
AMY J. ST. Leash
United States District Judge

17


The Court concludes that this decision is minimally consistent with the facts and
circumstances of this case. See Conner, 375 F.3d at 649. Although the Illinois Appellate Court
only relied on Illinois case law, under the AEDPA, state courts are not required to cite United
States Supreme Court cases or even be aware of such law, as long as neither the reasoning nor
the result of the state court decision contradicts clearly established Supreme Court precedent.
See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002). Here, the
Illinois court’s reasoning did not contradict clearly established United States Supreme Court
precedent. Instead, the Illinois court’s conclusion that the State’s remarks did not deny Petitioner
a fair trial is consistent with Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91
L.Ed.2d 144 (1986) (“relevant question is whether the prosecutors’ comments so infected the
trial with unfairness as to make the resulting conviction a denial of due process.”).

In any event, Petitioner does not explain how or why the Illinois appellate court’s
decision was contrary to, or an unreasonable application of clearly established Supreme Court
law. Instead, he requests a hearing on this claim. Federal habeas courts are not an alternative
forum for trying issues and facts that a habeas petitioner did not pursue at the state court level.
See Williams, 529 U.S. at 437; Boyko v. Parke, 259 F.3d 781, 789-90 (7" Cir. 2001) (federal
habeas court’s ability to hold evidentiary hearing for petitioner to supplement an underdeveloped
state court record is “severely circumscribed”), Section 2254(e)(2) provides that, if a factual
basis of a claim was not developed in the state court, the federal habeas court “shall not hold an
evidentiary hearing” unless the habeas petitioner can show:

(A) the claim relies on —

(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously

9


confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to ours.” See id. at 405.

Under the “unreasonable application” prong under Section 2254(d)(1), a habeas petitioner
must demonstrate that although the state court identified the correct legal rule, it unreasonably
applied the controlling law to the facts of the case. See Williams, 529 U.S. at 407. A state
court’s application of Supreme Court precedent is unreasonable if the court’s decision was
“objectively” unreasonable. See Lockyer vy. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1174, 155
L.Ed.2d 144 (2003) (unreasonable application more than an incorrect or erroneous decision). To
be considered “unreasonable” under this standard, a state court’s decision must lie “well outside
the boundaries of permissible differences of opinion.” See Hardaway v. Young, 302 F.3d 757,
762 (7" Cir. 2002); see also Conner v. McBride, 375 F.3d 643, 649 (7" Cir. 2004) (state court
decision must be minimally consistent with facts and circumstances of the case).

B. Procedural Default

A petitioner’s failure to present a constitutional claim to the highest state court to which
he may appeal it in the manner required by state law results in a procedural default preventing a
federal court from deciding the claim on collateral review. See O'Sullivan v. Boerckel, 526 U.S.
838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). “Fair presentment requires a petitioner to
put forward operative facts and controlling legal principles.” Sweeny v. Carter, 361 F.3d 327,
332 (7" Cir. 2004). Procedural default also occurs where the state court rejects a petitioner’s
claim based on an independent and adequate state procedural ground. See Harris v. Reed, 489
US. 255, 263, 109 S.Ct. 1038, 103 L.Ed 2d 308 (1989) (federal courts cannot review questions

of federal law if the state court decision rests on a state procedural ground that is independent of


and without merit. (/d. Ex. P.)

Petitioner filed the present petition for habeas corpus with the Court on September 5,
2003. Respondent filed its answer on December 30, 2003, and Petitioner filed his reply in
support of his petition for habeas corpus relief on January 20, 2004. Construing his pro se
habeas petition liberally, see Calhoun v. DeTella, 319 F.3d 936, 943 (7" Cir. 2003), Petitioner
asserts the following claims: 1) he was denied a fair trial because the prosecutor’s closing
argument included a remark that defense counsel did not believe the Petitioner’s defense; 2) the
trial court abused its discretion in sentencing Petitioner to life imprisonment, rather than a term
of years; 3) the post-conviction court erred in dismissing Petitioner’s claim based on actual
innocence where he submitted the affidavit of co-defendant Imani Thomas which stated that
Petitioner was not involved in the crime; 4) the post-conviction court erred when it dismissed
Petitioner’s claim that counsel was ineffective for failing to present impeachment evidence; and
5) Petitioner’s sentence was unconstitutional under Apprendi.
il. LEGAL STANDARDS

A. Habeas Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), habeas
relief cannot be granted unless the state court’s decision was contrary to, or an unreasonable
application of law clearly established by the Supreme Court. See Rodriguez v. Chandler, 382
F.3d 670, 672 (7" Cir. 2004); see also Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495,
1519, 146 L.Ed.2d 389 (2000). In Williams, the Supreme Court explained that a state court’s
decision is “contrary to” clearly established Supreme Court law “if the state court arrives at a

conclusion opposite to that reached by this Court on a question of law” or “if the state court


A In my neighborhood.

Q Who would you stay with?
A: Different people.

Q Like who?

A Moe, Larry, Curly Joe.

Apparently, Petitioner’s answer caused people in the courtroom to laugh and the court
admonished Petitioner’s counsel to control herself. During defense counsel’s closing argument,
she briefly mentioned the colloquy and gave reasons for Petitioner’s answer. The State’s rebuttal
closing argument included the following:

When counsel got up here and talked to you for I don’t know how long,

about how much time did she spend on his testimony? How much did she really

reflect or tell you about the evidence concerning his testimony? She even knows

it’s a joke.

When addressing this issue, the Illinois Appellate Court concluded that Petitioner was not
prejudiced by the State’s comments. The appellate court based its decision on Illinois case law
which holds that because prosecutors are permitted wide latitude in their closing arguments,
improper remarks in closing are reversible error only if they result in substantial prejudice or
where the statements serve no other purpose except to evidence the defendant’s guilt. See People
v. Williams, 181 I1.2d 297, 330, 229 Ill_Dec. 898, 692 N.E.2d 1109 (Ill. 1998); People v.
Jackson, 293 Ill. App.3d 1009, 1016, 228 Ill.Dec. 319, 689 N.E.2d 191 (Ill. App.Ct. 1997). The
appellate court concluded that because the jury was present for the entire trial, including the
Petitioner’s cross-examination where he made the comments, and had the opportunity to view the
witnesses and their demeanor, Petitioner was not substantially prejudiced by the State’s remarks.

See People v. Price, No. 1-97-3195, at 6.


Minate Order Form (06/97)

United States District Court, Northern District of Illinois

f-
fame of Assigned Judge Sitting Judge if Other
or Magistrate Judge Amy J. St. Eve than Assigned Judge
CASE NUMBER 03 C 6485 DATE 10/18/2004
CASE United States ex rel Damen Price vs. Eugene McAdory
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) im Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) oO Answer brief to motion due . Reply to answer brief due.
(4) 0 Ruling/Hearing on. set for at :
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) a Trial[set for/re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) CO Local Rule 41.1 COFRCP4i(a)(1) CFRCP41(a)(2).
(0) +x [Other docket entry] Enter Memorandum Opinion and Order. Damen Price's petition for writ of
habeas corpus is denied.

(11) gf {For further detail see order attached to the original minute order.] \

No notices required, advised in open court,

No notices required. number of notices.

7 19 2004

date dockeied
COomy
AN
O

date mailed notice

Notices mailed by judge’s staff.

a4

Notified counsel by telephone. 8

Docketing to mail notices.

Mail AO 450 form.

ans meen ces
Copy to judge/magistrate judge. Junag dare qaes8

4
Lia

Date/time, received in .;
central Clerk's Office”

courtroom
deputy’s
initials

Ha Si Lo Aadd

tad

mailing deputy initials



statutes.

Under the Illinois statutes pertaining to first degree murder, a court may sentence a
defendant to the death penalty, life imprisonment, or a term of years, contingent on mitigating
and aggravating factors and other circumstances invoived in the commission of the crime. See
People v. Swift, 202 Ill.2d 378, 388, 269 Ill.Dec. 495, 781 N.E.2d 292 (2002) (citing statutes).
Here, the jury concluded that Petitioner was eligible for the death penalty, but decided that he
should not be sentenced to death. The trial court consequently sentenced Petitioner to life
imprisonment. Not only is life imprisonment within the range established by the Illinois statutes,
the Court would be hard-pressed to conclude that life imprisonment is unduly severe given that
the jury found Petitioner eligible for the death penalty in the first instance. Accordingly,
Petitioner’s sentencing claim fails.

(on Actual Innocence Claim

Petitioner claims that the post-conviction court erred in dismissing his claim based on
actual innocence because he submitted his co-defendant’s affidavit which averred that the
Petitioner was not involved in the murder and arson. The post-conviction appellate court
concluded that despite the fact that Petitioner stapled his co-defendant’s affidavit to his post-
conviction petition, Petitioner did not raise a claim of actual innocence in his petition. In fact,
there was no language in the petition by which the appellate court could infer a claim of actual
innocence. Because Petitioner failed to properly raise his actual innocence claim in his post-
conviction petition, the appellate court concluded that Petitioner waived this claim. Therefore,
this claim is procedurally defaulted because the Illinois appellate court relied upon the

independent and adequate state ground of waiver in making its determination. See Harris v.

11


unavailable; or

(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.

See 28 U.S.C. § 2254(e)(2) (emphasis added).

Because Petitioner does not assert that a new rule of constitutional law is implicated
under this claim, he must demonstrate that the failure to develop a factual record in the state
court was not his fault. See Williams, 529 U.S. at 432; Newell v. Hanks, 283 F.3d 827, 838 (7"
Cir. 2002). Also, Petitioner must point to facts sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would find him guilty of the
underlying offense. See 28 U.S.C. § 2254(e)(2)(B); Harris v. McAdory, 334 F.3d 665, 669-70
(7" Cir. 2003). Because Petitioner has failed to argue any facts that satisfy this strict standard,
the Court will not grant his unwarranted request for an evidentiary hearing.

B. Sentencing Claim

Next, Petitioner contends that the Circuit Court abused its discretion in sentencing him to
life imprisonment, rather than a term of years. Construing Petitioner’s pro se habeas petition
liberally, this is an Eighth Amendment claim because he contends that his sentence was unduly
severe. See Henry v, Page, 223 F.3d 477, 482 (7" Cir. 2000); see also Solem v. Helm, 463 U.S.
277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (sentence may violate Eighth Amendment if
grossly disproportionate to crime). If the trial court imposes a sentence within the acceptable
range established by Illinois law, however, a sentence’s severity is not sufficient grounds for

federal habeas relief. See Henry, 223 F.3d at 482. Thus, the Court turns to the relevant Illinois

10


the federal question and adequate to support the judgment); see also Conner, 375 F.3d at 649
(same). Under Illinois law, waiver is an independent and adequate state court ground. See
Gomez v. Jaimet, 350 F.3d 673, 677 (7" Cir. 2003).

A petitioner may overcome procedural default by demonstrating cause for the default and
actual prejudice as a result of the alleged violation of federal law, or by showing that failure to
consider the claims will result in a “fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). A fundamental miscarriage
of justice is limited to “the extraordinary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Schlup vy. Delo, 513 U.S. 298, 321,
115 S.Ct. 851, 130 L-Ed.2d 808 (1995).

Il. DISCUSSION

A. Fair Trial Claim

Petitioner’s first habeas claim is that he was denied a fair trial because the prosecutor’s
closing argument included a remark that defense counsel did not believe in the Petitioner’s
defense, During the State’s cross-examination of the Petitioner, the following colloquy occurred:
Where did you stay then?

Here and there.

Where would be “here” and where would be “there”?
I don’t know the addresses, here and there.

Do you know the area?

Yes.

QO FO FQ F ®

Where?


(id. Ex. D.) On February 2, 2000, the Illinois Supreme Court denied his petition for leave to
appeal. (id. Ex. E.)

Petitioner then filed a petition pursuant to the Illinois Post-Conviction Hearing Act
alleging that: 1) he received ineffective assistance of trial counsel for failure to file a motion to
suppress statements; 2) he received ineffective assistance of trial counsel for failure to adequately
investigate the crime scene; 3) he received ineffective assistance of trial counsel for failure to call
two individuals as witnesses who gave statements after the State interviewed those witnesses; 4)
he received ineffective assistance of trial counsel] for failure to object after the trial court allowed
co-defendant’s statement into evidence; 5) he received ineffective assistance of trial counsel for
failure to object when a certain State’s witness testified inconsistently from earlier testimony
before the grand jury; 6) he was denied a fair trial because the State did not produce a witness to
testify that Petitioner actually threw a Molotov cocktail into the house; 7) he was denied a fair
trial after the trial court denied his motion for appointment of new counsel; 8) he was denied a
fair trial because the court admitted co-defendant’s written statement into evidence; 9) he was
prejudiced by the State’s use of inflammatory remarks; 10) he was prejudiced because the State
failed to apprize the trial court that one of its witnesses testified falsely; and 11) he received
ineffective assistance of appellate counsel for failure to comply with Supreme Court Rule
341(e)(7). Ud. Ex. F). On June 20, 2000, the Circuit Court of Cook County denied Petitioner’s
post-conviction petition. (Ud. Ex. F.)

Shortly thereafter, Petitioner appealed the Circuit Court’s denial of his post-conviction
petition to the Illinois Appellate Court, First Judicial District. He claimed that the trial court

erred in summarily dismissing his pro se petition because it included a non-frivolous claim of



Under the Strickland prejudice prong, Petitioner must establish prejudice by a “reasonable
probability.” Jd. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Jd.

In the context of Section 2254(d), the bar for determining whether a state court’s
application of Strickland is “unreasonable” is a high one that requires a finding of clear error.
See Murrell v. Frank, 332 F.3d 1102, 1111-12 (7" Cir. 2003); see also Holman v. Gilmore, 126
F.3d 876, 882 (7" Cir. 1997) (because the Strickland inquiry is balancing test rather than
bright-line rule, only clear error in applying Strickland supports writ).

Petitioner contends that he received ineffective assistance of trial counsel because his
counsel failed to present evidence that the gas station lights would not have illuminated the area
where the arson occurred. Had such evidence been presented, Petitioner contends that the State’s
witnesses who testified that they saw him with a Molotov cocktail in his hand would have been
impeached. Petitioner supports his claim with various photographs showing the position of the
gas station lights and by the affidavit of Andre Gross, Jr., who stated: I used to live in the area at
103rd and Emerald... I have been around and in [the] house and the lights from the gas station
do no shine over into [its] backyard.”

The post-conviction appellate court first noted that many of the photographs were not part
of the record on appeal, and thus by law, the appellate court indulged every reasonable
presumption in favor of the judgment, including the presumption that the trial court ruled
correctly. See People v. Price, No. 00-2838, at 7. The appellate court discussed the post-
conviction trial court’s reasoning that Petitioner had failed to demonstrate that a reasonable

probability existed that the outcome of the trial would have been different had counsel

14


Woodford v. Visciotti, 537 U.S, 19, 24-25, 123 8.Ct. 357, 154 L.Ed.2d 279 (2003) (petitioner has
burden in establishing state court applied facts of case in an objectively unreasonable manner),
Lechner v. Frank, 341 F.3d 635, 638 (7" Cir. 2003) (habeas petitioner bears burden of showing
state court rejected constitutional challenges in manner that was “unreasonable application of” or
“contrary to” clearly established Supreme Court law).

In sum, because the Strickland inquiry is a balancing test rather than a bright-line rule and
the Court concludes that there was no clear error, Petitioner’s ineffective assistance of trial
counsel claim fails. See Holman, 126 F.3d at 882.

Lon Apprendi Claim

Last, Petitioner argues that his sentence of life imprisonment violates Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L Ed. 2d 435 (2000). In Apprendi, the Supreme Court
held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Jd. at 490, The Supreme Court decided Apprendi after Petitioner’s
sentence became final. Because Apprendi does not apply retroactively in a collateral proceeding,
Petitioner’s request for habeas relief based on Apprendi is denied. See Lambert v. McBride, 365
F.3d 557, 562 (7" Cir. 2004) citing Curtis v. United States, 294 F.3d 841, 844 (2002), cert.
denied, 537 U.S. 976, 123 S.Ct. 451, 154 L.Ed.2d. 334 (2002) (Apprendi “does not disturb

sentences that became final before June 26, 2000, the date of its release.”).

16



retaliation. The fire resulted from Molotov cocktails being thrown into the house from an alley
adjacent to a gas station parking lot. The victim’s cousin was a member of the Gangster
Disciples and was the intended victim. Petitioner was a member of a rival street gang. At
approximately 2:00 a.m., a group of men, including Petitioner, were in the alley behind the house
and threw at least two Molotov cocktails through the kitchen window yelling G.D.K., meaning
Gangster Disciple Killer.

B. Procedural Background

Following a jury trial in the Circuit Court of Cook County, the jury found Petitioner
guilty of first degree murder and aggravated arson. The jury also found Petitioner eligible for the
death penalty, but determined that the court should not sentence him to death. The Circuit Court
thus sentenced Petitioner to consecutive sentences of life imprisonment for first degree murder
and a 30-year prison term for aggravated arson.

Petitioner appealed his conviction to the First District Appellate Court of Illinois. On
appeal, Petitioner raised the following issues: 1) he was denied a fair trial because the prosecutor
told the jury that defense counsel did not believe Petitioner’s testimony; 2) the court erred in
sentencing Petitioner without ordering a pre-sentence report and because the parties did not agree
to the imposition of a particular sentence; and 3) the trial court abused its discretion when it
sentenced Petitioner to natural life imprisonment because the trial court’s sentence was unduly
severe. (R. 15-1, Ex. A.) On April 5, 1999, the Illinois Appellate Court, First Judicial District,
affirmed the Circuit Court. (/d. Ex. C.)

Next, Petitioner filed a petition for leave to appeal to the Illinois Supreme Court. In his

petition, he raised the same issues that he presented in his direct appeal to the appellate court.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES ex rel. DAMEN
PRICE (#K52308),

Petitioner,

03 C 6485

EUGENE McADORY, Warden,
Menard Correctional Center,

)
)
)
)
)
v. )
)
)
)
)
)

POCKETED

oct 19 2004

Respondent.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge:

Before this Court is petitioner Damen Price’s petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254(d)(1). For the reasons discussed below, Price’s petition is denied.
I. BACKGROUND

A. Trial Evidence

Petitioner does not challenge the statement of facts set forth in the Illinois Supreme Court
opinions affirming the judgments of the trial court, and thus those facts are presumed correct for
purposes of the Court’s review. See 28 U.S.C. § 2254(e)(1); Ward v. Hinsley, 377 F.3d 719, 721
(7" Cir. 2004). The Court, therefore, adopts the underlying facts set forth by the Appellate Court
of Illinois, First Judicial District, in Petitioner’s direct and post-conviction appeals. See People v.
Price, No. 1-97-3195 (1 Dist. April 5, 1999) (unpublished order); People v. Price, No. 00-2838
(1 Dist. July 11, 2002) (unpublished order).

The evidence presented a trial established that on October 9, 1994, a four year old victim

was killed in an arson fire at 743 W. 103rd Street in Chicago. The arson involved gang



Reed, 489 U.S. at 263; Gomez, 350 F.3d at 677.

The Court’s discussion, however, does not end here. Petitioner’s claim of actual
innocence or the “fundamental miscarriage of justice exception” may be the gateway for this
court to review his procedurally defaulted claim. See Herrera v. Collins, 506 U.S. 390, 404, 113
S.Ct. 853, 122 L.Ed. 203 (1993). In other words, Petitioner’s claim of actual innocence may
provide the mechanism to allow the Court to review his procedurally defaulted claim of actual
innocence under Illinois law.' Petitioner faces a very high burden in establishing his actual
innocence. “To establish the requisite probability, the petitioner must show that it is more likely
than not that no reasonable juror would have convicted him in the light of the new evidence.”
Schlup, 513 U.S. at 327.

Petitioner provides the new evidence of his co-defendant’s affidavit as proof of his actual
innocence. Thomas’ affidavit reads:

I was present on a 103th and Emerald October 9, 1994. Me, lil Ralph, and

some more guys went over there because some folks had shot at lil-Ralph earlier

that day. Day-Day [Petitioner] was not there when the shooting happened. He

came over after lil-Ralph came back. He got in the car with us because lil-Ralph

was supposed to drop him off somewhere. He did not know what we were going

to do. When we got out of the cars Day-Day stay back.

Reviewing Petitioner’s new evidence in light of the evidence presented at trial, see id. at
328, the Court concludes that Petitioner has not met the threshold requirement that “in light of

the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a

reasonable doubt.” See id. at 329 (standard requires district court to make probabilistic decision

' Although claims of actual innocence are not cognizable on federal habeas review, see
Herrera, 506 U.S. at 400, actual innocence is recognized as a freestanding claim in Illinois
pursuant to the Illinois Constitution. See People v. Washington, 171 M11.2d 475, 489, 216 Ill.Dec.
773, 665 N.E.2d 1330 (Ill. 1996).

12



photographed the crime area. In essence, the appellate court deferred to the trial court’s
conclusion that counsel’s failure to provide photographs of the surrounding area did not fulfill
the Strickland prejudice prong. See id. at 7-8.

Next, the post-conviction appellate court assumed the information as provided in the
affidavit as true, yet concluded that it was insufficient to support a claim of ineffective assistance
of counsel because the affidavit was provided five years after the date of the offense, and it did
not support that fact that the lights from the gas station did not illuminate the house’s backyard,
let alone on the night of the offense. Jd. at 8. Accordingly, the appellate court concluded that the
Petitioner failed to demonstrate that counsel’s decision not to present evidence regarding the
lighting on the night in question was anything other than sound trial strategy. See id.

This Court concludes that the Illinois appellate court’s decision is minimally consistent
with the facts and circumstances of this case, and thus a reasonable application of Strickland.

See Conner, 375 F.3d at 649. First, the appellate court concluded that the outcome of the trial
would not have been different had the photographs been submitted into evidence and Petitioner
provides no argument as to why he was prejudiced by counsel’s failure to provide the
photographs. Second, the appellate court concluded that Petitioner did not overcome the
presumption that counsel’s actions constituted sound trial strategy. See Strickland, 466 U.S. at
689. Petitioner makes no cogent argument as top why counsel’s conduct fell below an objective
standard of reasonableness. Instead, he contends that the photographs were readily available and
that counsel fell short of his responsibilities because the State presented witnesses who identified
him due to the illumination by the gas station lights. Without more, Petitioner has failed to

establish that the appellate court unreasonably applied Strickland to the facts of his case. See

15